BILL ANALYSIS Ó AB 2298 Page 1 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 AB 2298 Page 2 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. AB 2298 Page 3 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, AB 2298 Page 4 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 AB 2298 Page 5 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 AB 2298 Page 6 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, AB 2298 Page 7 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