McGeorge School of Law

Proposition 21

 
Proposition 21:
Juvenile Crime

By

Diane Matthews
JD, McGeorge School of Law, University of the Pacific
to be conferred 2000
Registered, Certified Emergency and Public Health Nurse
B.S.N.., St. Mary's College of California and Samuel Merritt School of Nursing, 1996

and

Kerri Ruzicka
JD, McGeorge School of Law, University of the Pacific
to be conferred 2002
Credentialed Educator
B.A., Loma Linda University, 1990
M.A., La Sierra University, 1994

Copyright © 2000 by University of the McGeorge School of Law

 

 

Table of Contents

Executive Summary

Historical Overview

Description

Conclusion

Appendix A

 

Executive Summary

During the 1997-1998 legislative session, crime, especially juvenile crime, was a priority. Many bills contained provisions that now are contained in Proposition 21. Proposition 21 itself was also introduced as bills in both the Senate and the Assembly. However, the two bills were never debated publicly in the Public Safety Committee nor were they released by the Committee to be debated publicly among legislators on the floor.

Proposition 21 aims to amend both the Penal Code and the Welfare and Institutions Code specifically related to the procedures used in the treatment of juveniles and adults who commit gang-related felonies. The Proposition increases penalties for adult offenders who commit serious and violent crimes. If enacted, it will seriously affect the way juvenile courts look at juveniles who commit violent crimes and gang-related activities, such as vandalism.

Proposition 21 will require all juveniles age 14 and older to be tried in adult court if accused of murder or specified sex crimes. It makes acts to further a gang’s purpose a crime, and increases penalties for those adults who are convicted of serious or violent felonies. The Proposition adds wiretapping of suspected gang activity to instances where California would allow an order to be issued based on probable cause.

A new registration system would be implemented by cities to track those convicted of "gang related activity." However, Proposition 21 does not provide a definition for "active criminal street gang participation." Furthermore, it reduces confidentiality provisions for juveniles, allowing more access by victim’s families; requires gang members to register with local law enforcement agencies; and finally changes the procedures and types of probation for juveniles.

Proposition 21 proposes changes to felonies in general as well as felonies specifically related to gang activity. It adds more definitions of violent felony acts, resulting in harsher penalties for the same felonies that previously were not defined as violent. It increases the sentences for these specified violent felonies as well as increasing the number and type of felonies for which plea-bargaining is prohibited. Proposition 21 also increases penalties for graffiti and vandalism as well as creating a new crime of conspiracy for any felony committed through active participation in a criminal street gang.

The gang and juvenile crime provisions in current law have, from their inception, come under scrutiny for both ‘as written’ and ‘as applied’ constitutionality under both the United States and California Constitutions. If any portion of Proposition 21 is invalidated by a judicial review, the law contains a severability clause which would enable the constitutional parts of Proposition 21 to continue in effect. (Juvenile Crime, Initiative Statute, California Voter Pamphlet, p. 131 (2000).)

Although there are ways to oppose and change the law after it is in place, like individual court challenges or later initiatives, the drafters of Proposition 21 have included a "super-majority" legislative requirement to amend this Initiative. The "super-majority" legislative requirement means that if the Legislature finds Proposition 21 to be ineffective or too harsh, or wants to take a different approach, two-thirds of each house must vote to change it.

Historical Overview

A. THE REHABILITATION MODEL

A petty larceny charge did not seem like something that would make history; but when an 11-year-old’s mother brought him before a Chicago judge on July 3, 1899, it began a revolution in American justice. (Paul Van Slambrouck, A Century of Lessons, The Christian Science Monitor, June 29, 1999 (on file with the California Initiative Review).) Before the separate juvenile court concept came about, criminal court proceedings were a unified system. (Mabel Arteaga, Juvenile Justice with a Future for Juveniles, 2 Cardozo Women’s L. J. 215 (1995).) For the last century the goal of the juvenile system has been to rehabilitate and not to punish juvenile offenders.

Accordingly, separate juvenile court systems were developed. The theory under which juvenile courts proceed is that they act in "perens patriae," as a substitute parent. The state acts as guardian over a child (minor or ward) whose parents have presumably failed in their duties. (Id.) There are no indictments or charges and accusations are called "petitions." The court will either sustain or deny the charges based on whether it believes the facts in the petition are true. Juveniles, like adults, can be charged with a felony, a misdemeanor, or an infraction, yet one particular unique aspect of the juvenile law system is the existence of "status" offenses. A status offense occurs when the particular bad act in question would not be criminal if the person were an adult but, because they are a minor it is against the law. Thus, minors who commit truancy, break curfew, or are runaways can be charged with one of these status offenses.

Many of the constitutional protections, criminal procedures, and evidence rules meant to assure fairness in criminal prosecution are not used in the juvenile system. (State v. Gleason, (Me.) (1979) 404 A.2d 573 [stating that the juvenile system’s rehabilitative nature is the reason a minor is not afforded the full rights she may have as an adult.].) The juvenile court’s rehabilitative model has been criticized for this very lack of procedural protection afforded the accused. Over time, various court opinions have found certain rights to be fundamental, even to minors. Now, some of the guarantees adults facing criminal charges have are also reserved for juveniles. Concerned that juveniles were getting "the worst of both worlds," the Supreme Court held that certain rights and procedures were appropriate for juvenile court. (Kent v. United States, (1966) 383 U.S. 541.) Due process, equal protection and the right to assistance of counsel have all been granted through various court decisions. (See generally, A Call for Justice, An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, The American Bar Association Juvenile Justice Center (1995) (on file with the California Initiative Review).) In an apparent attempt to be consistent with the theory that juvenile law is rehabilitative and not criminal, the Supreme Court has not extended any further constitutional protections to minors accused of a crime. As a result, minors still do not have the constitutional right to a jury trial.

B. CALIFORNIA’S RESPONSE TO JUVENILE AND GANG RELATED CRIME

If Proposition 21 is approved by voters, the approach to juvenile justice in California will change. In the early 1990’s, the public took a tough stance against crime; one high-profile result was the passage of the "Three Strikes" law. Proposition 21’s drafters were concerned that "overall crime [was] declining but juvenile and gang crime [would] not decline ‘without active intervention’ because the juvenile population [was] growing and violent juvenile crime is burgeoning and more brutal." (Voter Pamphlet, at 119.) Therefore, Proposition 21 is a "dramatic" change of approach from the juvenile system’s rehabilitative stance for "violent and repeat juvenile offenders." (Voter Pamphlet, at 119.)

In California, as in most states, the law presumes that children under the age of 14 are not capable of committing "crime" unless there is clear proof that they "knew of its wrongfulness" at the time of committing the act with which (s)he is charged. (Cal. Penal Code § 26 (West 1981).) Consistent with the guidance focus of the rehabilitative model, there are many people and disciplines involved in creating what outcome a juvenile’s interaction with the system will be. At the street level, police have discretion when faced with a juvenile accused of a delinquent act. An officer may counsel or reprimand a child on the spot or cite the juvenile with the equivalent of a ticket. Counselors, probation officers, judges, teachers and parents are all potentially part of the juvenile system under the current rehabilitative model. Some counties have alternative responses such as neighborhood review boards or programs that merge mental health services with probation services.

The State of California’s Little Hoover Commission did a seven month examination of juvenile crime, its roots and its regulation, convening more than 70 experts from a cross section of the system’s professionals. (Wilson, Lockyer, Brown Jr., Maddy and Brulte, The Juvenile Crime Challenge: Making Prevention a Priority, State of California Little Hoover Commission Report # 127 (Oct. 4, 1994) (on file with the California Initiative Review.) The Commission found that the causes of crime have many roots. It noted that "reinvigorating the elements of society so that they may provide children with solid values and good decision making skills requires multiple strategies." (Id.) "[T]he universal agreement that prevention is vital and has been systematically undercut by a gradual but accelerating shift in spending patterns over the last two decades . . .[away from prevention] and mushrooming of ‘back-end’ incarceration expenses." (Id.) Acknowledging that fiscal constraint makes it difficult to put prevention first, the report referred to this shift in priorities as, "crucial to halting the increasing amounts of violent juvenile crime." (Id.)

The Commission made 18 specific recommendations. "Chief" among them:

(1) Consolidate all juvenile anti-crime efforts into a single high-level state agency to provide strong leadership and accountability; (2) Directing all state agencies to make prevention programs a top priority; (3) Providing a continuum of options so that a range of consequences addresses misconduct by juveniles at all levels of severity; (4) Revising age, confidentiality and record-sealing laws to increase flexibility in the juvenile justice system so that appropriate decisions can be made and to acknowledge the public’s right to information; (5) Increasing the ability of the California Youth Authority to provide needed treatment, training and education for juveniles appropriately committed to state facilities.

(Id. at 2.) Of the above suggestions, Proposition 21 addresses only the records confidentiality issue.

There was, and is, difficulty in accurately assessing the problem because arrest statistics are used to cite trends in juvenile crime and gang activity, as acknowledged by The Little Hoover Commission. Crime rates are defined as the number of occurrences of an event within a given population. For example, the overall juvenile arrest rate for California in 1993 was 6,772.8, which means that there were about 6,773 juvenile arrests for every 100,000 youth under the age of 18. The state Department of Justice stopped collecting statewide disposition data for juveniles in 1990 for budgetary reasons. Therefore, starting in 1990 for about five years, it is not known exactly how many juvenile arrests were treated as juveniles or prosecuted as adults, how many were convicted, how many were placed on probation or incarcerated at the local level. The drafters of Proposition 21 have generally relied on pre-1993 statistics. (Voter Pamphlet, at 119.)

The Little Hoover Commission Report noted that the arrest numbers will "rise as law enforcement ranks increase and decline, when minor crime arrests are perceived as a low priority or a futile effort and fluctuate with population changes." (Little Hoover Commission Report, at 8.) In other words, many intangibles affect the reliability of statistical trends.

Since 1993, the rate of juvenile felony arrests decreased 25.0 % while juvenile misdemeanor arrests increased 0.4 % and status offenses increased 49.8 % (truancy, incorrigibility, running away, and curfew violations). (Id.) From 1993 to 1998, the overall homicide arrest rate decreased 37.8 % whereas the juvenile arrest rate for homicide has decreased 54.7%. (Id.)

Additionally, there are some national crime trends that Proposition 21 does not address. Juvenile arrests for serious and violent crimes dropped almost 11% from 1997-1998, but "[t]here are some troubling exceptions to the trend . . . perhaps most notably, the number of juvenile arrests for driving under the influence rose nearly 13% to 12,782." (Eric Lichtblau, Juvenile Arrests in U.S. Decline, Belying Fears, L.A. Times, October 18, 1999.) Typically, it has been adults who have been arrested for white-collar crimes, however arrests for embezzlement, fraud and forgery have increased among children under the age of 15. Riverside County District Attorney Grover Trask, who headed a statewide task force on juvenile crime, said the figures suggest that high-profile episodes like the Columbine shootings "have been taken out of perspective," by the media. (Id.)

Due to the passage of time, interim efforts, and many unknown factors, the predictions upon which Proposition 21 is based, have not come about. Current California Attorney General Bill Lockyer stated several factors that have recently contributed to the decrease in crime rates. He said crime rates have fallen steadily for most of this decade and these preliminary figures indicate that trend will continue through 1999. California's tough sentencing laws enacted in this decade have removed a large number of repeat criminal offenders from the streets. (California Crime Down 15 Percent in First Half of 1999, Attorney General Press Release # 99-084 (November 17, 1999) (on file with the California Initiative Review).) "An array of innovative crime prevention techniques including successful community oriented policing programs have lead to increased involvement by citizens and law enforcement in their communities. Improvements in technology essential to crime fighting and analysis of evidence have helped to prevent crimes and ensure that those responsible are caught and convicted. Further, the booming economy and record low unemployment have also contributed to the reduction in crime." (Id.)

The public sentiment toward increased incarceration may have shifted since efforts began to put Proposition 21 on the ballot. In a national survey of prison wardens, 85% said that elected officials are not offering effective solutions to America's crime problem and 92% believe that greater use should be made of alternatives to incarceration. (Paul Simon, News Survey, Wardens Call for Smarter Sentencing, Alternatives to Incarceration, and Prevention Programs, Washington, D.C.: Office of Senator Paul Simon, U.S. Senate (December 21, 1994) (on file with the California Initiative Review).) One year later, a different survey of California voters showed that prison construction is a relatively low priority, particularly when weighed against the goal of building new schools, by 69% to 15%. (Frederick/Schneiers, Inc. for California Correctional Peace Officers Association, Survey on Prisons and State Spending Among California Voters, December, 1995, at 1 (on file with the California Initiative Review).)

U.S. Senate Bill 254 motivates states to adopt measures similar to federal laws by offering $1.5 billion in block grants over three years. (The Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999, SB 254 (1999) (on file with the California Initiative Review).) To qualify for this money a state would have to do four things: (1) try 15-year-olds as adults for serious violent crimes; (2) impose a sanction for the very first delinquent act by a young person, and escalating sanctions for subsequent offenses; (3) preserve all felony conviction records after a juvenile’s second offense, and make them public; and (4) let juvenile court judges issue orders against parents or guardians for failing to supervise a youth after conviction. (Id.) Current law meets, and Proposition 21 appears to exceed, the requirements needed for funding under the federal scheme.

Portions of Proposition 21 have already been enacted by the Legislature. Therefore, approving Proposition 21 will have no effect on those portions because that language has already become California law. (Comparison Chart: Provisions of SB 334 and The Wilson Juvenile and Gang Crime March 2000 Initiative, Senate Committee on Public Safety, October 1999 (on file with the California Initiative Review).) If passed, the laws enacted by Proposition 21 can only be repealed by another initiative passed by the voters, or a two-thirds approval by the Legislature, often referred to as a ‘super-majority.’ The following chapters and sub-chapters address the changes Proposition 21 will make to current law if approved by the voters.

Description

A. DEFINITIONS AND GENERAL CHANGES.

"Participation in a criminal street gang" is a distinct offense, carefully defined to guard against unconstitutional infringement of the rights of free association and free speech. (Schenck v. United States, (1919) 249 U.S. 47.) "Gang" is not historically a legal term of statutory definition, so it does not have a fixed legal meaning. California defines a criminal street gang as "any ongoing organization, association, or group of three or more persons having its primary activities the commission of one or more of the criminal acts," incorporated from subpart (e) of the defining statue. (Cal. Penal Code § 186.22 (f) (West 2000).) Further, Proposition 21 adds subpart (i) to section 186.22 defining the meaning of "active" gang participation in the negative by stating "it is not necessary to prove that the person devotes all or a substantial part of his or her time or effort to the criminal street gang." (Voter Pamphlet, p. 120.)

One purpose of Proposition 21 is application of the maximum penalty and longest imprisonment available based on the status of the crime. (Voter Pamphlet, at 131.) Under section 654 of the California Penal Code, any conflicting law that could provide a shorter sentence will be superseded, and if any law could give a longer sentence than those in this Initiative, that is what shall apply. (Id.)

Additionally, Proposition 21’s drafters intend to express their legislative approval of one identified court case, and disapproval of another, each concerning gang related crime issues interpreting Penal Code section 186.22. They intend to approve Lincoln, where the court first determined that the juvenile defendant was a ward of the court under Welfare & Institutions Code section 602 and then found the petition that accused him of assault by means likely to cause great bodily harm true. (In re Lincoln, (2nd Dist. 1990) 223 Cal. App. 3d 322.) On review of the case regarding sufficiency of the evidence under which the petition against the minor was found to be true, the Appellate Court found that the juvenile court correctly assumed that the elements of Penal Code section 186.22(a) are: (1) existence of a criminal street gang; (2) defendant minor’s active participation in that gang; (3) defendant minor’s knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and (4) defendant minor’s willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. (Id.)

Proposition 21’s drafters intend to underscore that a person does not need to be an actual member of the gang to be held accountable for active participation in that gang. (Id. at 330 n.4.) Accordingly, Proposition 21 addresses the meaning of "active participation" by expressing legislative disapproval of the California Appellate Court’s reasoning in Green by adding subpart (i) to Penal Code section 186.22. (Voter Pamphlet, at 119.) "Active participation is all that is required" in order to secure a conviction under Penal Code section 186.22.

In Green, the California Court of Appeals assumed that the definition of "active participation" and "membership" were virtually the same in its analysis of the constitutionality of Penal Code section 186.22. (Green, 227 Cal. App. 3d at 692.) However, Proposition 21’s text states disapproval of "the reasoning" contained in Green, without indicating which reasoning it was specifically referring to. (Voter Pamphlet, p. 131.) The court ultimately upheld the constitutionality of the criminal street gang definitions. Therefore, for consistency, one must assume that the reasoning the drafters disapprove of was the court’s analogous use of "membership" and "active participation." (Green, 223 Cal. App. 3d at 693.) That ambiguity in drafting could later open the statute created by Proposition 21 to new challenges of vagueness on the meaning of active participation.

Proposition 21 will add two more crimes and alter other language in the list of targeted crimes but will not change the fundamental definition of a criminal street gang. The current definition of a criminal street gang is a group "having a common name or identifying symbol and members who collectively or individually engage in or have engaged in a pattern of criminal activity." (Voter Pamphlet, p. 119.) Proposition 21 will expand the definition of "pattern of criminal gang activity," which covers actual crimes the individual committed, to include "conspiracy to commit" the crimes enumerated in Penal Code section 186.22. (Id.)

B. PROPOSED CHANGES TO CALIFORNIA’S APPROACH TO JUVENILES

1. Current Law

It is the law that if a person is a minor under 18, he is subject to treatment in the juvenile court unless, for some reason, the juvenile court is not the appropriate place for him. (Cal. Welf. & Inst. Code § 602 (West 1999).) In that situation, the juvenile must be treated in the appropriate place, depending on the act of which the minor is accused. That alternative is the adult criminal courts. The goals in the adult court are the goals of the criminal law system and the Department of Corrections. California already presumes that those 14 and older who commit murder and violent or gang related acts are not fit for juvenile court. (Cal. Welf. & Inst. Code § 707 (West 2000).)

The process of sending a juvenile to adult court is called a transfer. Forty-nine states have transfer systems but there are generally three different types of systems under which the determination is made to charge a juvenile in adult court in the United States: judicial waiver, statutory exclusion, or direct filing. (Kathleen Strottman, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 709, 728 (1998).)

Currently, California uses a judicial waiver system to move juveniles to adult court. First, the judicial waiver system grants the discretion to the juvenile court judge to determine in a hearing that the minor is not "amenable" to the rehabilitative efforts of the juvenile system, called fitness hearings. The hearings always include probation reports about the juvenile’s background and victim statements, where relevant. (Cal. Welf. & Inst. Code § 707 (West 1998).) The determination must be based on evaluation of the degree of criminal sophistication exhibited by the minor, whether the minor can be rehabilitated before the juvenile court’s jurisdiction expires, the minor’s previous delinquent history and success of previous attempts by the juvenile court to rehabilitate the minor. (Id.) In 1994, California law was changed to allow transfer of appropriate offenders age 16 and over to adult court through another bill supported by then Governor Wilson. (Kathleen Strottman, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, n.15, [citing Cal. Welf. & Inst. Code § 707 (1994) as amended by A.B. 560, 1993-94 Reg. Sess. (West 1997)].) California law currently presumes that those 16 and older charged with murder are unfit for the juvenile court system. (Cal. Welf. & Inst. Code § 707.) Moreover, if a juvenile is charged as having committed, among other things, murder, a violent felony, active gang participation or discharged a gun into an occupied building, the law mandates that the judge presume the minor is not a proper subject for juvenile court. (Cal. Welf. & Inst. Code § 707(c) [referring to minors who are subject to Cal. Welf. & Inst. Code § 602.].) However, juveniles as young as 14 are currently transferred to adult criminal court after a fitness hearing deems them unfit for juvenile court. (Cal. Welf. & Inst. Code § 707(d)1.)

Furthermore, if a minor between 14 and 16 is accused of murder, where the minor personally killed the victim, had the intent the person to be killed and helped another do so, or the victim was killed in the commission of a felony, that juvenile must be presumed unfit for juvenile court. (Cal. Welf. & Inst. Code §707(e)(2).) Though the law allows a juvenile having committed a gang related or violent act to remain in the juvenile system, it is only where a judge has made a particularized finding that, due to evidence of some mitigating circumstance, the minor is amenable to juvenile court, that is the exception. (Cal. Welf. & Inst. Code § 707(e)(3).)

2. Proposed Changes

A yes vote on Proposition 21 would institute the other two transfer methods. First, a statutory transfer system in California for any person 14 or older accused of murder or rape and other sexual offenses or sex acts on another under 14. (Voter Pamphlet, p. 119.) Second, prosecutorial direct filing for anyone 16 years or older charged with certain crimes. (Voter Pamphlet, p. 128.)

a. Statutory waiver of juvenile court jurisdiction

Because statutory transfers do not make individual determinations but mandate the adult court jurisdiction, they are not really transfers at all. "A hearing to determine a juvenile’s fitness to be dealt with under juvenile law primarily focuses on rehabilitation within the juvenile system, not the nature of the pending charges. (People v. Self, (3rd Dist. 1998) 63 Cal. App. 4th 58.) "Rehabilitation and treatment focus on the well being of the individual for present and future purposes while punishment serves to deter the individual through deprivation of liberty or other retributive penalties." (Kathleen Strottman, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 721 (1998) [citing Cintron, Comment, Rehabilitating the Juvenile Court System: Limiting Transfers to Adult Criminal Court, 90 N.W.U.L. Rev. 1254, 1260 (1996).].) Essentially, Proposition 21 rids the system of hearings for the described juveniles. Thereby, it dispenses with probation reports and victim impact statements in determining whether an individual is rehabilitatable. Rather, based only on the nature of the charge, the juvenile must be tried in adult criminal court. That is not a compliant with the law requiring a full investigation of minor’s amenability to juvenile law. (Id. at 739.) Therefore, Proposition 21 is a de facto restructuring of the California rehabilitative juvenile system for persons accused of murder and specified sex acts. (Voter Pamphlet, p. 119.)

However, there are three main reasons why opponents of statutory transfer systems say they are inappropriate. (Kathleen Strottman, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 745 (1998).) "[C]hildren are particularly vulnerable" to peer pressure and coercive violence. They lack the ability to make decisions in an informed, mature manner, making them inherently spontaneous and reckless. Also, many of their parents have failed them. (Id.) Proposition 21’s drafters thought that court resources were spent disproportionately on violent offenders, assuming they had little chance to be rehabilitated. (Voter Pamphlet, p. 119.)

One issue that frequently surrounds Proposition 21 and other bills like it, is whether the fundamental juvenile justice approach should be salvaged, overhauled or reunified with the criminal courts entirely. The current approach places minors in the adult criminal justice system when that person has been deemed "unfit" for the juvenile system by a hearing. (Cal. Welf. & Inst. Code § 707 (West 2000).) Proposition 21 will reverse that process leaving discretion to the local district attorney as to how to charge minors. Returning a minor to juvenile court when the adult court deems a minor not amenable to adult court adjudication would be possible on a "reverse waiver" system, which Proposition 21 provides.

b. Direct filing method

Proposition 21 changes the judicial waiver system described above to a "direct filing" system for any minor 16 or older charged with the following: murder, arson, robbery, rape and other sex acts, kidnapping, assault by means of force likely to cause great bodily injury, discharge of a firearm into an occupied building, drug offenses, escape from juvenile hall, violent felonies, and voluntary manslaughter. (Voter Pamphlet, at 127, 128.) This provision would remove discretion from the juvenile court judges and give it to the local prosecutors. Proposition 21 includes no guidelines for how the discretion is to be used by the prosecutors. The direct filing system is in conflict with California’s stated purpose for juvenile law in the same way that statutory transfers are. (Kathleen Strottman, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 709, 727 (1998).) Only ten states use a direct filing method at all, and of those, only two allow prosecutors the discretion. (Id.)

3. Constitutional issues

a. Due Process of Law

A rebuttable statutory presumption that a 14 year old charged with specific types of crimes is unfit for trial as a juvenile would be presumed constitutional, so substantive due process and equal protection challenges would only be reviewed on a rational basis standard. (Hicks v. Superior Court, (4th Dist. 1995) 36 Cal. App. 4th 1649, certiorari denied, 516 U.S. 1163 (1996).)

One California Supreme court case dealt with a 15 year old defendant who claimed that the superior court that tried him lacked jurisdiction over him, and his trial therefore denied him of his due process right to a fair trial. The court said it saw nothing that undermined the relative "fairness" of petitioner's trial. (In re Harris, (1993) 5 Cal. 4th 813.) As the petitioner was tried in adult court, he was "simply the beneficiary of an additional procedural option--trial by jury--that was not available in juvenile court." Nor did trial of the defendant in adult court, when he was only 15 years of age, violate his due process right. (Id.)

b. Separation of Powers

A state legislature may not violate the separation of powers required by the Constitution. Because statutorily prescribed fitness determinations, automatic transfers, and direct filings remove discretion from the court, each of these systems may violate the separation of power requirements of the Constitution. A prosecutor is a member of the executive branch responsible for enforcing the police powers of the state. The ultimate authority for resolution of juvenile problems is the juvenile court. (Kathleen Strottman, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 709, 730 (1998).) Once the decision is made to prosecute at all--a prosecutor’s function--the process which leads to acquittal or sentencing is a judicial function. (Id. [citing People v. Tenorio, (Cal. 1970) 473 P.2d 993, 996.) Thus, the direct filing method of determining where to file charges with sole prosecutorial discretion may encroach upon the judicial branch’s authority to deal with the court’s function.

c. Cruel and Inhumane Punishment

If a sentence constitutes one of "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted, it would likely be seen as cruel and inhumane today." (Ford v. Wainwright, (1986) 477 U.S. 399, 405.) At that time however, the common law set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted capital punishment to be imposed upon anyone over the age of 7. (See In re Gault, (1967) 387 U.S. 1.) That standard is flexible to current notions of decency. In determining whether a punishment violates evolving standards of decency, a court must look "not to its own subjective conceptions, but rather to the conceptions of modern American society as reflected by objective evidence." (Coker v. Georgia, (1977) 433 U.S. 584, 592.) The primary and most reliable evidence of national consensus is the pattern of federal and state laws. Therefore, unless a clear trend develops that determines that a child between 14 and 16 cannot reasonably be tried for murder and certain sex crimes, it seems that trying a 14 year-old and above in adult court will not be cruel and inhumane punishment. (U.S. Const. amend. VII.)

C. INCREASED PUNISHMENT FOR GANG RELATED FELONY ACTS

California law currently provides punishment for generalized gang related felony acts as well as penalty enhancements for those acts committed with the specific intent to promote gang activity. Proposition 21 will increase penalties for gang related offenses overall. It specifically states that if this statute conflicts with any other statute that provides a longer sentence of punishment, the longer punishment of the two shall apply. (Voter Pamphlet, at 131.) Proposition 21 contains seven separate sections that each increase penalties for different felony acts

1. Murder in the First Degree

a. Current Law

California law currently provides for the penalty of death or life in prison without the possibility of parole when a defendant commits murder under certain specified circumstances. (Cal. Penal Code § 190.2 (West 1999).) Depending on the type of trial, it is up to either a jury or the judge to determine whether these specific circumstances are found to be true with factual determination to be proven beyond a reasonable doubt. If the circumstances are found to be true, the defendant will be eligible for life without the possibility of parole or death. If the defendant, under these circumstances, is over the age of 16 but under 18 at the time of the crime, the court may not impose the death penalty. The court is limited to imposing either life in prison without parole or, at the court’s discretion, a sentence of 25 years to life. (Cal. Penal Code § 190.5 (West 1999).)

b. Proposed Changes

Proposition 21 adds an additional "special" circumstance to Penal Code section 190.5. This circumstance would be applicable where "the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang…and the murder was carried out to further the activities of the criminal street gang." (Voter Pamphlet, at 122.) If Proposition 21 passes, the trier of fact, either a jury or a judge, will determine whether the special circumstance applies. If it is found to be true, the defendant will be eligible for life in prison without the possibility of parole or death. The proposed changes in Proposition 21 do not in any way change the sentencing provisions related to defendants over 16 but under 18 years of age. The death penalty still may not be imposed on any person under the age of 18 at the time the crime was committed. (Voter Pamphlet, at 131.)

2. Violent Felonies (See Appendix A)

a. Current Law

When a defendant is convicted of a second offense, which is one of the enumerated violent felonies specified in section 667.5, the court must also impose an additional three years to the required sentence. If the prior offense was committed at least ten years prior to the second offense and the defendant was free of custody and felony convictions during that ten-year period, the court is not required to impose the additional three years. (Cal. Penal Code § 667.5 (West 1999).) The Penal Code lists eighteen different offenses that qualify as violent felonies. These felonies may also qualify for additional prison terms. Some actions are strictly defined so that under certain circumstances they are not defined as "violent," whereas under other circumstances they are considered violent.

For example, robbery is currently considered "violent" only when perpetrated upon an inhabited dwelling used as a home, such as a house, trailer, or houseboat and when the perpetrator personally uses a deadly or dangerous weapon during the commission of the robbery. (Cal. Penal Code § 667.5 (West 2000).) Arson is considered violent only if it results in great bodily injury. (Id.) The use of explosives is only a violent felony if used with the intent to commit murder. (Id.) Kidnapping qualifies as a violent felony only when the victim is under the age of 14 and the intent of the defendant is to molest, or when the victim is under age 14 and the defendant is not the biological father, adoptive parent, or the legal guardian according to court order. (Id.) Finally, carjacking is considered a violent felony if the prosecution proves successfully that the defendant used a dangerous or deadly weapon during the carjacking. (Id.)

b. Proposed Changes

Proposition 21 will make any type of robbery a violent felony. (Voter Pamphlet, 124.) Burning an inhabited building or property will be considered violent. (Id. at 124.) It also defines the non-accidental use of explosives as a violent felony when that use causes any bodily injury or death. (Id. at 124.) Any kidnapping, regardless of intent or age of the victim is considered a violent felony under the Proposition. (Id. at 124.) Lastly, carjacking, regardless of whether deadly weapon is used or not, will be considered a violent felony. (Id. at 124.)

In addition to these changes, Proposition 21 adds five more criminal acts to the list of felonies that shall be considered violent felonies under Penal Code section 667.5. First, it adds assault with the intent to commit mayhem, rape, sodomy, or oral copulation while violating gang rape, rape, incest or lewd acts statutes to the list of violent felonies. (Id.) The four other felonies it defines as violent are subject to the gang related felony statute. These acts are only considered violent felonies if they are "knowingly committed through active willful participation in a criminal street gang, to further the criminal conduct of the gang." Such acts may involve extortion, threats to victims or witnesses, burglary of the first degree when charged and proved that someone other than an accomplice was present in the residence during the commission of the burglary, and the use of a firearm during the following felony acts: murder, mayhem, kidnapping, robbery, carjacking, assault with intent to commit felony, assault with a firearm on a peace officer or firefighter, rape, gang rape, sodomy, lewd acts on a child, oral copulation, penetration by a foreign object, assault by life prisoner, assault by prisoner, holding a hostage by prisoner, any felony punishable by life in prison, and any attempt to commit a crime listed in this section other than assault. (Cal. Penal Code § 186.22 (West 1999).)

3. Gang Related Felonies

a. Current Law

California Penal Code section 186.22 relates to participation in criminal street gangs. That section outlines the sentencing guidelines for gang related crimes and provides that "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." (Cal. Penal Code § 186.22 (West 1997).)

The current sentence for felony gang activity is the statutory sentence for the specific felony plus an additional one, two, or three-year enhancement at the court’s discretion. (Id.) If the felony is committed on the grounds or within 1,000 feet of a public or private school, the additional enhancement shall be two, three, or four years. (Id.) The sentence imposed shall be the middle term unless the court determines that there are either aggravating factors which should increase the penalty to the maximum or mitigating circumstances which should decrease the penalty to the minimum. (Id.) Current law also provides that if the felony committed in furtherance of gang activity results in life imprisonment, the defendant shall not be eligible for parole before 15 calendar years have been served. (Id.) If the person convicted of felony gang activity is also convicted for victim witness intimidation accompanied by a credible threat of violence or death, an additional consecutive penalty of three-year imprisonment is required. (Id.) Furthermore, if the felony is committed in violation of victim witness tampering statutes, an additional consecutive penalty of three years imprisonment is required. (Id.)

Finally, current law establishes three different levels of punishment for vandalism, depending on the amount of damage caused. (Cal. Penal Code § 594 (West 1999).) If the damage amounts to $50,000 or more, the vandalism is punishable by imprisonment in a state prison or a county jail for no more than one year and/or by a fine of not more than $50,000. (Id.) If the amount of damage is $5,000 or more, but less than $50,000, the vandalism is punishable by a term in either a state prison or a county jail for no more than one year, and/or a fine of not more than $10,000. (Id.) If the damage is $400 or more but less than $5,000, the vandalism is punishable by imprisonment in a county jail for no more than one year and/or a fine of $5,000. (Id.)

b. Proposed Changes

Proposition 21 will increase the length of the minimum sentence for gang related felonies from one, two, or three years to two, three, or four years. (Voter Pamphlet, at 119.) However, it also requires an additional term of five years if the felony is a serious felony as defined by Penal Code section 1192.7(c) and an additional term of ten years if the felony is defined as a violent felony by Penal Code section 667.5. (Id.)

Any felony conviction which results in a life sentence will result in a minimum term of either the sentence for the underlying conviction including any enhancements, or the greater of either the minimum sentence of seven years or the sentence required for the specified felony as required by law. (Voter Pamphlet, at 120.) Proposition 21 then further defines certain crimes that must result in at least fifteen years of imprisonment. Felony home invasion, robbery, carjacking, drive-by shooting, as well as all the felony acts previously listed under violent felonies all require that the minimum sentence served before parole is 15 years. (Id.) Furthermore, the minimum sentence served before parole for extortion and victim witness intimidation is seven years. (Id.) All other persons convicted of felonies related to gang activity which are punishable by life imprisonment, shall not be paroled before 15 years of their sentence is served. (Id.)

Proposition 21 deletes the provision providing that any victim witness intimidation or threats must be accompanied by credible threats of violence or death. (Id.) Therefore, unless provided for elsewhere in the law, any intimidation, whether accompanied by a credible threat or not, will result in a felony conviction. Proposition 21 also requires that any person convicted of a public offense related to gang activity, which is punishable as either a felony or a misdemeanor, shall be punished by no more than one year in a county jail or by imprisonment in a state prison for one, two, or three years. (Id.) If sentenced to a county jail, the person must serve a minimum of 180 days before release on probation or a suspended sentence. (Id.)

Proposition 21 allows a prosecutor to also charge a person with conspiracy if they knowingly participated in a criminal street gang and willfully promoted, benefited from, assisted or furthered any criminal conduct by members of that gang. (Id. at 119.) Under Proposition 21, the prosecuting attorney is not even required to prove that the person charged is a gang member. All that is required is proof of active participation in a street gang.

The number of current vandalism provisions are either reduced or eliminated under Proposition 21. The Proposition allows only two levels of punishment for vandalism rather than the three levels of punishment provided for by current law. From a minimum damage of $400 the fine is increased to $10,000. (Id. at 122.) If the damage is $10,000 or more, the fine is increased to $50,000. (Id.) For any damage under $400 the vandalism sentence is increased from six months to no more than one year and/or a fine of no more than $1,000. (Id.)

c. Constitutional Issues

Currently in California, no person will be put to death if under 18 at the time of the commission of the crime. Proposition 21 does not abrogate that law. (Cal. Penal Code §190.5.) There are several analogous statutes that have survived review, so it is unlikely that the constitutionality of enhancements will be challenged. Under both strict scrutiny and rational basis standards, enhancements have been allowed. The California Supreme Court held that liberty is a fundamental interest and that classifications dealing with it must satisfy the strict scrutiny test. (People v. Olivas, (1976) 17 Cal. 3d 236.) In Olivas, the court found it was a denial of equal protection to charge, try, and convict a juvenile offender in adult court and then, pursuant to Welfare & Institutions Code section 1731.5, commit that person to the Youth Authority for a longer term than for an adult convicted of the same offense but sentenced to prison. (Id.) Later, the Court concluded that the Olivas opinion was intended to be a narrow one and stated that it did not require the courts to subject all criminal classifications to the strict scrutiny test. (People v. Davis, (1st Dist. 1979) 92 Cal. App. 3d 250, 258.)

In another 1979 court holding, under a rational basis test, an enhancement was still upheld. (People v. Hernandez, (5th Dist. 1979) 100 Cal. App. 3d 637.) There, the defendant argued that the imposition of a one-year enhancement for a prior California prison term under Penal Code section 667.5 (b), denied him equal protection because such an enhancement for a California prior conviction required imprisonment for any period while, an out-of-state prior conviction required imprisonment for only a year or more. The defendant argued that the extra time was contrary to equal protection. The court rejected the argument. Using a rational basis test, the court stated: "[t]his does not imply that liberty is not a fundamental interest but that, there is a qualitative difference between the initial interest one has in retaining his liberty prior to sentencing and the interest one has in whether or not an enhancement applies." (Id.; see also, Hale v. Morgan, 22 Cal. 3d 398 [holding the effects of certain legislative enactment upon an individual’s underlying sentence subject to rational basis only.].)

Therefore, enhancements alone should survive any constitutional problems. If enforced unevenly or discriminatorily, later application by prosecutors could revive the issue. Moreover, as described in this paper pertaining to changes in the fitness transfer process, enhancements should easily survive an Eighth Amendment prohibition against cruel and inhumane punishment challenge.

4. Prohibited Plea Bargaining for Serious Felonies

a. Current Law

Current law defines twenty-seven different felonies that are considered "serious." These serious felonies are not open to plea-bargaining with the prosecuting attorney unless there is insufficient evidence to prove the people’s case, testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence. (Voter Pamphlet, at 124.) Proposition 21 seeks to add more offenses to this section in an effort to prohibit any reduction in the punishment for these types of felonies.

b. Proposed Changes

Proposition 21 limits the prosecuting attorney’s ability to plea-bargain with a defendant in order to induce them to provide evidence or information on more serious crimes or to plead guilty to a lesser crime or lesser degree of the felony charged. Proposition 21 reduces the number and type of serious felonies for which plea-bargaining is allowed.

Among the felonies considered serious is the exploding of a destructive device or any explosive causing great bodily injury or mayhem. (Id.) Proposition 21 seeks to change this provision from "any explosive causing great bodily injury" to "any explosive causing bodily injury". (Id.) Thus, under Proposition 21 any bodily injury, rather than great bodily injury, caused by an explosive device would result in a serious felony charge with a prohibition against plea-bargaining.

Proposition 21 also seeks to add the following offenses to the list of serious felony acts for which plea-bargaining is prohibited: any felony related to gang activity; assault with the intent to commit mayhem, rape, sodomy, or oral copulation; throwing acid of flammable substances; assault with a deadly weapon on a peace officer or a fire fighter; assault with a deadly weapon against a public transit employee, custodial officer, or school employee; discharge of a firearm at an inhabited dwelling, vehicle or aircraft; gang rape; continuous sexual abuse of a minor; drive-by shootings; victim-witness intimidation; and terrorist threats. (Id.) If Proposition 21 is enacted, these felony crimes would generally not be subject to plea-bargaining agreements.

D. ELIMINATION OF INFORMAL JUVENILE PROBATION FOR SPECIFIED ACTS

a. Current Law

When a juvenile commits an offense that subjects him or her to the jurisdiction of the juvenile court, the judge or hearing officer has great discretion as to what punishment can be ordered. These options include making the minor a ward of the court, ordering specific intervention or counseling programs, ordering the juvenile detained in custody or ordering informal probation. If a juvenile is given informal probation, the juvenile and possibly his or her parents or guardians may be ordered to undergo certain programs. The juvenile is given six months in which to complete the ordered programs. At the end of the six-month period, if the minor has not committed any other violations and has completed the specified court orders, the petition or charge can be dropped. However, if the probation officer finds that within 60 days of the first order, the minor has not availed himself or herself of any of the specific programs, the law allows the probation officer to require the minor or his parent or guardian to sign a written promise that either or both of them will appear before the probation officer or court on a specified date. (Cal. Welf. & Inst. Code § 629 (West 1999).)

Additionally, the law restricts the application of informal probation for the following offenses, most of which are felony violations: murder or attempted murder; arson; robbery with a deadly weapon; rape by force; sodomy by force; violence or threat of great bodily harm; lewd acts with a minor; oral copulation by force; violence or threat of great bodily harm; kidnapping; attempted murder; assault with a firearm or destructive device; assault by any means of force likely to produce great bodily injury; discharge of a firearm into inhabited vehicle or building; carjacking with use of deadly weapon; torture; any violent felony; selling controlled substances; any felonies committed in the promotion of criminal gang conduct; assault with a deadly weapon on a school employee; gun possession in a school zone; possession of weapon two and one-half inches or longer on school grounds; if the petition alleges that the minor has violated an offense in which the restitution owed to the victim exceeds $1,000; rape; victim intimidation; use of firearm during the commission of a felony; or assault on a person who is disabled. (Cal. Welf. & Inst. Code § 654.3 (West 1996).)

2. Proposed Changes

Proposition 21 seeks to further restrict the use of informal probation when specified felony acts have been committed. (Voter Pamphlet, at 121.) In addition to prohibiting informal probation for certain crimes, Proposition 21 seeks to deter any abuse of informal probation by repeat participants. (Id.) Also, if the petition charges that the offense was gang related the minor must remain in physical custody.

E. Deferred Entry of Judgment

Currently there are no laws providing for a deferred entry of judgment for juveniles. Proposition 21 with one of its provisions will create deferred judgment for juvenile offenders. When a minor has committed a felony offense for which the prosecuting attorney has filed a petition, a petition for deferred entry of judgment may also be filed. (Id. at 130.) When specific circumstances have been met and the prosecuting attorney, defense attorney, and judge all agree, a hearing for deferred entry of judgment can be set. (Id.) This process only applies if:

The minor has not previously committed a felony offense for which the court took jurisdiction
The offense charged is not one listed as prohibited for participation in informal probation
The minor has not previously served time with the California Youth Authority
The minor has never had his or her probation status revoked
The minor is at least 14 years of age at the time of the hearing
The minor is eligible for probation.
(Id.)

Proposition 21 outlines the conditions that must be met for deferred entry to occur. First, the judge and both attorneys must agree that the minor should qualify for the program. (Id. at 130.) Then the minor is informed of the terms in writing. (Id.) The minor must plead guilty to the charges in exchange for the normal process of hearings and delayed court dates. (Id.) Upon successful completion of the program and positive recommendation of the probation officer and prosecuting attorney, the court will dismiss the charges against the minor. (Id.) The length of the program is at least one year, but not more than three years. (Id.)

If the minor fails to complete the program, the charges will be entered and the court gets jurisdiction, finding the minor a ward of the court and scheduling court hearing dates. (Id.) On condition of participation in the program, the minor is required to be subject to warrantless searches upon request of the probation officer or a peace officer. (Id.) Upon successful completion of the program, the charges shall be dismissed and the court records shall be sealed. (Id.)

F. RECRUITING PERSONS FOR GANG ACTIVITY

1. Current Law

Penal Code section 186.26 currently addresses the activity of gang recruitment specifically. This section states that any adult who utilizes physical violence to coerce, induce or solicit another person who is under 18 years of age to actively participate in any criminal street gang shall be punished by imprisonment in the state prison for one, two, or three years. (Cal. Penal Code § 186.26 (West 1999).) In addition, if an adult threatens a minor with physical violence on two or more occasions within any 30-day period with intent to coerce, induce or solicit the minor to participate in a criminal street gang, the adult shall be punished by imprisonment in a state prison for one, two, or three years or in a county jail for up to one year. (Id.)

If a minor commits the same offense, he or she is guilty of a misdemeanor. (Id.) However, no person shall be convicted of violating this section based upon speech alone, unless prosecution shows that the speech itself threatened violence against a specific person, that the defendant had the apparent ability to carry out the threat, and that physical harm was "imminently" likely to occur. (Id.)

2. Proposed Changes:

Proposition 21 proposes to increase the penalties for gang recruitment and will create a crime for preventing a member from leaving a criminal street gang. First, Proposition 21 will increase the minimum penalty for solicitation or recruitment from one year to 16 months, regardless of whether the defendant used violence to coerce an individual to participate or not. (Voter Pamphlet, at 121.) Furthermore, a conviction for gang recruitment or solicitation no longer requires proof that the defendant used violence to coerce or solicit new gang members. (Id.)

Second, if the defendant does use violence to coerce, induce, or solicit another to participate in gang activity, the punishment is increased from one, two, or three years in state prison, to three, four, or five years. (Id.)

Third, the penalty for threatening another with the intent to coerce or solicit their participation is increased from one, two, or three years in a state prison or one year in a county jail to two, three, or four years. (Id.) Previously, the person threatened had to be a minor. Under Proposition 21, there is no requirement the victim to be a minor and the optional punishment of one year in a county jail is deleted.

Finally, if the person solicited is a minor, Proposition 21 provides for a penalty enhancement of an additional three years to be served consecutively. (Id.)

G. REQUIRED REGISTRATION FOR GANG MEMBERS WHO COMMIT FELONIES

1. Current Law

The only current California statute comparable to the new registration of gang affiliates, requiring a separate registration after a criminal conviction, is California Penal Code section 209, the sexual offender registry and notification program. (Cal. Penal Code § 209 (West 1995).) Based on the federal version called, "Megan’s Law," forty-seven states have implemented sex offender registration statutory schemes. Currently eighteen states, including California, also include public notification systems that disclose the information in the registries to anyone. (Convicted Sex Offenders v. Our Children: Whose Interests Deserve the Greater Protection, 86 Ky. L.J. 477, 478 n.12 (1998) [citing statutes of each particular state].) The California sex offender registration program requires those convicted of a sex crime to register within a specified time frame and update and pertinent information with each change; failure to do so constitutes a separate punishable crime from the original offense. Juveniles and gang members who commit sex offenses are already included as persons required to register as sex offenders. (Cal. Penal Code § 290 (West 1999).)

The sex offender statutes were promulgated for reasons associated with the high recidivism rate of sexual offenders, the need to investigate quickly when a sex crime occurs, and the desire to protect past and future victims. California requires lifetime registration of sex offenders while residing in California. Some are concerned that the ongoing stigma, and sometimes serious harassment, that ensues from registration with public access motivates offenders to be non-compliant or move where there are no registries or worse yet, go under-cover with aliases. (Convicted Sex Offenders v. Our Children: Whose Interests Deserve the Greater Protection, 86 Ky. L.J. 477 (1998).) Additionally, some say the databases are replete with errors. These potential results may circumvent the purpose of registration laws that track persons likely to be repeat offenders, making law enforcement less efficient and disallowing persons in contact with offenders from taking precautions against known risks. Juveniles and adult gang affiliates convicted of sex offenses, would still be required to comply with the sexual offender registration requirements whether Proposition 21 passes or not. Proposition 21 is silent on whether someone would have to meet both sex and gang related registry requirements when a crime is both sexual and gang related, but in light of the different crime types and separate data bases, it is possible that dual registration could be required of those dual status crimes.

2. Proposed Changes

Two major differences separate the proposed gang registry from the sex offender scheme. Proposition 21 requires a public access system, like the sex offenders registry, and the time required for maintenance of registration is limited to five years for gang affiliates rather than the lifetime registration required of sex offenders. (Cal. Penal Code § 290.) Proposition 21 adds a new section to the Penal code that requires registration of a person convicted in criminal court or having a sustained petition in juvenile court for the following: (1) the person actively participates in a criminal street gang under Penal Code Section 186.22; (2) the person is guilty of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang; or (3) any crime that the court finds is gang related at the time of sentencing or disposition. (Voter Pamphlet, at 121.) The limits for complying are 10 days from release or change of address. (Id.) The duty to maintain registries is placed upon the city where the registrant lives. This duty of the city government could result in lack of uniformity and will result in local expenditures.

There is no statement of how the information gathered will be used once obtained. Some of the characteristics of sex offenders are not applicable to gang affiliates. For instance, gang affiliates tend to disassociate or become less active as they age, whereas sex offenders are extremely difficult if not impossible to rehabilitate. That appears to be addressed by the difference in time limits (life registration for sex offenders, five years for gang affiliates). Further, requiring registration could make it much more difficult for a person to leave a gang once identified officially as an affiliate.

3. Constitutional Issues

Registration laws are relatively recent developments, most since the 1994 Federal Crime Bill was enacted. (Convicted Sex Offenders v. Our Children: Whose Interests Deserve the Greater Protection, 86 Ky. L.J. 477, 480 (1998).) Sex offender registration laws have been found unconstitutional as against ex-post facto law prohibition but usually survive privacy and due process challenges brought by defendants. (Id. at 493.)

Ex post facto laws, those that impose punishment after the fact, are prohibited by the Constitution. (U.S. Const. art. I, § 9, cl. 3, § 10, cl. 1.) However, this finding first requires the court to determine that a registration requirement is a "punishment." When a court finds registration to be a punishment, it is usually related to the public notification component which is not part of the Proposition 21 gang affiliate registration scheme. (Convicted Sex Offenders v. Our Children: Whose Interests Deserve the Greater Protection, 86 Ky. L.J. 477 n.1 (1998).) Proposition 21 would likely survive an ex post facto law challenge because the registry information is available to the public. As a result, the punishment-like stigma that the public may attach and any potential retaliatory acts that may arise are circumscribed.

Further, no separate hearing is provided in the determination of whether the criminal conduct was gang related under proposed section 186.30(b)(3). The lack of hearing could be found contrary to substantive due process because finding of gang relation and potential misuse of registry information by law enforcement could conceivably be based on whatever the finder of fact determines. Therefore, arbitrary or capricious treatment could easily occur. For example, if a person wore a type of clothing or a hairstyle resembling that of gangs while committing something as common as shoplifting, that person could potentially be required to register as part of the gang database. Moreover, this lack of definition could later be construed by courts as overbroad or vague, causing that portion to be stricken as unconstitutional.

Proposition 21 penalties for failure to register would likely withstand challenges because there are clear parameters for when the duty to register expires and a definite process for notification and compliance for the person subject to the requirement, regarding his or her duty to register and maintain the current information. (Voter Pamphlet, at 121.)

H. AUTHORIZED WIRETAPPING FOR GANG ACTIVITY

1. Current Law

Wiretapping prohibitions are derived from the 4th Amendment’s protection against what is, essentially, an invasion of privacy--the right to be left alone. (Katz v. United States, (1967) 389 U. S. 347.) A privacy right is afforded wherever a person has a justifiable subjective expectation of privacy. (Id.) It is the policy of the Legislature that communications over public utility phones are private. (Application of P.T. & T. Co. (1971) 72 Cal. P.U.C. 78.) Even parties using cordless telephone communication can reasonably expect privacy. (Cal. Penal Code § 632(e) (West 1994).)

Though police use electronic surveillance (wiretapping) to gather evidence, innocent persons must be protected from unreasonable invasions. Wiretapping is intercepting communications by an unauthorized connection to the transmission line." (People v. Ratekin, (4th Dist. 1989) 212 Cal. App. 3d 1165.) Because a wiretap without probable cause is just as likely to invade the privacy of innocent people, the objective evaluation of the police’s estimation of probable cause is imposed on the process. (See id.) Thus, federal laws establish rules regarding the appropriate issuance of a court order to wiretap. (Omnibus Crime and Safe Streets Act of 1968, Title III, 18 U.S.C.A. § 2510 et. seq. (West 1996).) Any criminal division Attorney General or associate, or any state prosecutor may authorize an application to a judge for a wiretap order. (18 U.S.C.A. § 2516 (West 1998).) Furthermore, California law provides that an order from a judge is required for a law enforcement officer to intercept telephone communications and identifies specific circumstances in which such an order may be granted. (Cal. Penal Code § 629.52 (West 1995).) To issue an order, the judge must find "probable cause" to believe that the target of the order is engaged in criminal activity, based on an objective standard.

2. Proposed Changes

Proposition 21 simply adds suspected violations of Penal Code section 186.22 to the current law regarding which specific offenses may be included in a successful application for wiretapping. (Voter Pamphlet, at 123.)

I. MANAGEMENT AND DISCLOSURE OF JUVENILE FELONY RECORDS

1. Current Law

Section 827 of the Welfare and Institutions Code limits the release of juvenile records to those who are part of the legal and welfare system. (Cal. Welf. & Inst. Code § 827 (West 1999).) The juvenile court approach, which considers the best interest of its wards, has long included a process to seal records of juveniles upon their petition after reaching adulthood. Further, after six years from sealing, or upon the person reaching age 38, the records would be destroyed. This "fresh start" policy was put into place to recognize the indiscretions of youth, consistent with the rehabilitative model of juvenile justice.

In an attempt to avoid the stigma of a juvenile arrest record in school and in later adulthood, the court makes a "determination of the needs of the child and society, provision for guidance and treatment for the juvenile, and protection of the child from punishment and treatment." (T.N.G. v. Superior Court of San Francisco, (1971) 4 Cal. 3d 767, 774.) There the court found that "the presumption of innocence, the legislative policy of confidentiality encompassing juvenile proceedings and the hazard that information will be misused by third parties fully justify the juvenile court’s refusal to disclose information about juvenile detentions." (Id. at 781.) The Supreme Court of California refuted the argument that confidentiality fails to warn the community about potentially dangerous youths. (Id.) However, there is no absolute right to confidentiality of juvenile court’s records. (In re Michael B., (2nd Dist. 1992) 8 Cal. App. 4th 1698.) In accordance with that notion, recently enacted Senate Bill 334 amended the law providing the court with a duty to balance the needs of public safety upon petition of any party requesting disclosure of juvenile court records. (Cal. Welf. & Inst. Code § 827.)

2. Proposed Changes

Proposition 21 deletes the confidentiality process for anyone found to have committed any of the acts described in Welfare and Institution Code section 707 when that person is 14 years or older and also forbids the destruction of records. (Voter Pamphlet, at 129.) Section 781 already prohibits the sealing of any records of a person, whether or not a minor, when the conviction occurs in criminal court. This policy change has come about in an effort to address the safety needs of the public. (Id. at 119.) Proposition 21 would limit discretion of the judge in juvenile court. The manner in which those records would be released is not clear from the text of Proposition 21.

Conclusion

Proposition 21 is a broad-based initiative, touching on many aspects of gang-related juvenile crime. Proposition 21 proposes changes to felonies in general as well as felonies specifically related to gang activity. It adds more definitions of violent felony acts, resulting in harsher penalties for the same felonies that previously were not defined as violent.

Proposition 21 will expand the areas of wiretapping to suspected gang-members and a new statewide registration system will be developed for anyone convicted of gang-related offenses. Beginning with charging decisions, the prosecutor will have discretion as to which court will preside over the case. Plea-bargaining will be eliminated in some cases, and informal probation will be eliminated for specific offenses. Juvenile records will no longer be confidential for persons convicted of an act under section 707 of the Penal Code and all persons 14 or older who have been charged with murder or sex crimes would be required to have an adult trial.

Certain sections of Proposition 21 clarify the legislative intent concerning burdens of proof and definitions of criminal street gangs so that a prosecutor only has to prove that a person was actively involved in a street gang, whether he or she were a member or not, to be convicted of activity related to that gang. Mostly, Proposition 21 mandates longer sentences and increases the required time of sentences that must be served. Judges will have to express in writing a reason based on the interests of justice to justify any variance from those mandates.

Most of the language in Proposition 21 is well drafted, seeming to fit its stated purposes. The majority of constitutional issues that could arise will be in application of the stronger powers granted to prosecutors and the police. It is unclear if Proposition 21 intends to punish people for a mere association with a criminal street gang, which would be unconstitutional. Similar statutes have usually survived constitutional scrutiny based on overbreadth and vagueness and so should Proposition 21. However, there may be a valid argument that the prosecutorial enforcement portion of Proposition 21 violates the separation of powers doctrine.

Appendix A
Violent Felonies Chart

 

Type of Felony
Current Law
Proposed Change
Any violent felony
Required sentence plus three years. No general changes.
Robbery
Considered violent only if committed against inhabited building and the defendant used deadly weapon. Any robbery of inhabited building, regardless of whether weapon is used or not.
Arson
Only violent if it causes great bodily injury. Considered violent no matter the injury caused.
Use of explosive device
Violent if used with intent to commit murder. Violent when performed willfully or maliciously causing bodily injury or death.
Kidnapping
Violent if victim is under 14 and the intent is to molest etc. or if victim is under 14 and defendant is not biological parent or legal guardian. Any kidnapping regardless of age of victim or intent of defendant.
Carjacking
Violent if it is proved that a deadly weapon was used. Violent regardless of whether deadly weapon is used or not.