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AB-179 Contempt: criminal street gangs.(2011-2012)

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AB179:v98#DOCUMENT

Amended  IN  Assembly  April 27, 2011

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 179


Introduced  by  Assembly Member Gorell, 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   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.
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:
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.