BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2298


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          ASSEMBLY THIRD READING


          AB  
          2298 (Weber)


          As Amended  May 31, 2016


          Majority vote


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Public Safety   |5-2  |Jones-Sawyer, Lopez,  |Melendez, Lackey    |
          |                |     |Low, Quirk, Santiago  |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Appropriations  |13-7 |Gonzalez, Bloom,      |Bigelow, Chang,     |
          |                |     |Bonilla, Bonta,       |Gallagher, Roger    |
          |                |     |Calderon, Daly,       |Hernández, Jones,   |
          |                |     |Eggman, Eduardo       |Obernolte, Wagner   |
          |                |     |Garcia, Holden,       |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Weber, Wood           |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 


          SUMMARY:  Imposes specified due process rights on California  
          Shared Gang Databases. Specifically, this bill:  
          1)Expands the notice requirement given to minors to include  
            adults, by requiring notice be provided to an adult before  








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            designating a person as a suspected gang member, associate, or  
            affiliate in the database. 
          2)Requires databases comply with federal requirements regarding  
            the privacy and accuracy of information in the database, and  
            other operating principles for maintaining these databases. 


          3)Requires local law enforcement, commencing December 1, 2017,  
            and every January 15th thereafter to submit specified data  
            pertaining to the database to the Department of Justice (DOJ)  
            on a format developed by the DOJ, and would require the DOJ,  
            commencing February 15, 2018, and every February 15th  
            thereafter, to post each law enforcement agency's report that  
            contains the information collected on the DOJ's website. 


          4)Requires 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 three years of the initial designation be  
            removed from the database.


          5)Establishes a procedure for a person designated in a shared  
            gang database to challenge that designation through an  
            administrative hearing and appeal to the superior court as  
            follows:  


             a)   Provides that 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. 
             b)   States that the person may request an administrative  
               hearing to review the designation decision. 










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             c)   Provides that 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)   States that 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)   Provides that 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)   States that 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)   Provides that 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. 


             h)   Provides that the law enforcement agency has the burden  
               of demonstrating active gang membership, associate status,  








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               or affiliate status to the court by clear and convincing  
               evidence.


             i)   States that a successful challenge to the designation  
               shall result in the removal of the person from the shared  
               gang database.


          EXISTING LAW:  


          1)Defines a "criminal street gang" as any ongoing organization,  
            association, or group of three or more persons... having as  
            one of its primary activities the commission of one or more  
            enumerated offenses, having a common name or identifying sign  
            or symbol, and whose members individually or collectively  
            engage in a pattern of criminal gang activity.  
          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.  


          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.  


          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  








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            imprisonment in the county jail for up to one year or by 1, 2,  
            or 3 years in state prison. 


          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.  


          6)Requires any person who is convicted in criminal court or who  
            has a petition sustained in a juvenile court of one of the  
            specified criminal street gang offenses or enhancements to  
            register with the local Police Chief or Sheriff within 10 days  
            of release from custody or within 10 days of his or her  
            arrival in any city, county, or city and county to reside  
            there, whichever is first.  


          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.  


          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.  


          9)Requires local law enforcement to notify a minor and his or  








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            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.   


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, moderate nonreimbursable cost to local agencies to  
          provide the required information to DOJ.  Since participation in  
          CalGANG is not mandatory, costs associated with the reporting  
          requirement for participating agencies are not reimbursable  
          mandated costs. 


          COMMENTS:  According to the author, "In 2013 SB 458 (Wright),  
          [Chapter 797] which required youth under 18 and their parent or  
          guardian had the right to be notified if they were added to a  
          gang file and to challenge their designation, was signed into  
          law.  In just two years since the passing of SB 458, the number  
          of people on the CalGang Database has dropped from nearly  
          202,000 to approximately 150,000. 

          "As an indication of how powerful transparency is in achieving  
          fair and accurate implementation AB 2298 continues the work of  
          SB 458 by 1) Extending to adults the current requirement that  
          youth under 18 be given notice as well as an opportunity to  
          contest inclusion in a shared gang database; 2) Removing  
          individuals from the gang database after three years without a  
          convicted violation of California's Street Terrorism Enforcement  
          and Prevention Act; and 3) Requiring that the California  
          Department of Justice (DOJ) provide an annual report on gang  
          databases.

          "Most important, for youth and young adults that police suspect  
          of gang membership or association, they and their families  
          should be both notified and flooded with intervention resources  
          and other supports.  Instead, the continued secrecy of CalGang  
          and the increased surveillance and police contact it triggers,  
          actually eliminate a vital and early opportunity to prevent  
          victimization, injury, incarceration and death.  In fact,  








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          CalGang and similar efforts exclude people and their families  
          from the community when they most need that connection and  
          support."



          Analysis Prepared by:                                             
                          Gabriel Caswell/ PUB. S. / (916) 319-3744  FN:  
          0003161