BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 458 (Wright)                                             
          As Amended April 1, 2013
          Hearing date:  April 9, 2013
          Penal Code
          JM/NM:mc


                        GANG DATABASES - PARENTAL NOTIFICATION  

                                       HISTORY

          Source:  Youth Justice Coalition

          Prior Legislation: SB 296 (Wright) - Vetoed, 2011
                       AB 177 (Mendoza) - Ch. 258, Stats. 2011
                       AB 1392 (Tran) - Held in Assembly Appropriations,  
          2010
                       AB 1291 (Mendoza) - Ch. 457, Stats. 2007

          Support: American Friends Service Committee; American Civil  
                   Liberties Union of California; Gay-Straight Alliance  
                   Network; National Juvenile Justice Network; Life After  
                   Uncivil Ruthless Acts; The W. Haywood Burns Institute;  
                   Southern California Cease Fire Committee; Los Angeles  
                   Community Action Network; California Families to  
                   Abolish Solitary Confinement

          Opposition:None known



                                         KEY ISSUE
           




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          BEFORE A MINOR IS DESIGNATED A SUSPECTED GANG MEMBER, ASSOCIATE  
          OR AFFILIATE, SHOULD THE MINOR AND HIS OR HER PARENT OR GUARDIAN  
          BE ADVISED OF THE DESIGNATION AND THE BASIS FOR THE DESIGNATION?




                                       PURPOSE

          The purposes of this bill are to 1) require local law  
          enforcement to notify a minor and the minor's parent or guardian  
          prior to designating that minor as a gang member, associate or  
          affiliate in a shared gang database; 2) require local law  
          enforcement to advise the minor and the minor's parent or  
          guardian of the basis for that designation; 3) define "shared  
          gang database;" and 4) require the Attorney General to update  
          policies and procedures regarding any statewide database it  
          houses every five years.

           Existing law  defines a "criminal street gang" as any ongoing  
          organization, association, or group of three or more persons .  
          . . having as one of its primary activities the commission of  
          one or more enumerated offenses, having a common name or  
          identifying sign or symbol, and whose members engage in a  
          pattern of gang activity.  (Pen. Code  186.22, subd. (f).)

           Existing law  provides that any person who actively participates  
          in a criminal street gang with knowledge that its members engage  
          in or have engaged in a pattern of criminal gang activity and  
          who promotes, furthers, or assists in any felonious conduct by  
          members of the gang, is guilty of an alternate  
          felony-misdemeanor.  (Pen. Code  186.22, subd. (a).)<1>

           Existing law  provides that any person who is convicted of a  
          felony committed for the benefit of, at the direction of, or in  
          ---------------------------
          <1> There is no need for conviction to be in entered into a gang  
          database.  See California Gang Node Advisory Committee, Policy  
          and Procedures for the CalGang System, September 27, 2007.  
          (http://oag.ca.gov/sites/all/files/agweb/pdfs/calgang/policy_proc 
          edure.pdf.)



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          association with any criminal street gang, with the specific  
          intent to promote, further, or assist in criminal conduct by  
          gang members, shall receive a sentence enhancement, as specified  
          immediately below.  (Pen. Code  186.22, subd. (b).)

                 Felony (other than specified)     2, 3, or 4 years
                 Serious felony                                   5 years
                 Violent felony                                   10  
               years
                 Home invasion                                  life,  
               min. 15 years until parole eligibility
                 Carjacking                                       life,  
               min. 15 years
                 Shooting from vehicle                    life, min. 15  
               years
                 Extortion or witness intimidation   life, min. 7 years

           Existing law  provides that any person who is convicted of either  
          a felony or misdemeanor that is committed for the benefit of, at  
          the direction of, or in association with any criminal street  
          gang, with the specific intent to promote, further, or assist in  
          any criminal conduct by gang members, shall be punished by  
          imprisonment in the county jail for up to one year, or by 1, 2,  
          or 3 years in state prison.  (Pen. Code  186.22, subd. (d).)

           Existing law  defines "pattern of criminal gang activity" as the  
          commission of two or more of enumerated offenses, provided at  
          least one of the offenses occurred after the effective date of  
          the statute and the last of the offenses occurred within three  
          years after a prior offense, and the offenses were committed on  
          separate occasions, or by two or more persons.  (Pen. Code   
          186.22, subd.(e).)  These offenses need not result in a  
          conviction, although prosecutors typically prove the pattern  
          through prior convictions.

           Existing law  provides that any person who is convicted in  
          criminal court or who has a petition sustained in a juvenile  
          court of one of the above noted criminal street gang offenses  
          or enhancements shall register with the local Police Chief or  
          Sheriff within 10 days of release from custody or within 10  




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          days of his or her arrival in any city, county, or city and  
          county to reside there, whichever is first.  (Pen. Code   
          186.30, subd. (a) - (b).)
           
          Existing law  provides that when a minor has been tried as an  
          adult and convicted in a criminal court or has had a petition  
          sustained in a juvenile court for any of the above noted  
          criminal street gang offenses or enhancements, a law enforcement  
          agency shall notify the minor and the minor's parent or guardian  
          that the minor (1) belongs to a gang whose members engage in or  
          have engaged in a pattern of criminal activity as described in  
          subdivision (e) of Section 186.22; and (2) has a duty to  
          register with the local Police Chief or Sherriff within 10 days  
          of release from custody or within 10 days of arrival in that  
          city or county pursuant to Penal Code Section 186.30, subd. (a).  
           (Pen. Code  186.32, subd. (a)(1)(B).)

           This bill  adds Section 186.34 to the Penal Code, to:

                 require local law enforcement to notify a minor and the  
               minor's parent or guardian prior to designating that minor  
               as a gang member, associate or affiliate in a shared gang  
               database, or submitting a document to the Attorney  
               General's office for the purpose of designating a person in  
               a shared gang database;
                 require local law enforcement to advise the minor and  
               the minor's parent or guardian of the basis for that  
               designation;
                 define "shared gang database" to mean any database that  
               allows access for more than one local law enforcement  
               agency and contains personal, identifying information in  
               which a person may be designated as a suspected gang  
               member, associate or affiliate; and
                 require that if the Attorney General's office houses a  
               statewide database, the Attorney General's office shall  
               update policies and procedures regarding that database  
               every five years.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION




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          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.



          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order to reduce the state's prison population to  
          137.5 percent of design capacity.  The State submitted in part  
          that the, ". . .  population in the State's 33 prisons has been  
          reduced by over 24,000 inmates since October 2011 when public  
          safety realignment went into effect, by more than 36,000 inmates  
          compared to the 2008 population . . . , and by nearly  
          42,000inmates since 2006 . . . ."  Plaintiffs, who oppose the  
          state's motion, argue in part that, "California prisons, which  
          currently average 150% of capacity, and reach as high as 185% of  
          capacity at one prison, continue to deliver health care that is  
          constitutionally deficient."  




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          In an order dated January 29, 2013, the federal court granted  
          the state a six-month extension to achieve the 137.5 % prisoner  
          population cap by December 31st of this year.  

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unsettled.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                   whether a measure addresses a crime which is directly  
                dangerous to the physical safety of others for which there  
                is no other reasonably appropriate sanction;
                   whether a bill corrects a constitutional infirmity or  
                legislative drafting error; whether a measure proposes  
                penalties which are proportionate, and cannot be achieved  
                through any other reasonably appropriate remedy; and
                   whether a bill addresses a major area of public safety  
                or criminal activity for which there is no other  
                reasonable, appropriate remedy.





                                      COMMENTS

          1.  Need for This Bill
           
          According to the author:

               The CalGang database has continued for 25 years  
               without accountability, notification of the  
               individuals or families watched, release of  
               information or data to the public or policy makers, or  
               internal or independent evaluations as to its  




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               effectiveness.

               Senate Bill 458 will require local law enforcement  
               departments to notify youth when they are added to the  
               CalGang Database, and also require that their parents  
               or guardians be notified.

               If we want parents to properly help guide their kids  
               away from a life of crime, they need to be told of the  
               suspicion of law enforcement.  There are youth as  
               young as ten years old on the CalGang database.

          2.  History of Shared Gang Databases  

          In 1987, the Los Angeles County Sheriff's Department developed  
          the Gang Reporting, Evaluation and Tracking System (GREAT), the  
          nation's first gang database.  "Before GREAT existed, police  
          departments collected information on gang members in locally  
          maintained files, but could not access information that had been  
          collected by other law enforcement agencies."<2>  Using GREAT,  
          local law enforcement could collect, store, centralize, analyze  
          and disperse information about alleged gang members.

          In 1988, the Legislature passed the Street Terrorism Enforcement  
          and Prevention (STEP) Act, asserting California to be "in a  
          state of crisis? caused by violent street gangs whose members  
          threaten, terrorize and commit a multitude of crimes against the  
          ---------------------------
          <2> Stacey Leyton, The New Blacklists: The Threat to Civil  
          Liberties Posed by Gang Databases (a chapter in Crime Control  
          and Social Justice: The Delicate Balance, edited by Darnell F.  
          Hawkins, Samuel L. Myers Jr. and Randolph N. Stone, Westport,  
          CT, 2003.  The African American Experience, Greenwood Publishing  
          Group, March 27, 2013  
          (http://testaae.greenwood.com/doc_print.aspx?fileID=GM0790E&chapt 
          erID=GM0790E-643&path=chunkbook), citing: GREAT System Overview,  
          The Eighth Annual Organized Crime and Criminal Intelligence  
          Training Conference, August 23-26, 1994, warns: "Gangs now  
          spread their violence and crime to diverse areas of the state,  
          importing their special brand of terrorism to areas that have  
          never known gang problems."



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          peaceful citizens of their neighborhoods."<3>  The STEP Act,  
          which this bill seeks to amend, established the nation's first  
          definitions of "criminal street gang," "pattern of criminal gang  
          activity," and codified penalties for participation in a  
          criminal street gang.

          In 1997, less than a decade after the regional GREAT database  
          was first created, the regional GREAT databases were integrated  
          into a new unified statewide database, CalGang, with the goals  
          of making the database easier to use and less expensive to  
          access.<4>  CalGang operates pursuant to the 1968 Omnibus Crime  
          Control and Safe Streets Act, which requires that "all criminal  
          intelligence systems ? are utilized in conformance with the  
          privacy and constitutional rights of individuals."<5> 

          3.  Application of Shared Gang Databases
           
          Today, the CalGang system is accessed by over 6,000 law  
          enforcement officers in 58 counties.  The database tracks 200  
          data fields including name, address, physical information,  
          social security number and racial makeup, and records all  
          ---------------------------
          ---------------------------
          <3> Pen. Code  186.21, 1988.
          <4> Leyton, supra, note 2, at 113, citing: Patrick Thibodeau,  
          Cops Wield Database in War on Street Gangs, Computerworld,  
          September 1, 1997, at 4; and Ray Dassault, GangNet: A New Tool  
          in the War on Gangs, California Computer News, January 1997  
          (http://www.govtech.com/magazines/gt/GangNet-A-New-Tool-in-the.ht 
          ml?page=3), quoting Don Mace, attorney general investigator in  
          charge of CalGang with DOJ: "This system makes it easier and  
          cheaper than we ever imagined.  It is all point-and-click and  
          pull-down menus.  I can go through an entire demonstration of  
          the system and maybe type two keys.  Almost as important is the  
          cost savings it allows.  I can put 80 end users on it for what  
          it costs me to put up one under the GREAT system, and the entire  
          implementation has only cost $800,000." 
          <5> Criminal Intelligence Systems, Operating Policies, 28 CFR  
          Part 23,  
          (http://www.iir.com/28CFR_Program/28CFR_Resources/ExecOrder12291_ 
          28CFRPart23.pdf/).



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          encounters police have with the individual.<6>  A Web-based  
          intranet system, accessible by local police departments by way  
          of computer, telephone and web browser, allows police to check  
          an individual's CalGang records in "real time."<7>  Qualified  
          law enforcement personnel may sign on to the CalGang database  
          from a laptop in their patrol car, for example, and locate a  
          source document regarding a specific individual in the field  
          about whom they seek information.<8>

          The 2007 California Gang Node Advisory Committee Policy and  
          Procedures handbook on the Attorney General's website makes  
          clear that "the CalGang system is not designed to provide users  
          with information upon which official actions may be taken.   
          Rather its purpose is to provide users with sources of  
          information upon which official action may be taken."<9>  When a  
          law enforcement officer requests specific sources of  
          information, the agency is directed to "ensure that information  
          disseminated outside their agency is only to authorized  
          personnel demonstrating a right and need to know."<10>

          Concerns have been raised regarding the secrecy of the CalGang  
          database and the accuracy of records entered into CalGang.  In  
          1999, Attorney General Bill Lockyer described the database as  
          "mix[ing] verified criminal history and gang affiliations with  
          unverified intelligence and hearsay evidence, including reports  
          ---------------------------
          ---------------------------
          <6> Leyton, supra, note 2, at 113.
          <7> Leyton, supra, note 4, at 113, citing: Thibodeau Cops Wield  
          Database in War on Street Gangs, Computerworld, September 1,  
          1997, at 4.
          <8> Phone interview, Sgt. Lauro Cantu, Kern County Sheriff's  
          Department, March 26, 2013.
          <9> "The fact that a record exists cannot be used to provide  
          probable cause for an arrest or be documented in an affidavit  
          for a search warrant.  The facts, which led to the creation of a  
          record, must be used to establish the probable cause in the  
          affidavit.  The system can identify the agencies, which must be  
          contacted to obtain and verify those facts." See California Gang  
          Node Advisory Committee, supra, note 1.
          <10> Id.



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          on persons who have committed no crime."<11>  "This database,"  
          he went on "cannot and should not be used, in California or  
          elsewhere, to decide whether or not a person is dangerous or  
          should be detained."<12>  California Supreme Court Justice Chin  
          has also expressed concern about identification tactics,  
          specifically noting the use of self-admission "regardless of the  
          circumstances of their admission."<13>

          With 201,094 people currently listed on CalGang, community  
          groups have expressed concern about transparency,  
          accountability, notification, release of information to policy  
          makers and the public, and independent evaluations regarding the  
          effectiveness of such shared databases in reducing crime.<14>  

          Youth Justice Coalition states that CalGang "dramatically  
          expands the criminalization of individuals and communities"  
          noting that the database is used routinely to determine who 
          should be served with civil gang injunctions, given gang  
          enhancements during sentencing and targeted for saturation  
          policing.  With no notification system, community members say,  
          CalGang has become a "secret surveillance tool," for monitoring  
          children.  This system dramatically impacts the way those  
          children are seen and treated by law enforcement without  
          ---------------------------
          <11> Leyton, supra, note 2, at 115, citing: Bill Lockyer,  
          Letters to the Editor: Lockyer Responds, S.F. Chronicle, August  
          5, 1999  
          (http://www.sfgate.com/opinion/letterstoeditor/article/Letters-to 
          -the-Editor-2915623.php).
          <12> Id.
          <13> Id, citing:  People ex rel. Gallo v. Acuna  , 929 P.2d 596, 14  
          Cal.4th 1090, 1130 (Cal. 1997) noting: "Justice Chin concluded  
          that the evidence against two defendants was insufficient to  
          justify their inclusion in the anti-gang injunction; the only  
          evidence against one was that she claimed gang membership and  
          was in the gang's neighborhood wearing a black top and black  
          jeans (which was consistent with gang attire), and the evidence  
          against the other was his claim of gang involvement and some  
          evidence that he had committed a crime in the gang's  
          neighborhood."
          <14> Ana Muniz and Kim McGill, Tracked and Trapped: Youth of  
          Color, Gang Databases and Gang Injunctions, Youth Justice  
          Coalition, December 2012  
          (http://www.youth4justice.org/wp-content/uploads/2012/12/Trackeda 
          ndTrapped.pdf).



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          notifying families who may wish to intervene, move to a new  
          neighborhood or place their child into an intervention  
          program.<15>  Although the exact number of minors designated is  
          unknown, approximately 10% of those listed on the CalGang  
          database are 19 years of age or younger (23,789).<16>

          Law enforcement representatives, however, have emphasized that  
                                                       any records which are not modified by the addition of new  
          criteria for five years will be purged.  Thus, a person need  
          only avoid gang-qualifying criteria for five years to ensure  
          that he or she will be stricken from the database.

          However, as a practical matter, it may be difficult for a minor  
          living in a gang-heavy community to avoid qualifying criteria  
          when the list of behaviors includes items such as "is in a  
          photograph with known gang members," "name is on a gang  
          document, hit list or gang-related graffiti" or "corresponds  
          with known gang members or writes and/or receives  
          correspondence."  In a media-heavy environment, replete with  
          camera phones and social network comments, it may be challenging  
          for a teenager aware of the exact parameters to avoid such  
          criteria, let alone a teenager unaware of he or she is being  
          held to such standards.



          4.    Required Parental Notification of a Minor's Duty to  
          Register as a Gang Member  














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          ---------------------------
          <15> Id.
          <16> Id.









          Under existing law, if a minor is convicted when tried as an  
          adult, or has had a petition sustained in a juvenile court, his  
          or her parent or guardian must be notified of a requirement to  
          register with a local sheriff's office upon release from custody  
          or moving to a new city or county, pursuant to Penal Code  
          section 186.32(a)(1)(B). 

          However, where a minor is included in CalGang, parents are not  
          notified.  Although a conviction or declaration of wardship is  
          not required for a CalGang listing, serious consequences to the  
          minor can flow from that action.

          This bill would require a local law enforcement entity to notify  
          any person under 18 years of age and his or her parents of the  
          minor's designation in a shared gang database and the basis for  
          the designation before the minor is designated as a suspected  
          gang member, associate or affiliate in a shared gang database,  
          regardless of conviction status.  
           
          5.  Scope of This Bill

              a.   Databases To Which This Bill Applies

          As currently drafted, this bill would appear to apply only to a  
          database which allows access for more than one local law  
          enforcement agency.  CalGang, accessible by officers in 58  
          counties, allows access for more than one local law enforcement  
          agency and contains personal, identifying information used for  
          the purpose of designating an individual as a suspected gang  
          member, associate or affiliate.  Therefore, CalGang falls under  
          the scope of this bill.  

          According to the California Attorney General's website, in  
          addition to CalGang, there are eleven regional databases  









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          maintained by local law enforcement agencies.<17>  Although it  
          is possible, individual regional databases are accessible by  
          more than one local law enforcement agency, as neighboring  
          counties may wish to share information, it is unclear whether  
          these regional databases would fall under the scope of this  
          bill.  The author may wish to refine the scope of the bill to  
          ensure this bill's provisions apply to any gang database  
          accessible to any law enforcement agency.
          
          THIS BILL ONLY IMPACTS A DESIGNATION ON A "SHARED" GANG DATABASE  
          ACCESSIBLE TO "MORE THAN ONE LOCAL LAW ENFORCEMENT AGENCY."   
          SHOULD THIS BILL'S REQUIREMENTS ALSO APPLY TO A REGIONAL  
          DATABASE ACCESSIBLE TO ONE LAW ENFORCEMENT AGENCY?


             b.   Basis For the Designation

          This bill requires the local law enforcement agency to notify  
          the minor and his or her parent or guardian of the basis for the  
          minor's designation in a shared gang database.  Evidence of the  
          basis for each individual designation would conceivably be found  
          in what local law enforcement officials refer to as "source  
          documents," documents indicating whether requisite  
          gang-qualifying criteria have been met.  Given the  
          aforementioned community concerns regarding unverified  
          intelligence and hearsay evidence, a policy which provides  
          affected parties with the basis for a designation will likely  
          lead to inquiries regarding methods of appeal, clarification and  
          removal.  The author may wish to address this issue at a later  
          date.
          ---------------------------
          <17> According to the California Attorney General's website,  
          regional databases are maintained by: Los Angeles County  
          Sheriff's Department; Los Angeles Police Department; San  
          Bernardino County Sheriff's Department; Riverside County  
          Sheriff's Department; Riverside Police Department; Riverside  
          County District Attorney's Office; Orange County District  
          Attorney's Office; Sonoma County Sheriff's Department; San Diego  
          Police Department; Kern County Sheriff's Department; Fresno  
          County Sheriff's Department; San Jose Police Department; and  
          Santa Barbara Police Department (http://oag.ca.gov/calgang.)











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