Bill Text: CA AB179 | 2011-2012 | Regular Session | Amended
Bill Title: Contempt: criminal street gangs.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2012-02-01 - Died pursuant to Art. IV, Sec. 10(c) of the Constitution. From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB179 Detail]
Download: California-2011-AB179-Amended.html
BILL NUMBER: AB 179 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 27, 2011
INTRODUCED BY Assembly Members Gorell and Williams
JANUARY 24, 2011
An act to add Chapter 5 (commencing with Section 653.77)
to Title 15 of Part 1 of the Penal Code, relating to electronic
monitoring. amend Section 166 of the Penal Code,
relating to contempt.
LEGISLATIVE COUNSEL'S DIGEST
AB 179, as amended, Gorell. Electronic monitoring:
removing or disabling:offense. Contempt: criminal
street gangs.
Existing law provides that disobedience of the terms of an
injunction that restrains the activities of a criminal street gang or
any of its members constitutes contempt of court, and is punishable
as a misdemeanor. The punishment for a misdemeanor is imprisonment in
a county jail not exceeding 6 months, or a fine not exceeding
$1,000, or both.
This bill would specify the penalties for a violation of the above
provision to include imprisonment in a county jail for not more than
6 months, or by a fine not exceeding $1,000, or by both that fine
and imprisonment. For a 2nd violation occurring within 7 years of the
first violation, the bill would provide for imprisonment in a county
jail for not more than 9 months, or by a fine not exceeding $2,500,
or by both that fine and imprisonment. For a 3rd and subsequent
violation occurring within 7 years of a prior violation, the bill
would provide for imprisonment in a county jail for not more than one
year, or by a fine not exceeding $5,000, or by both that fine and
imprisonment.
Because this bill would increase the penalties for an existing
crime, it 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.
Existing law provides various programs of in-home detention and
monitoring that include wearing global positioning system (GPS)
devices, as specified. Existing law permits, and with respect to
certain sex offenders requires, the use of electronic monitoring by
county probation departments and the Department of Corrections and
Rehabilitation to electronically monitor the whereabouts of persons
on probation and parole respectively.
This bill would provide that unauthorized removal, as specified,
of an electronic, GPS, or other monitoring device affixed for
purposes of a criminal sentence, juvenile court disposition, parole,
or probation is an offense punishable by imprisonment in a county
jail for one year, or a $1,000 fine, or both, if the underlying
offense was a misdemeanor, or by imprisonment in the state prison for
16 months, 2 year, or 3 years if the underlying offense is a felony.
By creating a new crime, this 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: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 166 of the Penal
Code is amended to read:
166. (a) Except as provided in paragraph (9), and
subdivisions (b), (c), and (d), every person guilty of any contempt
of court, of any of the following kinds, is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any court of justice, in the immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior as specified in paragraph (1) committed in the
presence of any referee, while actually engaged in any trial or
hearing, pursuant to the order of any court, or in the presence of
any jury while actually sitting for the trial of a cause, or upon any
inquest or other proceedings authorized by law.
(3) Any breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of any court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by any
court, including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of any court.
(6) The contumacious and unlawful refusal of any person to be
sworn as a witness or, when so sworn, the like refusal to answer any
material question.
(7) The publication of a false or grossly inaccurate report of the
proceedings of any court.
(8) Presenting to any court having power to pass sentence upon any
prisoner under conviction, or to any member of the court, any
affidavit or testimony or representation of any kind, verbal or
written, in aggravation or mitigation of the punishment to be imposed
upon the prisoner, except as provided in this code.
(9) Willful disobedience of the terms of any injunction that
restrains the activities of a criminal street gang or any of its
members, lawfully issued by any court, including an order pending
trial.
(A) A violation of this paragraph is punishable by imprisonment in
a county jail for not more than six months, or by a fine not
exceeding one thousand dollars ($1,000), or by both that imprisonment
and fine.
(B) A second violation of this paragraph occurring within seven
years of a prior violation is punishable by imprisonment in a county
jail for not more than nine months, or by a fine not exceeding two
thousand five hundred dollars ($2,500), or by both that imprisonment
and fine.
(C) A third or subsequent violation of this paragraph occurring
within seven years of a prior violation is punishable by imprisonment
in a county jail for not more than one year, or by a fine not
exceeding five thousand dollars ($5,000), or by both that
imprisonment and fine.
(D) The penalties in this paragraph shall apply unless a greater
penalty is authorized by other provisions of law.
(b) (1) Any person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
telephone or mail, or directly, and who has been previously convicted
of a violation of Section 646.9 shall be punished by imprisonment in
a county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), any
willful and knowing violation of any protective order or stay-away
court order issued pursuant to Section 136.2, in a pending criminal
proceeding involving domestic violence, as defined in Section 13700,
or issued as a condition of probation after a conviction in a
criminal proceeding involving domestic violence, as defined in
Section 13700, or elder or dependent adult abuse, as defined in
Section 368, or that is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of any order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivisions (c) and (d) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison for 16 months or two or three years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, shall be punished under the provisions
of subdivision (g) of Section 12021 Section
29825 .
(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097 of the Penal Code.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), the court shall make a determination
of the defendant's ability to pay. In no event shall any order to
make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support.
(4) If the injury to a married person is caused in whole or in
part by the criminal acts of his or her spouse in violation of
subdivision (c), the community property may not be used to discharge
the liability of the offending spouse for restitution to the injured
spouse required by Section 1203.04, as operative on or before August
2, 1995, or Section 1202.4, or to a shelter for costs with regard to
the injured spouse and dependents required by this subdivision, until
all separate property of the offending spouse is exhausted.
(5) Any person violating any order described in subdivision (c)
may be punished for any substantive offenses described under Section
136.1 or 646.9. No finding of contempt shall be a bar to prosecution
for a violation of Section 136.1 or 646.9. However, any person held
in contempt for a violation of subdivision (c) shall be entitled to
credit for any punishment imposed as a result of that violation
against any sentence imposed upon conviction of an offense described
in Section 136.1 or 646.9. Any conviction or acquittal for any
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 2. 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.
SECTION 1. Chapter 5 (commencing with Section
653.77) is added to Title 15 of Part 1 of the Penal Code, to read:
CHAPTER 5. DISABLING ELECTRONIC MONITORING DEVICES
653.77. (a) Any person who willfully removes or disables an
electronic, global positioning system (GPS), or other monitoring
device affixed to his or her person, or the person of another,
knowing that the device was affixed as a condition of a criminal
sentence, juvenile court disposition, parole, or probation, is guilty
of a public offense.
(b) (1) Any person subject to an electronic, GPS, or other
monitoring device based on a misdemeanor conviction or a juvenile
adjudication for a misdemeanor offense, who willfully violates
subdivision (a) is guilty of a misdemeanor, punishable by
imprisonment in a county jail for up to one year, by a fine of up to
one thousand dollars ($1,000), or both that fine and imprisonment.
(2) Except as provided in subdivision (e), any person who
willfully removes or disables an electronic, GPS, or other monitoring
device affixed to another person where that device was affixed to
the other person based upon a misdemeanor conviction, or based upon a
juvenile adjudication for a misdemeanor offense, is guilty of a
misdemeanor, punishable by imprisonment in a county jail for up to
one year, by a fine of up to one thousand dollars ($1,000), or both
that fine and imprisonment.
(c) (1) Any person subject to an electronic, GPS, or other
monitoring device based on a felony conviction, juvenile adjudication
for a felony offense, or terms of parole for a felony offense, who
willfully violates subdivision (a) is guilty of a felony, punishable
by imprisonment in the state prison for 16 months, two year, or three
years.
(2) Except as provided in subdivision (e), any person who
willfully removes or disables an electronic, GPS, or other monitoring
device affixed to another person where that device was affixed to
the other person based on a felony conviction or a juvenile
conviction for a felony offense is guilty of a felony, punishable by
imprisonment in the state prison for 16 months or three years.
(d) Nothing in this section shall be construed to prevent
punishment pursuant to any other provision of law that imposes a
greater or more severe punishment, including, but not limited to,
Section 594.
(e) This section shall not apply to the removal or disabling of an
electronic, GPS, or other monitoring device by a physician,
emergency medical services technician, or by any other emergency
response or medical personnel when doing so is necessary during the
course of medical treatment of the person subject to the electronic,
GPS, or other monitoring device. This section shall also not apply
where the removal or disabling of the electronic, GPS, or other
monitoring device is authorized, or required, by a court of law, or
by the law enforcement, probation, parole authority, or other entity
responsible for placing the electronic, GPS, or other monitoring
device upon the person, or that has, at the time, the authority and
responsibility to monitor the electronic, GPS, or other monitoring
device.
SEC. 2. 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.
