BILL ANALYSIS Ó AB 2298 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2298 (Weber) As Amended August 16, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |42-34 |(June 2, 2016) |SENATE: | 24-9 | (August 23, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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. AB 2298 Page 2 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 AB 2298 Page 3 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. AB 2298 Page 4 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 AB 2298 Page 5 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. AB 2298 Page 6 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. AB 2298 Page 7 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 Page 8 Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0004426