BILL ANALYSIS �
SB 458
Page 1
Date of Hearing: June 18, 2013
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 458 (Wright) - As Amended: June 11, 2013
As Proposed to be Amended in Committee
SUMMARY : Requires local law enforcement to notify a minor and
his or her parent or guardian before designating that minor as a
gang member, associate, or affiliate in a shared gang database
and the basis for the designation. Specifically, this bill :
1)Defines, for the purposes of this bill, "shared gang database"
to mean any database that allows access for any local law
enforcement agency and contains personal, identifying
information in which a person may be designated as a suspected
gang member, associate, or affiliate or for which entry of a
person in the database reflects a designation of that person
as suspected gang member, associate or affiliate.
2)Requires a local law enforcement agency, to the extent it
chooses to use a shared gang database, prior to the agency
designating a 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
minor in a shared gang database, to provide written notice to
the minor and his or her parent or guardian of the designation
and its basis.
3)Authorizes a person designated as a suspected gang member,
associate, or affiliate, or his or her parent or guardian,
subsequent to the notice described above, to submit written
documentation to the local law enforcement agency contesting
the designation. Requires the local law enforcement agency to
review the documentation and to remove the person from the
database if the agency determines that the person is not a
suspected gang member, associate, or affiliate and to provide
the person and his or her parent or guardian with written
verification of the agency's decision within 60 days of the
submission of the document contesting the designation.
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4)Provides that the person designated as a suspected gang
member, associate, or affiliate, or his or her parent or
guardian, is able to request information as to whether the
person has been designated as a suspected gang member,
associate, or affiliate.
5)Prohibits the local law enforcement agency from disclosing the
location of the person designated as a suspected gang member,
associate, or affiliate to his or her parent or guardian if
the agency determines there is credible evidence that the
information would endanger the health or safety of the minor.
6)Requires a shared gang database to retain records related to
the gang activity of the individuals in the database as
follows:
a) Requires the purging of a record, of those in and out of
custody, that has not been modified by the addition of new
criteria to determine gang profile for a 5-year period.
b) Provides that a record shall not be purged as required
above if that record has been substantially modified by
another end-user agency. Defines, for the purpose of this
bill, "substantially modified" to mean the addition of new
gang member criteria to the subject's record or the subject
has a new arrest record with a gang nexus in his or her
record.
7)Provides that, except as expressly allowed by this bill,
nothing in this bill requires a local law enforcement agency
to disclose any protected information as specified.
EXISTING LAW :
1)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 individually or collectively
engage in a pattern of criminal gang activity. [Penal Code
Section 186.22(f).]
2)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
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promotes, furthers, or assists in any felonious conduct by
members of the gang is guilty of an alternate
felony-misdemeanor. [Penal Code Section 186.22(a).]
3)Provides that any person who is convicted of a felony
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 criminal conduct by
gang members, shall receive a sentence enhancement, as
specified. [Penal Code Section 186.22(b).]
4)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. [Penal Code Section 186.22(d).]
5)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. [Penal Code
Section 186.22(e).]
6)Requires any person who is convicted in criminal court or who
has a petition sustained in a juvenile court of one of the
specified criminal street gang offenses or enhancements to
register with the local Police Chief or Sheriff within 10 days
of release from custody or within 10 days of his or her
arrival in any city, county, or city and county to reside
there, whichever is first. [Penal Code Section
186.30(a)-(b).]
7)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 specified criminal street
gang offenses or enhancements, a law enforcement agency shall
notify the minor and his or her parent that the minor belongs
to a gang whose members engage in or have engaged in a pattern
of criminal activity as described. [Penal Code Section 186.32
(a)(1)(B).]
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8)Requires the court, at the time of sentencing in adult court
or dispositional hearing in juvenile court, to inform any
person subject to registration detailed above of his or her
duty to register and requires that the parole or probation
officer assigned to that person to verify that the person has
complied with the registration requirements. (Penal Code
Section 186.31.)
9)Provides that a public entity has a privilege to refuse to
disclose "official information," which is defined to mean
information acquired in confidence by a public employee in the
course of his or her duty and not open to the public prior to
when the privilege is claimed, and to prevent another from
disclosing official information, if the privilege is claimed
by a person authorized by the public entity to do so and
either of the following applies:
a) Disclosure is forbidden by an act of Congress or a
California statute; or,
b) Disclosure is against public interest because there is a
necessity for preserving the confidentiality of the
information that outweighs the necessity for disclosure in
the interest of justice, except as specified. (Evidence
Code Section 1040.)
10)Provides that a public entity has a privilege to refuse to
disclose the identity of a person who has furnished
information to specified individuals purporting to disclose a
violation of California or U.S. or of a California public
entity, and to prevent another from disclosing such identity,
if the privilege is claimed by a person authorized by the
public entity to do so and either of the following applies:
a) Disclosure is forbidden by an act of Congress or
California statute; or,
b) Disclosure of the informant's identity is against public
interest because there is a necessity for preserving his
confidentiality that outweighs the necessity for disclosure
in the interest of justice, except as specified. (Evidence
Code Section 1041.)
11)Provides that, except as specified, the California Public
Records Act shall not be construed to require disclosure of
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certain specified records. (Government Code Section 6254.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Senate Bill 458
will require local law enforcement departments to notify
minors when they are added to the CalGang Database, and also
require that their parents/guardians be notified.
"Information for the CalGang Database is primarily collected
through routine police stops - on the street, in schools and
traffic stops. Police gather information through a field
interview - often collected on an FI card - Field Information
or Field Interview card.
"Most people are added to the CalGang Database without having
been arrested or accused of a crime. They can also be added
without any real verification or confirmation of their
membership or affiliation in a gang.
"Minors can be included in this data base without any
knowledge of the parents. There are youth as young as ten
years old on the CalGang database.
"Of the 201,094 Californians included in the CalGang database,
nearly 20% are African-American and 66% are Latino. Since
only 6.6% of Californians are African-Americans, and just
38.1% are Latino, this represents an alarming racial
disparity.
"Parents are not told of this nor do they have the ability to
find out if their child [is on the database] or to present
evidence that there is an error or the person has reformed.
We notify parents for all kinds of events related to their
children but not in this context. SB 458 will make modest
common sense changes to help police by involving parents and
giving them the information they need."
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
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files, but could not access information that had been
collected by other law enforcement agencies." (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, Mar.
27, 2013
, citing GREAT System
Overview, The Eighth Annual Organized Crime and Criminal
Intelligence Training Conference, August 23-26, 1994.) 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 peaceful citizens of their neighborhoods." (Penal
Code Section 186.21 (1988).) The STEP Act 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. (Leyton, supra, at 113, citing Patrick
Thibodeau, Cops Wield Database in War on Street Gangs,
Computerworld, Sept. 1, 1997, at 4; and Ray Dassault, GangNet:
A New Tool in the War on Gangs, California Computer News,
January 1997
.) 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."
(Criminal Intelligence Systems, Operating Policies, 28 CFR
Part 23,
.)
3)Application of Shared Gang Databases : Today, the CalGang
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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 encounters police have with
the individual. (Leyton, supra, at 113.) CalGang is a
web-based intranet system accessible by police departments by
way of computer, telephone, and web browser that allows law
enforcement to check an individual's record in real time.
(Ibid.) For example, qualified law enforcement personnel may
sign on to the CalGang database from a laptop in their patrol
car and locate a source document regarding a specific
individual about whom law enforcement seeks information.
Concerns have been raised regarding the secrecy of the CalGang
database and the accuracy of records entered into CalGang.
For example, in 1999, then-Attorney General Bill Lockyer
described the database as "mix[ing] verified criminal history
and gang affiliations with unverified intelligence and hearsay
evidence, including reports on persons who have committed no
crime." (Leyton, supra, at 115, citing Bill Lockyer, Letters
to the Editor: Lockyer Responds, S.F. Chronicle, Aug. 5, 1999
.) "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." (Ibid.) Moreover, 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. (See Ana Muniz and Kim McGill,
Tracked and Trapped: Youth of Color, Gang Databases and Gang
Injunctions, Youth Justice Coalition, Dec. 2012
.)
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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notifying families who may wish to intervene, move to a new
neighborhood or place their child into an intervention
program. (Id.) 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. (Id.)
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 : 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.
[Penal Code Section 186.32(a)(1)(B).] When a minor is
designated in the CalGang database as a suspected gang member,
associate, or affiliate, parents are not notified, however.
Although a conviction or declaration of wardship is not
required for a minor to be placed in the CalGang database,
serious consequences to the minor can flow from that action.
This bill would require a local law enforcement agency to
notify any person under 18 years of age and his or her parent
or guardian 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)Arguments in Support :
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a) The California Public Defenders Association argues,
"This bill will ensure that parents of youth who are going
to be placed on the CalGang database, are made aware of
that fact prior to it happening. This information is
imperative to parents, and their minor children, who might
otherwise be unaware of this fact which can lead to serious
consequences for the minor child."
b) According to Advancement Project , "If we want parents to
properly help guide their kids away from a life of crime,
they have to be able to know if law enforcement has
interactions or suspicions of their children. Authorities
should do everything in their power to distance youth away
from a life of crime and it starts with informing the right
adult."
6)Prior Legislation :
a) AB 177 (Mendoza), Chapter 258, Statutes of 2011,
expanded the authority of the juvenile court to order the
parent or guardian of a minor to attend anti-gang violence
parenting classes.
b) SB 296 (Wright), of the 2011-12 Legislative Session,
would have created a process whereby a person subject to a
gang injunction could petition for injunctive relief if the
person met certain criteria. SB 296 was vetoed by the
Governor.
c) AB 1392 (Tran), of the 2009-10 Legislative Session,
would have established the Graffiti and Gang Technology
Fund, in which vandalism fines were to be deposited, to be
continuously appropriated to the Department of Justice
exclusively for the costs of technological advancements for
law enforcement in the identification and apprehension of
vandals and gang members, as specified. AB 1392 was held
on the suspense file of the Assembly Committee on
Appropriations.
d) AB 1291 (Mendoza), Chapter 457, Statutes of 2007,
authorized anti-gang violence classes for parents of
juveniles found in violation of specified gang-related
offenses.
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e) AB 1630 (Runner), of the 2007-08 Legislative Session,
would have required those who are convicted of a street
gang crime and to annually register and re-register upon
changing his or her residence. AB 1630 failed passage in
this committee.
f) AB 2562 (Fuller), of the 2007-08 Legislative Session,
would have increased the penalty from a misdemeanor to a
felony punishable by 16 months or two or three years in the
state prison for failing to register as a member of a
criminal street gang under specified circumstances. AB
2562 failed passage in this committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Advancement Project
American Civil Liberties Union of California
California Catholic Conference of Bishops
California Public Defenders Association
Californians United for a Responsible Budget
Friends Committee on Legislation of California
Opposition
California State Sheriff's Association
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
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PROPOSED AMENDMENTS TO SENATE BILL NO. 458
The people of the State of California do enact as follows:
SECTION 1. Section 186.34 is added to the Penal Code, to read:
186.34. (a) For purposes of this section, "shared gang database"
shall mean any database that allows access for any local law
enforcement agency and contains personal, identifying
information in which a person may be designated as a suspected
gang member, associate, or affiliate, or for which entry of a
person in the database reflects a designation of that person as
a suspected gang member, associate, or affiliate.
(b) To the extent a local law enforcement agency elects to
utilize a shared gang database, as defined in subdivision (a),
prior to a local law enforcement agency designating a person as
a suspected 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, or otherwise identifying the person in a
shared gang database, the local law enforcement agency shall, if
the person is under 18 years of age, provide written notice to
the person and his or her parent or guardian of the designation
and the basis for the designation.
(c) Subsequent to the notice described in subdivision (b), the
person to be designated as a suspected gang member, associate,
or affiliate, or his or her parent or guardian, may submit
written documentation to the local law enforcement agency
contesting the designation. The local law enforcement agency
shall review the documentation, and if the agency determines
that the person is not a suspected gang member, associate, or
affiliate, the agency shall remove the person from the database.
The local law enforcement agency shall provide the person and
his or her parent or guardian with written verification of the
agency's decision within 60 days of submission of the written
documentation contesting the designation.
(d) The person to be designated as a suspected gang member,
associate, or affiliate, or his or her parent or guardian, shall
be able to request information as to whether the person has been
designated as a suspected gang member, associate, or affiliate.
(e) The local law enforcement agency shall not disclose the
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location of the person to be designated as a suspected gang
member, associate, or affiliate to his or her parent or guardian
if the agency determines there is credible evidence that the
information would endanger the health or safety of the minor.
(f) A shared gang database maintained pursuant to as defined in
this section shall retain records related to the gang activity
of the individuals in the database as follows:
(1) A record that has not been modified by the addition of new
criteria to determine gang profile for a five-year period shall
be purged. Individuals who are in custody shall be subject to
the same purge policy under this paragraph.
(2) A record created by an agency shall not be purged pursuant
to paragraph (1) if that record has been substantially modified
by another end user agency. For the purpose of this subdivision,
substantially modified means that gang member criteria is
renewed or added the addition of new gang member criteria to the
subject's record or the subject has a new arrest record with a
gang nexus in his or her record.
(g) Nothing Except as expressly allowed by this section, nothing
in this section shall require a local law enforcement agency to
disclose any information protected under Section 1040 or 1041 of
the Evidence Code or Section 6254 of the Government Code.