Gang Documentation Relief FAQ
Law enforcement keeps records and shares information with other law enforcement agencies on who they believe are members, associates, or affiliates of criminal gangs. In California, this information is in a shared gang database called CalGang. Being placed in CalGang is often referred to as being “documented.”
Before January 1, 2017, who was documented, how and why was often kept a secret. A new law went into effect on January 1, 2017, that changes this. (Penal Code § 186.34) It now requires law enforcement to notify in writing anyone who law enforcement puts into the shared gang database/CalGang. In the notice, local law enforcement must tell the person:
· That they have been documented;
· The reason they have been documented; and
· How to contest the documentation.
You, or your lawyer, may ask any local law enforcement agency whether you are documented and what agency documented you. You may also ask for the information law enforcement used to document you. This request must be in writing.
The law enforcement agency must give you or your lawyer this information unless doing so would compromise an active criminal investigation or it is privileged. They must give you this information in writing. They have 30 days after they receive your or your lawyer’s request to give the information to you.
The new law allows someone who is documented to contest the designation with the local law enforcement agency. You do this by submitting written documents showing you are not a member, associate, or affiliate of a gang.
The local law enforcement agency will review what you submit. They have 30 days after they receive your written materials to notify you of their decision. If they agree that you are not a gang member, associate, or affiliate, they will remove you from CalGang. If they deny your request for removal, they must tell you in writing why they denied you.
If the local law enforcement agency denies your request to be removed from CalGang, you can appeal the decision in court. (Penal Code § 186.35) You only have 90 calendar days from the date the law enforcement agency mailed or gave you their decision to file the appeal.
You must serve a copy of the notice of appeal in person or by first-class mail on the law enforcement agency.
The judge will only be allowed to review the local law enforcement’s statement of the basis for documenting you and what ever written materials you submitted to the local law enforcement agency to contest the designation. You will not be allowed to give the judge any new documents. You will not be allowed to testify or have any witnesses testify. This is why it is very important to make sure you give as much appropriate written information to law enforcement at the beginning of this process.
Yes. The court will notify you of the date for the hearing.
In court, the judge will review all the documents and listen to any arguments. Neither you nor local law enforcement will be able to have any witnesses testify.
Local law enforcement has to prove you are an active gang member, an associate or an affiliate of a criminal street gang. In other words, you do not have to prove you are not a gang member, associate, or affiliate. If the judge is not convinced that local law enforcement proved you are an active gang member, an associate or an affiliate of a criminal street gang by clear and convincing evidence, the judge will order them to remove your name from CalGang.
It does not cost anything to ask local law enforcement for the documentation information. It also does not cost anything to file written materials with local law enforcement contesting your documentation.
If you appeal to court, you do have to pay a court filing fee. The filing fee is currently $25.00. You may be able to request a fee waiver if you cannot pay the fee. If you win the appeal, the law enforcement agency is required to pay you back the filing fee.
Not necessarily, but we highly recommend having one. This is a brand new law. The appeal process has precise time deadlines and is considered a “limited civil case.” The appeal is also limited to the records you submitted to the local law enforcement agency. Therefore, it is critical that individuals challenging the designation have appropriate legal counsel before challenging the designation with the local law enforcement agency.
While you do not necessarily need a lawyer, you may want one. You may hire a lawyer or our office is able to help you at no cost. Our office can assist you by researching your record, gathering records to show lack of gang connections, investigating law enforcements records, preparing a packet to submit to local law enforcement, filing the notice of appeal, and appearing in court to argue for the removal.
If you would like our office to assist you, fill out and submit the Fresh Start Program Request for Assistance form.
You may e-mail, fax, mail, or drop off your request form.
Office of the Public Defender E-mail: Fresh.Start@sdcounty.ca.gov
Fresh Start Program Fax: (619) 338-4811 (Attn: Fresh Start Program)
450 B Street, Suite 900
San Diego, CA 92101
Please call the Office of the Primary Public Defender at (619) 338-4700 and ask to speak to someone from the Fresh Start Program. The Office of the Primary Public Defender will assist you even if you had an attorney from the Office of the Alternate Public Defender, a court appointed panel attorney, or you retained an attorney and now cannot afford to pay the attorney for assistance. You may also e-mail a question to Fresh.Start@sdcounty.ca.gov.