Cal. R. 3.2300
This rule applies to proceedings under Penal Code section 186.35 to seek review of a local law enforcement agency's denial of a request under Penal Code section 186.34 to remove a person's name from a shared gang database.
For purposes of this rule:
The presiding judge of each superior court must designate one or more judges to handle any petitions governed by this rule that are filed in the court.
The petition must be filed within 90 calendar days of the date the law enforcement agency mails or personally serves the person filing the petition with written verification of the agency's decision denying that person's request under Penal Code section 186.34 to remove the name from the shared gang database.
The petition must be filed in either the superior court of the county in which the law enforcement agency is located or, if the person filing the petition resides in California, in the superior court of the county in which that person resides.
The fee for filing the petition is $25, as specified in Government Code section 70615.
A copy of the petition with the attachment required under (1)(B) must be served either personally or by mail on the law enforcement agency, as provided in Code of Civil Procedure sections 1011- 1013a. Proof of this service must be filed in the superior court with the petition.
The record is limited to the documents required by Penal Code section 186.35(b)
If the law enforcement agency does not timely file the required record, the superior court clerk must serve the law enforcement agency with a notice indicating that the agency must file the record within five court days of service of the clerks notice or the court may order the law enforcement agency to remove the name of the person from the shared gang database.
Any written argument must be served and filed within 15 days after the date the record is served.
The court may set the case for oral argument at the request of either party or on its own motion.
The person filing the petition or the law enforcement agency may request oral argument or inform the court that they do not want to participate in oral argument. Any such request for or waiver of oral argument must be served and filed within 15 days after the date the record is served.
If oral argument is set, the clerk must send notice at least 20 days before the oral argument date. The court may shorten the notice period for good cause; in that event, the clerk must immediately notify the parties by telephone or other expeditious method.
If the responding party indicates that the record contains information from a juvenile case file or documents that are sealed or confidential under Welfare and Institutions Code section 827, the argument must be closed to the public unless the crime charged allows for public access under Welfare and Institutions Code section 676.
As provided in Penal Code section 186.35, if, on de novo review and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish by clear and convincing evidence the active gang membership, associate status, or affiliate status of the person so designated in the shared gang database, the court must order the law enforcement agency to remove the name of the person from the shared gang database.
Service on the Attorney GeneralThe court must serve on the Attorney General a copy of any order under (e)(4) or (h) to remove a name from a shared gang database.
Cal. R. Ct. 3.2300
Advisory Committee Comment
Subdivision (d)(1)(B). Penal Code section 186.34(f) provides that if a person to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian, submits written documentation to the local law enforcement agency contesting the designation, 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 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."
Subdivision (e)(2). Penal Code section 186.35(b) provides that the evidentiary record for this review proceeding "shall be limited to the agency's statement of basis of its designation made pursuant to subdivision (e) of Section 186.34, and the documentation provided to the agency by the appellant pursuant to subdivision (f) of Section 186.34."
Penal Code section 186.34(e)(1) provides that "[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" and, if the person is so designated, "information as to the basis for the designation for the purpose of contesting the designation as described in subdivision (f)." Section 186.35(e)(2) provides that "[t]he 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."
Penal Code section 186.34(f) provides that "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."
Penal Code section 186.34(g) also provides that "[n]othing 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."