BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                     AB 829


                                                                     Page A


          Date of Hearing:  April 14, 2015
          Counsel:               Gabriel Caswell

                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                      829 (Nazarian) - As Amended  March 26, 2015




          SUMMARY:  Outlines procedural due process rights for persons  
          designated for inclusion in a shared gang database.    
          Specifically, this bill:   

          1)Require a local law enforcement agency to provide written  
            notice to a person, or if the person is under 18 years of age,  
            his or her parent or guardian, prior to making the gang  
            designation.

          2)Authorizes a person or his or her parent or guardian, as  
            applicable, to request information regarding the status of the  
            person in a shared gang database, and would require the law  
            enforcement agency to provide that information, subject to  
            specified exceptions. 

          3)Provides that a person, or his or her parent or guardian, as  
            applicable, may contest a gang designation and request removal  
            of information from the database in writing, on the ground  
            that the person is not and has never been a gang member,  
            associate, or affiliate.   












                                                                     AB 829


                                                                     Page B


          4)Authorizes a person whose written request for removal is  
            denied to appeal the decision at an administrative hearing  
            conducted by a hearing officer, as specified. 

          5)Permits a person to request a review of an unfavorable  
            decision of the hearing officer, and would authorize that  
            person to commence an action to seek review of an unfavorable  
            decision after review by a court of competent jurisdiction, as  
            specified. 

          6)Requires a local law enforcement agency remove a person  
            designated in a shared gang database based on specified  
            criteria, or if the designation is successfully contested, and  
            to notify the person and his or her parent or guardian, as  
            applicable, upon removal.  The grounds for removal are the  
            following:  

             a)   The person is designated in the shared gang database,  
               but has not been arrested, charged with, or convicted of a  
               crime in the five-year period after initial entry in the  
               database;

             b)   The person is designated in the database, and was  
               subsequently arrested for, but not charged with or  
               convicted of, a crime in the five-year period after the  
               date of arrest;

             c)   The person is designated in the database as the result  
               of an arrest, but was not charged with or convicted of a  
               crime in the five-year period after the date of the arrest;  
               or

             d)   The person is designated in the database and is  
               subsequently arrested and charged with a crime, but is not  
               convicted of a crime within the five-year period after the  
               date of the arrest.

          7)States that a law enforcement agency shall remove or cause to  
            be removed a person who is designated as a suspected gang  











                                                                     AB 829


                                                                     Page C


            member, associate, or affiliate, and who is subsequently  
            arrested for, charged with, and convicted of a crime, if the  
            person successfully completes his or her probation or parole  
            and more than five years have passed since the date of the  
            last modification to his or her entry in the database.

          8)Requires the Department of Justice (DOJ) annually report  
            specified information relating to requests for removal and  
            removal of persons from the CalGang shared gang database  
            system.  The report shall include:  

             a)   The number of persons added to the CalGang system during  
               the immediately preceding 12 months; 

             b)   The number of requests for removal of  a person from the  
               CalGang system received during the immediately preceding 12  
               months;  

             c)   The number of approved requests for removal from the  
               CalGang system during the preceding 12 months; and  

             d)   The number of automatic removals from the CalGang system  
               during the preceding 12 months.  

          9)Prohibits the Victims Compensation and Government Claims Board  
            from denying an application for compensation on the basis of  
            the applicant's membership in, association with, or  
            affiliation with, a gang, or on the basis of the applicant's  
            designation as a suspected gang member, associate, or  
            affiliate in a shared gang database, as defined.


          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  











                                                                     AB 829


                                                                     Page D


            engage in a pattern of criminal gang activity.  (Pen. Code, §  
            186.22, subd. (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  
            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).)

          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.  (Pen. Code, § 186.22, subd. (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.  (Pen. Code, § 186.22, subd. (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.  (Pen. Code,  
            § 186.22, subd. (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  











                                                                     AB 829


                                                                     Page E


            there, whichever is first.  (Pen. Code, § 186.30, subds. (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.  (Pen. Code, § 186.32  
            (a)(1)(B).)

          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.  (Pen. Code, §  
            186.31.)

          9)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.  (Pen. Code § 186.34.)  


          FISCAL EFFECT:  Unknown

          COMMENTS: 

          1)Author's Statement:  According to the author, "Since the  
            mid-1980s, law enforcement agencies, throughout California,  
            have increasingly engaged in the collection of personal  
            information to label and track people, overwhelmingly youth  
            and young adults of color, as 'gang members.'  This process  
            lacks oversight and transparency.  The policies and procedures  
            governing the CalGang Database and other local databases are  
            not clear, not consistent in their application, not widely  
            shared, and not standardized across law enforcement  











                                                                     AB 829


                                                                     Page F


            departments and jurisdictions. AB 829 sheds light on the  
            process of including individuals in gang databases. This bill  
            does not prohibit nor limit law enforcement's use of a gang  
            database. This bill simply ensures individuals are notifying  
            and given the opportunity to clear their name.  

            "Once information is captured by local law enforcement and  
            entered onto either local and/or the statewide CalGang  
            database, a person is considered to be 'known as an active  
            gang member.'  Since the databases are used as an internal  
            surveillance tool, information about who is in the database is  
            not shared. Persons under the age of 18 and their parents only  
            won the right to notification, appeal, and removal with SB  
            458, Chapter 797, Statute of 2013.  However, individuals over  
            the age of 17 who are added to CalGang, and individuals of any  
            age, including minors, who are added to other gang databases  
            have no legal right to be notified, and have no opportunity to  
            appeal their designation.
            
            "AB 829 sheds light on the process of including individuals in  
            gang databases. This does not prohibit nor limit law  
            enforcement's use of a gang database. This bill simply  
            conforms to the due process afforded, to individuals, by the  
            14th and 5th Amendments by notifying and granting individuals  
            the opportunity to clear their name.  

            "Placement in a gang database can have drastic immigration  
            consequences, including limiting a person's ability to adjust  
            immigration status for residency or citizenship. Specifically,  
            when applying for DACA and the newly created DAPA program.  
            Additionally, those in a gang databases face obstacles  
            obtaining employment and social service benefits.  One example  
            of this occurs when a person is a victim of a crime such as  
            robbery, sexual assault, child abuse and domestic violence.  
            The victim would likely be denied the ability to access  
            California's Victim Compensation Program because of their  
            inclusion in the gang database, keeping them from getting the  
            care they need."  
                  











                                                                     AB 829


                                                                     Page G


          2)General Effects of this Bill are to Include Due Process Rights  
            for those Designated:  In general this bill will do the  
            following things as applied to persons who are being added to  
            a CalGang database:  

             a)   This bill will provide written notice, to people who are  
               being designated and added to a CalGang database.  Under  
               existing law, the notification is only provided to minors.   


             b)   This bill permits persons to request information  
               regarding their status, or the status of their dependents,  
               subject to specified public safety exceptions.  

             c)   This bill authorizes people to submit written requests  
               for removal from a gang database.  

             d)   This bill permits a person to request administrative  
               review of a denied request, and an appeal to a court of  
               competent jurisdiction.   

             e)   This bill outlines the process for grounds for removal  
               from a gang database.  

             f)   This bill requires that DOJ conduct an annual report on  
               specified statistics related to who is included in gang  
               databases, numbers or requests for removal, and statistics  
               related to those removed.  

             g)   This bill additionally specifies that the Victims  
               Compensation and Government Claims Board cannot deny an  
               application on the basis of the person being included on a  
               gang database.  
             
          3)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  











                                                                     AB 829


                                                                     Page H


            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.<1>   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.<2>  CalGang operates pursuant to the 1968  
            Omnibus Crime Control and Safe Streets Act, which requires  
            --------------------------


          <1>  
          <  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.)  
          <2> (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  
          <  http://www.govtech.com/magazines/gt/GangNet-A-New-Tool-in-the.ht 
          ml?page=3  >.)  








                                                                     AB 829


                                                                     Page I


            that "all criminal intelligence systems ? are utilized in  
            conformance with the privacy and constitutional rights of  
            individuals."<3>  


          4)Required Parental Notification of a Minor's Duty to Register  
            as a Gang Member:  Prior to 2013, if a minor is convicted when  
            tried as an adult, or had a petition sustained in a juvenile  
            court, his or her parent or guardian was required to 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.  (Pen. Code, § 186.32, subd. (a)(1)(B).)  Parents were  
            notified when a minor was designated in the CalGang database  
            as a suspected gang member, associate, or affiliate.    
            Although a conviction or declaration of wardship was not  
            required for a minor to be placed in the CalGang database,  
            serious consequences to the minor could flow from that action.
            
            AB 458 (Wright), Chapter 797, Statutes of 2013 required 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 was designated as a suspected  
            gang member, associate or affiliate in a shared gang database,  
            regardless of conviction status.

          5)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 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.   
          ---------------------------
          <3> (Criminal Intelligence Systems, Operating Policies, 28 CFR  
          Part 23,  
          <  http://www.iir.com/28CFR_Program/28CFR_Resources/ExecOrder12291_ 
          28CFRPart23.pdf/  >.)










                                                                     AB 829


                                                                     Page J


            (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."  "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.<4>  


            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  
            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  
            --------------------------


          <4> (See Ana Muniz and Kim McGill, Tracked and Trapped: Youth of  
          Color, Gang Databases and Gang Injunctions, Youth Justice  
          Coalition, Dec. 2012  
          <  http://www.youth4justice.org/wp-content/uploads/2012/12/Trackeda 
          ndTrapped.pdf  >.)  








                                                                     AB 829


                                                                     Page K


            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.


          6)Argument in Support:  According to Asian Americans Advancing  
            Justice, "Asian Law Caucus (AAAJ-ALC) strongly supports AB  
            829, which sheds light on the process of including individuals  
            in gang databases. This bill does not prohibit nor limit law  
            enforcement's use of a gang database. We thank you for  
            introducing this proposal. The mission of AAAJ-ALC is to  
            promote, advance, and represent the legal and civil rights of  
            Asian and Pacific Islander communities. Recognizing that  
            social, economic, political and racial inequalities continue  
            to exist in the United States, AAAJ-ALC is committed to the  
            pursuit of equality and justice for all sectors of our society  
            with a specific focus directed toward addressing the needs of  
            low-income, immigrant, and underserved APIs.

            "Since the mid-1980s, law enforcement agencies throughout  











                                                                     AB 829


                                                                     Page L


            California have increasingly engaged in the collection of  
            personal information to label and track people -  
            overwhelmingly youth and young adults of color - as 'gang  
            members.' This process lacks oversight and transparency.  AB  
            829 is a follow-up to SB 458, Chapter 797, Statute of 2013,  
            which required law enforcement to notify persons under the age  
            of 18 and their parents if the minor was included in the  
            CalGang database.  SB 458 also provides for the right to  
            appeal and to remove a name from CalGang. However, people over  
            the age of 17 who are added to CalGang, and individuals of any  
            age, including minors, who are added to local gang databases  
            have no legal right to be notified, and have no opportunity to  
            appeal their designation.

            "Specifically, AB 829 accomplishes the following:

                 Requires that all persons entered into the gang database  
               be notified of their inclusion in the database.
                 Allows individuals the opportunity to contest their  
               inclusion in the database.
                 Requires the notification to specify the petition  
               process to remove the name of the individual, if he or she  
               feels they have been wrongly identified.
                 Requires law enforcement agencies to respond to all  
               petitions within 60 days.
                 Requires the state to report, by county, on the number  
               of names added to the gang database each year, how many  
               requests to remove were received and how many requests were  
               approved.

            "AB 829 grants individuals the basic fundamental right to  
            clear their name. Placement in a gang database can have  
            drastic immigration consequences, including limiting a  
            person's ability to adjust immigration status for residency or  
            citizenship; can eliminate a person's and even their family's  
            access to public housing and Section 8; can limit access to  
            employment and educational opportunities; and can lead to  
            increased penalties, such as gang enhancements in court."












                                                                     AB 829


                                                                     Page M


          1)Argument in Opposition:  According to the California District  
            Attorneys Association, "This bill would create a notification  
            process for anyone whose name is placed in a law enforcement  
            shared gang database, as well as three opportunities for  
            appeal, during which law enforcement agencies would be  
            required to share sensitive information with the suspected  
            gang member.  
            
            "Under AB 829, once a suspected gang member is notified of his  
            or her placement in a shared gang database, they can contest  
            the designation (new PC 186.44).  If the law enforcement  
            agency denies that request, they must state the reasons for  
            the suspect's inclusion in the database.  This is tantamount  
            to allowing a suspect to view sensitive intelligence that the  
            law enforcement agency has collected.  The subject would then  
            be able to request an administrative hearing (new PC 186.460),  
            which the law enforcement agency would be required to grant.   
            During that hearing (which would be considerably delayed in  
            light of the two continuances that the agency would be  
            required to grant), the suspect may subpoena officers,  
            documents, and other sensitive information.  If the hearing  
            officer finds that the suspect should not be removed from the  
            database, the suspect may request another review of that  
            decision (new PC 186.472), which the law enforcement agency is  
            again required to grant.  

            "In addition to the policy concerns that AB 829 raises, the  
            cost of preparing and staffing these hearings would be  
            overwhelming.

            ""It's hard to imagine any other instance in which we would  
            let a suspect, during an investigation, invade police  
            deliberations with a hearing (or, in this case, three) on  
            whether he or she should continue to be a suspect."   

          2)Prior Legislation:  

             a)   SB 458 (Wright), Chapter 797, Statutes of 2013, required  
               local law enforcement to notify a minor and his or her  











                                                                     AB 829


                                                                     Page N


               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.  

             b)   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.

             c)   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.

             d)   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.

             e)   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.

             f)   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.

             g)   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  











                                                                     AB 829


                                                                     Page O


               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

          American Civil Liberties Union 
          Asian Americans Advancing Justice 
          California Attorneys for Criminal Justice 
          California Immigrant Policy Center 
          California Public Defenders Association
          Immigrant Legal Resource Center 
          Immigrant Youth Coalition 
          Korean Resource Center 
          Legal Services for Prisoners with Children
          National Day Laborer Organizing Network 
          National Immigration Law Center 
          Native Hawaiian and Pacific Islander Alliance 
          Youth Justice Coalition 

          Opposition

          California District Attorneys Association 

          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744