On August 24, 2020, the Court of Appeal of the State of California for the Fourth Appellate District affirmed[1] the decision of the Orange County Superior Court which denied Ruben Lona’s petition to be removed from the Shared Gang Database.  The Court of Appeal determined that Ruben Lona’s own admissions made in the declaration he provided the Fullerton Police Department as part of his June 2018 removal request constituted clear and convincing evidence of Lona’s status as an active gang “associate” or “affiliate,” and thus supported the trial court’s denial of his petition.  The Court of Appeal further found that the trial court’s reliance on the declaration rendered harmless any potential error resulting from considering the denial letter when making its decision.  In addition, the Court of Appeal determined that the Fullerton Police Department was not required to establish by clear and convincing evidence that Ruben Lona was an “active” gang member.  Rather, the Fullerton Police Department needed only establish that Ruben Lona was an active gang “associate” or “affiliate” to prevail.  Finally, the Court of Appeal determined that Ruben Lona suffered no “actual prejudice” and his right to due process was not violated when the trial court excluded some, but not all, evidence relating to a claim.

Background

Ruben Lona (“Lona”) is an admitted former member of a criminal street gang who claims he left his gang in 2016.  In 2018, invoking the procedure in Penal Code section 186.34, Lona asked the City of Fullerton Police Department (“Department”) to remove his name from a shared gang database that lists him as a suspected gang member or associate.  The Department denied his request.  Lona then filed a petition for removal pursuant to Penal Code section 186.35.  The trial court denied his petition, based in large part on Lona’s sworn statements that he left the gang only three years earlier, still possessed attire that violated the gang injunction applicable to his former gang, Fullerton Tokers Town, and still bears gang tattoos.  Lona appealed.

Affirmation of the Trial Court’s Ruling Denying Lona’s Petition

First, the Court of Appeal considered whether the trial court erred in admitting the Department’s June 2018 denial letter in which the Department formally denied Lona’s request to be removed from the Shared Gang Database.  Lona argued that the trial court had erred because it incorrectly applied the evidentiary rules prescribed in Penal Code Section 186.35(c).

The Court of Appeal thereafter analyzed Penal Code Section 186.34, which creates a four-step process for exchanging information between the person and the Department before the person can file a section 186.35 petition.

The Court of Appeal decided that the language of sections 186.34 and 186.35 are inconsistent and the legislative intent is unclear as to whether a trial court may consider an agency’s denial letter when ruling on the petition.  Ultimately, it was not necessary for the Court of Appeal to determine whether the trial court erred in considering the denial letter because any potential error was harmless.  The evidence provided in Lona’s own declaration which was submitted to the Department contained substantial evidence of Lona’s status as an active gang “associate” or “affiliate” and thus supported the trial court’s denial of his petition.

The Department Met Its Burden and Proved Lona’s Active “Associate” or “Affiliate” Status by Clear and Convincing Evidence

Next, the Court of Appeal considered whether the Department was required to prove that Lona was an “active” gang member by clear and convincing evidence; and whether, under section 186.35, the terms active “gang membership,” “associate status,” and “affiliate status” are synonymous.

The Court of Appeal determined that these terms are not synonymous because reading section 186.35 in this way would deprive “associate status” and “affiliate status” of any significance in the section.  Though section 186.35 does not define the terms “gang member,” “associate,” or “affiliate,” the Court reasoned a common sense reading of the statue suggests that an active gang member is someone who has formally become a member of the gang (having been jumped in or otherwise), while an affiliate or an associate is someone who may be less formally linked to the gang.

The Court of Appeal found that the trial court did not err, and the Department had met its burden by proving by clear and convincing evidence that Lona was an active “associate” or “affiliate” of the gang by and through Lona’s own statements.

The Trial Court Did Not Violate Lona’s Due Process Rights by Denying Him an Opportunity to Respond to and Introduce Evidence to Rebut the Denial Letter

Finally, the Court of Appeal considered whether Lona’s due process rights were violated when the trial court admitted the Department’s June 2018 denial letter into the record and denied Lona the opportunity to rebut the information contained in this letter by using the Departments previously excluded opposition.

The Court of Appeal determined that no due process violation occurred.  Lona had argued that the opposition be excluded from the record and the trial court granted Lona the relief he requested.  Lona could not thereafter complain during oral argument that he was not able to refer to the excluded evidence.  The Court reasoned that an appellant must show actual prejudice resulted from an erroneous exclusion of some, but not all, evidence relating to a claim, and there was no evidence here that Lona suffered any actual prejudice.

HOW THIS AFFECTS YOUR AGENCY

The Court of Appeal determined that the Fullerton Police Department may keep Ruben Lona in its Shared Gang Database; however, the basis of the Court’s determination was derived from Lona’s own statements.  The Department was extremely limited in its ability to introduce additional evidence at trial because of the legislature’s intent to limit the evidentiary record to the communications between a person on the Shared Gang Database and the police department before trial.  Therefore, Police departments should review their procedures for responding to these requests to ensure that they establish a comprehensive evidentiary record in advance of any court hearing on the matter.

Under Penal Code Section 186.34, a department’s only self-generated admissible evidence is the response letter to a person’s inquiry about a department’s basis for the person’s inclusion in the Shared Gang Database.  This is the department’s only opportunity to provide clear and convincing evidence of the basis for a person’s designation as an active gang member, associate, or affiliate that will be admissible at trial.  The response should include more than a checklist of criteria the person met to be placed in the database and more than a summary of past encounters with law enforcement.  Departments should include as much information about the person and the basis for the department’s determination for placing that person in the database without compromising any ongoing investigations.  Therefore, in their responses, departments should provide all related police reports that are not the subject of an ongoing investigation at the time of the response.

Departments should also prepare a response letter that chronicles the person’s criminal history and articulates the department’s reasoning for the determination.  If such letter is not prepared, including all relevant police reports, and provided to the person inquiring about the department’s determination, the department runs the risk of being left to argue their position at trial with little or no admissible evidence to support their arguments.  Without such evidence, it may be nearly impossible to prevail and a potentially dangerous person may be removed from the Shared Gang Database because of a technicality.

As always, if you wish to discuss this matter in greater detail, please feel free to contact either Greg Palmer or Veronica Donovan at (714) 446–1400 or via email at gpp@jones-mayer.com or vrd@jones-mayer.com, respectively.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] Lona v. City of Fullerton Police Dep’t, 53 Cal. App. 5th 1073 (2020)