Amended in Senate August 16, 2016

Amended in Assembly May 31, 2016

Amended in Assembly April 6, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2298

Introduced by Assembly Member Weber

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(Principal coauthor: Senator Leno)

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(Coauthor: Senator Mitchell)

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February 18, 2016

An act to amend begin insert Section 70615 of the Government Code, and to amend end insert Section 186.34 of, and to add Section 186.35 to, the Penal Code, relating to criminal gangs.

LEGISLATIVE COUNSEL’S DIGEST

AB 2298, as amended, Weber. Criminal gangs.

Existing law, the California Street Terrorism Enforcement and Prevention Act (act), 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 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.

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 January 15, 2018, and every January 15 thereafter to submit specified data pertaining to the database to the Department of Justice, and would require the Department of Justice, commencing February 15, 2018, and every February 15 thereafter, to post that information on the department’s Internet Web site. begin delete 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 delete

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

The bill would establish a procedure for a person designated in a shared gang database begin delete to challenge that designation through an administrative hearing and end delete begin insert who has contested that designation with the local law enforcement agency and whose challenge has been denied to end insert appeal to the superior court.

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

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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.

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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

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begin insert SECTION 1. end insert   

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begin insert Section 70615 of the end insert begin insert Government Code end insert begin insert is
amended to read: end insert

70615.  

The fee for filing any of the following appeals to the
superior court is twenty-five dollars ($25):

(a) An appeal of a local agency’s decision regarding an
administrative fine or penalty under Section 53069.4.

(b) An appeal under Section 40230 of the Vehicle Code of an
administrative agency’s decision regarding a parking violation.

(c) An appeal under Section 99582 of the Public Utilities Code
of a hearing officer’s determination regarding an administrative
penalty for fare evasion or a passenger conduct violation.

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(d) An appeal under Section 186.35 of the Penal Code of a law
enforcement agency’s determination regarding the placement of
an individual’s information in a shared gang database.

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begin delete SECTION 1. end delete

begin insert SEC. 2. end insert   

Section 186.34 of the Penal Code is amended to read:

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.

(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.

(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.

(c) (1) Commencing January 15, 2018, and annually on January
15 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, in a format developed by the
department, that contains, by ZIP Code, referring agency, race,
gender, and age, the following information:

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

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

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

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

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

(2) Commencing February 15, 2018, and annually on February
15 thereafter, the Department of Justice shall post each law
enforcement agency’s report that contains the information collected
pursuant to paragraph (1) on the department’s Internet Web site.

(d) (1) 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 provide written
notice to the person, and 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,
unless providing that notification would compromise an active
criminal investigation or compromise the health or safety of the
minor.

(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.

(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.

(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 begin delete reason end delete begin insert basis end insert for the designation for
the purpose of contesting the designation as described in
subdivision (f).

(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.

(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.

(f) Subsequent to the notice described in subdivision (d), 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 30 days of submission of the written documentation
contesting the designation. 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.

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(g) 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 Section 186.22 within three years of the initial
designation shall be removed from the database.

(h)

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begin insert (g) 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.

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begin insert SEC. 3. end insert   

Section 186.35 is added to the Penal Code, to read:

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186.35.  

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

(b) The person may request an administrative hearing to review
the designation decision.

(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.

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begin insert 186.35. end insert   

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(a) A person who is listed by a law enforcement agency
in a shared gang database as a gang member, suspected gang
member, associate, or affiliate and who has contested his or her
designation pursuant to subdivision (f) of Section 186.34, may seek
review within 90 calendar days of the agency’s mailing or personal
service of the verification of the decision by filing an appeal to be
heard by the superior court. A proceeding under this subdivision
is a limited civil case. 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 90-calendar-day period, Section 1013
of the Code of Civil Procedure shall be applicable.

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(b) The evidentiary record for the appeal shall be limited to the
agency’s statement of basis of its designation made pursuant to
subdivision (e) of Section 186.34, and the documentation provided
to the agency by the appellant pursuant to subdivision (f) of Section
186.34. If, upon de novo review and any arguments presented to
the court, the court finds that the law enforcement agency has
failed to establish the petitioner’s active gang membership,
associate status, or affiliate status by clear and convincing
evidence, the court shall order the law enforcement agency to
remove the name of the person from the shared gang database.

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(h)

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begin insert (c) end insert  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.

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(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.

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(j) A successful challenge to the designation shall result in the
removal of the person from the shared gang database.

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begin delete SEC. 3. end delete

begin insert SEC. 4. end 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.