OFF THE WIRE
186.22 NOT TRUE
186.22. (a) Any person who actively participates in any criminal
street gang with knowledge that its members 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, 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 select the sentence enhancement which, in the
court's discretion, best serves the interests of justice and shall
state the reasons for its choice on the record at the time of the
sentencing in accordance with the provisions of subdivision (d) of
Section 1170.1.
(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 remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
186.22. (a) Any person who actively participates in any criminal
street gang with knowledge that its members 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, 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.
Looks like an addition to 186.22 (A)
186.22a. (a) Every building or place used by members of a criminal
street gang for the purpose of the commission of the offenses listed
in subdivision (e) of Section 186.22 or any offense involving
dangerous or deadly weapons, burglary, or rape, and every building or
place wherein or upon which that criminal conduct by gang members
takes place, is a nuisance which shall be enjoined, abated, and
prevented, and for which damages may be recovered, whether it is a
public or private nuisance.
(b) Any action for injunction or abatement filed pursuant to
subdivision (a), including an action filed by the Attorney General,
shall proceed according to the provisions of Article 3 (commencing
with Section 11570) of Chapter 10 of Division 10 of the Health and
Safety Code, except that all of the following shall apply:
(1) The court shall not assess a civil penalty against any person
unless that person knew or should have known of the unlawful acts.
(2) No order of eviction or closure may be entered.
(3) All injunctions issued shall be limited to those necessary to
protect the health and safety of the residents or the public or those
necessary to prevent further criminal activity.
(4) Suit may not be filed until 30-day notice of the unlawful use
or criminal conduct has been provided to the owner by mail, return
receipt requested, postage prepaid, to the last known address.
(c) Whenever an injunction is issued pursuant to subdivision (a),
or Section 3479 of the Civil Code, to abate gang activity
constituting a nuisance, the Attorney General or any district
attorney or any prosecuting city attorney may maintain an action for
money damages on behalf of the community or neighborhood injured by
that nuisance. Any money damages awarded shall be paid by or
collected from assets of the criminal street gang or its members.
Only members of the criminal street gang who created, maintained, or
contributed to the creation or maintenance of the nuisance shall be
personally liable for the payment of the damages awarded. In a civil
action for damages brought pursuant to this subdivision, the Attorney
General, district attorney, or city attorney may use, but is not
limited to the use of, the testimony of experts to establish damages
suffered by the community or neighborhood injured by the nuisance.
The damages recovered pursuant to this subdivision shall be deposited
into a separate segregated fund for payment to the governing body of
the city or county in whose political subdivision the community or
neighborhood is located, and that governing body shall use those
assets solely for the benefit of the community or neighborhood that
has been injured by the nuisance.
(d) No nonprofit or charitable organization which is conducting
its affairs with ordinary care or skill, and no governmental entity,
shall be abated pursuant to subdivisions (a) and (b).
(e) Nothing in this chapter shall preclude any aggrieved person
from seeking any other remedy provided by law.
(f) (1) Any firearm, ammunition which may be used with the
firearm, or any deadly or dangerous weapon which is owned or
possessed by a member of a criminal street gang for the purpose of
the commission of any of the offenses listed in subdivision (e) of
Section 186.22, or the commission of any burglary or rape, may be
confiscated by any law enforcement agency or peace officer.
(2) In those cases where a law enforcement agency believes that
the return of the firearm, ammunition, or deadly weapon confiscated
pursuant to this subdivision, is or will be used in criminal street
gang activity or that the return of the item would be likely to
result in endangering the safety of others, the law enforcement
agency shall initiate a petition in the superior court to determine
if the item confiscated should be returned or declared a nuisance.
(3) No firearm, ammunition, or deadly weapon shall be sold or
destroyed unless reasonable notice is given to its lawful owner if
his or her identity and address can be reasonably ascertained. The
law enforcement agency shall inform the lawful owner, at that person'
s last known address by registered mail, that he or she has 30 days
from the date of receipt of the notice to respond to the court clerk
to confirm his or her desire for a hearing and that the failure to
respond shall result in a default order forfeiting the confiscated
firearm, ammunition, or deadly weapon as a nuisance.
(4) If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request. The court
clerk shall notify the person, the law enforcement agency involved,
and the district attorney of the date, time, and place of the
hearing.
(5) At the hearing, the burden of proof is upon the law
enforcement agency or peace officer to show by a preponderance of the
evidence that the seized item is or will be used in criminal street
gang activity or that return of the item would be likely to result in
endangering the safety of others. All returns of firearms shall be
subject to Chapter 2 (commencing with Section 33850) of Division 11
of Title 4 of Part 6.
(6) If the person does not request a hearing within 30 days of the
notice or the lawful owner cannot be ascertained, the law
enforcement agency may file a petition that the confiscated firearm,
ammunition, or deadly weapon be declared a nuisance. If the items are
declared to be a nuisance, the law enforcement agency shall dispose
of the items as provided in Sections 18000 and 18005.
