BILL ANALYSIS Ó
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
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<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
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<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
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<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
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<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
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<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.
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<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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