Rule 3.2300. Review under Penal Code section 186.35 of law enforcement agency denial of request to remove name from shared gang database

(a) Proceedings governed 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.

(b) Definitions For purposes of this rule:

(1) “Request for review” or “petition” means a petition under Penal Code section 186.35 requesting review of a law enforcement agency’s denial of a person’s request under Penal Code section 186.34 to remove a person’s name from a shared gang database.

(2) “Law enforcement agency” means the local law enforcement agency that denied the request under Penal Code section 186.34 to remove a person’s name from a shared gang database.

(c) Designated judge 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.

(d) Petition

(1) Form

(A) 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 nonattorney 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.

(2) Time for filing

(3) Where to file

(4) Fee

(5) Service

(e) Record

(1) Filing

(A) The law enforcement agency must serve the record on the person filing the petition and must file the record in the superior court in which the petition was filed.

(B) The record must be served and filed within 15 days after the date the petition is served on the law enforcement agency as required by subdivision (d)(5) of this rule.

(C) If the record contains any documents that are part of a juvenile case file or are confidential under Welfare and Institutions Code section 827 or have been sealed, the law enforcement agency must include a coversheet that states “Confidential Filing-Juvenile Case File Enclosed.”

(D) The procedures set out in rules 2.550 and 2.551 apply to any record sought to be filed under seal in a proceeding under this rule.

(2) Contents

(3) Format

(A) The cover or first page of the record must:

(i) Clearly identify it as the record in the case;

(ii) Clearly indicate if the record includes any documents that are confidential under Welfare and Institutions Code section 827 or have been sealed;

(iii) State the title and court number of the case; and

(iv) Include the name, mailing address, telephone number, fax number (if available), e-mail address (if available), and California State Bar number (if applicable) of the attorney or other person filing the record on behalf of the law enforcement agency. The court will use this as the name, mailing address, telephone number, fax number, and e-mail address of record for the agency unless the agency informs the court otherwise in writing.

(B) All documents in the record must have a page size of 8.5 by 11 inches;

(C) The text must be reproduced as legibly as printed matter;

(D) The contents must be arranged chronologically;

(E) The pages must be consecutively numbered; and

(F) The record must be stapled and two-hole punched at the top of the page.

(4) Failure to file the record

(f) Written argument

(1) Contents

(A) The person filing the petition may include in the petition or separately serve and file a written argument about why, based on the record specified in Penal Code section 186.35(c), 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 or to be so designated by the law enforcement agency in the shared gang database.

(B) The law enforcement agency may serve and file a written argument about why, based on the record specified in Penal Code section 186.35(c), it has established by clear and convincing evidence the active gang membership, associate status, or affiliate status of the person.

(C) If an argument refers to something in the record, it must provide the page number of the record where that thing appears or, if the record has not yet been filed, the page number of the relevant document.

(D) Except for any required attachment to a petition, when an argument is included in the petition, nothing may be attached to an argument and an argument must not refer to any evidence that is not in the record.

(2) Time to serve and file

(3) Format and length of argument

(A) The cover or first page of any argument must:

(i) Clearly identify it as the argument of the person filing the petition or of the law enforcement agency;

(ii) State the title and, if assigned, court number of the case; and

(iii) Include the name, mailing address, telephone number, fax number (if available), e-mail address (if available), and California State Bar number (if applicable) of the attorney or other person filing the argument.

(B) An argument must not exceed 10 pages.

(C) The pages must be consecutively numbered.

(g) Oral argument

(1) Setting oral argument

(2) Requesting or waiving oral argument

(3) Sending notice of oral argument

(4) Sealed or confidential records

(h) Decision 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.

(i) Service on the Attorney General The 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.

Committee Notes

(Sub(b) amended effective January 1, 2018)

(Subd (d) amended effective January 1, 2019; previously amended effective January 1, 2018.)

(Subd (e) amended effective January 1, 2019; previously amended effective January 1, 2018.)

(Subd (f) amended effective January 1, 2019; previously amended effective January 1, 2018.)