Friday, June 8, 2001
Page 1
C.A. Upholds, but Limits, Proposition 21 Gang-Registration Provisions
By KENNETH OFGANG, Staff Writer/Appellate Courts
Proposition 21’s requirement that minors found to have committed gang-related crimes register as gang offenders with local police and provide identifying information has been upheld by this district’s Court of Appeal.
Div. Two Wednesday rejected a constitutional attack on the gang-registration provisions of the juvenile-crime initiative sponsored by former Gov. Pete Wilson and adopted by voters in March of last year.
But in a setback for prosecutors, the court held that the requirement that registrants provide “any information that may be required by the law enforcement agency” is limited to facts that police must obtain to locate the offender.
Possible Self-Incrimination
The state’s lawyers, Deputy Attorneys General Susan D. Martynec and Scott J. Quan, had argued that the measure requires a registrant to provide police with any information “reasonably related to criminal street gang activity.” But Presiding Justice Roger Boren said that interpretation would render the requirement unconstitutional, because it would subject the registrant to possible self-incrimination.
The decision affirms an order adjudging a minor, identified as Walter S., to be a ward of the juvenile court and requiring him to register as a gang offender under Penal Code Sec. 186.30.
Los Angeles Superior Court Judge Robert D. Mackey imposed the requirement after finding that Walter had possessed a sawed-off shotgun on June 30 of last year while riding in a car that had been stolen from its owner at gunpoint earlier that day.
The initiative provides that the requirement be imposed when a juvenile has been convicted in adult court, or adjudged in juvenile court, on a charge which is covered by the Street Terrorism Enforcement and Prevention Act or is found by the judge to be gang-related.
Gang Benefit
STEP Act offenses are felonies involving theft, guns, violence, or drug dealing and which are committed for the benefit of a “criminal street gang.” The act defines a criminal street gang as an organization whose members have committed multiple STEP Act felonies.
Walter denied any role in the Northridge carjacking but acknowledged that he knew the vehicle was stolen and that the thieves were members of the Malditos gang.
Walter also admitted being a member of the Malditos, according to police testimony. Prosecutors presented evidence that one of the gang members in the car with Walter had been adjudged a ward of the court on a charge of attempted murder, and the other on drug and weapons charges.
Walter’s court-appointed attorney, Edward J. Haggerty, argued that the “any information” language is unconstitutionally vague and overbroad, and that the registration requirement constitutes cruel or unusual punishment and multiple punishment for the same crime.
But Boren rejected all of those arguments.
The requirement that the registrant provide “any” information, Boren said, must be construed in accordance with the purposes of the initiative, as expressed in the text and in the ballot argument favoring it.
Location Information
What the measure requires is “that the gang offender must provide information necessary for the law enforcement agency to locate the offender, such as the person’s full name, any aliases, the person’s date of birth, the person’s residence, the description and license plate number of any vehicle the person owns or drives, and information regarding any employment the person has,” Boren said.
“So construed, the provision does not permit arbitrary and discriminatory enforcement” and thus isn’t unconstitutionally vague or overbroad, the justice concluded.
The broader interpretation urged by the state, Boren said, would run afoul of a 1965 U.S. Supreme Court ruling striking down the requirement that members or associates of the Communist Party register as such with the federal government.
In rejecting the argument that requiring Walter to register subjects him to cruel or unusual punishment in violation of the state Constitution, the presiding justice said the penalty was not disproportionate to the crime.
“Appellant’s possession of a sawed-off shotgun with the safety off and two extremely powerful rounds in the chamber while riding with fellow gang members in a car he knew had been taken in a carjacking was extremely dangerous conduct,” Boren said.
Also rejected was the contention that the registration requirement violates the multiple-punishment prohibition of Penal Code Sec. 654. Proposition 21 creates an exception to Sec. 654, Boren explained.
Copyright 2001, Metropolitan News Company