Code Section

Penal Code - PEN

PART 1. OF CRIMES AND PUNISHMENTS [25 - 680]

  ( Part 1 enacted 1872. )
  

TITLE 7. OF CRIMES AGAINST PUBLIC JUSTICE [92 - 186.34]

  ( Title 7 enacted 1872. )
  

CHAPTER 11. Street Terrorism Enforcement and Prevention Act [186.20 - 186.36]
  ( Chapter 11 added by Stats. 1988, Ch. 1256, Sec. 1. )

  
186.34.  

(a) For purposes of this section and Sections 186.35 and 186.36, the following definitions apply:

(1) “Criminal street gang” means an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of crimes enumerated in paragraphs (1) to (25), inclusive, and paragraphs (31) to (33), inclusive, of subdivision (e) of Section 186.22 who have a common identifying sign, symbol, or name, and whose members individually or collectively engage in or have engaged in a pattern of definable criminal activity.

(2) “Gang database” means any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.

(3) “Law enforcement agency” means a governmental agency or a subunit of a governmental agency, and its authorized support staff and contractors, whose primary function is detection, investigation, or apprehension of criminal offenders, or whose primary duties include detention, pretrial release, posttrial release, correctional supervision, or the collection, storage, or dissemination of criminal history record information.

(4) “Shared gang database” means a gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.

(b) Notwithstanding subdivision (a), the following are not subject to this section, or Sections 186.35 and 186.36:

(1) Databases that designate persons as gang members or associates using only criminal offender record information, as defined in Section 13102, or information collected pursuant to Section 186.30.

(2) Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.

(c) (1) To the extent a local law enforcement agency elects to utilize a shared gang database 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, 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.

(d) (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 the name of the law enforcement agency that 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 basis for the designation for the purpose of contesting the designation as described in subdivision (e).

(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.

(e) Subsequent to the notice described in subdivision (c) or the law enforcement agency’s response to an information request described in subdivision (d), the person designated or to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian if the person is under 18 years of age, 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, if the person is under 18 years of age, his or her parent or guardian, with written verification of the agency’s decision within 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. If the law enforcement agency does not provide a verification of the agency’s decision within the required 30-day period, the request to remove the person from the gang database shall be deemed denied. The person or, if the person is under 18 years of age, his or her parent or guardian may petition the court to review the law enforcement agency’s denial of the request for removal and order the law enforcement agency to remove the person from the shared gang database pursuant to Section 186.35.

(f) 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.

(Repealed and added by Stats. 2017, Ch. 695, Sec. 4. (AB 90) Effective January 1, 2018.)