Division 23. Miscellaneous 1
Cal. R. Ct. 3.2300
California Rules of Court
Division 23. Miscellaneous 1 2 3 Rule 3.2300. Review under Penal Code
section 186.35 of law enforcement agency 4 denial of request to remove name from shared gang database 5 6 (
a) Proceedings governed 7 8 This rule applies to proceedings under Penal Code
section 186.35 to seek review of 9 a local law enforcement agency’s denial of a request under Penal Code
section 10 186.34 to remove a person’s name from a shared gang database. 11 12 (
b) Definitions 13 14 For purposes of this rule: 15 16 (1) “Request for review” or “petition” means a “notice of appeal” under Penal 17 Code
section 186.35 requesting review of a law enforcement agency’s 18 decision denying a person’s request under Penal Code
section 186.34 to 19 remove a person’s name from a shared gang database. 20 21 (2) “Law enforcement agency” means the local law enforcement agency that 22 denied the request under Penal Code
section 186.34 to remove a person’s 23 name from a shared gang database. 24 25 (
c) Designated judge 26 27 The presiding judge of each superior court must designate one or more judges to 28 handle any petitions governed by this rule that are filed in the court. 29 30 (
d) Petition 31 32
(1) Form 33 34 (
A) Except as provided in (
i) and (ii), Request for Review of Denial of 35 Request to Remove Name From Gang Database (form MC-1000) must 36 be used to seek review under Penal Code
section 186.35 of a law 37 enforcement agency’s decision denying a request to remove a person’s 38 name from a shared gang database. 39 40 (
i) A petition filed by an attorney need not be on form MC-1000. 41 For good cause the court may also accept a petition from a 42 nonattorney that is not on form MC-1000. 43
1 (ii) Any petition that is not on form MC-1000 must contain the 2 information specified in form MC-1000. 3 4 (
B) The person seeking review must attach to the petition under (
A) the law 5 enforcement agency’s written verification of its decision denying the 6 person’s request under Penal Code
section 186.34 to remove his or her 7 name—or, if the request was filed by a parent or guardian on behalf of 8 a child under 18, the name of the child—from the shared gang 9 database. 10 11
(2) Time for filing 12 13 The petition must be filed within 90 calendar days of the date the law 14 enforcement agency mails or personally serves the person filing the petition 15 with written verification of the agency’s decision denying that person’s 16 request under Penal Code
section 186.34 to remove the name from the shared 17 gang database. 18 19
(3) Where to file 20 21 The petition must be filed in either the superior court of the county in which 22 the law enforcement agency is located or, if the person filing the petition 23 resides in California, in the superior court of the county in which that person 24 resides. 25 26
(4) Fee 27 28 The fee for filing the petition is $25, as specified in Government Code 29
section 70615. 30 31
(5) Service 32 33 A copy of the petition with the attachment required under (1)(
B) must be 34 served either personally or by mail on the law enforcement agency, as 35 provided in Code of Civil Procedure sections 1011–1013a. Proof of this 36 service must be filed in the superior court with the petition. 37 38 (
e) Record 39 40
(1) Filing 41 42
(
A) The law enforcement agency must serve the record on the person filing 1 the petition and must file the record in the superior court in which the 2 petition was filed. 3 4 (
B) The record must be served and filed within 15 days after the date the 5 petition is served on the law enforcement agency as required by 6 subdivision (d)(5) of this rule. 7 8 (
C) If the record contains any documents that are part of a juvenile case file 9 or are sealed or confidential under Welfare and Institutions Code 10
section 827, the law enforcement agency must include a coversheet that 11 states “Confidential Filing – Juvenile Case File Enclosed.” 12 13 (
D) The procedures set out in rules 2.550 and 2.551 apply to any record 14 sought to be filed under seal in a proceeding under this rule. 15 16
(2) Contents 17 18 The record is limited to the documents required by Penal Code
section 19 186.35(b) 20 21
(3) Format 22 23 (
A) The cover or first page of the record must: 24 25 (
i) Clearly identify it as the record in the case; 26 27 (ii) Clearly indicate if the record includes any documents that are 28 sealed or confidential under Welfare and Institutions Code 29
section 827; 30 31 (iii) State the title and court number of the case; and 32 33 (iv) Include the name, mailing address, telephone number, fax 34 number (if available), e-mail address (if available), and California 35 State Bar number (if applicable) of the attorney or other person 36 filing the record on behalf of the law enforcement agency. The 37 court will use this as the name, mailing address, telephone 38 number, fax number, and e-mail address of record for the agency 39 unless the agency informs the court otherwise in writing. 40 41 (
B) All documents in the record must have a page size of 8.5 by 11 inches; 42 43
(
C) The text must be reproduced as legibly as printed matter; 1 2 (
D) The contents must be arranged chronologically; 3 4 (
E) The pages must be consecutively numbered; and 5 6 (
F) The record must be bound on the left margin. 7 8
(4) Failure to file the record 9 10 If the law enforcement agency does not timely file the required record, the 11 superior court clerk must serve the law enforcement agency with a notice 12 indicating that the agency must file the record within five court days of 13 service of the clerks notice or the court may order the law enforcement 14 agency to remove the name of the person from the shared gang database. 15 16 (
f) Written argument 17 18
(1) Contents 19 20 (
A) The person filing the petition may include in the petition or separately 21 serve and file a written argument about why, based on the record 22 specified in Penal Code
section 186.35(b), the law enforcement agency 23 has failed to establish by clear and convincing evidence the active gang 24 membership, associate status, or affiliate status of the person so 25 designated or to be so designated by the law enforcement agency in the 26 shared gang database. 27 28 (
B) The law enforcement agency may serve and file a written argument 29 about why, based on the record specified in Penal Code
section 30 186.35(b), it has established by clear and convincing evidence the 31 active gang membership, associate status, or affiliate status of the 32 person. 33 34 (
C) If an argument refers to something in the record, it must provide the 35 page number of the record where that thing appears or, if the record has 36 not yet been filed, the page number of the relevant document. 37 38 (
D) Except for any required attachment to a petition when an argument is 39 included in the petition, nothing may be attached to an argument and an 40 argument must not refer to any evidence that is not in the record. 41 42
(2) Time to serve and file 1 2 Any written argument must be served and filed within 15 days after the date 3 the record is served. 4 5
(3) Format and length of argument 6 7 (
A) The cover or first page of any argument must: 8 9 (
i) Clearly identify it as the argument of the person filing the petition 10 or of the law enforcement agency; 11 12 (ii) State the title and court number of the case; and 13 14 (iii) Include the name, mailing address, telephone number, fax 15 number (if available), e-mail address (if available), and California 16 State Bar number (if applicable) of the attorney or other person 17 filing the argument. 18 19 (
B) An argument must not exceed 10 pages. 20 21 (
C) The pages must be consecutively numbered. 22 23 (
g) Oral argument 24 25
(1) Setting oral argument 26 27 The court may set the case for oral argument at the request of either party or 28 on its own motion. 29 30
(2) Requesting or waiving oral argument 31 32 The person filing the petition or the law enforcement agency may request oral 33 argument or inform the court that they do not want to participate in oral 34 argument. Any such request for or waiver of oral argument must be served 35 and filed within 15 days after the date the record is served. 36 37
(3) Sending notice of oral argument 38 39 If oral argument is set, the clerk must send notice at least 20 days before the 40 oral argument date. The court may shorten the notice period for good cause; 41 in that event, the clerk must immediately notify the parties by telephone or 42 other expeditious method. 43
(4) Sealed or confidential records 2 3 If the responding party indicates that the record contains information from a 4 juvenile case file or documents that are sealed or confidential under Welfare 5 and Institutions Code
section 827, the argument must be closed to the public 6 unless the crime charged allows for public access under Welfare and 7 Institutions Code
section 676. 8 9 (
h) Decision 10 11 As provided in Penal Code
section 186.35, if, on de novo review and any 12 arguments presented to the court, the court finds that the law enforcement agency 13 has failed to establish by clear and convincing evidence the active gang 14 membership, associate status, or affiliate status of the person so designated in the 15 shared gang database, the court must order the law enforcement agency to remove 16 the name of the person from the shared gang database. 17 18 (
i) Service on the Attorney General 19 20 The court must serve on the Attorney General a copy of any order under (e)(4) or 21 (
h) to remove a name from a shared gang database. 22 23 Advisory Committee Comment 24 25 Subdivision (d)(1)(B). Penal Code
section 186.34(
f) provides that if a person to be designated as 26 a suspected gang member, associate, or affiliate, or his or her parent or guardian, submits written 27 documentation to the local law enforcement agency contesting the designation, the local law 28 enforcement agency “shall provide the person and his or her parent or guardian with written 29 verification of the agency’s decision within 30 days of submission of the written documentation 30 contesting the designation. If the law enforcement agency denies the request for removal, the 31 notice of its determination shall state the reason for the denial.” 32 33 Subdivision (e)(2). Penal Code
section 186.35(
b) provides that the evidentiary record for this 34 review proceeding “shall be limited to the agency’s statement of basis of its designation made 35 pursuant to subdivision (
e) of
Section 186.34, and the documentation provided to the agency by 36 the appellant pursuant to subdivision (
f) of
Section 186.34.” 37 38 Penal Code
section 186.34(e)(1) provides that “[a] person, or, if the person is under 18 years of 39 age, his or her parent or guardian, or an attorney working on behalf of the person may request 40 information of any law enforcement agency as to whether the person is designated as a suspected 41 gang member, associate, or affiliate in a shared gang database” and, if the person is so designated, 42 “information as to the basis for the designation for the purpose of contesting the designation as 43
described in subdivision (f).”
Section 186.35(e)(2) provides that “[t]he law enforcement agency 1 shall provide information requested under paragraph (1), unless doing so would compromise an 2 active criminal investigation or compromise the health or safety of the person if the person is 3 under 18 years of age.” 4 5 Penal Code
section 186.34(
f) provides that “the person to be designated as a suspected gang 6 member, associate, or affiliate, or his or her parent or guardian, may submit written 7 documentation to the local law enforcement agency contesting the designation.” 8 9 Penal Code
section 186.34(
g) also provides that “[n]othing in this
section shall require a local law 10 enforcement agency to disclose any information protected under