CC - Item 3B - Ordinance prohibiting loitering by criminal street gangsWALLIN, KRESS, REISMAN & KRANITZ
LAW OFFICES
2800 TWENTY-EIGHTH STREET, SUITE 315
SANTA MONICA, CALIFORNIA 90405-6205
TELEPHONE (310) 450-9582
FACSIMILE (310) 450-0506
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: ROBERT L. KRESS, CITY ATTORNEY/~f^
RE: ORDINANCE PROHIBITING LOITERING BY CRIMINAL STREET GANGS
DATE: MARCH 23, 2004
Supervisor Mike Antonovich has requested that the City adopt an ordinance prohibiting
loitering by criminal street gangs. The County of Los Angeles adopted this ordinance in 1999.
I have prepared the attached ordinance which would adopt the provisions requested by
Supervisor Antonovich.
A copy of Penal Code 186.22 (f) is also attached. This contains the definition of "criminal
street gang".
RECOMMENDATION:
That the City Council waive reading and introduce Ordinance No. 831, AN ORDINANCE
OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD PROHIBITING LOITERING BY
CRIMINAL STREET GANGS; and
That, upon adoption by the Rosemead City Council, staff be instructed to communicate
the adoption to Supervisor Mike Antonovich.
L CUUNC~~. E~fD;~
MAR 2 3 2004
ORDINANCE NO. 831
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ROSEMEAD PROHIBITING LOITERING
BY CRIMINAL STREET GANGS
THE CITY COUNCIL OF THE CITY OF ROSEMEAD DOES ORDAIN AS
FOLLOWS:
SECTION 1. New Chapter 9.28 is hereby added to the Rosemead Municipal Code to
read as follows:
CHAPTER 9.28 LOITERING BY CRIMINAL STREET GANGS
9.28.010 Prohibited Acts.
A. It is unlawful for any person who is a member of a "criminal street gang" as that term
is defined in California Penal Code section 186.22(f) or who is in the company of or acting in
concern with a member of a "criminal street gang" to loiter or idle in a "public place" as defined in
Section 9.28.010 B, under any of the following circumstances:
(1) With the intent to publicize a criminal street gang's dominance over
certain territory in order to intimidate non-members of the gang from entering,
remaining in, or using the public place or adjacent area;
(2) With the intent to conceal ongoing commerce in illegal drugs or other
unlawful activity.
B. For purposes of this chapter, a "public place" means the public way and any other
location open to the public, wether publicly or privately owned, including, but not limited to any
street, sidewalk, avenue, highway, road, curb area, alley, park, playground or other public ground
or public building, any common area of a school, hospital, apartment house, office building,
transport facility, shop, privately owned place of business, to which the public is invited, including
any place of amusement, entertainment, or eating place. Any "public place" also includes the
front yard area, driveway and walkway of any private residence, business, or apartment house.
9.28.020 Powers of Law Enforcement Officers Not Limited. Nothing in this chapter
shall be construed in any way to limit the power or right of a law enforcement officer to make any
investigation, detention or arrest as such law enforcement officer would be permitted to make in
the absence of this chapter.
A
9.28.030 Parental Control. Any parent(s), legal guardian(s), or other adult person(s)
authorized by said parent(s) or guardian(s) to have the care and custody of a minor, who
knowingly permits or by insufficient control, allows a minor to violate the provisions ',of this
chapter is guilty of a misdemeanor.
9.28.040 Penalty. Violation of this chapter shall be punishable by a fine not to exceed
$500 or by imprisonment not to exceed six months, or both.
9.28.050 Severability. If any provision or clause of this chapter or the application thereof
to any person or circumstances is held invalid, such invalidity shall not affect any other provision
or application of this chapter which can be given effect without the invalid provision or
application, and to this end of provisions of this chapter are declared to be severable. j
SECTION 2. The City Clerk shall certify to the adoption of this Ordinance and cause the
same to processed in accordance with state law.
PASSED, APPROVED and ADOPTED this 13th day of April, 2004. . t
Mayor
CAL PEN CODE @ 186.22 printed in FULL format.
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2004 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
PAGE
THIS DOCUMENT IS CURRENT THROUGH THE 2004 SUPPLEMENT
INCLUDING URGENCY LEGISLATION THROUGH 2004 REG. SESS. CH.14, 2/11/04
2003-04 3RD EXTRA. SESS., CH.1 AND 5TH EXTRA. SESS., CH.2
PENAL CODE
PART 1. Crimes and Punishments
TITLE 7. Crimes Against Public Justice
CHAPTER 11. Street Terrorism Enforcement and Prevention Act
Cal Pen code @ 186.22 (2004)
@ 186.22. Street gang
(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 ail for a period not to exceed one year, or by _imprisonment in the.state
prison ;or 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 whicp 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 4numerated in subparagraphs
(a) or (C) of this paragraph.
(s) 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 felonyy, 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.benefi.t 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 _666 fo 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.
(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 definedin Section-459.
(12) Rape, asAefined.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
1LV/L.
(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.
(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.
(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, 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 1. 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 Youth Authority 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 Department of Youth
Authority, pursuant to section 912.5 of-the.welfare and institutions code.
(i) In order to secure a conviction,-.or sustain a juvenile peti.tion,_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.
HISTORY:
Added Stats 1989 ch 930 @ 5.1, operative January 1, 1993. Amended:.Stats 1991
ch 201 @ 1, ch 661 @ 2, operative January 1, 1993; Stats 1993 ch 601 @ 1 (sB
724), ch 610 @ 3 (AB 6), effective September 30, 1993, ch 611 @ 3 (SB 60),
effective September 30, 1993, ch 1125 @ 3 (AB 1630), effective October 10, 1993;
Stats 1994 ch 47 @ 1 (SB 480), effective April 19, 1994, operative until January,
1, 1997, ch 451 @ 1 (AB 2470), operative until January 1, 1997; stats 1995 ch
377 @ 2 (SB 1095), operative until-January-1,;1997; stats 1996 ch-630 &I (SB
1701) operative until January 1, 1998, ch 87i'@ 1 (SB-318), ch 9824-1 (AB
2035); stats 1997 ch 500 @ 2,,.(SB 940).; Amendment adopted by voters, Prop 21 @ 4,
effective march 8, 2000. Amended stats 2001 ch 854 @ 22 (S8 205).
NOTES:
FORMER SECTIONS: -
Former @ 186.22, similar to present section, was added Stats 1988 ch 1242 @
1, effective September 23 1988, ch 1256 @ 1, effective September 23, 1988,.stats
1989 ch 144 @ 1, ch 930 @ 5,:.stats 1991 ch 661, and repealed, operative January
1, 1993, by its own terms.
AMtNUMtNIS:
1991 Amendment:
Added tatst 1991 second 661, compared to thebsectionnas(it readspriorato 1991. (As
amended s