Filed 12/19/17

                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                    F071330
        Plaintiff and Appellant,
                                                           (Super. Ct. No. 1454803)
                 v.

CARLOS DAVID SANCHEZ,                                             OPINION
        Defendant and Respondent.



        APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
        Diane Louise Nichols, under appointment by the Court of Appeal, for Defendant
and Respondent.
        Birgit Fladager, District Attorney, and Tanja Titre, Deputy District Attorney, for
Plaintiff and Appellant.
                                        —ooOoo—
       This case involves a permanent anti-gang injunction obtained by the Stanislaus
County District Attorney’s Office (SCDA) in 2009, from the Stanislaus County Superior
Court, against the Deep South Side Norteños (DSSN) street gang (also known as Deep
South Side Modesto or DSSM) and 12 named members of the gang. Sanchez was not
named in, served in, or a party to, the proceeding in which the injunction was granted.
Nonetheless, in 2010, when he was 17 years old, Sanchez was served with the injunction
by the Modesto Police Department, without prior notice or an opportunity to be heard on
the question of whether he was a covered gang member. In 2013, he was arrested and
charged with misdemeanor criminal contempt for allegedly violating the injunction. This
appeal lies from that criminal contempt case.
       Sanchez filed a motion to dismiss the contempt charge. He argued he was not an
active gang member covered by the injunction and that enforcement of the injunction
against him violated his right to procedural due process, under the Due Process Clause of
the federal Constitution’s Fourteenth Amendment. The trial court determined that the
injunction burdened Sanchez’s constitutionally-protected liberty interests, whereby
Sanchez was entitled to some adequate predeprivation process to determine whether he
was an active gang member covered by the injunction. Since no predeprivation process
was available to Sanchez to challenge the SCDA’s determination that he was covered by
the injunction, the trial court concluded that enforcement of the injunction against him
violated his right to procedural due process. In light of its conclusion, the court
dismissed the misdemeanor criminal contempt charge predicated on the application of the
injunction to Sanchez.
       The People appeal the trial court’s rulings. We will affirm. We emphasize,
however, that our holding is limited. We decide only that the trial court properly found
that application of the injunction to Sanchez under the circumstances of this case,
violated his right to procedural due process, necessitating, in this instance, dismissal of



                                              2.
the contempt charge. Furthermore, since Sanchez has not challenged the facial
constitutionality of any of the injunction’s terms, our opinion does not speak to that issue.
                       FACTS AND PROCEDURAL HISTORY
       On July 2, 2014, Sanchez was charged by information with felony possession of
concentrated cannabis (count 1; Health & Saf. Code, § 11357, subd. (a)); misdemeanor
criminal contempt for violating “the terms of an injunction restraining the activities of a
criminal street gang or any of its members,” by associating with gang members (count 2;
Pen. Code,1 § 166, subd. (a)(9));2 and misdemeanor driving while driving privilege was
suspended or revoked (count 3; Veh. Code, § 14601.1, subd. (a)).3 Sanchez pleaded not
guilty to counts 1 and 3, and demurred as to count 2. On November 24, 2014, the trial
court reduced count 1, the cannabis possession charge, to a misdemeanor pursuant to
Proposition 47. Thereafter, all pending charges were misdemeanors.
       This appeal relates only to the misdemeanor contempt charge, which, as stated
above, was predicated on an alleged violation of an anti-gang injunction. The injunction
at issue was the “Judgment of Permanent Injunction” (gang injunction or injunction)
issued on September 11, 2009, by Judge John G. Whiteside in Stanislaus County Superior
Court case No. 642033. The trial court here took judicial notice of the Superior Court file
pertaining to the proceeding in which the gang injunction was issued.
       On July 29, 2014, Sanchez moved for an Evidence Code section 402 hearing and
for an order dismissing the criminal contempt charge on grounds of procedural due
process under the federal Constitution’s Fourteenth Amendment, Vasquez v. Rackauckas

1      Subsequent statutory references are to the Penal Code unless otherwise specified.
2     At the time, section 166, subdivision (a)(9) was section 166, subdivision (a)(10).
In 2014, section 166 was amended and subdivision (a)(10) was renumbered as
subdivision (a)(9). (Stats. 2014, ch. 99, § 1.)
3     The record indicates that the charge of driving while driving privilege was
suspended or revoked was subsequently changed to driving without a license. (Veh.
Code, § 12500.)


                                             3.
(9th Cir. 2013) 734 F.3d 1025 (Rackauckas), and Mathews v. Eldridge (1976) 424 U.S.
319 (Mathews). Sanchez contended the injunction interfered with his constitutionally-
protected liberty interests and, because he was not a party to the original injunction
proceeding, due process required that he be afforded some kind of process before the
injunction was enforced against him. The People filed an opposition and Sanchez filed a
reply. The People thereafter filed supplemental points and authorities and Sanchez filed a
response thereto.
       On February 5, 2015, the court held a hearing on Sanchez’s motion to dismiss. At
the hearing, the court jointly considered Sanchez’s instant motion to dismiss as well as
similar motions in other misdemeanor contempt cases related to the same gang injunction
(Sanchez was a defendant in some of the other cases as well). The court denied all the
motions before it. Thereafter, on February 10, 2015, the court indicated it would
reconsider its initial rulings on its own motion, in light of the Rackauckas case. The court
calendared a hearing for this purpose on February 17, 2015.
       In connection with the reconsideration hearing, the prosecutor sought to submit
additional briefing for the court’s consideration. The court inquired: “What issue do you
need to brief that hasn’t been briefed and opposed by both sides?” The prosecutor
responded: “In what circumstances in the due process context is the court permitted to
dismiss.” The prosecutor indicated she wanted to expatiate on the point that “nothing
was dismissed” in the Rackauckas case. The court responded that additional briefing on
that point was unnecessary because Rackauckas had “a different procedural posture,” in
that it enjoined enforcement of an anti-gang injunction against a particular class of
plaintiffs. The court also clarified that the parties would have the opportunity to present
legal arguments at the reconsideration hearing. Specifically, the court stated it would
announce a tentative ruling and then allow the parties to “argue whether [the tentative
ruling was] appropriate.”



                                             4.
       At the hearing to reconsider its prior denial of Sanchez’s motion to dismiss, the
court stated that after further deliberation it was inclined to reverse its earlier ruling.
Noting the issues had already been briefed “ad infinitum,” the court nonetheless solicited
argument, observing the parties had notice that the court was relying on Rackauckas and
Mathews. After hearing the parties’ arguments, the court ruled that enforcement of the
injunction against Sanchez violated his right to procedural due process and dismissed the
contempt charge.
                                        DISCUSSION
                     Dismissal of the Misdemeanor Contempt Charge
       The People appeal the trial court’s rulings. They argue the trial court erred in
finding that enforcement of the gang injunction violated Sanchez’s right to procedural
due process. The People also contend the trial court further erred in dismissing the
criminal contempt charge based on its determination that the injunction was
unconstitutional as applied to Sanchez. Sanchez responds that the trial court correctly
concluded that enforcement of the injunction against him violated procedural due
process, and, in turn, properly dismissed the criminal contempt charge.
       We review issues of law, including constitutional questions, de novo. (Vo v. City
of Garden Grove (2004) 115 Cal.App.4th 425, 433; People v. Cromer (2001) 24 Cal.4th
889, 893-894.) We uphold the trial court’s factual determinations as long as the record
contains substantial evidence to support them. (Cromer, supra, at pp. 893-894; People v.
Lawler (1973) 9 Cal.3d 156, 160.) Accordingly, we will review the trial court’s legal
conclusions regarding Sanchez’s due process claim de novo and any factual
determinations underlying its rulings for substantial evidence.
       We will affirm the trial court. The trial court correctly found that application of
the injunction to Sanchez, under the circumstances applicable here, violated his
constitutional right to procedural due process. In other words, Sanchez was
constitutionally entitled to greater procedural protections than were afforded by the

                                               5.
SCDA in subjecting him to the injunction. Furthermore, since service in 2010 of the
permanent injunction on Sanchez was invalid for denial of procedural due process, the
trial court properly dismissed the contempt charge.
       I.     Background
              A.      The Terms and Manner of Enforcement of the Gang Injunction
       California’s Street Terrorism Enforcement and Prevention (STEP) Act, section
186.20 et seq., creates private and public causes of action for purposes of “enjoining,
abating, and preventing” the “nuisance” that results when a “building or place” is “used
by members of a criminal street gang” for committing criminal offenses. (§ 186.22a,
subd. (a).) In addition, the “general public nuisance statutes,” namely Code of Civil
Procedure section 731 and Civil Code sections 3479-3480, provide an independent basis
for enjoining a gang and its members from engaging in nuisance activity. (See People ex.
Rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1119.) The gang injunction at issue here
arose from an action to abate gang activity under California’s general public nuisance
statutes.
       On June 10, 2009, the SCDA filed a public nuisance action based on Code of Civil
Procedure section 731 and Civil Code sections 3479 and 3480, in the Stanislaus County
Superior Court (case No. 642033). The action named as defendants “Deep South Side
Norteños” (also known as “‘DSSN,’ Deep South Side Modesto, ‘DSSM,’ Deep South
Side Locos, ‘DSSL,’ Deep South Side Youngsters, ‘DSSY’”); 20 named individuals; and
Does 1-100. On September 9, 2009, all Doe defendants were dismissed; furthermore,
several of the named defendants were never served and were also voluntarily dismissed
from the action. The superior court determined that no defendant had appeared in the
action and that defaults were properly “entered against all named and served defendants.”
The court then entered, on September 11, 2009, a “Judgment of Permanent Injunction”
“in favor of plaintiff, the People of the State of California, ex. rel. Birgit Fladager as the
District Attorney of the County of Stanislaus,” and against defendants “Deep South Side

                                               6.
Norteños, aka ‘DSSN,’ Deep South Side Modesto, ‘DSSM,’” as well as 13 named
individual defendants.4 In entering the “Judgment of Permanent Injunction” (gang
injunction or injunction), the court orally noted: “The served members of the gang are
subject to criminal contempt of court for violation of the terms of the order.”
       The injunction permanently enjoins the defaulted defendants from engaging in a
range of lawful and unlawful activities in a so-called “Safety Zone” delineated by certain
streets, roads, and avenues in the City of Modesto. The People aver that the Safety Zone
is a 1.89 square mile area comprising five percent of the City of Modesto. The area
within the Safety Zone includes the neighborhood in which Sanchez lives; his family has
lived and owned a house in the Safety Zone since 1978.
       The injunction prohibits some potentially unlawful conduct in the Safety Zone,
such as “[c]onfronting, intimidating, annoying, harassing, threatening, challenging,
provoking, assaulting or battering any person known to be a witness to any activity of the
‘DSSN’” and “[m]aking any threats, or doing anything threatening, including striking or
battering a person, destroying or damaging personal property, or disturbing the peace, to
cause or encourage a person to join ‘DSSN.’” However, the injunction’s prohibitions
extend well beyond unlawful conduct to proscribe many quotidian, day-to-day activities
that, in many instances, have nothing to do with gang-related activity.
       For example, the injunction subjects enjoined persons to a daily nighttime curfew.
Specifically, the injunction’s curfew provision prohibits persons 18 years of age or older
from being in a public place within the Safety Zone “between 10:00 p.m. and sunrise,”
except for work, school, or an emergency. As for persons under 18 years of age, the
injunction’s curfew provision prohibits them from being in a public place in the Safety
Zone “between 8:00 p.m. on any day and sunrise, unless accompanied by a parent.” The


4     One of the named defendants appears accidentally to have been included in the
judgment, as the judgment itself specifies he was not served in the action.


                                             7.
injunction’s “Do Not Associate” prohibition proscribes persons subject to the injunction
from associating with other enjoined persons, including “[s]tanding, sitting, walking,
driving, gathering[,] or appearing anywhere in public view or any place accessible to the
public.” The “Do Not Associate” prohibition makes an exception for gatherings inside
schools or places of worship but not for any travel to and from the latter locations. The
injunction also prohibits “[w]earing the color red in various ways including but not
limited to red hats, bandanas, shirts, sports jerseys, pants, belts, shoes, shoelaces, and
wearing anything with the words ‘Deep South Side.’”
       The injunction further prohibits all persons subject to the injunction from
“[a]nywhere in public view or any place accessible to the public, (1) possessing an open
container of an alcoholic beverage, (2) knowingly remaining in the presence of anyone
possessing an open container of an alcoholic beverage, or (3) knowingly remaining in the
presence of an open container of an alcoholic beverage.” The injunction also prohibits an
enjoined person who is “a pedestrian,” from “approaching, signaling, talking to the
occupants of, or blocking the movement of, any vehicle on any street unless a legitimate
emergency situation dictates.” In addition, possession of a “felt tip marker” or “spray
paint can” is prohibited by the injunction. Finally, the injunction is permanent, with no
expiration date or sunset provision.
       As discussed in more detail below, the record demonstrates that the SCDA has
served the injunction on numerous individuals who were not named or served in the
original injunction proceeding but who subsequently were deemed to be covered gang
members by the SCDA. As counsel for the People acknowledged at oral argument, a
gang investigator with the SCDA, Froilan Mariscal, who “authored” the gang injunction
and serves as the “injunction manager,” alone decides which individuals are covered
gang members and directs the Modesto Police Department to serve these individuals with
the gang injunction. There is no process for individuals who are subjected to the
injunction to challenge Mariscal’s unilateral determination that they are covered gang

                                              8.
members prior to being arrested and prosecuted for alleged violations of the injunction.
The record further indicates that the SCDA does not have in place any systematic review
mechanism or formal removal procedure, whereby a person subjected to the injunction
may subsequently be removed from its purview.
       Sanchez was not a party to the civil proceeding in which the injunction was
granted. He was not served in or given notice of that litigation, and, furthermore, was a
minor at the time of that litigation. Subsequently, on August 17, 2010, when Sanchez
was 17 years old, Modesto Police Officer Brian Binkley served him with the permanent
injunction.5 Binkley testified about serving Sanchez with a copy of the injunction at a
suppression hearing in another misdemeanor criminal contempt case, which was pending
against Sanchez at the same time as the instant case and was before the same judge.6

5      Sanchez’s date of birth is April 23, 1993.
6       We take judicial notice of the transcript of that suppression hearing in Stanislaus
County Superior Court case No. 1450035, held on June 16, 2014, before Judge Ricardo
Cordova, who also presided over the instant case. (See Evid. Code, §§ 452, 459.) At the
June 16, 2014 hearing, Binkley described the incident underlying the contempt charges in
that case. Binkley testified that on August 31, 2012, at around 11:22 p.m., he and his
partner were driving in the Safety Zone when they saw a car go by in the opposite
direction. They caught up to the car at a stop sign. Binkley’s partner got out and shone a
spotlight into the car, whereupon the officers saw Sanchez in the front passenger seat.
Binkley recognized Sanchez, as Binkley had served him with the gang injunction.
Thereupon, the officers initiated a traffic stop on grounds that Sanchez was in violation of
the injunction’s curfew provision. After initiating the traffic stop, the officers saw
Sanchez’s cousin, Francisco Vasquez, in the car as well, and Binkley recalled that
Vasquez had also been served with the injunction (Binkley’s partner testified that he had
in fact served Vasquez with the injunction when Vasquez was a minor). The officers
arrested Sanchez for violating the curfew provision of the injunction and for associating
with another enjoined person (i.e., his cousin), leading to Sanchez’s prosecution for
criminal contempt of the injunction.
      At the suppression hearing, the trial court was concerned that the police lacked
probable cause to make the underlying traffic stop in the first instance, because the
curfew provision of the gang injunction contains exceptions for work and school. The
prosecutor argued: “This case, the officers were in the Safety Zone, observed the vehicle,
stopped the vehicle[,] … [i]mmediately spotlighting the vehicle, recognized a person that

                                             9.
Binkley testified that he served Sanchez with the injunction on instructions from the
SCDA. He testified that Froilan Mariscal gave him “a list of subjects” who were to be
“served with the permanent gang injunction.” Binkley testified that he served Sanchez
with an injunction “packet,” which included a copy of the gang injunction, a “list of
prohibited actions,” and a map of the Safety Zone. Binkley subsequently “turned in” the
proof of service paperwork, either to the SCDA or the Modesto Police Department.
Binkley testified that he keeps a “list of all of the subjects that have been served with the
permanent gang injunction” and is familiar with the boundaries of the Safety Zone. He
also said police officers can ascertain whether a specific person has been served with the
gang injunction by running a records check through dispatch. Binkley confirmed that
Sanchez and his family members lived within the Safety Zone.
       Officer Mark Fontes testified at the same hearing regarding service of the
injunction packet: “We give [the served persons] a list of the violations, which are 14 of
the violations, which they cannot commit while in the Safety Zone. And then there’s also
a map that outlines the Safety Zone and shows the perimeters of it. Usually I’ll go
through it or kind of read the violations over with them and let them know that as of that
point on, they’re not to commit any one of those violations while within these perimeters
of the Safety Zone.”
              B.       The Instant Criminal Contempt Action
       The complaint initiating the instant case was filed on February 28, 2013. The
complaint alleged that Sanchez had violated the gang injunction on January 31, 2013.
Evidence regarding the underlying facts was adduced at the preliminary hearing in the


they knew to be on the gang injunction that they knew to be [within] the Safety Zone,
[therefore] they had probable cause to stop the vehicle.” The trial court disagreed
because “the officer did not have any basis to determine that [Sanchez was] not subject to
the exception of the gang curfew of being out past 10:00 PM.” The trial court granted
Sanchez’s motion to suppress evidence regarding contempt charges stemming from that
particular traffic stop.


                                             10.
matter.7 On January 31, 2013, at 2:00 p.m., Sanchez was driving on a public roadway
within the Safety Zone. Sanchez was stopped by law enforcement because of loud music
emanating from his car. When asked whether he was on probation or parole, Sanchez
answered in the negative but told the officer he had been served with and subjected to the
gang injunction that covered the local area. One of the passengers in the car, a minor,
told the officer that he too had been served with the gang injunction. The officer arrested
Sanchez and the minor, as both had been served with the gang injunction, and the officer
believed that, as a result, they were prohibited from appearing in public together. The
officer also arrested them on account of a red jacket he saw in the car (the minor
passenger was possibly wearing the red jacket), as the injunction prohibits wearing red
clothing.8 Sanchez was taken to jail and his car was impounded; the minor who was with
him in the car was booked into juvenile hall. Subsequently, the instant criminal contempt
action was initiated, charging Sanchez with violating the gang injunction by associating
with another enjoined person.
       Sanchez had advised the arresting officer during the traffic stop that he was not a
gang member and should not be subjected to the gang injunction. A gang expert
appointed by the court on behalf of Sanchez in this matter also opined in an expert report
filed with the court: “Carlos David Sanchez is not a gang member, and furthermore, I

7      Since Sanchez was also charged with felony cannabis possession in this matter,
the court held a preliminary hearing; the felony charge was later reduced to a
misdemeanor under Proposition 47.
8       The officer also found what was later determined to be 0.66 grams of concentrated
cannabis in the trunk of the car. The officer conducted a “DUI evaluation” on Sanchez
but determined that Sanchez was not under the influence at the time. Sanchez
subsequently moved for dismissal of the misdemeanor cannabis possession charge
resulting from the discovery of the 0.66 grams of concentrated cannabis on grounds that
he was a qualified medicinal cannabis patient with a valid physician’s recommendation
for the use of medicinal cannabis. The trial court denied the motion on grounds that the
question whether Sanchez was a “medical marijuana patient” was “an issue of fact that
would [properly] be resolved at trial.”


                                            11.
believe he has never been a member of the DSSN gang, or any other gang.” The gang
expert further noted: “Prior to Mr. Sanchez being served with a gang injunction, he had
never been arrested. In fact, it appears that the gang injunction, as it applies to
Mr. Sanchez, has activated and given him an arrest record that never existed before he
was served.”9
       Sanchez moved to dismiss the contempt charge on grounds that the underlying
injunction was unconstitutional as applied to him. Specifically, he argued that under the
circumstances of this case, he was subjected to the injunction in violation of his right to
procedural due process under the federal Constitution. The trial court evaluated
Sanchez’s procedural due process claim under the Mathews balancing test and concluded
that, on the instant record, Sanchez had a due process right to a predeprivation remedy.
(See Mathews, supra, 424 U.S. 319.) The court determined that since there was no
predeprivation remedy available to Sanchez, the injunction could not be enforced against
Sanchez and dismissed the contempt charge.




9      In addition to case No. 1450035 (discussed above), in which Sanchez was charged
with violating the injunction by appearing in public with his cousin, Sanchez was
evidently charged in seven other cases for various alleged violations of the injunction. In
case No. 1468072, for example, Sanchez was stopped by police while driving home from
church with his brother, Sergio Sanchez (who had also been served with the injunction).
Sanchez was arrested, booked into jail, had to post bail, and was ultimately charged with
violating the injunction on grounds of associating with another enjoined person (i.e., his
brother). In other cases, for instance case Nos. 1471084 and 1471881, Sanchez was
arrested and charged with violating the injunction for wearing, respectively, a black-and-
red shirt and red shoes. In the trial court, in light of the facts of case Nos. 1450035 and
1468072, Sanchez argued that, under the injunction, he was subject to “arrest[] for
associating with his family members, all of whom live within the ‘safety zone’ designated
by the gang injunction.” He also argued that the fact that “he is seen with his family is
considered proof by the prosecution that he is a gang member.”


                                             12.
       II.    Analysis
              A.      Constitutionality of the Gang Injunction as Applied to Sanchez

                      (1)    The Applicable Framework for Analyzing the Procedural Due
                             Process Claim and the Trial Court’s Analysis Thereunder
       Under California’s general nuisance statutes (Code Civ. Proc., § 731; Civ. Code,
§§ 3479-3480), a gang and its members can be enjoined from engaging in nuisance
activity. (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1119.) California courts
are, however, divided on the issue of whether a permanent injunction binds a gang and all
its active members when the latter are not individually named and served in the
injunction proceeding. (See People ex rel. Totten v. Colonia Chiques (2007) 156
Cal.App.4th 31, 39-43 (Colonia Chiques) & People ex rel. Reisig v. Broderick Boys
(2007) 149 Cal.App.4th 1506, 1522 (Broderick Boys).) Sanchez, however, does not
challenge the process by which the gang injunction was obtained or its applicability to
named defendants and active gang members based on technical service requirements.
Nor does he challenge the facial validity of any of the provisions of the injunction.
Sanchez instead challenges application of the gang injunction to him on procedural due
process grounds.
       In Rackauckas, supra, 734 F.3d 1025, the Ninth Circuit addressed a similar due
process challenge to enforcement of an anti-gang injunction in Orange County.
Rackauckas was the first case, state or federal, to address this particular type of due
process challenge. Rackauckas, however, considered the due process question in a
different context than the instant case, as there a certified class of plaintiffs sought to
permanently enjoin the Orange County district attorney from enforcing the anti-gang
injunction against them. The Rackauckas plaintiffs were named in the original gang
injunction proceeding but, after they appeared in that action, they were voluntarily
dismissed by the Orange County district attorney. The Orange County district attorney
nonetheless later served the permanent gang injunction on the plaintiffs. Rackauckas


                                              13.
explained that dismissal of the plaintiffs from the original injunction proceeding deprived
them of an available predeprivation remedy and, prior to being subjected to the
injunction, they were not provided with any “alternative adequate process” to determine
whether they were covered by the injunction, as was constitutionally required.
(Rackauckas, supra, 734 F.3d at p. 1056 [“some adequate process to determine
membership in the covered class is constitutionally required”].) Rackauckas concluded
that enforcement of the injunction against the plaintiffs in that case would violate their
rights to procedural due process and permanently enjoined its enforcement against them.
       Sanchez does not seek permanently to enjoin enforcement of the gang injunction
against him or others. Rather, as stated above, he challenges, on procedural due process
grounds, its application to him in this specific instance. “Procedural due process imposes
constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’
interests within the meaning[, in the case of states,] of the Due Process Clause of … the
Fourteenth Amendment.” (Mathews, supra, 424 U.S. at p. 332.) Although the
procedural posture of this case is different from that of Rackauckas, the injunctions at
issue in both cases are very similar and the due process claims are analogous.
Furthermore, while Rackauckas’s holding is limited to the circumstances of its
plaintiffs—who were initially named as defendants in the original injunction proceeding
but, after appearing in the action, were voluntarily dismissed—for purposes of the
requisite due process analysis, we see no meaningful distinction between Sanchez’s
situation and that of the Rackauckas plaintiffs.
       As explained in Rackauckas, courts analyze a procedural due process claim under
the federal Constitution in two steps, evaluating, in the first step, “‘whether there exists a
liberty or property interest which has been interfered with by the State,’” and, in the
second, employing the balancing test of Mathews to ascertain “‘whether the procedures
attendant upon that deprivation were constitutionally sufficient.’” (Rackauckas, supra,
734 F.3d at p. 1042, citing United States v. Juvenile Male (9th. Cir. 2012) 670 F.3d 999,

                                             14.
1013 (Juvenile Male); see Iraheta v. Superior Court (1999) 70 Cal.App.4th 1500
[applying the Mathews framework in determining that named defendants in civil gang
injunction proceeding were not entitled to counsel on due process grounds].) In applying
the Mathews balancing inquiry in the second step of the due process analysis, courts
consider: (1) “the private interest that will be affected by the official action”; (2) “the
risk of erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards”; and (3) “the
Government’s interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.”
(Mathews, supra, 424 U.S. at p. 337.)
       In conducting the requisite two-step analysis, Rackauckas determined, at the first
step, that the gang injunction at issue in that case “profoundly implicate[d] liberty
interests protected by the Due Process Clause, including rights of free movement,
association, and speech,” and that the enforcement of that injunction by the Orange
County district attorney’s office “interfere[d] with those protected liberty interests.”
(Rackauckas, supra, 734 F.3d at p. 1042.) In the second step of the due process analysis,
Rackauckas applied the three-factor balancing test explicated in Mathews to examine
“‘whether the procedures attendant upon [Orange’s] deprivation’ of Plaintiffs’ liberty
interests ‘were constitutionally sufficient.’” (Rackauckas, supra, 734 F.3d at p. 1044.)
Rackauckas found that “[a]ll the Mathews factors, taken together, weigh[ed] decisively in
favor of Plaintiffs,” and determined that “the district court correctly concluded that
Orange violated Plaintiffs’ rights under the Due Process Clause of the federal
Constitution.” (Rackauckas, supra, 734 F.3d at p. 1053.) Rackauckas therefore affirmed
“the district’s court issuance of declaratory and injunctive relief in Plaintiffs’ favor.”
(Rackauckas, supra, 734 F.3d at p. 1053.)
       In the instant matter, in considering Sanchez’s motion to dismiss (along with
similar motions in other criminal contempt cases related to the injunction), the trial court

                                              15.
noted: “My concern is the due process issue as to who can decide whether or not
someone can be arrested for a gang injunction and be booked into jail, stay in jail, or post
bail.” Thus, the question for the court to resolve was whether due process required that
Sanchez have access to some kind of predeprivation process to determine whether he was
an active DSSN gang member for purposes of the injunction. The court explained that
prior California cases dealing with gang injunctions “did not involve due process
challenges” akin to the one presented here, but Rackauckas was on point. Specifically,
the court stated, “it’s pretty clear that these cases, with respect to the gang injunction, are
on all fours with Rackauckas with the exception there was no file and dismiss strategy
involved with these defendants. The due process argument[s] with that difference in
procedural posture are, in fact, the same that are raised here.”
       The trial court conducted the two-step due process analysis outlined in
Rackauckas to assess whether subjecting Sanchez to the injunction violated procedural
due process. The court initially found that, given the broad scope of the injunction, the
state had interfered with protected liberty interests, triggering due process scrutiny. The
court then conducted the Mathews inquiry to determine whether the existing procedure
utilized by the SCDA in enforcing the injunction was constitutionally sufficient. In
conducting its analysis, the court observed:

              “And I don’t have any doubt that the [district attorney] and law
       enforcement have a strong and important interest in controlling gangs in
       this particular neighborhood. Obviously, this neighborhood in particular
       has been placed in a strangle hold based on the activities of various gangs.

               “My concern is that – this dawned on me as I was driving home the
       last day after the court hearing, and I left from work, I made a stop
       somewhere, and had I been subject to the gang injunction and lived in that
       area, then I could have been stopped for doing an activity that all of us do
       as a part of our daily lives. There’s curfew violations, there’s, you know,
       someone comes back late from a family wedding; someone goes to their
       younger brother’s football game at Downey High School, comes home after
       the curfew, and this covers a large activity – a large number of activities in


                                               16.
       a large geographical area. It is permanent, and I’m – frankly, getting
       arrested and going to trial is an insufficient due process remedy.

              “And as indicated in Rackauckas, determining whether someone is a
       gang member is not a simple task. Someone can be out with someone else
       based on a familial relationship or friends from the neighborhood that may
       not be gang related. In fact, two of the defendants here are, in fact, cousins
       subject to this injunction since they [were] both … served a copy of the
       order.”
       The court specifically asked the prosecutor to address the government’s interest, if
any, in failing to provide a predeprivation remedy, commenting that the third Mathews
factor “is probably the closest argument that can be made.” The court noted that
Stanislaus County undoubtedly had a significant interest in combatting gang violence, but
emphasized that “[t]he question is whether the government has a significant interest in
failing to provide a pre-deprivation process where someone can challenge the
determination of active gang membership.” The prosecutor was unable to identify any
governmental interest in failing to provide such a predeprivation remedy. The prosecutor
did not suggest, for instance, that provision of a predeprivation hearing would be unduly
burdensome or infeasible.
       The court then laid out its concerns: “Bad facts obviously affect changes in the
law.… [H]ere we have an injunction that covers a large geographic area that covers a lot
of activity that we all take for granted, and there is no procedural … way the defendants
can challenge whether or not they should have been subject to this gang injunction since
it’s permanent [and] any appeal period or any right to intervene [in the original injunction
proceeding] would have long passed.” The court ultimately determined that the Mathews
factors weighed in favor of the conclusion that the SCDA had violated due process by
failing to provide some kind of predeprivation remedy to Sanchez. As discussed below,
on the instant record, we agree with the trial court.10


10   The People argue that Mathews is inapplicable to the instant case. Rather, citing
Medina v. California (1992) 505 U.S. 437, 443-446, the People posit that Sanchez’s due

                                             17.
              (2)    Step One in the Due Process Analysis: Whether there Exists a
                     Liberty or Property Interest which has Been Interfered With by the
                     State?
       The instant gang injunction applies to the Safety Zone, a 1.89 square mile area
comprising five percent of the City of Modesto. The Safety Zone includes residential
neighborhoods in South Modesto; indeed Sanchez lives and has grown up within the
Safety Zone. The injunction is very similar to, and appears to be modeled on, the
injunction at issue in Rackauckas, which the Rackauckas court found “profoundly
implicat[ed] liberty interests protected by the Due Process Clause, including rights of free
movement, association, and speech.” (Rackauckas, supra, 734 F.3d at p. 1042 [noting
that the injunction pertinent to that case “places a heavy burden” on the exercise of a
range of constitutionally-protected liberty interests within the ambit of the First
Amendment, which have “always been viewed as fundamental components of the liberty
safeguarded by the Due Process Clause”].) Just like the gang injunction at issue in
Rackauckas, the instant injunction implicates, on its face, constitutionally-protected
liberty interests and fundamental rights, including the rights of association, free
movement, and free speech.11
       For example, the “Do Not Associate” provision prohibits anyone subject to the
injunction from associating with any other enjoined parties—including family
members—“anywhere in public view or [in] any place accessible to the public.” This


process claim must be analyzed under the standard enunciated in Patterson v. New York
(1977) 432 U.S. 197, 201-202. We reject this argument because Medina and Patterson
addressed the analytical framework for assessing the constitutionality of state procedural
rules, which are part of the criminal process. Sanchez does not challenge California
criminal procedures but, rather, argues he was subjected to a civil public nuisance
injunction in violation of his right to procedural due process. This claim is appropriately
analyzed under Mathews.
11     Since Sanchez does not challenge the facial constitutionality of the injunction’s
terms, we address the scope of these terms only as necessary to evaluate Sanchez’s
procedural due process claim.


                                             18.
provision extends to “[s]tanding, sitting, walking, driving, gathering or appearing.” In
addition, the injunction establishes curfews for both minors and adults, prohibiting
nighttime presence in any “public place” except for “work, school or an emergency.”
The injunction also proscribes enjoined persons from possessing alcohol in public view
or a public place and from “approaching … any vehicle on any street,” when walking.
As Rackauckas explains, “[t]hese provisions directly interfere with an individual’s
‘fundamental right of free movement,’” and “an ‘individual’s decision to remain in a
public place of his choice.’” (Rackauckas, 734 F.3d at p. 1042.)
       Other provisions of the injunction further restrict freedom of movement and use of
public places because of the actions of others, over which one may have no control, and
do so without regard to whether the other person is an enjoined gang member. For
example, the “Stay Away From Alcohol” provision prohibits an enjoined party from
“knowingly remaining in the presence of anyone possessing an open container of an
alcoholic beverage” and “knowingly remaining in the presence of an open container of an
alcoholic beverage,” “[a]nywhere in public view or any place accessible to the public.”
Similarly, the “No Guns or Dangerous Weapons” provision prohibits “knowingly
remaining in the presence of anyone who is in possession” of “any gun, ammunition,
illegal weapon” or “replica or imitation weapon,” and “knowingly remaining in the
presence of such gun, ammunition, or dangerous weapon,” “[a]nywhere in public view or
any place accessible to the public.”12 The “Stay Away From Drugs” provision also
proscribes “knowingly remaining in the presence of anyone selling, possessing, or using
any controlled substance or … related paraphernalia” and “knowingly remaining in the
presence of any controlled substance or … related paraphernalia.”
       The “Do Not Associate” provision and other limitations on association have no
exceptions to permit individuals to engage in constitutionally-protected expressive

12     The injunction refers to “replica or imitation” weapons as defined in section 417.4.


                                            19.
activities for political, social, and economic ends. (Rackauckas, 734 F.3d at p. 1043.)
The “Do Not Associate” prohibition also burdens the constitutionally-protected freedom
of “intimate association” by barring association with family members (who are also
enjoined by the injunction) in public places such as streets and highways, restaurants,
workplaces, and shops, but also at home if “in public view.” (Rackauckas, 734 F.3d at
p. 1043.) Finally, the prohibition on wearing red clothing and “anything with the words
‘Deep South Side’” possibly restricts freedom of expression, and the prohibition against
“talking to the occupants of … any vehicle on any street” restricts freedom of speech.
(See Rackauckas, 734 F.3d at p. 1043.)
       On the basis of the injunction’s terms alone, its application clearly burdens and
interferes with constitutionally protected liberty interests, especially as to persons like
Sanchez, who live within the Safety Zone and whose families historically have lived
within the Safety Zone. However, in addition to the injunction’s restrictive terms, the
manner of enforcement of the injunction constitutes further interference with liberty
interests, triggering due process scrutiny. The record shows that law enforcement
authorities in Modesto track persons served with the injunction by running records
checks. It indicates that persons suspected of violating the injunction on the basis of
otherwise lawful conduct are not merely cited and released; rather they are arrested,
booked into jail, and prosecuted for criminal contempt of the injunction. In the instant
case, Sanchez was the subject of a traffic stop. Law enforcement officers arrested and
took into custody Sanchez and his minor passenger because they were both subject to the
injunction and were together in the Safety Zone, allegedly in violation of the “Do Not
Associate” provision of the injunction; Sanchez’s car was also impounded.
       Here, the SCDA’s curtailment of Sanchez’s constitutionally-protected liberty
interests by deeming him a covered gang member and subjecting him to the injunction,
constituted governmental interference, triggering due process scrutiny. (Rackauckas,
supra, 734 F.3d at p. 1044.) We must therefore examine whether SCDA was required to

                                              20.
provide additional procedural protections, beyond its existing unilateral process, before
subjecting Sanchez to the injunction.

              (3)    Step Two in the Due Process Analysis: the Mathews Balancing
                     Inquiry
       As stated above, in the second step of the due process inquiry, we apply the
balancing framework outlined in Mathews, supra, 424 U.S. 319 to assess whether the
procedures attendant upon the deprivation of Sanchez’s liberty interests were
“‘“constitutionally sufficient.”’” (Juvenile Male, supra, 670 F.3d at p. 1013.) As
previously noted, Mathews sets forth a three-factor test for evaluating the sufficiency of
existing procedures, directing us to examine:

       “[F]irst, the private interest that will be affected by the official action;
       second, the risk of an erroneous deprivation of such interest through the
       procedures used, and the probable value, if any, of additional or substitute
       procedural safeguards; and finally, the Government’s interest, including the
       function involved and the fiscal and administrative burdens that the
       additional or substitute procedural requirement would entail.” (Mathews,
       supra, 424 U.S. at p. 335.)
       In applying the Mathews balancing test, we recognize that “‘the requirements of
due process are “flexible and call for such procedural protections as the particular
situation demands.”’” (Rackauckas, supra, 734 F.3d at p. 1044; Today’s Fresh Start,
Inc. v. Los Angeles County Office of Educ. (2013) 57 Cal.4th 197, 212 (Today’s Fresh
Start) [the precise dictates of due process are flexible and vary according to context].)
“‘The function of legal process, as that concept is embodied in the Constitution, and in
the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the
broad spectrum of concerns to which the term must apply, flexibility is necessary to gear
the process to the particular need; the quantum and quality of the process due in a
particular situation depend upon the need to serve the purpose of minimizing the risk of
error.’” (Heller v. Doe (1993) 509 U.S. 312, 332 (italics added).) The governmental




                                             21.
decision at issue here is the SCDA’s decision to subject Sanchez to the injunction based
on its internal determination that he is a covered gang member.
                      (a) The private liberty interest affected by the injunction
       As reflected in our earlier analysis of the liberty interests curtailed by the
injunction, the private interest at issue here is notably strong. While the injunction
prohibits a range of unlawful and undesirable conduct, it sweeps more widely than simply
restricting gang-related activities. Indeed, it restricts basic liberties and rights of the
individuals subjected to it, interfering with their ability to engage in common, day-to-day,
lawful activities. The injunction is particularly onerous on someone like Sanchez, who
lives in the affected area, along with members of his family. The burden on the private
liberty interests is compounded by the fact that the injunction has no expiration or sunset
date and is permanent, extending the deprivation in perpetuity. (See Mathews, supra, 424
U.S. at p. 341 [the possible length of the wrongful deprivation is an important factor in
assessing the impact of official action on private interests].) Furthermore, there is no
evidence that SCDA had in place a systematic review mechanism or removal procedure,
whereby a person subjected to the injunction may subsequently be removed from its
purview.13 In sum, as Rackauckas found in evaluating the similar restrictions imposed


13      In the trial court proceedings, the prosecutor advised the court that SCDA
reviewed the ongoing application of the injunction to enjoined persons on an ad hoc
basis, to ascertain whether any one should be exempted from enforcement of the
injunction. However, the prosecutor clarified that “[as] yet” there was no “formal”
removal process “in place” and, consequently, a removal process was “not part of the
People’s record” in the instant matter. The trial court ruled that since a removal process
was “not part of the record,” it was “not going to consider that at this time.” At oral
argument in this appeal, counsel for the People stated that during the pendency of this
appeal, SCDA had independently modified the procedures used to enforce the injunction
to institute, among other things, a removal process. However, any such later
modifications were not available to Sanchez and are not part of the instant record. We
therefore have not considered them. Nor do we express any opinion as to their adequacy
in relation to the procedural due process issue raised here.


                                              22.
by the injunction at issue there, the private interests affected by the injunction are “truly
weighty.” (Rackauckas, supra, 734 F.3d at p. 1045.)

                     (b)     The risk of erroneous deprivation and the probable value of
                             additional safeguards
       Here, after obtaining the gang injunction by default against the Deep South Side
Norteños gang and 12 named defendants, the SCDA began to serve the injunction on
individuals who were not named or served as defendants in the original injunction
proceeding, but rather were subsequently alleged to be active members of the Deep South
Side Norteños (DSSN) gang by the SCDA. Although actual members of the DSSN can
properly be bound by the injunction, due process concerns arise when the manner in
which the SCDA decides who is an actual member of the DSSN itself creates a high risk
of erroneous determinations.
       More specifically, in the context of the instant injunction, individuals who were
properly served in the original injunction proceeding clearly had notice of the proceeding
and the opportunity to be heard on the question of whether they were covered gang
members; accordingly, any due process concerns regarding enforcement of the injunction
against them are alleviated. However, enforcement of the injunction against someone
like Sanchez, who was not served in the original injunction proceeding and who,
furthermore, was a minor at the time the injunction was granted, raises significant due
process concerns in light of the important liberty interests at stake along with potential for
error in the procedures used to identify additional, covered gang members.
       The People have represented that the SCDA served the injunction on individuals it
determined were “active” gang members or participants of the DSSN. “[F]or the
purposes of a gang abatement injunction,” “an active gang member is a person who
participates in or acts in concert with” a gang, such that “[t]he participation … [is] more
than nominal, passive, inactive or purely technical.” (People v. Engelbrecht (2001) 88
Cal.App.4th 1236, 1258, 1261 (Engelbrecht); see Broderick Boys, supra, 149


                                              23.
Cal.App.4th at p. 1517.) Furthermore, for purposes of inclusion in a civil gang
injunction, the People have the burden of demonstrating active gang membership by
“clear and convincing evidence” rather than a lower “preponderance” standard, in view
of “the importance of the interests affected” by such an injunction. (Engelbrecht, 88
Cal.App.4th at p. 1256.)
       For his part, Sanchez has maintained that he is not a covered gang member.
Sanchez told the officer who arrested him in the incident underlying this case that he was
not a gang member and should not be subjected to the injunction. A gang expert
appointed by the trial court on behalf of Sanchez also opined in an expert report filed in
the trial court that Sanchez was not a gang member. The record indicates that Sanchez
had no criminal or arrest record prior to enforcement of the injunction against him, which
has led to arrest and prosecution for criminal contempt in multiple cases. Nor is there
any allegation or evidence that Sanchez has ever been judicially determined to be an
active DSSN gang member for any purpose.
       Under the second Mathews factor, we consider the nature of the inquiry as to
whether an individual is an active gang member or participant; the adequacy of the
procedures used to make this determination by the SCDA; the value of additional
procedural safeguards; and the sufficiency of postdeprivation remedies. (Mathews,
supra, 424 U.S. at p. 335; Rackauckas, supra, 734 F.3d at p. 1045.)
       Our analysis under the second Mathews factor is set forth in detail below. We
have considered the fact that determining whether an individual is an active gang
participant for purposes of enforcement of a gang injunction is a complex endeavor. As
counsel for the People acknowledged at oral argument, the determination is nonetheless
left to one gang investigator within the SCDA, Froilan Mariscal, who “authored” the
gang injunction and serves as the “injunction manager.” Furthermore, the SCDA has yet
to clarify how Mariscal made the initial determination that Sanchez was a covered gang



                                            24.
participant, leading to service of the injunction on him.14 In addition, there is no process
for an affected individual in Sanchez’s position to challenge the SCDA’s conclusion,
prior to being arrested and prosecuted for allegedly violating the injunction. This
situation creates a substantial risk of erroneous deprivation but the risk would be
substantially mitigated by provision of additional procedural protections. As discussed
below, based on these considerations, we conclude that the second Mathews factor
weighs in Sanchez’s favor.
              (i) Nature of the Gang Membership Inquiry
       Courts have recognized that the inquiry as to whether an individual is an active
gang member is a fact-intensive one, whereby “determining whether someone is involved
and the level of involvement is not a simple matter.” (People v. Valdez (1997) 58
Cal.App.4th 494, 506-507 (Valdez).) As Valdez explained, “gangs are not public and
open organizations or associations like the YMCA or State Bar Association, which have a
clearly defined and ascertainable membership. Rather, gangs are more secretive, loosely
defined associations of people, whose involvement runs the gamut from ‘wannabes’ to
leaders.” (Id. at p. 507.) In addition, as Colonia Chiques noted with regard to the fluid
nature of the gang there, gang membership is not static but, rather, is “continually


14     The People have attached as an exhibit to their opening brief, an investigation
report by SCDA Gang Investigator Froilan Mariscal. The report is dated December 13,
2012, over two years after Sanchez was served with the gang injunction. In the report,
which was not provided to the trial court, Mariscal enumerates various reported police
contacts that Mariscal “utilized to document Carlos Sanchez as an active DSSN
member.” However, the report mostly lists contacts that occurred in the course of
enforcing the injunction against Sanchez, after it was served on him. Furthermore, the
report is dated December 13, 2012, and fails to clarify how the SCDA actually
determined, at the time Sanchez was served with the injunction on August 17, 2010, that
Sanchez was an active DSSN member subject to the injunction. For example, the report
does not clarify what information was available to and evaluated by the SCDA prior to
August 17, 2010, or whether any information available at that time suggested that
Sanchez was not a gang member but was disregarded by the SCDA.


                                            25.
changing,” in that “[n]ew members are joining the gang, while old members are leaving it
or becoming inactive.” (Colonia Chiques, supra, 156 Cal.App.4th at p. 41; see
Rackauckas, supra, 734 F.3d at p. 1046, fn. 21 [describing gang membership as “fluid
and often fleeting,” and noting that “[m]ost juveniles belong to gangs for ‘1 year or
less’”].) The STEP Act’s definition of “criminal street gang” also encompasses groups
“whether formal or informal,” signifying that gangs often are loosely structured.
(§ 186.22, subd. (f).)
       Since gangs lack formalities that might provide objective and verifiable means of
establishing membership, such as dues-paying lists, it is not usually possible to confirm
gang membership with reference to objective criteria. Indeed, in closely and thoroughly
considering the issue, Rackauckas concluded: “Determining whether an individual is an
active gang member presents a considerable risk of error. The informal structure of
gangs, the often fleeting nature of gang membership, and the lack of objective criteria in
making the assessment all heighten the need for careful factfinding.” (Rackauckas,
supra, 734 F.3d at p. 1046.) Given the nature of the inquiry required to confirm gang
membership, the risk of error is particularly great when the determination is made
without any participation by, or opportunity to provide evidence on behalf of, the
individual served with the injunction, as was the case here.

              (ii)       The Adequacy of the Procedures Utilized by the SCDA and the
                         Value of Additional Safeguards
       Documentation submitted by the People reveals that Froilan Mariscal, a gang
investigator in the SCDA—who “authored” the gang injunction and is the “injunction
manager”—was tasked with identifying the individuals to be served with the gang
injunction. In the original injunction proceeding in 2009, Mariscal averred in a
declaration that the DSSN gang had around 50 active members. By 2012, 105




                                              26.
individuals had been served with the injunction based on Mariscal’s determination that
they were active participants in the DSSN.15
       The People represented in the trial court that the determinations were made with
reference to a range of criteria that were applied on a case-by-case basis, with reference
to evidence gleaned from “field interviews, field contacts, police reports, law
enforcement databases, and admissions, etc.,” as well as from informants.
Determinations were based on factors “such as”: “jail/juvenile hall classification,”
“identification by reliable sources,” “associations with gang members,” “use of hand
signs, symbols, words or phrases associated with the gang,” “possession of gang tattoos,”
“self-admissions of gang membership,” “involvement in activities consistent with gang
activities,” “physical evidence of gang association, i.e., gang rosters, drawings,
photographs, bandanas, symbols,” and “judicial finding of gang membership or
participation.”
       Many of the factors considered—e.g., clothing, associations, information from
informants—were not objective (in the sense of a dues-paying membership list, board-
approved membership regulations, and similar bright-line methods of making a
determination of group membership). On the contrary, as apparent from most of the
factors and the types of documentation that were relevant to the determination, the
process entailed assessing and weighing evidence to make factual determinations,
including by making subjective judgments and credibility determinations. Despite the
nuanced nature of the inquiry, here the SCDA unilaterally decided who would be
subjected to the injunction’s restrictions, without providing notice, access to evidence, or
an opportunity to be heard to the affected persons. Consequently, the SCDA’s


15     Officer Binkley testified at Sanchez’s preliminary hearing that Investigator
Mariscal provided a list of people to the Modesto Police Department for purposes of
service of the injunction; the list included Sanchez. Mariscal’s role was also confirmed
by counsel for the People at oral argument.


                                             27.
determination as to whether an individual was an active gang member entailed a
considerable risk of error.
       A close look at some of the factors that were relevant to the determination of gang
membership reveals that the process used by the SCDA was neither objective nor
particularly reliable. Take for instance the “associating with gang members” criterion.
Sanchez’s gang expert explained in his expert report filed in the trial court that this factor
is difficult to apply in practice because a person’s familial and social relationships can be
misperceived as gang-related relationships and result in misidentification of that person
as an active gang member. Sanchez, for example, was served with the gang injunction
along with his brother and at least one of his cousins, raising the possibility, to the extent
association with family members was a factor in deeming Sanchez a gang member, that
these associations were not necessarily gang related.
       Similarly, factors such as “jail/juvenile hall classifications,” “use of hand signs,
symbols, words or phrases associated with the gang,” “wearing of gang attire or colors,”
and “possession of gang tattoos,” do not necessarily and conclusively correlate to “active
gang membership.” Sanchez’s gang expert noted that, in some instances, these factors
signify neighborhood affiliation or loyalty to family members rather than active gang
participation. In the present context, for example, Deep South Side Modesto, one of the
names of the gang enjoined by the injunction, is also the name of the neighborhood
encompassed by the Safety Zone, and affiliation with one can be mistaken for affiliation
with the other, as Sanchez’s gang expert noted. Prior admissions of gang membership are
also of variable evidentiary significance depending on the context and circumstances in
which they were made. Such admissions, at times, connote merely a passive, nominal, or
familial affiliation, and may be motivated by a need for protection because of
neighborhood- or family-based affiliations. (See Vasquez v. Rackauckas (C.D. Cal.
2011) 203 F.Supp.3d 1061, 1071, overruled on other grounds in Rackauckas, supra, 734
F.3d 1025.)

                                             28.
       In addition, as Rackauckas explained, “the fact that the police observe an
individual violate one of the [gang injunction’s] terms is of little probative value in
assessing whether that individual is in fact [a] … gang member. The [injunction]
prohibits a wide variety of otherwise legal, quotidian conduct not directly correlated with
the nuisance and criminal activities that gave rise to the [injunction]. Much of the
behavior covered by the [injunction] can occur outside the presence of any other
individual even putatively covered by the [injunction].” (Rackauckas, supra, 734 F.3d at
p. 1047.)
       Although determining whether a particular individual is actively “involved [in the
gang] and the level of involvement is not a simple matter,” here the determination was
made unilaterally by the SCDA, or, more accurately, by a single gang investigator within
the SCDA, without providing notice and an opportunity to be heard to the affected
individual. (Rackauckas, supra, 734 F.3d at p. 1046; Valdez, supra, 58 Cal.App.4th at
pp. 506-507.) As the SCDA alone made the determination that an individual could
properly be subjected to the injunction’s wide-ranging restrictions, the determination was
rendered opaque and unreviewable at precisely the same time that the threshold for
prosecution of that person was drastically lowered by virtue of approval of the injunction
itself. (See Englebrecht, supra, 88 Cal.App.4th at pp. 1255-1256 [noting that because a
gang injunction restricts lawful, commonplace activity, it is an extraoridinary remedy];
also see Am.-Arab Anti-Discrimination Comm. v. Reno (9th Cir. 1995) 70 F.3d 1045,
1069 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath (1951) 341 U.S. 123
(Frankfurter, J. concurring)) [“‘fairness can rarely be obtained by secret, one-sided
determination of facts decisive of rights’”].)
       In Sanchez’s case, the People have yet to specify the precise process—including
all the factors considered and any evidence that was disregarded—by which he was
deemed an active participant in the DSSN, prior to service of the injunction on him on
August 17, 2010. We conclude the one-sided procedures used by the SCDA to identify

                                             29.
purported active gang participants encompass a significant risk of error. In light of the
nature of the inquiry at issue, additional procedural protections that characterize due
process, including notice and an opportunity to be heard, would be of considerable value
in mitigating the risk of error.
              (iii) Sufficiency of Postdeprivation Remedies
       In some instances, postdeprivation remedies may cure what would otherwise be an
unconstitutional deprivation of protected interests.16 In the trial court, the People
contended that a jury trial at the culmination of criminal contempt proceedings was an
adequate postdeprivation remedy that would cure any violation of procedural due process
in subjecting Sanchez to the injunction. We cannot agree.
       Officer Binkley testified that when the injunction was served on a person, the
latter was provided with a map of the Safety Zone and a list specifying the activities and
conduct he or she was prohibited from engaging in. As discussed above, the injunction
sweeps broadly, prohibiting a range of basic liberties and everyday, lawful conduct.
Further, the trial court noted, individuals alleged to have violated the injunction are
“booked into jail” and either “stay in jail, or post bail,” pending trial. In other words, a
person who is served with the injunction must either comply with its restrictions or risk
arrest. As for Sanchez, as long as he remains subject to the injunction, he remains at risk
of arrest for violations of its terms, including the curfew provision and the restrictions on
association and presence in public places. Furthermore, even were he to proceed to trial

16     Rackauckas noted that “‘in limited circumstances,’” “‘deprivations of liberty’”
may be cured by “‘[p]ost-deprivation procedures’” that “‘may provide adequate due
process.’” (Rackauckas, supra, 734 F.3d at p. 1048, fn. 22; but see Bailey v. Pataki (2d
Cir. 2013) 708 F.3d 391 [“‘[w]here the State feasibly can provide a predeprivation
hearing … it generally must do so regardless of the adequacy of a postdeprivation …
remedy’”]; Zimmerman v. City of Oakland (9th Cir. 2001) 255 F.3d 734, 738 [holding
postdeprivation remedies inadequate where a state officer “acted pursuant to some
established procedure,” as opposed to in “random, unpredictable, and unauthorized
ways”].)


                                             30.
in this matter and prevail, he would nonetheless remain subject to the injunction in
perpetuity, and, in turn, to arrest for additional violations of its provisions. Given this
scenario, jury trial in the instant contempt proceeding would not provide “full relief”
from the deprivation effected by subjecting him to the injunction. (See Mathews, supra,
424 U.S. at p. 331; also see Rackauckas, supra, 734 F.3d at p. 1051.)
       Rackauckas’s analysis of the difference between a gang injunction and other, more
narrowly focused injunctions is also instructive in this context. Rackauckas explained
that while postarrest contempt proceedings might potentially constitute a sufficient
postdeprivation remedy in relation to certain types of injunctions, they are not an
adequate postdeprivation remedy for a gang injunction which imposes wide-ranging
restrictions and creates a risk of arrest. With respect to the gang injunction there,
Rackauckas explained:

       “[The gang injunction] proscribes a broad range of basic, daily activities
       by [the gang’s] members, and it proscribes such conduct without regard to
       whether the individual is engaged in that conduct in concert with, as a
       member or agent of, or with the intent to further the purposes of the gang.

              “In these respects, this case differs from other contexts in which an
       injunction runs against an organization and its members, and, we shall
       assume for present purposes, unnamed members are accorded sufficient
       process through the opportunity to defend criminal contempt accusations.
       The abortion and labor cases, for example, involve injunctions restricting a
       narrow range of conduct—e.g., demonstrating in a certain location or with a
       certain object. Engaging in those activities is likely to be highly correlated
       with whether an individual is in fact a member of the enjoined organization,
       which had engaged in similar activities. In contrast, the [gang injunction]
       prohibits an enormous range of quotidian conduct that, on its face, is not
       indicative of an individual’s gang membership, or any other connection to
       the enjoined gang.

              “Moreover, the difference in the scope of the injunctions in these
       various contexts is relevant because ‘[t]he more important the interest’
       affected by state action, ‘and the greater the effect of the impairment, the
       greater the procedural safeguards the state must provide to satisfy due
       process.’ [Citation.] Further, the lack of an inherent correlation between


                                              31.
       the enjoined activities and membership in the group covered by the [gang
       injunction] exacerbates the already significant risk of error in identifying
       accurately the members of [the gang].” (Rackauckas, supra, 734 F.3d at
       p. 1052.)
       We conclude that, in light of the injunction’s undeniable interference with
protected liberty interests and the lack of adequate predeprivation procedural safeguards,
a jury trial in contempt proceedings such as the instant one is insufficient to cure the
deprivation of liberty, including jail time, to which Sanchez has been subject since being
served with the injunction in 2010. (See Rackauckas, supra, 734 F.3d at p. 1052.)
       In sum, the second Mathews factor—the risk of erroneous deprivation and the
probable value of additional safeguards—weighs in Sanchez’s favor.

              (c)    The government’s interest in failing to provide a predeprivation
                     remedy
       Turning to the final prong of the Mathews analysis, we consider “the
Government’s interest” in providing (or not providing) specific procedures, “including
the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” (See Mathews, supra, 424 U.S. at p.
335.) Here, the trial court stated, “I don’t have any doubt that the [district attorney] and
law enforcement have a strong and important interest in controlling gangs in this
particular neighborhood.” We agree with the trial court that combatting gang violence is
a critically important law enforcement goal. However, as the trial court correctly noted,
the relevant inquiry under Mathews is whether the state has a significant interest in failing
to provide a predeprivation process through which an individual can challenge the
SCDA’s determination that he or she is an active gang member subject to the injunction.
(See Rackauckas, supra, 734 F.3d at p. 1052.)
       The People do not argue that providing a predeprivation remedy to individuals
who were not named and served in the original injunction proceeding is administratively
or fiscally unfeasible. Nor did the People present any arguments or evidence to the trial



                                             32.
court regarding the existence of a significant government interest in failing to provide a
predeprivation remedy in connection with enforcement of the injunction.
       In Rackauckas, the court concluded that the relevant government agencies there
had not established a government interest in failing to provide procedural safeguards for
the persons who were challenging application of the gang injunction in that case;
specifically, the agencies “presented no evidence of “‘an administrative, fiscal or other
substantial burden[] in providing … pre-deprivation safeguards.” (Rackauckas, supra,
734 F.3d at p. 1053, italics omitted.) Rackauckas pointed out that the same government
agencies had avoided due process problems in the enforcement of other gang injunctions
by “nam[ing] each defendant individually in the initial filing.” (Id. at p. 1052.)
Rackauckas further explained that, “at least two jurisdictions in California—San
Francisco and Oakland—regularly provide some form of pre-deprivation process for
individuals in anti-gang injunction proceedings, rather than simply seeking injunctions
against the gang as an entity and its unnamed members.” 17 (Id. at p. 1053.)
       Although, like Rackauckas, we are not deciding the constitutionality of
predeprivation mechanisms used in connection with other gang injunctions, it is clear that
other jurisdictions have fashioned mechanisms under which a gang injunction can
effectively be enforced by constitutional means. We conclude the final Mathews factor—
like the first two factors—also weighs decisively in favor of Sanchez.




17     The City of Los Angeles has also offered various procedures in connection with
enforcement of an anti-gang injunction, whereby individuals subjected to the injunction
may challenge the underlying determination (made by the relevant public agency
enforcing the injunction) that they were covered gang members. However, in Youth
Justice Coalition v. City of Los Angeles (C.D. Cal. 2017) --- F.Supp.3d--- [2017 WL
3981122] the court nonetheless found that the City’s “procedures do not adequately
remedy the lack of pre-deprivation process.” (Id. at *10.)


                                             33.
              (4)     Conclusion
       The record here demonstrates: (1) the scope of the injunction is notably broad,
whereby it interferes with a wide range of protected liberty interests; (2) Sanchez was not
named and served in the original injunction proceeding and, indeed, was a minor at the
time; (3) Sanchez has repeatedly asserted he is not a gang member and his court-
appointed expert has come to the same conclusion; (4) the procedure used to make the
determination of gang membership encompasses a significant risk of error; (5) the People
have not specified the basis on which Sanchez was determined to be a covered gang
member (including any evidence that was disregarded in making the determination),
leading to service of the injunction on him; (6) additional procedural safeguards such as
notice and an opportunity to be heard would be of considerable value; (7) in light of the
important liberty interests at stake, the right to a jury trial in a criminal contempt action
premised on a violation of the injunction is insufficient to provide a person in Sanchez’s
position with full relief; and (8) the People have not articulated, let alone demonstrated,
any government interest justifying the failure to provide any procedural safeguards before
subjecting individuals to the injunction. On this record, we conclude that, under the
Mathews balancing inquiry, provision of some predeprivation process was required
before the gang injunction could be applied to Sanchez consistent with his right to
procedural due process under the federal Constitution. Here, Sanchez’s procedural due
process rights were violated.
       Furthermore, in examining when procedural safeguards are required under the
California Constitution, we similarly apply the Mathews balancing inquiry with the
addition of a fourth factor: the dignitary interest in informing individuals of the nature,
grounds, and consequences of the action and in enabling them to present their side of the
story before a responsible government official. (People v. Ramirez (1979) 25 Cal.3d 260,
268; Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1048, 1071-
1072.) This dignitary interest encompasses the appearance of fairness to those involved.

                                              34.
(See People v. Hernandez (1984) 160 Cal.App.3d 725, 747-748.) The California
Constitution ultimately provides more due process protection than the federal
Constitution alone. (Today’s Fresh Start, supra, 57 Cal.4th at pp. 213-214.) Here,
Sanchez had no notice or opportunity to be heard before he was subjected to an
injunction with profound consequences for daily life, including family relationships,
freedom of movement, and civic participation in the neighborhood in which he lives. The
appearance-of-fairness factor under the California Constitution supports our conclusion
that applying the injunction against Sanchez violated procedural due process.
       We emphasize that Sanchez has not challenged the substantive terms of the
injunction and our decision is not intended to, nor does it serve to undermine enforcement
of the injunction against properly covered individuals. Gang injunctions are prophylactic
measures that restrict the lawful, daily activities of covered individuals in an effort to
prevent illegal activities from taking place. (Rackauckas, supra, 734 F.3d at p. 1056.)
While we recognize the importance of preventing illegal activities by gang members,
here the breadth of the injunction implicates important liberty interests and Sanchez was
entitled to some constitutionally adequate process to determine his membership in the
group covered by the injunction.18
       Finally, we note that at oral argument, counsel for the People indicated that while
this appeal was pending, the SCDA independently modified, on its own initiative, its
procedures related to enforcement of the injunction, evidently to alleviate procedural due
process concerns. We express no opinion on the constitutionality of these new
procedures as their substance is beyond the scope of the present record and their
constitutional sufficiency is not at issue in this matter.


18     The People argue that the trial court erred by failing to allow the People to file
additional briefing when it reconsidered its ruling on Sanchez’s due process challenge.
We need not address the merits of this claim because the People have not demonstrated
that any error by the trial court was prejudicial.


                                              35.
              B.     Dismissal of the Contempt Charge
       Here the trial court correctly determined that the injunction could not be applied to
Sanchez consistent with the federal Constitution unless Sanchez had access to a
predeprivation remedy. Therefore, service of the permanent injunction on Sanchez had
no effect and Sanchez could not be guilty of criminal contempt for violating its
provisions. The trial court therefore properly dismissed the criminal contempt charge.19
                                     DISPOSITION
       The judgment is affirmed.


                                                                 _____________________
                                                                              SMITH, J
WE CONCUR:


 _____________________
HILL, P.J.


 _____________________
POOCHIGIAN, J.




19     Sanchez has moved to strike five exhibits filed by the People with their opening
brief (Exhibits A-E, numbering 59 pages). However, since we have ruled in Sanchez’s
favor, his motion to strike is denied as moot.


                                            36.
