Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2298

Introduced by Assembly Member Weber

February 18, 2016

begin delete An act to relating to shared gang databases. end delete begin insert An act to amend Section 13956 of the Government Code, and to amend Section 186.34 of, and to add Section 186.35 to, the Penal Code, relating to criminal gangs. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2298, as amended, Weber. begin delete Shared gang databases. end delete begin insert Criminal gangs. end insert

begin insert

Existing law generally provides for the compensation of victims and derivative victims of specified types of crimes by the California Victim Compensation and Government Claims Board from the Restitution Fund, a continuously appropriated fund, for specified losses suffered as a result of those crimes. Existing law sets forth eligibility requirements and limits on the amount of compensation the board may award, and requires the application for compensation to be verified under penalty of perjury. Existing law establishes limits on eligibility, including, among others, because of the victim’s involvement in the crime, as specified.

end insert begin insert

This bill would provide that an application for compensation would not be denied on the basis of the applicant’s membership or applicant’s family member’s membership in, association with, or affiliation with, a gang, or on the basis of the applicant’s designation or applicant’s family member’s designation as a suspected gang member, associate, or affiliate in a shared gang database, as defined.

end insert begin insert

Existing law, the California Street Terrorism Enforcement and Prevention Act (act) and provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. The act authorizes injunctions against specified gang activity, as provided. The act defines a “shared gang database” as having various attributes, including, among others, that the database 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. Existing law requires a law enforcement agency, before designating a person as a suspected gang member, associate, or affiliate in the database, to provide a written notice to the person’s parent or guardian, if the person is a minor.

end insert begin insert

This bill would require the notice described above to be provided to an adult before designating a person as a suspected gang member, associate, or affiliate in the database. The bill would require these databases to comply with federal requirements regarding the privacy and accuracy of information in the database, and other operating principles for maintaining these databases. The bill would require local law enforcement, commencing December 1, 2017, and every December 1st thereafter to submit specified data pertaining to the database to the Department of Justice, and would require the Department of Justice, commencing January 1, 2018, and every January 1st thereafter, to submit a report containing that information to the CalGang Executive Board and to the Legislature. The bill would require that a person designated as a suspected gang member, associate, or affiliate in a shared gang database who has not been convicted of a violation of gang-related crimes, as specified, within 3 years of the initial designation be removed from the database.

end insert begin insert

By imposing additional duties on local law enforcement entities, this bill would impose a state-mandated local program.

end insert begin insert

The bill would establish a procedure for a person designated in a shared gang database or who is subject to a gang injunction to challenge that designation or injunction through an administrative hearing and appeal to the superior court.

end insert begin insert

By requiring local law enforcement to implement an appeal process for persons designated in a shared gang database or subject to a gang injunction, this bill would impose a state-mandated local program.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

end insert begin delete

Existing law, the California Street Terrorism Enforcement and Prevention Act (Act), and provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. The act authorizes injunctions against specified gang activity, as provided. The act defines a “shared gang database” as having various attributes, including, among others, that the database 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. Existing law requires a law enforcement agency, before designating a person as a suspected gang member, associate, or affiliate in the database, to provide a written notice to the person’s parent or guardian, if the person is a minor.

end delete begin delete

This bill would express the intent of the Legislature to enact legislation requiring local law enforcement agencies to provide written notice to an adult before making a gang designation and entering the adult’s personal, identifying information into a shared gang database.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 13956 of the end insert begin insert Government Code end insert begin insert is
amended to read: end insert

13956.  

Notwithstanding Section 13955, a person shall not be
eligible for compensation under the following conditions:

(a) An application may be denied, in whole or in part, if the
board finds that denial is appropriate because of the nature of the
victim’s or other applicant’s involvement in the events leading to
the crime, or the involvement of the person whose injury or death
gives rise to the application.

(1) Factors that may be considered in determining whether the
victim or derivative victim was involved in the events leading to
the qualifying crime include, but are not limited to:

(A) The victim or derivative victim initiated the qualifying
crime, or provoked or aggravated the suspect into initiating the
qualifying crime.

(B) The qualifying crime was a reasonably foreseeable
consequence of the conduct of the victim or derivative victim.

(C) The victim or derivative victim was committing a crime
that could be charged as a felony and reasonably lead to him or
her being victimized. However, committing a crime shall not be
considered involvement if the victim’s injury or death occurred as
a direct result of a crime committed in violation of Section 261,
262, or 273.5 of, or for a crime of unlawful sexual intercourse with
a minor in violation of subdivision (d) of Section 261.5 of, the
Penal Code.

(2) If the victim is determined to have been involved in the
events leading to the qualifying crime, factors that may be
considered to mitigate or overcome involvement include, but are
not limited to:

(A) The victim’s injuries were significantly more serious than
reasonably could have been expected based on the victim’s level
of involvement.

(B) A third party interfered in a manner not reasonably
foreseeable by the victim or derivative victim.

(C) The board shall consider the victim’s age, physical
condition, and psychological state, as well as any compelling health
and safety concerns, in determining whether the application should
be denied pursuant to this section. The application of a derivative
victim of domestic violence under 18 years of age or derivative
victim of trafficking under 18 years of age shall not be denied on
the basis of the denial of the victim’s application under this
subdivision.

(b) (1) An application shall be denied if the board finds that
the victim or, if compensation is sought by, or on behalf of, a
derivative victim, either the victim or derivative victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the crime.
In determining whether cooperation has been reasonable, the board
shall consider the victim’s or derivative victim’s age, physical
condition, and psychological state, cultural or linguistic barriers,
any compelling health and safety concerns, including, but not
limited to, a reasonable fear of retaliation or harm that would
jeopardize the well-being of the victim or the victim’s family or
the derivative victim or the derivative victim’s family, and giving
due consideration to the degree of cooperation of which the victim
or derivative victim is capable in light of the presence of any of
these factors. A victim of domestic violence shall not be determined
to have failed to cooperate based on his or her conduct with law
enforcement at the scene of the crime. Lack of cooperation shall
also not be found solely because a victim of sexual assault,
domestic violence, or human trafficking delayed reporting the
qualifying crime.

(2) An application for a claim based on domestic violence shall
not be denied solely because a police report was not made by the
victim. The board shall adopt guidelines that allow the board to
consider and approve applications for assistance based on domestic
violence relying upon evidence other than a police report to
establish that a domestic violence crime has occurred. Factors
evidencing that a domestic violence crime has occurred may
include, but are not limited to, medical records documenting
injuries consistent with allegations of domestic violence, mental
health records, or that the victim has obtained a permanent
restraining order.

(3) An application for a claim based on a sexual assault shall
not be denied solely because a police report was not made by the
victim. The board shall adopt guidelines that allow it to consider
and approve applications for assistance based on a sexual assault
relying upon evidence other than a police report to establish that
a sexual assault crime has occurred. Factors evidencing that a
sexual assault crime has occurred may include, but are not limited
to, medical records documenting injuries consistent with allegations
of sexual assault, mental health records, or that the victim received
a sexual assault examination.

(4) An application for a claim based on human trafficking as
defined in Section 236.1 of the Penal Code shall not be denied
solely because no police report was made by the victim. The board
shall adopt guidelines that allow the board to consider and approve
applications for assistance based on human trafficking relying
upon evidence other than a police report to establish that a human
trafficking crime as defined in Section 236.1 of the Penal Code
has occurred. That evidence may include any reliable corroborating
information approved by the board, including, but not limited to,
the following:

(A) A Law Enforcement Agency begin delete Endorsement end delete begin insert endorsement end insert
issued pursuant to Section begin delete 236.2 end delete begin insert 236.5 end insert of the Penal Code.

(B) A human trafficking caseworker, as identified in Section
1038.2 of the Evidence Code, has attested by affidavit that the
individual was a victim of human trafficking.

(5) (A) An application for a claim by a military personnel victim
based on a sexual assault by another military personnel shall not
be denied solely because it was not reported to a superior officer
or law enforcement at the time of the crime.

(B) Factors that the board shall consider for purposes of
determining if a claim qualifies for compensation include, but are
not limited to, the evidence of the following:

(i) Restricted or unrestricted reports to a military victim
advocate, sexual assault response coordinator, chaplain, attorney,
or other military personnel.

(ii) Medical or physical evidence consistent with sexual assault.

(iii) A written or oral report from military law enforcement or
a civilian law enforcement agency concluding that a sexual assault
crime was committed against the victim.

(iv) A letter or other written statement from a sexual assault
counselor, as defined in Section 1035.2 of the Evidence Code,
licensed therapist, or mental health counselor, stating that the
victim is seeking services related to the allegation of sexual assault.

(v) A credible witness to whom the victim disclosed the details
that a sexual assault crime occurred.

(vi) A restraining order from a military or civilian court against
the perpetrator of the sexual assault.

(vii) Other behavior by the victim consistent with sexual assault.

(C) For purposes of this subdivision, the sexual assault at issue
shall have occurred during military service, including deployment.

(D) For purposes of this subdivision, the sexual assault may
have been committed off base.

(E) For purposes of this subdivision, a “perpetrator” means an
individual who is any of the following at the time of the sexual
assault:

(i) An active duty military personnel from the United States
Army, Navy, Marine Corps, Air Force, or Coast Guard.

(ii) A civilian employee of any military branch specified in
clause (i), military base, or military deployment.

(iii) A contractor or agent of a private military or private security
company.

(iv) A member of the California National Guard.

(F) For purposes of this subdivision, “sexual assault” means an
offense included in Section 261, 262, 264.1, 286, 288a, or 289 of
the Penal Code, as of the date the act that added this paragraph
was enacted.

(c) (1) Notwithstanding Section 13955, no person who is
convicted of a violent felony listed in subdivision (c) of Section
667.5 of the Penal Code may be granted compensation until that
person has been discharged from probation or has been released
from a correctional institution and has been discharged from parole,
or has been discharged from postrelease community supervision
or mandatory supervision, if any, for that violent crime. In no case
shall compensation be granted to an applicant pursuant to this
chapter during any period of time the applicant is held in a
correctional institution, or while an applicant is required to register
as a sex offender pursuant to Section 290 of the Penal Code.

(2) A person who has been convicted of a violent felony listed
in subdivision (c) of Section 667.5 of the Penal Code may apply
for compensation pursuant to this chapter at any time, but the award
of that compensation may not be considered until the applicant
meets the requirements for compensation set forth in paragraph
(1).

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(d) The board shall not deny an application for compensation
on the basis of the applicant’s membership or applicant’s family
member’s membership in, association with, or affiliation with, a
gang, or on the basis of the applicant’s designation or applicant’s
family member’s designation as a suspected gang member,
associate, or affiliate in a shared gang database as defined in
Section 186.34 of the Penal Code.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 186.34 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

186.34.  

(a) (1) For purposes of this section, “shared gang
database” shall mean any database that satisfies all of the following:

(A) Allows access for any local law enforcement agency.

(B) 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.

(C) Is subject to Part 23 of Title 28 of the Code of Federal
Regulations. If federal funding is no longer available to a database
through the federal Omnibus Crime Control and Safe Streets Act
of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have
to satisfy this subparagraph to meet the definition of a “shared
gang database.”

(2) A “shared gang database” does not include dispatch operator
reports, information used for the administration of jail or custodial
facilities, criminal investigative reports, probation reports, or
information required to be collected pursuant to Section 186.30.

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(3) Notwithstanding subparagraph (C) of paragraph (1), a
“shared gang database” includes the CalGang system, operated
pursuant to Part 23 of Title 28 of the Code of Federal Regulations.

end insert begin insert

(b) Notwithstanding subparagraph (C) of paragraph (1) of
subdivision (a), a shared gang database, as defined in this section,
shall retain records related to the gang activity of the individuals
in the database consistent with the provisions contained in Section
23.20(h) of Title 28 of the Code of Federal Regulations.

end insert begin insert

(c) (1) Commencing December 1, 2017, and annually on
December 1 thereafter, any law enforcement agency that elects to
utilize a shared gang database, as defined in subdivision (a), shall
submit a report to the Department of Justice that contains, by ZIP
Code, referring agency, race, gender, and age, the following
information:

end insert begin insert

(A) The number of persons included in the database on the day
of reporting.

end insert begin insert

(B) The number of persons added to the database during the
immediately preceding 12 months.

end insert begin insert

(C) The number of requests for removal of a person from the
database received during the immediately preceding 12 months.

end insert begin insert

(D) The number of requests for removal of a person from the
database that were granted during the immediately preceding 12
months.

end insert begin insert

(E) The number of persons automatically removed from the
database during the immediately preceding 12 months.

end insert begin insert

(2) Commencing January 1, 2018, and annually on December
1 thereafter, the Department of Justice shall submit a report to the
CalGang Executive Board and to the Legislature that contains the
information collected pursuant to paragraph (1).

end insert begin insert

(3) A report submitted to the Legislature pursuant to subdivision
(a) shall comply with Section 9795 of the Government Code.

end insert begin delete

(b)

end delete

begin insert (d) end insert   begin insert (1) end insert begin insert   end insert 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 begin insert shall provide written
notice to the person, and end insert shall, if the person is under 18 years of
age, provide written notice to the person and his or her parent or
begin delete guardian end delete begin insert guardian, end insert of the designation and the basis for the
designation, unless providing that notification would compromise
an active criminal investigation or compromise the health or safety
of the minor.

begin insert

(2) The notice described in paragraph (1) shall describe the
process for the person, or if the person is under 18 years of age,
for his or her parent or guardian, or an attorney working on behalf
of the person, to contest the designation of the person in the
database. The notice shall also inform the person of the reason
for his or her designation in the database.

end insert begin insert

(e) (1) (A) A person, or, if the person is under 18 years of age,
his or her parent or guardian, or an attorney working on behalf
of the person may request information of any law enforcement
agency as to whether the person is designated as a suspected gang
member, associate, or affiliate in a shared gang database
accessible by that law enforcement agency and what law
enforcement agency made the designation. A request pursuant to
this paragraph shall be in writing.

end insert begin insert

(B) If a person about whom information is requested pursuant
to subparagraph (A) is designated as a suspected gang member,
associate, or affiliate in a shared gang database by that law
enforcement agency, the person making the request may also
request information as to the reason for the designation for the
purpose of contesting the designation as described in subdivision
(f).

end insert begin insert

(2) The law enforcement agency shall provide information
requested under paragraph (1), unless doing so would compromise
an active criminal investigation or compromise the health or safety
of the person if the person is under 18 years of age.

end insert begin insert

(3) The law enforcement agency shall respond to a valid request
pursuant to paragraph (1) in writing to the person making the
request within 30 calendar days of receipt of the request.

end insert begin delete

(c)

end delete

begin insert (f) end insert  Subsequent to the notice described in begin delete subdivision (b), end delete
begin insert subdivision (d), end insert 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
shared gang 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 begin delete 60 end delete begin insert 30 end insert days of
submission of the written documentation contesting the designation.
begin insert If the law enforcement agency denies the request for removal, the
notice of its determination shall state the reason for the denial.
The person may appeal the denial pursuant to Section 186.35. end insert

begin delete end delete begin delete

(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, and the local
law enforcement agency shall provide that information, unless
doing so would compromise an active criminal investigation or
compromise the health or safety of the minor.

end delete begin delete end delete begin delete

(e) The local law enforcement agency shall not disclose the
location of the

end delete

begin insert (g) end insert begin insert   end insert begin insert A end insert person begin delete to be end delete designated as a suspected gang member,
associate, or affiliate begin delete to his or her parent or guardian if end delete begin insert in a shared
gang database who has not been convicted of a violation of Section
186.22 within three years of end insert the begin delete agency determines there is credible
evidence that end delete begin insert initial designation shall be removed from end insert the
begin delete information would endanger the health or safety of the minor. end delete
begin insert database. end insert

begin delete end delete begin delete

(f) A shared gang database, as defined in this section, shall retain
records related to the gang activity of the individuals in the
database consistent with the provisions contained in Section
23.20(h) of Title 28 of the Code of Federal Regulations.

end delete begin delete end delete begin delete

(g)

end delete

begin insert (h) end insert  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.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 186.35 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 186.35. end insert   

(a) A person who is listed by a law enforcement agency
in a shared gang database or is subject to a gang injunction as a
gang member, suspected gang member, associate, or affiliate may
contest that designation or being subject to the gang injunction
pursuant to this section. The person may contest the designation
initially pursuant to this section, or other a denial as specified in
subdivision (f) of Section 186.34.

(b) The person may request an administrative hearing to review
the designation decision or applicability of the injunction. A person
may challenge both a designation and gang injunction in one
proceeding.

(c) An administrative hearing shall be held within 90 calendar
days following the receipt of a request for an administrative
hearing. The person requesting the hearing may request one
continuance, not to exceed 21 calendar days.

(d) The administrative hearing shall be conducted in accordance
with written procedures established by the agency. The hearing
shall provide an independent, objective, fair, and impartial review
of a contested designation.

(e) The agency shall appoint or contract with qualified
examiners or administrative hearing providers that employ
qualified examiners to conduct the administrative hearings.
Examiners shall demonstrate those qualifications, training, and
objectivity necessary to conduct a fair and impartial review.

(f) The examiner’s decision following the administrative hearing
may be personally delivered to the person by the examiner or sent
by first-class mail, and, if the designation is not canceled, shall
include a written reason for that denial.

(g) Within 30 calendar days after the mailing or personal
delivery of the examiner’s decision, the person may seek review
by filing an appeal to be heard by the superior court where the
appeal shall be heard de novo. A copy of the notice of appeal shall
be served in person or by first-class mail upon the agency by the
person. For purposes of computing the 30-calendar-day period,
Section 1013 of the Code of Civil Procedure shall be applicable.

(h) The fee for filing the notice of appeal is as provided in
Section 70615 of the Government Code. The court shall notify the
person of the appearance date by mail or personal delivery. The
court shall retain the fee under Section 70615 of the Government
Code regardless of the outcome of the appeal. If the court finds in
favor of the person, the amount of the fee shall be reimbursed to
the person by the agency.

(i) The law enforcement agency has the burden of demonstrating
active gang membership, associate status, or affiliate status to the
court by clear and convincing evidence.

(j) A successful challenge to the designation shall result in the
removal of the person from the shared gang database or the
contestant not being subject to the injunction, or both.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert begin insert

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end insert

begin delete

SECTION 1.  

It is the intent of the Legislature to enact
legislation requiring local law enforcement agencies to provide
written notice to an adult before making a gang designation and
entering the adult’s personal, identifying information into a shared
gang database.

end delete