Law Blog

As any Criminal Defense Attorney will tell you, being designated as a gang member can have devastating consequences, both in and out of court. And once designated and labeled a gang member, it is almost impossible to get your name removed from the CalGang’s System database. The CalGang System, for those who are not familiar with it, is a statewide database, locally maintained by several different law enforcement agencies, where information on suspected gang members is stored. While there are specific criteria for inclusion in the database, those criteria are extremely subjective and often not followed. The system is also supposed to be limited to law enforcement on a “need to know basis,” yet those in charge of maintaining the system routinely leak names and information.

Why does it matter. If a person is characterized as a gang member and if charged with a crime, it could mean an additional 10-years to their sentence. This 10-year enhancement is a powerful tool to get people to accept a plea bargain even if they didn’t commit the crime, just to avoid an excessively long sentence. In addition, having your name in the system also has ramifications outside the courtroom. It can affect a person’s access to education, employment, public benefits, and housing opportunities, if it is disclosed the person’s name is in the system.

The legislation that created CalGangs has very specific criteria that are supposed to be met before someone’s name can be placed is the system. However, the criteria are so subjective that even I, as an attorney, could find myself in the system should someone in law enforcement want to target me. How you ask? I’ll explain, but first a bit of necessary information.

According to CalGang’s Policies and Procedures, before a person’s name is entered into the system, any two of the following criteria must be met:

The person self-admitted to being a gang member
The person was arrested with a known gang member
The person was identified by a reliable informant
The person was identified by an untested informant
The person was seen affiliating with documented gang members
The person was seen displaying gang symbols and/or hand signs
The person was seen frequently in gang areas
The person was seen wearing gang dress
The person is known to have gang tattoos

First, let’s discuss, “self-admitted.” In my experience, this is claimed by law enforcement in the majority of alleged gang cases. In fact, I don’t think I have ever had a case were the District Attorney has alleged gang involvement, where some law enforcement officer hasn’t claimed that when the person was arrested they self-admitted to them. While some gang members do brag about being in the gang, most do not because they know the consequences. If a person is convicted of a crime, and a gang enhancement is found true by the jury, under California Penal Code 186.2, they are sentenced to ten years in addition to the sentence for the underlying offense. Many times, the ten-year enhancement is two or three times the sentence for the actual crime.

At trial, law enforcement officers constantly come into court and tell the jury the person self-admitted. However, not once in my experience has that self-admission been captured on tape, or written out with the person’s signature affixed. During cross-examination, I ask the officer in every gang case I do if the admission is recorded in some fashion, and the answer is always, “No, we didn’t record it.”

Yet, these same officers record their interview with the suspect, or write down what was allegedly said and then ask the suspect to sign it - conveniently leaving out the gang member question, of course. Officers know defense attorneys always ask about some form of proof that the person actually self-admitted, yet they still refuse to produce any evidence when it would be so easy to turn on their tape recorder, or if the person says it before the recorder is turned on, asking them to repeat their admission once the officer is recording. In addition, to date, not one tape from an officer’s body cam, has been introduced to prove someone self-admitted.

Second, the remainder of the criteria are so arbitrary that they can be used against anyone. As I said earlier in this article, it is possible that even I could find my name in the CalGang’s system. Now in my line of work I am known to affiliate with documented gang members; have been seen frequently in gang areas; depending on the day, I might have a baseball cap on which is often claimed to be gang dress by law enforcement; and again, depending on where I am, the color of my shirt might be consider by law enforcement to be associated with a gang. That’s four of the criteria I might satisfy. And of course, if someone had it in for me, they could just tell an officer that they know I’m a gang member, and even if they are unknow to police, their accusation would meet a fifth criterion in my case - the untested informant.

While my potential inclusion in the system might be a humorous take on the criteria, for many, not involved in gang life, these same criteria might get them entered into the database unjustly. As one of my past client’s case can illustrate, it’s not hard to get into the system. He was a straight A college student, was a frequent church goer, was never in any trouble, didn’t do drugs or party. Yet, he was in the system. Why? Because he was spotted by law enforcement hanging with known gang members – his uncle who had been visiting the family home, which happened to be in gang territory. Of course, since he lived at the family home, the officer who testified claimed he frequented gang territory. That same officer also claimed that he had seen him wearing a baseball cap from a team known to be worn by the gang. Thus, he testified my client was wearing gang clothing and sporting gang symbols. All innocent circumstances, yet my client’s name was entered into the CalGang’s system by the gang officer. This officer had had no other contact with my client. Nor did any other law enforcement officer.

My client only found out his name was in the system when he was mistakenly arrested. Seems he fit the description of someone who had just committed an attempted burglary. The prosecutor decided to add a gang enhancement to the underlying charges since my client’s name was in the CalGang system. Prosecutor’s do this routinely these days in order to use it as a bargaining chip when they have a weak case, like in my client’s case. The prosecutor then offered my client a deal of 3 years on the underlying charges and, if my client accepted, he would drop the gang enhancement which, if convicted, could add ten years to the sentence. My client decided to take the case to trial. With the help of a gang expert we were able to show the jury that my client was not a member of a gang and didn’t commit the crime. It was later discovered it was a case of mistaken identity and the real culprit was arrested, tried, and convicted. Unfortunately, many people take a plea offer, even if they didn’t do the crime. They get scared by the possibility of receiving an additional 10-years in jail if things don’t go well at trial. And it’s this fear that prosecutors prey on.

Yet, even thought my client was cleared of all charges, he has not been able to get his name removed from the database. The process is long, slow, and difficult. Basically, the person must prove they do not belong on the list rather than law enforcement having to prove they do belong in the system. But challenging the system is about to get a little easier, thanks to a bill by Assemblywoman Shirley Weber (D-San Diego), that goes into effect on January 1, 2018. That bill gives people, whose name is in the database, a right to appeal their gang designations and law enforcement will have to justify the person’s inclusion.

These changes were spurred on by an audit of the CalGang System in 2015 which showed the system contained questionable information and that some of that information was being misused. The CalGang Criminal Intelligence System Report, https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf , found among other irregularities, that some people who were in the system were infants or were infants when their names were added to the system years ago. The audit also found unverifiable and outdated information.

The audit of the system found that the list of names was also being used outside of law enforcement. Some employers and parts of the military were using the information contained in CalGangs to vet applicants. A use specifically banned by CalGangs own policies and procedures.

The audit also found that persons who should have been purged from the system years ago were still included in the system. According to CalGang’s Policies and Procedures, all persons whose records have not been modified by additions of new information or a new conviction for five years are to be purged. Many names that fit this criterion were found. Yet, these people still had a very difficult time getting their names out of the databases.

Also, with such subjective criteria, it is also very easy to manipulate the system to keep people in the database, should a gang officer decide to do so. All that is needed is the officer to fill out an Field Identification (FI) Card. These are cards officers fill out when they make contact with anyone in the community to document that contact. This contact may be as innocent as speaking with a local businessperson, or a local resident. But they are also used to gather information on alleged gang members. All an officer has to do is stop someone on their way home from school in a gang area, and then document that on an FI card. Or, as another of my client’s FI cards revealed, he was listed as affiliating with known gang members because he occasional played basketball at the neighborhood gym.

All it takes to keep someone on the list is for an officer to fill out an FI card and have it entered into the CalGangs system. There is no verification process. No chance for the person to contest it. In fact, most of the time, a person is not notified that information concerning them has been entered into the system, even though there are clear and specific policies and procedures for notifying citizens if their name has been entered into the CalGang system.
Lately, more and more people outside the legal community are finally realizing that the CalGang System has some serious flaws and have proposed changes. While these changes and safeguards have been a long time coming, hopefully progress will continue. Assemblywoman Weber’s bill is a start, but much more needs to be done.