BILL NUMBER: AB 1123 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Members Patterson and Nestande
FEBRUARY 22, 2013
An act to amend Section 186.22 of the Penal Code, relating to
street gangs.
LEGISLATIVE COUNSEL'S DIGEST
AB 1123, as amended, Patterson. Street gangs.
Existing law makes provides that any
person who actively participates in any criminal street gang with
knowledge that the members of the gang engage in or have engaged in a
pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by members of
that gang, is guilty of a crime punishable by imprisonment
in a county jail for a period not to exceed one year, or by
imprisonment in the state prison for 16 months, or 2 or 3 years.
This bill would make technical, nonsubstantive changes to
that provision revise and expand the scope of the
provision described above to apply to a person who actively
participates in a criminal street gang with knowledge that the
gang's members or active participants engage in or have engaged
in a pattern of criminal gang activity, and who (1) commits, alone or
in concert, a felony that is one of the gang's primary activities,
as described, (2) aids or abets any felony committed by a member of,
or active participant in, that gang, or (3) willfully promotes,
furthers, or assists in any felonious criminal conduct by a member
of, or an active participant in, that gang. By revising and expanding
the scope of a crime, the bill would impose a state-mandated local
program .
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 186.22 of the Penal Code, as amended by Section
2 of Chapter 361 of the Statutes of 2011, is amended to read:
186.22. (a) Any person who actively participates in any
a criminal street gang with knowledge that
the its members of the gang
or active participants engage in or have engaged
in a pattern of criminal gang activity, and who (1) commits,
alone or in concert, a felony that is one of the gang's primary
activities and is set forth in subdivision (e), (2) aids or abets any
felony committed by a member of, or an active participant in, that
gang, or (3) willfully promotes, furthers, or assists in any
felonious criminal conduct by members a
member of , or an active participant in, that gang,
shall be punished by imprisonment in a county jail for a period not
to exceed one year, or by imprisonment in the state prison for 16
months, or two or three years.
(b) (1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony
or attempted felony of which he or she has been convicted, be
punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term of two, three, or four years
at the court's discretion.
(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years.
(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years.
(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be a
circumstance in aggravation of the crime in imposing a term under
paragraph (1).
(3) The court shall order the imposition of the middle term of the
sentence enhancement, unless there are circumstances in aggravation
or mitigation. The court shall state the reasons for its choice of
sentencing enhancements on the record at the time of the sentencing.
(4) Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for
the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or
any period prescribed by Section 3046, if the felony is any of the
offenses enumerated in subparagraph (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a condition
thereof.
(d) Any person who is convicted of a public offense punishable as
a felony or a misdemeanor, which is committed for the benefit of, at
the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment in the
state prison for one, two, or three years, provided that any person
sentenced to imprisonment in the county jail shall be imprisoned for
a period not to exceed one year, but not less than 180 days, and
shall not be eligible for release upon completion of sentence,
parole, or any other basis, until he or she has served 180 days. If
the court grants probation or suspends the execution of sentence
imposed upon the defendant, it shall require as a condition thereof
that the defendant serve 180 days in a county jail.
(e) As used in this chapter, "pattern of criminal gang activity"
means the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:
(1) Assault with a deadly weapon or by means of force likely to
produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211)
of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of the
Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a
motor vehicle, as defined in subdivisions (a) and (b) of Section
12034 until January 1, 2012, and, on or after that date, subdivisions
(a) and (b) of Section 26100.
(7) Arson, as defined in Chapter 1 (commencing with Section 450)
of Title 13.
(8) The intimidation of witnesses and victims, as defined in
Section 136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision
(b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072 until January 1, 2012, and, on or after that date,
Article 1 (commencing with Section 27500) of Chapter 4 of Division 6
of Title 4 of Part 6.
(23) Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person in violation of paragraph (1) of
subdivision (a) of Section 12101 until January 1, 2012, and, on or
after that date, Section 29610.
(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.
(26) Felony theft of an access card or account information, as
defined in Section 484e.
(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.
(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.
(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.
(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.
(31) Prohibited possession of a firearm in violation of Section
12021 until January 1, 2012, and, on or after that date, Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(32) Carrying a concealed firearm in violation of Section 12025
until January 1, 2012, and, on or after that date, Section 25400.
(33) Carrying a loaded firearm in violation of Section 12031 until
January 1, 2012, and, on or after that date, Section 25850.
(f) As used in this chapter, "criminal street gang" means any
ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities
the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.
(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this section
or refuse to impose the minimum jail sentence for misdemeanors in an
unusual case where the interests of justice would best be served, if
the court specifies on the record and enters into the minutes the
circumstances indicating that the interests of justice would best be
served by that disposition.
(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.
(i) In order to secure a conviction or sustain a juvenile
petition, pursuant to subdivision (a) it is not necessary for the
prosecution to prove that the person devotes all, or a substantial
part, of his or her time or efforts to the criminal street gang, nor
is it necessary to prove that the person is a member of the criminal
street gang. Active participation in the criminal street gang is all
that is required.
(j) A pattern of gang activity may be shown by the commission of
one or more of the offenses enumerated in paragraphs (26) to (30),
inclusive, of subdivision (e), and the commission of one or more of
the offenses enumerated in paragraphs (1) to (25), inclusive, or (31)
to (33), inclusive, of subdivision (e). A pattern of gang activity
cannot be established solely by proof of commission of offenses
enumerated in paragraphs (26) to (30), inclusive, of subdivision (e),
alone.
(k) This section shall become operative on January 1, 2014.
SEC. 2. It is the intent of the
Legislature in enacting this act to address the California Supreme
Court's decision in People v. Rodriguez (2012) S187680 and to ensure
that a person who actively participates in a criminal street gang
with knowledge that its members or active participants engage in or
have engaged in a pattern of criminal gang activity, and who (1)
commits, alone or in concert, a felony that is one of the gang's
primary activities, as described in the amendments made by this act,
(2) aids or abets any felony committed by a member of, or an active
participant in, that gang, or (3) willfully promotes, furthers, or
assists in any felonious criminal conduct by a member of, or an
active participant in, that gang, may be prosecuted pursuant to
subdivision (a) of Section 186.22 of the Penal Code.
SEC. 3. No reimbursement is required by
this act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.