CHAPTER 16: EXPANDING THE PILOT PROGRAM THAT ASSISTS INDIGENT INMATES AFTER RELEASE - MCGEORGE SCHOOL OF LAW
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Penal
Chapter 16: Expanding the Pilot Program that Assists
Indigent Inmates After Release
Chol Daniel Kim
Code Section Affected
Penal Code § 4025.5 (amended).
AB 2574 (Emmerson); 2008 STAT. Ch. 16.
I. INTRODUCTION
For many inmates released from California’s adult correctional facilities,
reintegration into society can be a stressful and difficult experience.1 Oftentimes,
inmates cannot even afford the seven dollar fee for an identification card.2 In
more extreme situations, the period immediately following release can lead to
death.3 In fact, during the first fourteen days after release, the risk of death among
former inmates is nearly thirteen times that of a normal individual.4 With such a
dearth of resources and services, it is no surprise that released inmates sometimes
return to their life of crime.5 The rate of recidivism in this country, particularly in
California, is extraordinary.6 Naturally, with the prevalence of repeat offenders,
the prison population has risen to astronomic proportions, rising by 500% in the
last three decades.7 The national imprisonment rate in 2005 was 491 per 100,000
residents; when considering jail occupants, the number rises to 738 per 100,000.8
1. See Christy A. Visher, Returning Home: Emerging Findings and Policy Lessons About Prisoner
Reentry, 20 FED. SENT. REP. 93, 97 (2007) (“The sudden change in environment coupled with the challenges
individuals face to be successful can be overwhelming.”).
2. Scott Prison Reform Bills Pass First Assembly Test, CAL. CHRON., June 20, 2007, http://www.
californiachronicle.com/articles/30238 (on file with the McGeorge Law Review).
3. See Ingrid A. Binswanger et al., Release from Prison—A High Risk of Death for Former Inmates, 356
NEW ENG. J. MED. 157, 159 (2007) (stating that in one study, 253 of 30,237 released prisoners died within one
year of their release).
4. See id. at 160 (“The adjusted relative risk of death within the first 2 weeks after release was 12.7
times that among other state residents.”). The leading causes of death among former inmates were drug
overdose, cardiovascular disease, homicide, suicide, cancer, and vehicle accidents. Id. at 161.
5. See Visher, supra note 1, at 96.
6. See Joan Petersilia, California’s Correctional Paradox of Excess and Deprivation, 37 CRIME & JUST.
207, 211 (2008) (“Nearly 50 percent of all [California] prisoners released in 2006 sat idle—meaning they did
not participate in any work assignment or rehabilitation programs—for the entire time they were in prison. They
return to communities unprepared for reentry, and two-thirds are returned to prison within 3 years, nearly twice
the average national average.”).
7. Adam M. Gershowitz, An Informational Approach to the Mass Imprisonment Problem, 40 ARIZ. ST.
L.J. 47, 47 (2008).
8. Petersilia, supra note 6, at 207.
4592009 / Penal
In an effort to reduce recidivism and the overcrowded prison populations,
many states have implemented reentry and rehabilitation programs that change
behavioral habits and provide training for a more successful reintegration into
society.9 A pilot program funded by each county’s Inmate Welfare Fund (IWF)
went into effect last year, extending reentry programs and financial resources to
indigent inmates for fourteen days after release.10 Chapter 16 extends this pilot
program to Kern, San Bernardino, and Santa Clara Counties.11
II. BACKGROUND
A. The Problem of Recidivism
According to the U.S. Department of Justice, at least ninety-five percent of
state inmates will be released back into society at some point,12 many of whom
will reoffend and return to the prison system.13 Indeed, with the largest prison
population in the country, California also has the highest recidivism rate, at
around sixty-six percent.14 Unfortunately, despite various efforts, the recidivism
rate has been relatively stagnant for the past decade.15
An obvious consequence of recidivism is the tremendous fiscal impact on the
state, whose legislators must budget more and more funds each year to maintain
the prison system.16 California currently houses over 170,000 inmates,17 with an
9. See generally id.
10. CAL. PENAL CODE § 4025.5 (West Supp. 2009).
11. Id. (amended by Chapter 16).
12. Timothy Hughes & Doris James Wilson, Reentry Trends in the United States, U.S. DEP’T OF
JUSTICE, http://www.ojp.usdoj.gov/bjs/reentry/reentry.htm (last visited Feb. 10, 2009) (on file with the
McGeorge Law Review).
13. See Charles Lane, Justices to Rule on ‘Three Strikes’ Law, THREESTRIKES.ORG, Nov. 6, 2002,
http://www.threestrikes.org/washpost_0.html (on file with the McGeorge Law Review) (describing opposition
arguments to California’s three-strikes law, which sometimes imposes harsh penalties on repeat felony
offenders).
14. Petersilia, supra note 6, at 262. “[Sixty-six] percent are back behind bars within [thirty-six]
months . . . .” Id.
15. Visher, supra note 1, at 93; see also CAL. DEP’T OF CORRECTIONS AND REHAB., EXPERT PANEL ON
ADULT OFFENDER AND RECIDIVISM REDUCTION PROGRAMMING, REPORT TO THE CAL. STATE LEGISLATURE, A
ROADMAP FOR EFFECTIVE OFFENDER PROGRAMMING IN CAL., at vii (2007) [hereinafter CDCR] (on file with
the McGeorge Law Review) (listing overcrowding and too few quality rehabilitation programs as the reasons for
California’s ineffective reentry programs).
16. See CAL. STATE SHERIFF’S ASS’N, DO THE CRIME, DO THE TIME? MAYBE NOT, IN CALIFORNIA 28
(2006) [hereinafter CSSA] (on file with the McGeorge Law Review) (stating that local governments must bear
the costs of staffing and operating local detention facilities).
17. CAL. DEP’T OF CORRECTIONS AND REHAB., MONTHLY REPORT OF POPULATION AS OF MIDNIGHT
JANUARY 31, 2009, at 1 (2009), available at http://www.cdcr.ca.gov/Reports_Research/Offender_Information_
Services_Branch/Monthly/TPOP1A/TPOP1Ad0901.pdf (on file with the McGeorge Law Review).
460McGeorge Law Review / Vol. 40
annual budget of more than nine billion dollars.18 The county jail system houses
over 80,00019 inmates at any given day and costs over $1.7 billion annually.20
B. Reentry and Rehabilitation Programs
Former inmates struggle with a number of social and economic
disadvantages that make it difficult to reintegrate into society and live as law-
abiding citizens.21 Many inmates never finished high school and can only obtain
low wage jobs.22 With an average prison stay of 21.9 months,23 the typical inmate
will have a difficult time acclimating back into society because of a lack of job
skills and experience.24 “Two-thirds of [released inmates] reported frequent . . .
drug use (58 percent) or alcohol intoxication (27 percent) prior to prison”25 and
more than half suffer from chronic physical or mental health conditions.26
However, employment—an essential aspect of becoming a responsible member
of society—is the single most important concern for returned inmates.27 Over
seventy-five percent of inmates in one study said that finding employment would
help keep them out of prison.28 In the same study, eighty-eight percent reported a
need for more job training and education.29
Reentry and rehabilitation programs are therefore one way states have
attempted to reduce recidivism rates.30 The programs are designed to not only
assist released inmates with reintegration but also to strengthen urban
18. Petersilia, supra note 6, at 222.
19. See Office of the Attorney General, State of California, Statistics by City and County,
http://stats.doj.ca.gov/cjsc_stats/prof06/00/27.pdf (last visited Feb. 10, 2009) (on file with the McGeorge Law
Review) (stating that in 2006 there were 81,622 inmates in Type II, III, and IV facilities).
20. See CSSA, supra note 16, at 28 (stating that the operational costs for county jails in 2001-2002 were
$1.7 billion for about 73,000 inmates).
21. See Visher, supra note 1, at 95 (“Following release, prisoners may experience social stigma and
discrimination, lessened employment prospects, reduced access to housing, loss of negative mental health
effects, increased risk of suicide and early death, and difficulties in finding needed services and supports.”).
22. See WriteAPrisoner.com, Federal and State Prisons, http://www.writeaprisoner.com/prisoner-
statistics.aspx (last visited Feb. 10, 2009) (on file with the McGeorge Law Review) (“One third of the prisoners
read at less than a 9th grade level. . . . They cannot compete in the work-place.”).
23. California Department of Corrections and Rehabilitation, Summary Fact Sheet, http://www.cdcr.ca.
gov/Reports_Research/summarys.html (last visited Feb. 10, 2009) [hereinafter Summary Fact Sheet] (on file
with the McGeorge Law Review).
24. Visher, supra note 1, at 96.
25. Id. at 95.
26. Id. at 96 (“[T]he most commonly reported conditions includ[e] depression, asthma, hepatitis, and
high blood pressure.”).
27. Id.
28. Id.
29. Id.
30. United States Department of Justice, Learn About Reentry, http://www.reentry.gov/learn.html (last
visited Feb. 10, 2009) [hereinafter Learn About Reentry] (on file with the McGeorge Law Review). Indeed, the
effectiveness and importance of the reentry process is further supported by the recent emergence of reentry
courts that conduct extensive case management of offenders. Id.
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communities that receive large numbers of these inmates.31 All across the
country, myriad programs assist criminals with the reentry process by providing
pre-release programs, drug rehabilitation, vocational training, and work
programs.32 The President’s Prisoner Reentry Initiative (PRI) and the Office of
Justice Programs’ Bureau of Justice Assistance, which partnered with the U.S.
Department of Labor, offer funding for state governments to implement reentry
programs.33 Furthermore, recent legislation under the Second Chance Act will
provide even greater federal resources for the reentry initiative.34
Rehabilitation programs are effective; well-designed and well-implemented
reentry programs in some instances have reduced recidivism at a rate of five to thirty
percent.35 Targeted educational and vocational programs, cognitive behavioral
therapies, substance abuse treatment, reentry partnerships, counseling, and other
transitional assistance programs (especially with systematic monitoring), can lead to
a reduction in recidivism.36 However, in California, nearly half of all prisoners
released do not participate in any work assignments or rehabilitation reentry
programs during their incarceration.37
C. The Inmate Welfare Fund
The IWF serves as one funding resource for the reentry and rehabilitation
programs in California.38 Existing California law authorizes the sheriff of each
county to maintain a store at the county jail, the profits of which are deposited
into the IWF to support programs that benefit, educate, and promote the general
welfare of inmates.39 The money is drawn from various sources, including stores
operated in connection with a county jail,40 a percentage from the gross sales of
inmate hobbycraft,41 and funds received from telephone companies for
telephones primarily used by inmates.42 Initially, the IWF only provided for
essential clothing and transportation costs within the county.43
31. Id.
32. Id.
33. Id.
34. The White House, President George W. Bush, Fact Sheet: President Bush Signs Second Chance Act
of 2007, Apr. 9, 2008, http://georgewbush-whitehouse.archives.gov/news/releases/2008/04/20080409-15.html
(on file with the McGeorge Law Review).
35. Petersilia, supra note 6, at 212.
36. See generally id.
37. Id. at 211. Even those inmates wishing to participate in reentry programs are discouraged from doing
so because of the strong influence of gang leaders. Id.
38. CAL. PENAL CODE § 4025 (West 2000 & Supp. 2009).
39. Id. § 4025(a), (b), (e).
40. Id. § 4025(a). Products sold include “confectionery, tobacco and tobacco users’ supplies, postage
and writing materials, and toilet articles and supplies.” Id. The products are sold for cash to inmates in the jail.
Id.
41. Id. § 4025(c).
42. Id. § 4025(d). This is an extremely controversial topic. See Kim Curtis, County Jails Profit Off
462McGeorge Law Review / Vol. 40
D. The Original Pilot Program
To increase the resources and programs available to indigent inmates upon
release from jail, a pilot program was established in early 2008 in the Counties of
Alameda, Los Angeles, Orange, Sacramento, San Francisco, San Diego, Santa
Barbara, and Stanislaus.44 The pilot program allows the sheriffs in each county to
use funds from the IWF to assist inmates up to fourteen days after release.45 The
program allows IWF funds to be used for “work placement, counseling,
obtaining proper identification, education, and housing.”46 Given the social and
economic disadvantages that plague the inmate population and their additional
post-release needs,47 the ability to use these funds is crucial to successful reentry
into society.48
III. CHAPTER 16
Chapter 16 adds Kern, San Bernardino, and Santa Clara Counties to the list
of counties implementing the pilot program that assists indigent inmates with the
reentry process.49 The program makes those inmates released from county jails—
or any other adult detention facility under the jurisdiction of the sheriff—eligible
for assistance during the first fourteen days after release.50 The statute authorizes
the sheriffs in these counties to fund the pilot program with money from the
IWF.51 “The assistance provided [for indigent inmates by the pilot program] may
include, but is not limited to, work placement, counseling, obtaining proper
identification, education, and housing.”52
Inmates’ Calls, OAKLAND TRIB., Aug. 23, 2004, http://findarticles.com/p/articles/mi_qn4176/is_20040823/
ai_n14580782 (on file with the McGeorge Law Review) (“Telephone companies and California counties have
made hundreds of millions of dollars from some of the state’s poorest people through high, unregulated phone
rates for calls from local jails . . . .”).
43. CAL. PENAL CODE § 4025(i).
44. Id. § 4025.5(a) (West Supp. 2009).
45. Id.
46. Id.
47. Visher, supra note 1, at 96 (listing these needs as “employment[,] in-person reporting[,] payment of
restitution, fees, . . . fines[], and the need for state-approved identification”).
48. Id.
49. CAL. PENAL CODE § 4025.5(a) (amended by Chapter 16).
50. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 2574, at 1 (Mar. 25,
2008).
51. Id.
52. CAL. PENAL CODE § 4025.5(a) (amended by Chapter 16).
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IV. ANALYSIS OF CHAPTER 16
A. Recidivism in the County Jail System
Although the rate of recidivism among misdemeanor offenders is lower than
the general prison population,53 the success of the IWF-funded reentry and
rehabilitation programs for prison inmates may very-well translate into reduced
recidivism among these misdemeanor offenders as well. However, the program
may not provide as much incentive for those convicted of misdemeanors. In
2005, 233,388 of these offenders were not incarcerated due to a lack of jail
space.54 Unsurprisingly, these individuals continue to commit misdemeanors and
cycle through the jail system, as there are fewer consequences for their repeat
criminal activity.55 In fact, the problem is so severe that criminals prefer to have
monetary fines transferred into jail time with the expectation that they will not
serve their sentence due to a lack of jail space.56 Fortunately, recent California
Legislation has attempted to remedy the overcrowding issue, but it will take
some time for these changes to take effect.57
Additionally, there is a subset of misdemeanor offenders who would have a
particularized benefit from the counseling and mental health services that are
provided by many of the IWF funded programs.58 These offenders suffer from
mental health issues and repeatedly commit misdemeanors and “quality of life”
crimes.59 The counseling and mental health services available through IWF-
funded rehabilitation programs could potentially have a strong impact on
reducing recidivism in the jail system.60
53. Compare Iris Yen, Comment, Of Vice and Men: A 8ew Approach to Eradicating Sex Trafficking by
Reducing Male Demand Through Educational Programs and Abolitionist Legislation, 98 J. CRIM. L. &
CRIMINOLOGY 653, 677 (2008) (giving the rate of recidivism among misdemeanor offenders as 33 percent),
with Hughes & Wilson, supra note 12 (stating that the national percent of released prisoners rearrested within
three years was over sixty percent in 1994).
54. State of California, Office of the Governor, Comprehensive Prison Reform, http://gov.ca.gov/
index.php?/fact-sheet/4966 (last visited Feb. 10, 2009) (on file with the McGeorge Law Review).
55. See id. (creating the inference that there are less penalties for committing crimes because offenders
are not receiving jail time due to the lack of jail space). Since 2002, Los Angeles County was unable to
incarcerate over 150,000 criminals most of whom had only served 10 percent of their sentences. CSSA, supra
note 16, at 14.
56. CSSA, supra note 16, at 16.
57. David Muradyan, Recent Statute, California’s Response to Its Prison Overcrowding Crisis, 39
MCGEORGE L. REV. 482, 488-89 (2008) (stating that Chapter 7 authorized $7.4 billion for the construction of
facilities, which was projected to add 13,000 new county jail beds).
58. See generally Developments in the Law: The Law of Mental Illness, 121 HARV. L. REV. 1114 (2008).
59. Id. at 1170.
60. Id. With the rise of the mental health court system, this particular subset of criminals suffering from
mental illness have more resources available to them. See generally id.
464McGeorge Law Review / Vol. 40
A. IWF Funded Programming Combats Recidivism
The IWF supports countless programs and necessities for inmates in the
California jail system. For example, Orange County, included in the original pilot
program last year, offers numerous academic and vocational programs that assist
inmates in finding employment after release.61 The educational programs focus
on acquiring a GED degree, learning English as a second language, attaining
adult basic education, and participating in government classes.62 Additionally,
vocational education programs offer instruction in cabinetry and furniture-
making, construction technology, commercial painting, commercial sewing,
horticulture, welding, computer business skills, computer literacy, and food
services.63 These programs are now available to indigent inmates, even after their
release from jail.
Other counties in the state offer various programs in education and self-
improvement with the help of funding from the IWF.64 The programs range from
vocational programs that expand occupational skills and social responsibilities to
substance abuse programs that increase awareness of the correlation between
substance abuse and incarceration.65 Additionally, Santa Cruz County focuses on
literacy programs and assisting inmates in passing the GED exam.66
Reentry and rehabilitation programs have been effective in reducing
recidivism.67 In one Washington state study, general education programs (basic
or post-secondary education) led to a seven percent reduction in recidivism.68
Similarly, the study showed that vocational training while in prison reduced
recidivism by nine percent.69 Interestingly, the study showed that some programs
fair better in the community (such as drug treatment programs) and others do
better in prison (such as vocational education).70 Other studies have shown
reductions in recidivism of up to thirty percent.71 The extension of IWF funded
programming after the inmate’s release undoubtedly will help with reintegration.
61. INMATE WELFARE FUND, GRAND JURY REPORT, ORANGE COUNTY 3-4, available at http://www.
ocgrandjury.org/pdfs/GJInmate.pdf (last visited Feb. 10, 2009) (on file with the McGeorge Law Review).
62. Id.
63. Id.
64. Letter from Steve Robbins, Sheriff–Coroner, County of Santa Cruz, to Board of Supervisors, County
of Santa Cruz (Sept. 12, 2006), available at http://sccounty01.co.santa-cruz.ca.us/bds/govstream/BDSvData/
non_legacy/Minutes/2006/20060912/PDF/019.pdf (on file with the McGeorge Law Review).
65. Id.
66. Id.
67. CDCR, supra note 15, at 31.
68. Id.
69. Id.
70. Id.
71. Petersilia, supra note 6, at 212.
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B. Extending IWF-Funded Programs and Resources Beyond Release
The crux of the pilot program is the extension of IWF-funded resources,
programs, and financial funding to indigent inmates fourteen days after release.72
In Los Angeles County, members of the Community Transition Unit evaluate an
inmate’s needs prior to release; oftentimes the indigent inmates cannot even
afford the seven-dollar fee for an identification card.73 The socioeconomic
disadvantages and special needs of indigent inmates continue after release from
prison, thus making reintegration difficult. Even years after being released, a
large percentage of former inmates report needing assistance with housing, job
training, education, medical care, and general financial issues.74
V. CONCLUSION
Chapter 16 furthers the resources available to indigent inmates for reentry by
authorizing the sheriff of specified counties to use money from the IWF to assist
inmates with the reentry process.75 The IWF provides essential services for the
welfare and educational needs of inmates, and Chapter 16 assures that these
services are available even after release.76 Although there have been studies
evaluating the efficacy of reentry and rehabilitation programs, a more systematic
case management and mentoring program needs to be implemented to
specifically monitor the effect of these programs on recidivism.77
72. CAL. PENAL CODE § 4025.5 (amended by Chapter 16).
73. Scott Prison Reform Bills Pass First Assembly Test, supra note 2.
74. Visher, supra note 1, at 97.
75. CAL. PENAL CODE § 4025.5 (amended by Chapter 16).
76. Id.
77. Id.
466Chapter 38: Gang Related uisance Proves Costly for Gang
Members
Julia Y. Capozzi
Code Section Affected
Penal Code § 186.22a (amended).
SB 1126 (Cedillo); 2008 STAT. Ch. 38 (Effective June 25, 2008).
I. INTRODUCTION
Criminal street gangs have dramatically increased in number and
membership throughout California.1 Their notoriety and lack of discretion leaves
communities struggling to find solutions.2 In Los Angeles County alone, there
are approximately 1,200 different street gangs consisting of over 70,000
members.3 Comparable numbers also exist in Northern California.4 Beyond the
numbers, gangs inflict economic injury by causing insurance rates to go up and
property value to go down.5 This, coupled with the rising rates of serious
felonies, has left state and local governments scratching their heads for ways to
curb gang activity and prevent growing membership.6
The California Legislature enacted Chapter 38 to provide an additional tool
to combat gang activity throughout the state.7 In his signing statement, Governor
Arnold Schwarzenegger stated that Chapter 38 “strengthens . . . statewide anti-
gang efforts by giving prosecutors more tools to fight gang activity at the local
level.”8
1. See Governor Signs Anti-Gang Legislation: Law Aims to Hold Gangsters Personally Liable,
MY58.COM, June 25, 2008, http://www.my58.com/print/16707506/detail.html [hereinafter Governor Signs Anti-
Gang Legislation] (on file with the McGeorge Law Review) (noting that Chapter 38 was enacted in response to
a “dramatic increase in gangs across the state and their proliferation in suburban and rural areas”).
2. California Senate, Senator Gilbert A. Cedillo, SB 1126 Street Gang Assets (Cedillo) [hereinafter SB
1126 Street Gang Assets] (on file with the McGeorge Law Review).
3. Id.
4. See Atty. Gen. Brown Announces 8orteno Gang Crackdown in Stockton, CAL. CHRON., May 30,
2008, http://www.californiachronicle.com/articles/printFriendly/63499 [hereinafter 8orteno Gang Crackdown]
(on file with the McGeorge Law Review) (noting that the Norteno street gang in Stockton has 1,180 members
and associates in Stockton alone).
5. See SB 1126 Street Gang Assets, supra note 2 (“Their illegal operations allow the gang to thrive
while neighborhoods suffer. Their actions cause housing prices in the area to decline, businesses to close and
insurance rates to go up, while the gang and gang leader’s [sic] profit.”).
6. See Maria L. La Ganga et al., Violent Crime Climbs in Bay Area, L.A. TIMES, Nov. 11, 2007, at B1
(noting that increasing gang violence in Oakland, California has “renewed calls for more police,” but Mayor
Ron Dellums “has favored social explanations and fixes for crime problems”).
7. See Governor Signs Anti-Gang Legislation, supra note 1 (“[Chapter 38] will make it easier to hold
gang members personally liable for harm to the community caused by their gangs.”).
8. Id.
4672009 / Penal
II. BACKGROUND
A. Criminal Street Gangs
A criminal street gang is an “ongoing organization, association, or group of
three or more persons, whether formal or informal, having as one of its primary
activities the commission of . . . criminal acts.”9 Additionally, there must be a
“common name or common identifying sign or symbol” that identifies the
“organization.”10 Finally, it must be shown that the “organization” membership
either collectively or individually “engage[s] in or [has] engaged in a pattern of
criminal gang activity.”11
Providing an exhaustive list of California street gangs is an increasingly
tiresome endeavor, as thousands exist throughout the state.12 Generally, criminal
street gang membership centers on race or nationality.13 Thus, Hispanics
typically join a predominantly or exclusively Hispanic gang such as the 18th
Street Gang,14 the Mexican Mafia, or the Latin Kings;15 African Americans join
predominantly African American gangs such as the Crips or Bloods; and
Caucasians often join gangs such as the Aryan Brotherhood, Hell’s Angels, or the
Nazi Lowriders.16
California communities are terrorized with gang related activities that
provide great profits to the gang and its members at great cost to the
community.17 Between 1996 and 2005, twenty-seven percent of homicides in
9. CAL. PENAL CODE § 186.22(f) (West 1999).
10. Id.
11. Id.
12. See SB 1126 Street Gang Assets, supra note 2 (noting the high numbers of gangs and gang members
in California).
13. See Street Gangs, http://www.streetgangs.com (last visited Oct. 11, 2008) (on file with the
McGeorge Law Review) (breaking down street gangs by race).
14. See Alex Alonso, 18th Street Gang in Los Angeles County, STREETGANGS.COM, June 25, 2008,
http://www.streetgangs.com/18thstreet.html (on file with the McGeorge Law Review) (noting that the 18th
Street Gang is a Hispanic gang).
15. See Mexican Mafia, Surenos, http://www.knowgangs.com/gang_resources/profiles/surenos/ (last
visited Jan. 30, 2009) (on file with the McGeorge Law Review) (“A small group of Mexican-American inmates
organized themselves into what would become to be known as the Mexican Mafia.”); The Almighty Latino
Kings Nation, http://www.knowgangs.com/gang_resources/profiles/kings/index.php (last visited Jan. 30, 2009)
(on file with the McGeorge Law Review) (“Although the original members were of Puerto Rican decent, most
members [of the Latino Kings] are now Mexican-American.”).
16. See Aryan Brotherhood, http://www.knowgangs.com/gang_resources/profiles/ab/ (last visited Jan.
30, 2009) (on file with the McGeorge Law Review) (“[The Aryan Brotherhood] was established to provide
protection for White individuals from Black and Hispanic groups, most specifically the Mexican Mafia.”).
17. See City Attorney Rocky Delgadillo Lauds Passage of Anti-Gang Bills by California State Senate,
CAL. CHRON., May 6, 2008, http://www.californiachronicle.com/articles/60816 (on file with the McGeorge Law
Review) (“‘Criminal street gangs are finding new and insidious ways to terrorize our communities, and to profit
from their criminal activities’” and they “maintain tight economic control over the neighborhoods they occupy.”
(quoting Rocky Delgadillo, L.A. City Attorney)).
468McGeorge Law Review / Vol. 40
California were gang related.18 In 2006, thirty-eight percent of Oakland’s
homicides were gang related,19 and in 2007, 216 deaths resulted from gang
violence in Los Angeles.20 However, gang violence is not limited to homicides;
gangs engage in other criminal activity that is detrimental to communities such as
drug trafficking, residential robbery, assault, carjacking, and prostitution.21
In response to the prevalent gang activity in Los Angeles, City Attorney
Rockard J. Delgadillo in conjunction with the Los Angeles County District
Attorney’s Office filed a civil lawsuit against the San Fer Gang.22 The lawsuit
sought an injunction against the San Fer Gang to restrict the gang’s criminal
activity.23 On August 11, 2008, a Los Angeles judge granted the permanent
injunction against the San Fer Gang.24 Chapter 38 further allows prosecutors to
seek monetary compensation for communities damaged by gang activity.25
B. Prior Law
The Governor signed Senate Bill 271 (Chapter 34) into law on July 6, 2007
as a means of combating gang-related illegal activities and to diminish the
destructive presence of gangs in the communities they inhabit.26 Chapter 34 gives
“any district attorney or any prosecuting city attorney” the authority to bring an
action on the community’s behalf for damages resulting from gang related
nuisances.27 Additionally, Chapter 34 allowes state and local prosecutors to
18. 8orteno Gang Crackdown, supra note 4.
19. La Ganga et al., supra note 6.
20. See Joel Rubin et al., Gang-Related Killings in L.A. Plunge, L.A. TIMES, Jan. 11, 2008, at B3 (“The
LAPD recorded 216 gang-related deaths in 2007.”).
21. See Press Release, Edmund G. Brown Jr., Att’y Gen., Cal. State., Attorney General Brown
Announces Crackdown on Violent Richmond Gang, Nov. 13, 2008, available at http://ag.ca.gov/newsalerts/
print_ release.php?id=1631 (on file with the McGeorge Law Review) (“[The Deep Central Gang of Richmond]
is one of the largest and most violent criminal street gangs in Richmond, engaging in drug trafficking, robbery,
assault and prostitution.”); 8orteno Gang Crakdown, supra note 4 (“[The Norteno street gang] ha[s] committed
an increasing number of gang-related shootings, stabbings, carjackings and residential robberies . . . .”).
22. Press Release, Rockard J. Delgadillo, City Att’y, L.A., L.A. City Attorney Rocky Delgadillo Seeks
Injunction Against Notorious Valley Gang, Apr. 17, 2008, available at http://www.lacity.org/atty/attypress/
attyattypress6952223_04172008.pdf (on file with the McGeorge Law Review).
23. Id.
24. Press Release, Los Angeles County District Attorney’s Office, Judge Grants Permanent Injunction
Against San Fernando Valley Gang, Aug. 11, 2008, available at http://da.co.la.ca.us/mr/081108c.htm (on file
with the McGeorge Law Review).
25. CAL. PENAL CODE § 186.22a (amended by Chapter 38); Press Release, Los Angeles County District
Attorney’s Office, supra note 24.
26. Press Release, Office of the Governor, Cal. State, Gov. Schwarzenegger Signs Legislation to Protect
Californians from Gangs, available at http://gov.ca.gov/index.php?/print-version/press-release/6897/ (last
visited Oct. 11, 2008) (on file with the McGeorge Law Review); see also Philip Lee, Recent Statute, Chapter
34: Hitting Criminal Street Gangs Where It Hurts—Their Wallets, 39 MCGEORGE L. REV. 577, 577 (2008)
(explaining the necessity of Chapter 34 to combat gangs that “have placed a financial strain on the communities
[in which] they operate”).
27. CAL. PENAL CODE § 186.22a(c) (West Supp. 2008).
4692009 / Penal
collect damages from “the criminal street gang or its members” from assets
“derived from the criminal activity being abated or enjoined.”28 Due to the
specificity of the statute to collect damages “derived from the criminal activity,”
the collection of damages proved challenging for prosecutors.29 Accordingly, “no
case has ever been filed against an[] enjoined gang” or its members.30
The prosecuting attorney could seek damages from “persons who knew or
should have known of the unlawful acts.”31 Thus, under Chapter 34, a person
need not necessarily be a member of a gang for liability to attach.
Any damages recovered from gang related nuisances were reserved for the
damaged community or neighborhood where the nuisance occurred.32
Specifically, Chapter 34 required that recovered damages “be deposited into a
separate segregated fund for payment to the governing body of the city or county
in whose political subdivision the community or neighborhood is located.”33 The
funds were to be used “solely for the benefit of the community or neighborhood
that has been injured by the nuisance.”34
C. 8uisance
Penal Code section 186.22a(a) defines nuisance with specificity, and states
that the “nuisance . . . shall be enjoined, abated, and prevented.”35 Additionally,
the provision allows for collection of damages resulting from the enjoined or
abated nuisance irrespective of whether the nuisance is public or private.36
The statute states that “any offense involving dangerous or deadly weapons,
burglary, or rape” is a nuisance.37 Additionally, “[e]very building or place used
by members of a criminal street gang for the purpose of the commission” of
certain listed offenses is also a nuisance.38 Specifically, thirty-three enumerated
offenses currently exist under Penal Code Section 186.22(e).39 These offenses
range widely from non-physical injury offenses such as counterfeiting to physical
injury offenses such as homicide.40
28. Id.
29. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 3 (June 10,
2008) (“[Existing statutory] language would render any money judgment obtained against the gang and its
members almost certainly uncollectible.”).
30. Id.
31. CAL. PENAL CODE § 186.22a(c) (West 1999).
32. Id.
33. Id.
34. Id.
35. Id. § 186.22a(a).
36. Id.
37. Id.
38. Id.
39. See id. § 186.22(e) (West 1999 & Supp. 2008) (listing thirty-three offenses under this section,
including assault, robbery, and homicide).
40. See id. (including a wide range of offenses).
470McGeorge Law Review / Vol. 40
Other non-physical injury offenses include robbery, burglary, grand theft,41
theft and unlawful taking or driving of a vehicle (joy-riding), looting, sale or
distribution of controlled substances, arson, money laundering, felony extortion,
felony vandalism, felony theft or fraudulent use of access cards or account
information, fraudulent use of personal information,42 and wrongfully obtaining
Department of Motor Vehicle documentation.43 Several firearm offenses also
constitute a nuisance such as the possession, sale, delivery or transfer of a
firearm, carrying a concealed weapon or loaded firearm, as well as discharging a
loaded firearm from a motor vehicle (drive-by shooting).44
Physical injury offenses constituting a nuisance include intimidating a
witness or victim, assault with a deadly weapon, rape, kidnapping, mayhem,
torture, threats to commit crimes resulting in great bodily injury or death, or
carjacking.45
Finally, in addition to the enumerated offenses listed above, Section 186.22a
makes clear that “every building or place wherein . . . criminal conduct by gang
members takes place, is a nuisance.”46 Thus, under Chapter 38, a prosecutor may
seek damages for a wide variety of offenses that ultimately constitutes a nuisance
on the suffering community.
III. CHAPTER 38
Chapter 38 became effective after the Governor signed SB 1126 into law on
June 25, 2008.47 Chapter 38 became immediately effective as “an urgency statute
necessary for the immediate preservation of the public peace, health, or safety”
due to the “recent increase in gang-related crimes.”48
Chapter 38 changes prior law in two major ways. First, Chapter 38 allows the
injured community or neighborhood to recover damages from “the criminal street
gang or its members.”49 This amendment provides that “[o]nly members of the
criminal street gang who created, maintained, or contributed to the creation or
maintenance of the nuisance shall be personally liable for the payment of the
damages awarded.”50 This differs from prior law, which allowed the collection of
41. See id. § 186.22(e)(9) (listing grand theft as a nuisance).
42. See id. § 186.22(e)(29) (“Unlawful use of personal identifying information to obtain credit, goods,
services, or medical information.”).
43. See id § 186.22(e)(30).
44. See id. § 186.22(e)(31)-(33).
45. See id. § 186.22(e).
46. Id. § 186.22a(a) (West 1999).
47. Email from Governor’s Office of External Affairs, to Yuliana Mendez, Polanco Fellow, Office of
Senator Gilbert Cedillo (June 25, 2008, 05:49:00 PST) (on file with the McGeorge Law Review).
48. 2008 Cal. Stat. ch. 1126, §2.
49. CAL. PENAL CODE § 186.22a(c) (amended by Chapter 38).
50. Id.
4712009 / Penal
damages from “persons who knew or should have known of the unlawful acts.”51
Thus, Chapter 38 applies only to criminal street gang members instead of anyone
who knew or should have known of the unlawful acts.
Second, damages awarded to the injured community or neighborhood may be
collected from any asset held by the member of the gang who “created,
maintained, or contributed to the creation or maintenance of the nuisance.”52 This
differs from prior law, which required that damages be paid or collected from
assets that “were derived from the criminal activity being abated or enjoined.”53
Thus, the prosecutor need not establish what assets were derived from the
criminal activity and instead may pursue any asset belonging to the responsible
gang member to satisfy the award for damages.54
IV. ANALYSIS OF CHAPTER 38
Chapter 38 was introduced twenty-eight days after Chapter 34 was enacted.55
It quickly became apparent that Chapter 34 was deficient in one major respect:
prosecutors effectively could not collect awarded damages from gang members.56
That is, proving what assets were derived from the enjoined nuisance activity
deterred prosecutors from filing any case against an enjoined gang member due
to the difficulty in establishing what assets were actually derived from the
criminal activity.57 Chapter 38 removes this inhibitor and allows a prosecutor to
collect any assets belonging to a gang member to satisfy the judgment.
A. Excessive Fines—Article I, Section 17 of the California Constitution
Chapter 38’s opponents argue that it is overbroad because it extends personal
liability for nuisance to any asset a gang member possesses.58 Article I, Section
17 of the Constitution of the State of California ensures that “[c]ruel or unusual
punishment may not be inflicted or excessive fines imposed.”59 Thus, it seems
51. Id. § 186.22a(c) (West 1999).
52. Id. § 186.22a(c) (amended by Chapter 38) (emphasis added).
53. Id. § 186.22a(c) (West 1999).
54. Compare id. § 186.22a(c) (amended by Chapter 38), with id. § 186.22a(c) (West 1999).
55. Letter from Ignacio Hernandez, Legislative Advocate, Cal. Att’ys for Criminal Justice, to Gil
Cedillo, Senator, Cal. State Senate (Mar. 17, 2008) [hereinafter Hernandez Letter] (on file with the McGeorge
Law Review).
56. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 3 (June 10,
2008) (stating that the existing statutory language “would render any money judgment obtained against the gang
and its members almost certainly uncollectible”).
57. See id. (“[T]he ‘derived from’ language restricts prosecutors in ways that plaintiffs, in a private
nuisance action, would not be restricted.”).
58. See Hernandez Letter, supra note 55 (expressing concern that Chapter 38 allows for the seizure
assets unrelated to the criminal activity) (emphasis added).
59. CAL. CONST. art. I, § 17 (emphasis added).
472McGeorge Law Review / Vol. 40
that the reach of Chapter 38 in collecting any asset may infringe on the right not
to have excessive fines imposed.
In determining whether an excessive fine has been imposed, a court must
consider whether “[t]he amount of the forfeiture . . . bear[s] some relationship to
the gravity of the offense that it is designed to punish.”60 If the fine is “grossly
disproportional to the gravity of a defendant’s offense” then it violates the
Excessive Fines Clause of Article I, Section 17.61
While Chapter 38 is silent as to any standard for assessing damages for
nuisance violations, the legislation is still bound by the outer limits of Article I,
Section 17. Thus, a gang member found liable to a community or neighborhood
for nuisance damages would be fined an amount that is proportionate to “the
gravity of the offense.”62
B. Gang Membership—The “Defining” Dilemma
Chapter 38 “specifically targets the gang members and their associates
responsible for the damages to the community.”63 Accordingly, Chapter 38 states
that “[o]nly members of the criminal street gang” are personally liable for
damages inflicted on the community or neighborhood.64 However, opponents to
Chapter 38 point out that “membership” in a gang is uncertain, thereby
potentially applying to persons who dissent to the criminal activity or who are in
the process of leaving their respective gangs.65
In People v. Englebrecht, a California Appellate Court determined that “an
active gang member is a person who participates in or acts in concert with [a
criminal street gang].”66 Additionally, the participation must be “more than
nominal, passive, inactive or purely technical.”67 The court’s definition is
consistent with Penal Code Section 186.22(a), which states that “[a]ny person
who actively participates in any criminal street gang” is subject to the Section.68
However, formal membership need not be established; instead, only “[a]ctive
60. People v. Urbano, 128 Cal. App. 4th 396, 406, 26 Cal. Rptr. 3d 871, 878 (5th Dist. 2005). In
Urbano, the Defendant was a Fresno Bulldog (a criminal street gang member), convicted of causing great
bodily injury to a victim “solely to promote a criminal street gang” and was fined $3,800. The court denied his
argument that the fine was excessive under section 17 of the California Constitution due to the nature of the
offense. Id. at 873, 878.
61. Id. at 878.
62. Id.
63. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 2 (June 10,
2008).
64. CAL. PENAL CODE § 186.22a (amended by Chapter 38).
65. Hernandez Letter, supra note 55; ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE
ANALYSIS OF SB 1126, at 6 (June 10, 2008).
66. 88 Cal. App. 4th 1236, 1261, 106 Cal. Rptr. 2d 738, 756 (4th Dist. 2001). The definition refers to
“criminal street gang” as defined in Penal Code section 186.22(f).
67. Englebrecht, 88 Cal. App. 4th at 1261, 106 Cal. Rptr. 2d at 756.
68. CAL. PENAL CODE § 186.22(a) (West 1999).
4732009 / Penal
participation in the criminal street gang . . . is required.”69 Opponents to Chapter
38 are concerned by the broad definition of an active gang member, especially
since Chapter 38 does not itself attempt to define who is a gang member for
purposes of the statute.70
However, Chapter 38 supporters argue that the lack of a concrete definition
of gang membership is not per se detrimental to the legislation because
safeguards exist.71 For instance, existing law relating to “nuisance, torts, and
judgments . . . limit recovery of damages to those who have created, maintained
or contributed to the creation or maintenance of the nuisance activity.”72
Accordingly, the State retains the burden of proving that an accused was at least
“substantially responsible for the damages.”73 Thus, supporters contend that this
burden limits the possibility of dissenting individuals becoming liable under
Chapter 38.74
C. The Deterrent Effect
Finally, opponents argue that Chapter 38 is premature because, although it
amends Chapter 34, it was introduced only twenty-eight days after Chapter 34
was enacted into law.75 Supporters counter that Chapter 38 was urgently needed
because, despite Chapter 34’s enactment the previous year, no case had been
filed due to the high burden of proof required to establish that the awarded assets
were “derived from” the criminal activity.76 It remains unclear whether Chapter
34, without amendment, would have been an effective remedy to combat some of
the economic harm caused by gangs.
Chapter 38’s proponents further argue that the power to seize any and all
assets of gang members who contribute to community nuisance is the only way
to loosen the tight grip street gangs have over their communities.77 Proponents
believe Chapter 38 provides the means to “fight back” and creates the tools
69. Id. § 186.22(i).
70. Id. § 186.22a(c) (amended by Chapter 38); see also ASSEMBLY COMMITTEE ON PUBLIC SAFETY,
COMMITTEE ANALYSIS OF SB 1126, at 6 (June 10, 2008) (“Membership in a gang is an uncertain
term . . . [with] no statutory definition.”).
71. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 5-6 (June
10, 2008) (“[Chapter 38,] as well as existing law, contains sufficient protections to safeguard those who do not
create, maintain, or contribute toward the creation or maintenance of a public nuisance.”).
72. Id.
73. Id. at 6.
74. Id. at 6-7.
75. Hernandez Letter, supra note 55.
76. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 3 (June 10,
2008).
77. See Letter from Rockard J. Delgadillo, City Att’y, L.A., to Members of the California State Senate
(Apr. 21, 2008) (on file with the McGeorge Law Review) (noting how gangs have tight economic control over
neighborhoods, and Chapter 38 is a way to reduce that control).
474McGeorge Law Review / Vol. 40
communities need to thrive again.78 The general hope is that gang-dominated
communities will finally regain their independence from the effects of continued
and increased gang activity.79 Though far from a comprehensive fix to
California’s serious gang problems, proponents argue that Chapter 38 serves as a
deterrent to gang members as they will be reluctant to engage in gang activities
that they know may result in seizure of their assets.80 Accordingly, the deterrent
effects of Chapter 38 may decrease gang activity.81
V. CONCLUSION
Chapter 38’s supporters believe that California is one step closer to
eradicating criminal street gangs with the passage of this legislation.82 Criminal
street gang members are on notice: they will be liable for the damage they inflict
to their communities.83 Gang members will no longer be able to hide assets
merely because they were not derived from the criminal activity.84
78. See Letter from Harriet Salarno, Chair, Crime Victims United of Cal., to Gil Cedillo, Senator, Cal.
State Senate (Apr. 9, 2008) (on file with the McGeorge Law Review) (noting how prosecutors can now “step in
the shoes of the victimized communities and fight on [their] behalf”).
79. See id. (describing how Chapter 38 will allow prosecutors to seek monetary damages to be returned
to the community).
80. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 1-2 (June
10, 2008) (noting that civil gang injunctions are an “effective means of deterring and abating the violence and
public nuisance activity caused by criminal street gangs”). But see Corey Ordoñez, Recent Statute, Anti-Gang
Violence Parenting Classes: Early Parental Involvement Versus Career Criminals, 39 MCGEORGE L. REV. 671,
674 (2008) (“One approach to curbing delinquent and gang-related behavior . . . is deterrence; the severity and
likelihood of punishment provides a disincentive . . . . However, there is very little evidence supporting the
theory that severe penalties act as a deterrence of a crime.”).
81. See Letter from Gregory D. Totten, Dist. Att’y, County of Ventura, State of Cal., to Gilbert Cedillo,
Senator, Cal. State Senate (Mar. 12, 2008) (on file with the McGeorge Law Review) (“The proposed amendment
makes collections of damages possible and represents sound policy in the fight against criminal street gangs and
their devastating impact on our communities.”).
82. See, e.g., id. (explaining how Chapter 38 helps curb gang activity).
83. See CAL. PENAL CODE § 186.22a(c) (amended by Chapter 38) (stating that members of a criminal
street gang “shall be personally liable for the payment of the damages awarded”).
84. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 3 (June 10,
2008).
475Identity Thieves Get More than They Bargained for:
Victim’s Venue
8athaniel H. Clark
Code Section Affected
Penal Code § 786 (amended).
SB 612 (Simitian); 2008 STAT. Ch. 47.
As the power and self-confidence of a community increase, the penal law
always becomes more moderate; every weakening or imperiling of the
former brings with it a restoration of the harsher forms of the latter.1
I. INTRODUCTION
Forget flesh-eating zombies; a real horror flick would feature the deceased
opening credit lines six-feet under.2 But modern “grave robber” Tracy June
Kirkland is far from the walking-dead.3 When federal investigators apprehended
Tracy, she was perfecting the exploitation of on-line genealogy sites by
extracting social security numbers to pilfer the identities of the departed.4
Identity theft is a generally detached crime because eighty-four percent of
perpetrators have no personal relationship with their victims.5 Many incidents go
unprosecuted because they occur in large urban areas where there are a
magnitude of other crimes.6 This geographic disconnect between the impact and
commission of the crime leaves prosecutors in paralysis.7 Authorities in the
victim’s jurisdiction are often legally unable to prosecute in that venue.8
Furthermore, authorities in the jurisdiction of the commission of the crime may
have too many pending cases, or little incentive, to press charges because the
1. FRIEDRICH NIETZSCHE, GENEALOGY OF MORALS II § 10 (Walter Kaufmann ed., trans., Random
House 1989) (1887).
2. See Kevin Poulsen, Feds Charge California Woman with Stealing IDs from the Dead, WIRED, Apr.
17, 2008, http://blog.wired.com/27bstroke6/2008/04/feds-charge-cal.html (on file with the McGeorge Law
Review) (reporting the arrest and grand jury indictment of a woman charged with stealing identities of deceased
victims).
3. Id.
4. Indictment at 2, United States v. Kirkland, No. 08-cr-00448-UA (C.D. Cal. filed Apr. 15, 2008)
(alleging that defendant used www.rootsweb.com to identify the social security numbers of the deceased for the
purpose of activating credit lines under their names).
5. SYNOVATE, FEDERAL TRADE COMMISSION—2006 IDENTITY THEFT SURVEY REPORT 28 (2007),
available at http://www.ftc.gov/os/2007/11/SynovateFinalReportIDTheft2006.pdf (on file with the McGeorge
Law Review) (official report prepared for the Federal Trade Commission based on nation-wide survey).
6. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 4 (June 10, 2008).
7. Id.
8. Id.
476McGeorge Law Review / Vol. 40
citizens they represent have been relatively unaffected by the crime committed
on their own soil.9
With individuals like Tracy robbing the dead from the comfort of their
homes via the Internet, it is easy to see why identity theft is the fastest growing
crime in the country.10
California has been on the forefront of improving identity theft statutes, as
Chapter 47 illustrates.11 If Tracy’s victims were alive today, she could be tried at
the venue of their respective residences—a new precedent in prosecuting identity
thieves.12
II. LEGAL BACKGROUND
A. Definitions Under Prior Law
Section 530.55 of the Penal Code13 defines “personal information” as “any
name, address, telephone number, health insurance number, taxpayer
identification number, school identification number, state or federal driver’s
license, or identification number, social security number, place of employment,”
as well as a litany of other sensitive information.14 Section 530.5 prohibits the
willful unlawful use of personal information.15 Such uses include the
perpetrator’s efforts “to obtain, or attempt to obtain credits, goods, services, real
property, or medical information without the consent of that person.”16 Section
530.5 further prohibits unauthorized acquisition, retention, sale, transference, and
9. See id. (noting that the impact of the crime is often felt in the locality of the victim, where property
concerns must be addressed).
10. Identity Theft Is America’s Fastest Growing Crime, http://www.usps.com/postalinspectors/idthft
_ncpw.htm (on file with the McGeorge Law Review) (noting that last year alone, over 9.9 million Americans
were victimized at a cost of roughly $5 billion).
11. See Kathleen Hunter, California Law on ID Theft Seen as Model, STATELINE.ORG, Apr. 4, 2005,
http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentI d=22828 (on file with
the McGeorge Law Review); CAL. PENAL CODE § 786(b)(1) (amended by Chapter 47) (amending code to
include the county where the victim resided at the time of the commission of the offense).
12. CAL. PENAL CODE § 786(b)(1) (amended by Chapter 47).
13. Absent clarification, all statutory references are to the California Penal Code.
14. CAL. PENAL CODE § 530.55(b) (West Supp. 2008). The section goes on to define “information” as:
employee identification number, professional or occupational number, mother’s maiden name,
demand deposit account number, savings account number, checking account number, PIN (personal
identification number) or password, alien registration number, government passport number, date of
birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris
image, or other unique physical representation, unique electronic data including information
identification number assigned to the person, address or routing code, telecommunication identifying
information or access device, information contained in a birth or death certificate, or credit card
number of an individual person, or an equivalent form of identification.
Id.
15. CAL. PENAL CODE § 530.5(a) (West Supp. 2008).
16. Id.
4772009 / Penal
conveyance of personal information with the intent to defraud.17 In the context of
identity theft, “person” is defined as “a natural person, firm, association,
organization, partnership, business trust, company, corporation, limited liability
company, or public entity.”18
B. Constitutional and Statutory History
1. Reasonable Relationship or 8exus
Penal Code Section 777’s general rule of territorial jurisdiction states that
“except as otherwise provided by law[,] the jurisdiction of every public offense is
in any competent court within the jurisdictional territory of which it is
committed.”19 However, when the Legislature makes an exception to section 777,
the statute is construed liberally to match the legislative purpose of expanding
criminal jurisdiction.20 In Price v. Superior Court, the California Supreme Court
held that the Legislature’s power to designate venue is limited by the requirement
of a reasonable relationship or nexus between the venue and the commission of
the offense.21
2. Venue and Vicinage
The Price court’s reasoning concurred with the appellate court’s assertion
that the “contemporary right to trial by jury no longer contemplates jurors who
are familiar with the parties and the locality and therefore are able to supply their
own personal knowledge.”22 That feature has been replaced with a right to jury
members who do not have independent knowledge of the incident or parties.23
The court weighed the value and legitimacy of “vicinage” rights, which pertain to
the area from which a jury is drawn and is distinct from, but closely related to,
venue—the location of the trial itself.24 Although venue is a statutory concept and
not a constitutional right,25 the defendant argued that vicinage rights derive from
17. Id. § 530.5(c)-(d).
18. Id. § 530.5(f).
19. Id. § 777.
20. Price v. Superior Court, 25 Cal. 4th 1046, 1055, 25 P.3d 618, 623 (2001) (interpreting section 781 of
the California Penal Code as “remedial” and construing the statute to expand criminal jurisdiction beyond
common law standards); People v. Bismillah, 208 Cal. App. 3d 80, 85, 256 Cal. Rptr. 25, 28 (1st Dist. 1989)
(same).
21. Price, 25 Cal. 4th at 1075, 25 P.3d at 636; see also ASSEMBLY COMMITTEE ON PUBLIC SAFETY,
COMMITTEE ANALYSIS OF SB 612, at 4 (June 10, 2008) (“Federal and state courts have ruled that pursuant to
the right of vicinage there must be a reasonable nexus between the crime and the county of trial.”).
22. Price, 25 Cal. 4th at 1052, 25 P.3d at 621.
23. Id.
24. Id. at 1054-55, 25 P.3d at 623; People v. Guzman, 45 Cal. 3d 915, 934, 755 P.2d 917, 927 (1988).
25. See People v. Sering, 232 Cal. App. 3d 677, 684-86, 283 Cal. Rptr. 507, 511-13 (4th Dist. 1991)
(“Locus delicti is the statutory (not constitutional) concept of a right to be tried in the county in which the crime
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