BILL NUMBER: AB 2298 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 16, 2016
AMENDED IN ASSEMBLY MAY 31, 2016
AMENDED IN ASSEMBLY APRIL 6, 2016
AMENDED IN ASSEMBLY MARCH 17, 2016
INTRODUCED BY Assembly Member Weber
( Principal coauthor: Senator
Leno )
( Coauthor: Senator Mitchell
)
FEBRUARY 18, 2016
An act to amend Section 70615 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.
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. 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.
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 to challenge that designation through
an administrative hearing and who has contested that
designation with the local law enforcement agency and whose challenge
has been denied to appeal to the superior court.
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.
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:
SECTION 1. Section 70615 of the
Government Code is amended to read:
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.
(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.
SECTION 1. SEC. 2. 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 reason basis 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.
(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)
(g) 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.
SEC. 2. SEC. 3. Section 186.35 is
added to the Penal Code, to read:
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.
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 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.
(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.
(h)
(c) 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.
SEC. 3. SEC. 4. 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.