Judge: Gail Killefer, Case: 22STCP03868, Date: 2023-03-16 Tentative Ruling

Case Number: 22STCP03868    Hearing Date: March 16, 2023    Dept: 37

HEARING DATE:                 March 16, 2023     

CASE NUMBER:                  22STCP03868

CASE NAME:                        Anthony Richardson v. Los Angeles County Sheriff’s Department     

MOVING PARTY:                Petitioner, Anthony Richardson

OPPOSING PARTY:             Respondent, Los Angeles County Sheriff’s Department

TRIAL DATE:                        None

PROOF OF SERVICE:          OK

MOTION:                               Petition to Review Denial of Request to Remove Name from Gang Database

OPPOSITION:                       March 10, 2023  

REPLY:                                  None filed.   

TENTATIVE:                         Petitioner’s motion is granted. Petitioner is instructed to prepare a proposed order.  Petitioner is to give notice.

Background

The instant petition was filed by Anthony Richardson (“Petitioner”) to request review of the removal of his name from the Gang Database operated by Respondent, Los Angeles County Sheriff’s Department (“Respondent” or “LASD”). On July 28, 2022, Petitioner was served LASD’s decision denying Petitioner’s request for review and/or removal from the LASD Gang Database. Petitioner commenced this action on October 25, 2022.

The court now reviews the request for removal of Petitioner’s name from the LASD database under de novo review. Pursuant to stipulations between the parties, both Petitioner and Respondent have submitted supplemental briefing for this court’s review. The matter now comes before the court to be heard.

Discussion 

I.                   Legal Standard

Penal Code § 186.34(e) provides that if a person to be designated as a gang member submits written documentation to the local law enforcement agency contesting the designation, 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 Petitioner must serve and file the petition no later than 90 days after the law enforcement agency either serves a written denial on the petitioner, or the request is deemed denied. (Pen. Code, § 186.35(b); Cal. Rules of Court (“CRC”), rule 3.2300(d)(2).)

Pursuant to CRC, rule 3.2300, a petitioner may seek Court review of a local law enforcement agency’s denial of a request under Penal Code § 186.34 to remove a person's name from a shared gang database.

Under CRC, rule 3.2300(d):

Except as provided in (i) and (ii), Petition for Review of Denial of Request to Remove Name From Gang Database (form MC-1000) must be used to seek review under Penal Code section 186.35 of a law enforcement agency’s decision denying a request to remove a person’s name from a shared gang database.

(i)  A petition filed by an attorney need not be on form MC-1000. For good cause the court may also accept a petition from a non-attorney that is not on form MC-1000.

(ii)  Any petition that is not on form MC-1000 must contain the information specified in form MC-1000 and must bear the name “Petition for Review of Denial of Request to Remove Name From Gang Database.”

(B)  The person seeking review must attach to the petition under (A) either:

(i)  The law enforcement agency’s written verification, if one was received, of its decision denying the person’s request under Penal Code section 186.34 to remove his or her name-or, if the request was filed by a parent or guardian on behalf of a child under 18, the name of the child-from the shared gang database; or

(ii)  If the law enforcement agency did not provide written verification responding to the person’s request under Penal Code section 186.34 within 30 days of submission of the request, a copy of the request and written documentation submitted to the law enforcement agency contesting the designation.

The Court reviews the decision by the law enforcement agency to deny the request to remove a person’s name from the gang database de novo. The law enforcement agency has the burden of proving, by clear and convincing evidence, “the person’s active gang membership, associate status, or affiliate status,” and if it fails to meet its burden the Court must order the law enforcement agency to remove the name of the person from the gang database. (Pen. Code, § 186.35(d); CRC, rule 3.2300(h).)

Penal Code § 186.35(c) provides that the evidentiary record for the review proceeding “shall be limited to the agency's statement of basis of its designation made pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the person contesting the decision pursuant to subdivision (e) of Section 186.34.” The parties cannot refer to any evidence outside the evidentiary record. (CRC, rule 3.2300(f)(1)(D).)

The law enforcement agency must file and serve the evidentiary record within 15 days after the day the petition is served on the law enforcement agency. (CRC, rule 3.2300(e)(1).)  “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 clerk’s notice or the court may order the law enforcement agency to remove the name of the person from the shared gang database.” (CRC, rule 3.2300(e)(4).)

The court may set the case for oral argument at the request of either party or on its own motion. (CRC, rule 3.2300(g)(1).)

II.                Analysis

Petitioner is represented by counsel and has filled out form MC-1000. Petitioner is seeking review of the Respondent’s denial of his request to remove his name from the shared gang database. The Petition was properly filed in Los Angeles County. (CRC, rule 3.2300(d)(3); Pen. Code, § 186.35(b).)

Here, Petitioner and Respondent have both submitted the relevant evidentiary record, have submitted written arguments, and meet the page limits. (CRC, rule 3.2300(e-g).)

Petitioner first explains that he provides “security services,” had never been arrested prior to his March 16, 2022 stop, and Respondent has failed to show reasonable suspicion of Petitioner’s gang activity and satisfaction of “at least two unique criteria listed” in 11 Cal. Code Regs. tit. 11, § 752.4(a). (P. Brief, 2.)

The relevant criteria include:

“(a) The criteria to designate a person as a Gang Member or Associate in the Cal Gang database are:

(1) The person has admitted to being an active member or associate of an active criminal street gang under circumstances that do not undercut truthfulness. The law enforcement officer shall document the relevant circumstances of the admission including, but not limited to: the wording of the admission; the location of the contact; the person(s) present during the conversation; and whether the person was arrested during the contact for violating subdivision (f) of Penal Code section 647 or subdivision (a) of Health and Safety Code section 11550.

(A) This criterion shall not be satisfied unless the law enforcement officer reasonably believes that the person was able to provide a voluntary and competent admission.

(B) This criterion shall not be satisfied if the person admits to only being from a neighborhood rather than a specific criminal street gang.

(C) This criterion shall not be satisfied solely by posts on social media unless there is strong indicia of reliability.

(2) The person has been arrested for an offense consistent with gang activity, as defined in these regulations. The law enforcement officer shall document how the facts and circumstances of the offense are consistent with gang activity.

(A) This criterion shall only be entered into the database when the arrest is documented on a notify warrant; warrant of arrest; or an arrest, juvenile detention, or crime report. A field interview card or report may be used as a source document if it is used in conjunction with an arrest or crime report.

(3) The person has been identified as an active member or associate of an active criminal street gang by a reliable source. The identification shall be based solely on information that would support criteria set forth herein. The law enforcement officer shall document the specific information that serves as the basis for the opinion of the reliable source, why the information provided by the source is consistent with the criteria set forth herein, and the reason(s) that the reliable source has been deemed reliable.

(A) The satisfaction of this criterion shall not be based on an individual's jail classification.

(B) For purposes of subdivision (a)(3), a reliable source shall not be a person who is under 18 years of age, a rival gang member, an untested informant, or the law enforcement officer conducting the interview or completing the source document to satisfy this criterion.

(4) The law enforcement officer has observed the person associating with person(s) who are already entered, or are in the process of being entered, into the CalGang database and the circumstances of the observed association indicates gang affiliation. The law enforcement officer shall document the circumstances of the association; the person(s) present who are already entered, or are in the process of being entered, into the CalGang database; and the reason for believing that the association indicates gang affiliation.

(A) No person, including, but not limited to, family members and outreach workers, shall be considered for designation under this criterion unless there is reasonable suspicion that they contribute to, or are participating in, the criminal street gang's illegal activities.

(B) Incidental community interactions that are not criminal in nature shall not be used to satisfy this criterion.

(5) The law enforcement officer has observed the person displaying one or more symbols or hand signs tied to a specific active criminal street gang to identify their affiliation. The law enforcement officer shall document the specific symbol(s) and/or hand sign(s) and the basis for believing that they are tied to an active criminal street gang.

(6) The law enforcement officer has observed the person at one or more gang-related addresses. The law enforcement officer shall document the specific address(es) and to which active criminal street gang such address(es) are related. The law enforcement officer shall articulate justification for how the address(es) are gang-related including, but not limited to, graffiti by the related criminal street gang and crime originating by that criminal street gang at the address(es).

(A) This criterion shall not be satisfied solely by the fact that the address is the residential address of a person who is already entered into the CalGang database.

(B) Entire neighborhoods and schools shall not be used to satisfy this criterion.

(7) The law enforcement officer has observed the person wearing one or more items of clothing or colors that the law enforcement officer believes are tied to a specific and active criminal street gang. The law enforcement officer shall document the specific clothing and/or colors, and the basis for believing that the person is wearing the clothing and/or colors to express gang membership or association.

(A) This criterion shall not be satisfied solely by the wearing of clothing or colors that are of general interest to the neighborhood or locality including, but not limited to, wearing a local sports team hat, clothing, or colors.

(8) The law enforcement officer has observed the person having one or more tattoos, marks, scars, or brandings indicating criminal street gang membership or association. The law enforcement officer shall document a description of the tattoos, marks, scars, or brandings, the location of each on the person's body, and the basis for believing that they are tied to an active criminal street gang.

(A) A tattoo, mark, scar, or branding that remains unmodified and on the same place on a person's body that was used previously to satisfy this criterion shall not be used thereafter to satisfy that same criterion again unless it meets the elements set forth in subdivision (a)(8)(C) or the record of that person has since been purged from the CalGang database.

(B) If a person has multiple tattoos, marks, scars, or brandings that are the same or similar, and each one of those tattoos, marks, scars, or brandings is on a different location on the person's body, then each tattoo, mark, scar, or branding may be used to satisfy this criterion. However, each one of those tattoos, marks, scars, or brandings shall only be documented to meet that criterion once, and cannot be re-entered into the CalGang database as a criterion on subsequent occasions, unless it meets the elements set forth in subdivision (a)(8)(C) or the record of that person has since been purged from the CalGang database.

(C) A law enforcement officer may document a tattoo, mark, scar, or branding as described in subdivisions (a)(8)(A) and (a)(8)(B) to satisfy this criterion on subsequent occasions only if the person is in a public setting and is openly displaying, presenting, or flashing the tattoo, mark, scar, or branding as a means of intimidation. If the law enforcement officer documents the tattoo, mark, scar, or branding pursuant to subdivision (a)(8), the law enforcement officer shall document the relevant circumstances of the contact including, but not limited to, the type of public setting in which the contact occurred and a description of how the tattoo, mark, scar, or branding was openly displayed, presented, or flashed.” (Cal. Code Regs. tit. 11 § 752.4.)

Petitioner further makes clear that satisfaction of these criteria alone “shall not, in and of itself, satisfy the reasonable suspicion requirement.” (P. Brief, 3; citing 11 C.C.R. § 752.2.(c)(2).) Here, Petitioner contends the “only informed related to LASD’s purported grounds for designating [Petitioner] as a gang member included [in LASD’s review correspondence] was a form identifying a single contact: a March 16, 2022 incident that occurred” in Carson. (P. Brief, 5.) The correspondence is attached to the Petition, and checks boxes stating: “Subject has been arrested for an offense consistent with gang activity;” “Subject associates with documented gang members;” and “Subject has been seen frequenting gang areas.” (See generally, Petition, MC-1000.) Petitioner contends LASD fails to provide support from the factual record to show it had any reasonable suspicion Petitioner was involved in gang activity, fail to establish Petitioner’s presence at a gang-related address, and fail to establish Petitioner’s arrest meets the “requisite legal definition” to be seen as a “gang related” arrest. (P. Brief, 6-8.)

In opposition, Respondent contends “in its Written Decision, [Respondent] has established by clear and convincing evidence the active gang membership or associate status of Petitioner...” (Amended R. Brief (“ARB”), 3.) Respondent further contends its Written Decision, relying on Petitioner’s “March 16, 2022 arrest for possession of a loaded semi-automatic firearm in his backpack on the front seat of his car in a known gang location” satisfies the requirements to show reasonable suspicion of gang activity by a clear and convincing standard. (ARB, 6-7.) Respondent here further contends that the evidentiary record should be expanded to include other evidence which was not provided to Petitioner with Respondent’s decision, and which this court has already denied considering. (ARB, 7-8; P. Brief, 9-10.) The court therefore disregards repeated arguments regarding evidence already addressed by the court previously.

As such, Respondent relies only on the March 16, 2022 arrest, and a September 23, 2021 arrest during a probation check of Petitioner’s brother. (ARB, 8-9.) Respondent fails to address, explain, or point to supporting authorities to show how such incidents, if taken as true by this court under de novo review, are enough to establish a reasonable suspicion. Further, the court notes Respondent itself concedes the very high standard of clear and convincing evidence, and Respondent fails to show how the evidence considered meets the clear and convincing standard to show reasonable suspicion, beyond conclusory contentions by Respondent to that effect.

The record here shows Petitioner’s name remained in the database upon LASD’s review because they contended Petitioner’s contacts with LASD satisfied the criteria explained above. However, when alleging the evidence also established reasonable suspicion, Respondent again only points to the criteria to conclude reasonable suspicion has also been met. A plain reading of relevant statutes shows this court that is inadequate. (11 C.C.R. § 752.2.(c)(2).) As Respondent has failed to explain and support their contentions regarding their reasonable suspicion of Petitioner’s alleged gang activity or status, the court finds Petitioner’s review for removal of his name was incorrectly denied.

For these reasons, Petitioner’s motion is granted.

Conclusion

Petitioner’s motion is granted. Petitioner is instructed to prepare a proposed order.  Plaintiff is to give notice.