BILL ANALYSIS Ó
AB 2298
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CONCURRENCE IN SENATE AMENDMENTS
AB
2298 (Weber)
As Amended August 16, 2016
Majority vote
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|ASSEMBLY: |42-34 |(June 2, 2016) |SENATE: | 24-9 | (August 23, |
| | | | | |2016) |
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Original Committee Reference: PUB. S.
SUMMARY: Imposes specified due process rights on California
Shared Gang Databases.
The Senate amendments:
1)Remove the administrative hearing proceedings for removal from
the gang database and instead allow for direct appeal to the
Superior Court when a law enforcement agency fails to remove a
person from the database within 90-days.
2)Remove the requirement 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.
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AS PASSED BY THE ASSEMBLY, this bill:
1)Expanded the notice requirement given to minors to include
adults, by requiring notice be provided to an adult before
designating a person as a suspected gang member, associate, or
affiliate in the database.
2)Required databases comply with federal requirements regarding
the privacy and accuracy of information in the database, and
other operating principles for maintaining these databases.
3)Required 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 Web site.
4)Required 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)Established 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) Provided 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
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person may contest the designation initially pursuant to
this section or a denial as specified.
b) Stated that the person may request an administrative
hearing to review the designation decision.
c) Provided 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) Stated 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) Provided 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) Stated 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) Provided 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.
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h) Provided that 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.
i) Stated 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 one,
two, or three 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
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.
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FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)CalGang system enhancements: One-time automation costs to the
DOJ of $1 million (General Fund) for system enhancements.
2)DOJ data collection and reporting: Ongoing DOJ workload
increase of $200,000 (General Fund) to collect and post data
submitted by shared gang database users.
3)Local agency notices and data reporting: Potentially
significant non-reimbursable local agency costs (Local Funds)
for additional and more detailed written notifications, data
collection, reporting, and retention requirements.
Utilization of the CalGang system and other shared gang
databases is permissive, and any additional workload imposed
for the notification and data reporting provisions
prospectively would not appear to be reimbursable by the
state.
4)Shared gang database inquiries: Potentially significant local
law enforcement agency costs, potentially state-reimbursable
(General Fund), to accept and respond to written requests for
information of possible designation in a shared gang database.
This 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 California Highway Patrol and
California Department of Corrections and Rehabilitation, which
have access to CalGang, anticipate minor costs to respond to
any requests.
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5)Court hearing process: Potentially significant future costs
for court hearings (General Fund*) to contest gang database
designations.
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,
CalGang and similar efforts exclude people and their families
from the community when they most need that connection and
support."
Please see the policy committee for a full discussion of this
bill.
AB 2298
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Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744 FN:
0004426