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Thursday, September 21, 2017

More info on the new Shared Gang Databases (AB 2298) law which took effect January 1st. See sections 4, 5 on how it affects individuals.

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More info on the new Shared Gang Databases (AB 2298) law which took effect January 1st. See sections 4, 5 on how it affects individuals.
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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 designating a person as a suspected gang, 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 agencies 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.
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, 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
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 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.