BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2298|
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THIRD READING
Bill No: AB 2298
Author: Weber (D)
Amended: 8/16/16 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/21/16
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 42-34, 6/2/16 - See last page for vote
SUBJECT: Criminal gangs
SOURCE: Author
DIGEST: This bill 1) extends to adults the right to be notified
of inclusion in a shared gang database, as defined and including
CalGang, and to seek removal of a person's name and identifying
information from the database; 2) requires that database
operators comply with federal privacy and data accuracy rules,
as specified; 3) establishes a civil court procedure for seeking
removal from a gang database; 4) requires any agency that
utilizes a shared gang database to annually report to the
Department of Justice (DOJ) on the number of persons in the
database, the number of people in each of the following
categories in the previous year - those added to the database,
who sought removal, who were granted removal and those
automatically removed; and 5) requires DOJ to annually publish
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the information on its Web site, as specified.
ANALYSIS:
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.
(Pen. Code, § 186.22, subd. (f).
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. (Pen. Code, § 186.22, subd. (a).)
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 or
specified life term. (Pen. Code, § 186.22, subd. (b).)
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
imprisonment in the county jail for up to one year or by 1,
2, or 3 years in state prison. (Pen. Code, § 186.22, subd.
(d).)
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
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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.
(Pen. Code, § 186.22, subd. (e).)
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. (Pen. Code, § 186.30, subds. (a)
& (b).)
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. (Pen. Code, §
186.32 (a)(1)(B).)
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. (Pen. Code, §
186.31.)
9) Requires local law enforcement to notify a minor and his or
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. (Pen. Code §
186.34.)
10)Authorizes a minor included in a gang data base, or the
minor's parent or guardian, to request, with supporting
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documentation, the relevant local law enforcement agency to
remove the minor's name and information from the database and
gives the law enforcement agency 60 days to act on the
request. (Pen. Code § 186.34 (c).)
This bill:
1) Expands the notice requirement given to a minor of his or
her inclusion in a gang database, as specified, to include
adults, by requiring notice be provided to an adult before
designating a person a suspected gang member, associate, or
affiliate in the database.
2) Requires databases to 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 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.
4) Allows a person listed in a specified gang database to
contest the designation through written documentation.
5) Establishes a court appeal process if a law enforcement
agency rejects a person's challenge of his or her inclusion
in a database to challenge that designation.
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Background
According to the author:
In 2013 the enactment of SB 458 (Wright) gave a youth
under 18 and his or her parent or guardian the right to
be notified if they were added to a gang file and to
challenge their designation. 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. 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)
post an annual data 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 given intervention
resources and other supports. The 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, CalGang and similar
efforts exclude people and their families from the
community when they most need that connection and
support.
In 1987, the Los Angeles County Sheriff's Department developed
the Gang Reporting, Evaluation and Tracking System (GREAT), the
nation's first gang database. "Before GREAT existed, police
departments collected information on gang members in locally
maintained files, but could not access information that had been
collected by other law enforcement agencies." (Stacey Leyton,
The New Blacklists: The Threat to Civil Liberties Posed by Gang
Databases (a chapter in Crime Control and Social Justice: The
Delicate Balance, edited by Darnell F. Hawkins, Samuel L. Myers
Jr. and Randolph N. Stone, Westport, CT, 2003. The African
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American Experience, Greenwood Publishing Group, Mar. 27, 2013.)
In 1988, the Legislature passed the Street Terrorism Enforcement
and Prevention (STEP) Act, asserting California to be "in a
state of crisis?caused by violent street gangs whose members
threaten, terrorize and commit?crimes against the peaceful
citizens of their neighborhoods." (Pen. Code, § 186.21 (1988).)
The act defined of "criminal street gang," "pattern of criminal
gang activity" and set gang penalties.
In 1997, the regional GREAT databases were integrated into a new
statewide database, CalGang, with the goals of making the
database easier and less expensive use. CalGang operates
pursuant to the Federal 1968 Omnibus Crime Control and Safe
Streets Act, which requires that "all criminal intelligence
systems ? are utilized in conformance with the privacy and
constitutional rights of individuals."
Prior to 2013, if a minor was tried as an adult and convicted,
or had a petition sustained in a juvenile court, his or her
parent or guardian was required to be notified of a requirement
to register with a local sheriff's office upon release from
custody or moving to a new city or county. (Pen. Code, §
186.32, subd. (a)(1)(B).) Parents were notified when a minor
was designated in the CalGang database as a suspected gang
member, associate, or affiliate. Although a conviction or
declaration of wardship was not required for a minor to be
placed in the CalGang database, serious consequences to the
minor could flow from that action.
SB 458 (Wright, Chapter 797, Statutes of 2013) required a local
law enforcement agency to notify any person under 18 years of
age and his or her parent or guardian of the minor's designation
in a shared gang database and the basis for the designation
before the minor was designated as a suspected gang member,
associate or affiliate in a shared gang database, regardless of
conviction status.
The CalGang system is widely accessed by law enforcement
officers and tracks 200 data fields including name, address,
description, social security number, and race or ethnicity. The
database may include all of a person's police encounters.
(Leyton, supra, at 113.) CalGang is an intranet system that can
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be checked in real time, including through police vehicle
computers (Ibid.)
Concerns have arisen about the accuracy and secrecy of CalGangs.
In 1999, then-Attorney General Lockyer described the database
as "mix[ing] verified criminal history and gang affiliations
with unverified intelligence and hearsay evidence, including
reports on persons who have committed no crime." "This
database? cannot and should not be used ? to decide whether or
not a person is dangerous or should be detained." (Ibid.)
Moreover, with 201,094 people currently listed on CalGang,
community groups have expressed concern about transparency,
accountability, notification, release of information.
Youth Justice Coalition states that CalGang "dramatically
expands the criminalization of individuals and communities,"
noting that the database is used to determine who should be
served with civil gang injunctions, given gang sentences and
targeted for saturation policing. Community members say that
CalGang has become a "secret surveillance tool," to monitor
children, dramatically impacting the way they are seen and
treated by law enforcement, without notifying families who may
intervene or move to a new neighborhood. (Id.) Although the
exact number of minors designated is unknown, approximately 10%
of those listed on the CalGang database are 19 years of age or
younger. (Id.)
Law enforcement representatives emphasize that unmodified
records are purged after five years. Thus, a person need only
avoid gang-qualifying criteria for five years to ensure that he
or she will be stricken from the database. However, it may be
difficult for a person living in a gang area to avoid qualifying
criteria that include "is in a photograph with known gang
members," "name is on a gang document, hit list or gang-related
graffiti" or "corresponds with known gang members." In an
environment with camera phones and social network comments, it
may be challenging for a teenager to avoid such criteria.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
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CalGang system enhancements: One-time automation costs to the
DOJ of $1 million for system enhancements.
DOJ data collection and reporting: Ongoing DOJ workload
increase of $200,000 to collect and post data submitted by
shared gang database users.
Local agency notices and data reporting: Potentially
significant non-reimbursable local agency costs for additional
and more detailed notifications, data collection, reporting, and
retention requirements. Utilization of shared gang databases is
permissive, and any additional workload imposed for the
notification and data reporting provisions would not appear to
be reimbursable.
Shared gang database inquiries: Potentially significant local
law enforcement agency costs, potentially state-reimbursable, to
accept and respond to written requests for information of
possible designation in a shared gang database. The bill
provides that a person may request information of any law
enforcement agency, which could include agencies that no longer
utilize the database to designate gang members, yet is
technically accessible to the agency, and requires that agency
to respond to the request and provide written information of
possible gang designation by other law enforcement agencies. The
CHP and CDCR, which have access to CalGang, anticipate minor
costs to respond to any requests.
Court hearing process: Potentially significant future costs for
court challenges.
SUPPORT: (Verified8/15/16)
A New Path
All of Us or None
Alliance for Boys and Men of Color
Alliance San Diego
American Civil Liberties Union
American Friends Service Committee
Arts for Incarcerated Youth Network
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Asian Americans Advancing Justice - California
Asian Pacific Policy & Planning Council
Aspire Los Angeles
Bay Area Youth Summit
Boston-area Youth Organizing Project
California Immigrant Policy Center
California Immigrant Youth Justice Alliance
California League of United Latin American Citizens Public
Interest Advocacy
The Center for Popular Democracy
Central American Resource Center-LA
Chance Films
Coalition for Humane Immigrant Rights of Los Angeles
Community Coalition
CSA San Diego County
Dream Team Los Angeles
Drug Policy Alliance
Electronic Frontier Foundation
Ella Baker Center for Human Rights
Fair Chance Project
Filipino Migrant Center
Homeboy Industries
House Keys not Handcuffs
Immigrant Defenders Law Center
Immigrant Legal Resource Center
Immigrant youth Coalition
Inland Empire Immigrant Youth Coalition
Justice Not Jails
Khmer Girls in Action
KIWA Workers for Justice
Korean Resource Center
Law Offices of Chavez and Vigil
Learn Everything About the Parole Process
Legal Services for Prisoners with Children
Life After Uncivil Ruthless Acts
Long Beach Immigrant Rights Coalition
Los Angeles Brown Berets
Los Angeles Center for Law and Justice
Loyola Law School of Los Angeles
Mexican American Legal Defense and Education Fund
Motivating Individual Leadership for Public Advancement
National Association of Social Workers, California Chapter
National Juvenile Justice Network
Orange County Immigrant Youth United
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People Organized for Westside Renewal
PICO California
PolicyLink
Public Counsel
Public Law Center
RAIZ
Santa Ana Boys and Men of Color
San Diego Immigrant Rights Consortium
Services, Immigrant Rights & Education Network
Silicon Valley De-Bug
Southwestern Law School
Teachers Unite;
T.R.U.S.T South Los Angeles
Urban Peace Institute
University of California Irvine School of Law
Violence Prevention Coalition
The W. Haywood Burns Institute
The Women's Foundation of California
Young Women's Freedom Center
Youth Justice Coalition
OPPOSITION: (Verified8/15/16)
Association of Deputy District Attorneys
California District Attorneys Association
California Police Chiefs Association Inc.
California State Sheriffs' Association
E3 Research
Fraternal Order of Police
San Bernardino County Sheriff's Department
ASSEMBLY FLOOR: 42-34, 6/2/16
AYES: Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,
Campos, Chau, Chu, Cooley, Dababneh, Daly, Eggman, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer,
Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, Quirk,
Ridley-Thomas, Santiago, Mark Stone, Thurmond, Ting, Weber,
Wood, Rendon
NOES: Achadjian, Travis Allen, Arambula, Baker, Bigelow,
Brough, Chang, Chávez, Cooper, Dahle, Dodd, Frazier, Beth
Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Linder,
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Maienschein, Mathis, Mayes, Melendez, Obernolte, O'Donnell,
Olsen, Patterson, Salas, Steinorth, Wagner, Waldron, Wilk,
Williams
NO VOTE RECORDED: Alejo, Chiu, Hadley, Rodriguez
Prepared by:Jerome McGuire / PUB. S. /
8/22/16 12:09:31 **** END
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