Bill Text: CA AB2298 | 2015-2016 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Criminal gangs.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Passed) 2016-09-28 - Chaptered by Secretary of State - Chapter 752, Statutes of 2016. [AB2298 Detail]

Download: California-2015-AB2298-Amended.html

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BILL NUMBER: AB 2298	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 17, 2016

INTRODUCED BY   Assembly Member Weber

                        FEBRUARY 18, 2016

    An act to relating to shared gang databases. 
 An act to amend Section 13956 of the Government Code, and to
amend Section 186.34 of, and to add Section 186.35 to, the Penal
Code, relating to criminal gangs. 


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2298, as amended, Weber.  Shared gang databases.
  Criminal gangs.  
   Existing law generally provides for the compensation of victims
and derivative victims of specified types of crimes by the California
Victim Compensation and Government Claims Board from the Restitution
Fund, a continuously appropriated fund, for specified losses
suffered as a result of those crimes. Existing law sets forth
eligibility requirements and limits on the amount of compensation the
board may award, and requires the application for compensation to be
verified under penalty of perjury. Existing law establishes limits
on eligibility, including, among others, because of the victim's
involvement in the crime, as specified.  
   This bill would provide that an application for compensation would
not be denied on the basis of the applicant's membership or
applicant's family member's membership in, association with, or
affiliation with, a gang, or on the basis of the applicant's
designation or applicant's family member's designation as a suspected
gang member, associate, or affiliate in a shared gang database, as
defined.  
   Existing law, the California Street Terrorism Enforcement and
Prevention Act (act) and provides specified punishments for certain
crimes committed for the benefit of, at the direction of, or in
association with, a criminal street gang, as specified. The act
authorizes injunctions against specified gang activity, as provided.
The act defines a "shared gang database" as having various
attributes, including, among others, that the database contains
personal, identifying information in which a person may be designated
as a suspected gang member, associate, or affiliate, or for which
entry of a person in the database reflects a designation of that
person as a suspected gang member, associate, or affiliate. Existing
law requires a law enforcement agency, before designating a person as
a suspected gang member, associate, or affiliate in the database, to
provide a written notice to the person's parent or guardian, if the
person is a minor.  
   This bill would require the notice described above to be provided
to an adult before designating a person as a suspected gang member,
associate, or affiliate in the database. The bill would require these
databases to comply with federal requirements regarding the privacy
and accuracy of information in the database, and other operating
principles for maintaining these databases. The bill would require
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. The bill would
require 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
3 years of the initial designation be removed from the database.
 
   By imposing additional duties on local law enforcement entities,
this bill would impose a state-mandated local program.  
   The bill would establish a procedure for a person designated in a
shared gang database or who is subject to a gang injunction to
challenge that designation or injunction through an administrative
hearing and appeal to the superior court.  
   By requiring local law enforcement to implement an appeal process
for persons designated in a shared gang database or subject to a gang
injunction, this bill would impose a state-mandated local program.
 
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.  
   Existing law, the California Street Terrorism Enforcement and
Prevention Act (Act), and provides specified punishments for certain
crimes committed for the benefit of, at the direction of, or in
association with, a criminal street gang, as specified. The act
authorizes injunctions against specified gang activity, as provided.
The act defines a "shared gang database" as having various
attributes, including, among others, that the database contains
personal, identifying information in which a person may be designated
as a suspected gang member, associate, or affiliate, or for which
entry of a person in the database reflects a designation of that
person as a suspected gang member, associate, or affiliate. Existing
law requires a law enforcement agency, before designating a person as
a suspected gang member, associate, or affiliate in the database, to
provide a written notice to the person's parent or guardian, if the
person is a minor.  
   This bill would express the intent of the Legislature to enact
legislation requiring local law enforcement agencies to provide
written notice to an adult before making a gang designation and
entering the adult's personal, identifying information into a shared
gang database. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program:  no
  yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 13956 of the  
Government Code   is amended to read: 
   13956.  Notwithstanding Section 13955, a person shall not be
eligible for compensation under the following conditions:
   (a) An application may be denied, in whole or in part, if the
board finds that denial is appropriate because of the nature of the
victim's or other applicant's involvement in the events leading to
the crime, or the involvement of the person whose injury or death
gives rise to the application.
   (1) Factors that may be considered in determining whether the
victim or derivative victim was involved in the events leading to the
qualifying crime include, but are not limited to:
   (A) The victim or derivative victim initiated the qualifying
crime, or provoked or aggravated the suspect into initiating the
qualifying crime.
   (B) The qualifying crime was a reasonably foreseeable consequence
of the conduct of the victim or derivative victim.
   (C) The victim or derivative victim was committing a crime that
could be charged as a felony and reasonably lead to him or her being
victimized. However, committing a crime shall not be considered
involvement if the victim's injury or death occurred as a direct
result of a crime committed in violation of Section 261, 262, or
273.5 of, or for a crime of unlawful sexual intercourse with a minor
in violation of subdivision (d) of Section 261.5 of, the Penal Code.
   (2) If the victim is determined to have been involved in the
events leading to the qualifying crime, factors that may be
considered to mitigate or overcome involvement include, but are not
limited to:
   (A) The victim's injuries were significantly more serious than
reasonably could have been expected based on the victim's level of
involvement.
   (B) A third party interfered in a manner not reasonably
foreseeable by the victim or derivative victim.
   (C) The board shall consider the victim's age, physical condition,
and psychological state, as well as any compelling health and safety
concerns, in determining whether the application should be denied
pursuant to this section. The application of a derivative victim of
domestic violence under 18 years of age or derivative victim of
trafficking under 18 years of age shall not be denied on the basis of
the denial of the victim's application under this subdivision.
   (b) (1) An application shall be denied if the board finds that the
victim or, if compensation is sought by, or on behalf of, a
derivative victim, either the victim or derivative victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the crime. In
determining whether cooperation has been reasonable, the board shall
consider the victim's or derivative victim's age, physical condition,
and psychological state, cultural or linguistic barriers, any
compelling health and safety concerns, including, but not limited to,
a reasonable fear of retaliation or harm that would jeopardize the
well-being of the victim or the victim's family or the derivative
victim or the derivative victim's family, and giving due
consideration to the degree of cooperation of which the victim or
derivative victim is capable in light of the presence of any of these
factors. A victim of domestic violence shall not be determined to
have failed to cooperate based on his or her conduct with law
enforcement at the scene of the crime. Lack of cooperation shall also
not be found solely because a victim of sexual assault, domestic
violence, or human trafficking delayed reporting the qualifying
crime.
   (2) An application for a claim based on domestic violence shall
not be denied solely because a police report was not made by the
victim. The board shall adopt guidelines that allow the board to
consider and approve applications for assistance based on domestic
violence relying upon evidence other than a police report to
establish that a domestic violence crime has occurred. Factors
evidencing that a domestic violence crime has occurred may include,
but are not limited to, medical records documenting injuries
consistent with allegations of domestic violence, mental health
records, or that the victim has obtained a permanent restraining
order.
   (3) An application for a claim based on a sexual assault shall not
be denied solely because a police report was not made by the victim.
The board shall adopt guidelines that allow it to consider and
approve applications for assistance based on a sexual assault relying
upon evidence other than a police report to establish that a sexual
assault crime has occurred. Factors evidencing that a sexual assault
crime has occurred may include, but are not limited to, medical
records documenting injuries consistent with allegations of sexual
assault, mental health records, or that the victim received a sexual
assault examination.
   (4) An application for a claim based on human trafficking as
defined in Section 236.1 of the Penal Code shall not be denied solely
because no police report was made by the victim. The board shall
adopt guidelines that allow the board to consider and approve
applications for assistance based on human trafficking relying upon
evidence other than a police report to establish that a human
trafficking crime as defined in Section 236.1 of the Penal Code has
occurred. That evidence may include any reliable corroborating
information approved by the board, including, but not limited to, the
following:
   (A) A Law Enforcement Agency  Endorsement  
endorsement  issued pursuant to Section  236.2 
 236.5  of the Penal Code.
   (B) A human trafficking caseworker, as identified in Section
1038.2 of the Evidence Code, has attested by affidavit that the
individual was a victim of human trafficking.
   (5) (A) An application for a claim by a military personnel victim
based on a sexual assault by another military personnel shall not be
denied solely because it was not reported to a superior officer or
law enforcement at the time of the crime.
   (B) Factors that the board shall consider for purposes of
determining if a claim qualifies for compensation include, but are
not limited to, the evidence of the following:
   (i) Restricted or unrestricted reports to a military victim
advocate, sexual assault response coordinator, chaplain, attorney, or
other military personnel.
   (ii) Medical or physical evidence consistent with sexual assault.
   (iii) A written or oral report from military law enforcement or a
civilian law enforcement agency concluding that a sexual assault
crime was committed against the victim.
   (iv) A letter or other written statement from a sexual assault
counselor, as defined in Section 1035.2 of the Evidence Code,
licensed therapist, or mental health counselor, stating that the
victim is seeking services related to the allegation of sexual
assault.
   (v) A credible witness to whom the victim disclosed the details
that a sexual assault crime occurred.
   (vi) A restraining order from a military or civilian court against
the perpetrator of the sexual assault.
   (vii) Other behavior by the victim consistent with sexual assault.

   (C) For purposes of this subdivision, the sexual assault at issue
shall have occurred during military service, including deployment.
   (D) For purposes of this subdivision, the sexual assault may have
been committed off base.
   (E) For purposes of this subdivision, a "perpetrator" means an
individual who is any of the following at the time of the sexual
assault:
   (i) An active duty military personnel from the United States Army,
Navy, Marine Corps, Air Force, or Coast Guard.
   (ii) A civilian employee of any military branch specified in
clause (i), military base, or military deployment.
   (iii) A contractor or agent of a private military or private
security company.
   (iv) A member of the California National Guard.
   (F) For purposes of this subdivision, "sexual assault" means an
offense included in Section 261, 262, 264.1, 286, 288a, or 289 of the
Penal Code, as of the date the act that added this paragraph was
enacted.
   (c) (1) Notwithstanding Section 13955, no person who is convicted
of a violent felony listed in subdivision (c) of Section 667.5 of the
Penal Code may be granted compensation until that person has been
discharged from probation or has been released from a correctional
institution and has been discharged from parole, or has been
discharged from postrelease community supervision or mandatory
supervision, if any, for that violent crime. In no case shall
compensation be granted to an applicant pursuant to this chapter
during any period of time the applicant is held in a correctional
institution, or while an applicant is required to register as a sex
offender pursuant to Section 290 of the Penal Code.
   (2) A person who has been convicted of a violent felony listed in
subdivision (c) of Section 667.5 of the Penal Code may apply for
compensation pursuant to this chapter at any time, but the award of
that compensation may not be considered until the applicant meets the
requirements for compensation set forth in paragraph (1). 
   (d) The board shall not deny an application for compensation on
the basis of the applicant's membership or applicant's family member'
s membership in, association with, or affiliation with, a gang, or on
the basis of the applicant's designation or applicant's family
member's designation as a suspected gang member, associate, or
affiliate in a shared gang database as defined in Section 186.34 of
the Penal Code. 
  SEC. 2.    Section 186.34 of the   Penal Code
  is amended to read: 
   186.34.  (a) (1) For purposes of this section, "shared gang
database" shall mean any database that satisfies all of the
following:
   (A) Allows access for any local law enforcement agency.
   (B) Contains personal, identifying information in which a person
may be designated as a suspected gang member, associate, or
affiliate, or for which entry of a person in the database reflects a
designation of that person as a suspected gang member, associate, or
affiliate.
   (C) Is subject to Part 23 of Title 28 of the Code of Federal
Regulations. If federal funding is no longer available to a database
through the federal Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have to
satisfy this subparagraph to meet the definition of a "shared gang
database."
   (2) A "shared gang database" does not include dispatch operator
reports, information used for the administration of jail or custodial
facilities, criminal investigative reports, probation reports, or
information required to be collected pursuant to Section 186.30. 

   (3) Notwithstanding subparagraph (C) of paragraph (1), a "shared
gang database" includes the CalGang system, operated pursuant to Part
23 of Title 28 of the Code of Federal Regulations.  
   (b) Notwithstanding subparagraph (C) of paragraph (1) of
subdivision (a), a shared gang database, as defined in this section,
shall retain records related to the gang activity of the individuals
in the database consistent with the provisions contained in Section
23.20(h) of Title 28 of the Code of Federal Regulations.  
   (c) (1) Commencing December 1, 2017, and annually on December 1
thereafter, any law enforcement agency that elects to utilize a
shared gang database, as defined in subdivision (a), shall submit a
report to the Department of Justice that contains, by ZIP Code,
referring agency, race, gender, and age, the following information:
 
   (A) The number of persons included in the database on the day of
reporting. 
   (B) The number of persons added to the database during the
immediately preceding 12 months.  
   (C) The number of requests for removal of a person from the
database received during the immediately preceding 12 months. 

   (D) The number of requests for removal of a person from the
database that were granted during the immediately preceding 12
months.  
   (E) The number of persons automatically removed from the database
during the immediately preceding 12 months.  
   (2) Commencing January 1, 2018, and annually on December 1
thereafter, the Department of Justice shall submit a report to the
CalGang Executive Board and to the Legislature that contains the
information collected pursuant to paragraph (1).  
   (3) A report submitted to the Legislature pursuant to subdivision
(a) shall comply with Section 9795 of the Government Code. 

   (b) 
    (d)   (1)    To the extent a local law
enforcement agency elects to utilize a shared gang database, as
defined in subdivision (a), prior to a local law enforcement agency
designating a person as a suspected gang member, associate, or
affiliate in a shared gang database, or submitting a document to the
Attorney General's office for the purpose of designating a person in
a shared gang database, or otherwise identifying the person in a
shared gang database, the local law enforcement agency  shall
provide written notice to the person, and  shall, if the person
is under 18 years of age, provide written notice to the person and
his or her parent or  guardian   guardian, 
of the designation and the basis for the designation, unless
providing that notification would compromise an active criminal
investigation or compromise the health or safety of the minor. 
   (2) The notice described in paragraph (1) shall describe the
process for the person, or if the person is under 18 years of age,
for his or her parent or guardian, or an attorney working on behalf
of the person, to contest the designation of the person in the
database. The notice shall also inform the person of the reason for
his or her designation in the database.  
   (e) (1) (A) A person, or, if the person is under 18 years of age,
his or her parent or guardian, or an attorney working on behalf of
the person may request information of any law enforcement agency as
to whether the person is designated as a suspected gang member,
associate, or affiliate in a shared gang database accessible by that
law enforcement agency and what law enforcement agency made the
designation. A request pursuant to this paragraph shall be in
writing.  
   (B) If a person about whom information is requested pursuant to
subparagraph (A) is designated as a suspected gang member, associate,
or affiliate in a shared gang database by that law enforcement
agency, the person making the request may also request information as
to the reason for the designation for the purpose of contesting the
designation as described in subdivision (f).  
   (2) The law enforcement agency shall provide information requested
under paragraph (1), unless doing so would compromise an active
criminal investigation or compromise the health or safety of the
person if the person is under 18 years of age.  
   (3) The law enforcement agency shall respond to a valid request
pursuant to paragraph (1) in writing to the person making the request
within 30 calendar days of receipt of the request.  
   (c) 
    (f)  Subsequent to the notice described in 
subdivision (b),   subdivision (d),  the person to
be designated as a suspected gang member, associate, or affiliate, or
his or her parent or guardian, may submit written documentation to
the local law enforcement agency contesting the designation. The
local law enforcement agency shall review the documentation, and if
the agency determines that the person is not a suspected gang member,
associate, or affiliate, the agency shall remove the person from the
shared gang database. The local law enforcement agency shall provide
the person and his or her parent or guardian with written
verification of the agency's decision within  60 
 30  days of submission of the written documentation
contesting the designation.  If the law enforcement agency denies
the request for removal, the notice of its determination shall state
the reason for the denial. The person may a   ppeal the
denial pursuant to Section 186.35.  
   (d) The person to be designated as a suspected gang member,
associate, or affiliate, or his or her parent or guardian, shall be
able to request information as to whether the person has been
designated as a suspected gang member, associate, or affiliate, and
the local law enforcement agency shall provide that information,
unless doing so would compromise an active criminal investigation or
compromise the health or safety of the minor.  
   (e) The local law enforcement agency shall not disclose the
location of the 
    (g)     A  person  to be
 designated as a suspected gang member, associate, or
affiliate  to his or her parent or guardian if 
in a shared gang database who has not been convicted of a violation
of Section 186.22 within three years of  the  agency
determines there is credible evidence that   initial
designation shall be removed from  the  information
would endanger the health or safety of the minor. 
database.  
   (f) A shared gang database, as defined in this section, shall
retain records related to the gang activity of the individuals in the
database consistent with the provisions contained in Section 23.20
(h) of Title 28 of the Code of Federal Regulations. 

   (g) 
    (h)  Nothing in this section shall require a local law
enforcement agency to disclose any information protected under
Section 1040 or 1041 of the Evidence Code or Section 6254 of the
Government Code.
   SEC. 3.    Section 186.35 is added to the  
Penal Code   , to read:  
   186.35.  (a) A person who is listed by a law enforcement agency in
a shared gang database or is subject to a gang injunction as a gang
member, suspected gang member, associate, or affiliate may contest
that designation or being subject to the gang injunction pursuant to
this section. The person may contest the designation initially
pursuant to this section, or other a denial as specified in
subdivision (f) of Section 186.34.
   (b) The person may request an administrative hearing to review the
designation decision or applicability of the injunction. A person
may challenge both a designation and gang injunction in one
proceeding.
   (c) 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) 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) 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) 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) 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. For
purposes of computing the 30-calendar-day period, Section 1013 of the
Code of Civil Procedure shall be applicable.
   (h) The fee for filing the notice of appeal is as provided in
Section 70615 of the Government Code. The court shall notify the
person of the appearance date by mail or personal delivery. The court
shall retain the fee under Section 70615 of the Government Code
regardless of the outcome of the appeal. If the court finds in favor
of the person, the amount of the fee shall be reimbursed to the
person by the agency.
   (i) 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.
   (j) A successful challenge to the designation shall result in the
removal of the person from the shared gang database or the contestant
not being subject to the injunction, or both. 
   SEC. 4.    If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.  
  SECTION 1.    It is the intent of the Legislature
to enact legislation requiring local law enforcement agencies to
provide written notice to an adult before making a gang designation
and entering the adult's personal, identifying information into a
shared gang database.