1 2 3 4 5 Fein, MARA W. ELLIOTT, City Attorney SANNA SINGER, Assistant City Attorney MICHELLE A. GARLAND, Deputy City Attorney California State Bar No. 216936 Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, California 92101-4100 Telephone: (619) 533-5800 Facsimile: (619) 533-5856 MGarlandAsandiego.gov the Superior Court AN 24 2018 D 8Y: t, deilaty 6 7 e of Exempt from fees per Gov't Code § 6103 To the benefit of the City of San Diego Attorneys for Defendants City of San Diego and San Diego Police Department 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO 9 10 TYRONE SIMMONS, 11 12 13 14 15 16 ) ) Petitioner/Plaintiff, ) ) v. ) ) CITY OF SAN DIEGO, SAN DIEGO POLICE ) DEPARTMENT, ) ) Respondents/Defendants. ) ) Case No. 37-2018-00001190-CL-PT-CTL EVIDENTIARY RECORD [IMAGED FILE] Date: Time: Dept.: March 8, 2018 1:30 P.M 903 17 The attached Record in the above captioned case is being filed pursuant to California Penal Code 18 section 186.35 and California Rule of Court 3.2300(e). The record consists of 27 pages, not 19 including this cover page. 20 21 Dated: January 24, 2018 MARA W. ELLIOTT, City Attorney 22 23 By e A. a an Deputy City Attorney 24 25 Attorneys for Respondents City of San Diego and San Diego Police Department - 26 27 28 1668507 1 EVIDENTIARY RECORD t • The City of SAN DIEGO)) Police Department Street Gang Unit August 3, 2017 Law Offices of Danielle Iredale Regarding Client Tyrone Simmons 105 West F Street, 4th Floor San Diego, CA 92101 Dear Attorney Danielle Iredale, The San Diego Police Department has received your written inquiry asking if your client's name and any information about him has been entered into a shared gang database and if so, which agency has entered the information. You have also requested information as to the basis used to enter your client's information into the CalGang shared database and any criteria within the last 5 years used to continue his entry. It was determined that your client's name and information has been entered into the CalGang database. Your client's name and information was entered by the San Diego Police Department. The criteria for your client's inclusion into the shared database are: O Subject has admitted to being a gang member. O Subject has been arrested alone or with known gang members for offenses consistent with gang activity. O Subject has been seen affiliating with documented gang members. O Subject has been seen displaying gang symbols and/or hand signs. • Subject has been seen frequenting gang areas. O Subject has been seen wearing gang dress. O Subject is known to have gang tattoos. O In custody Classification interview. Inclusion into the shared database requires two of the listed criteria. The San Diego Police Department requires three. Your client met at least three of those criteria when his name was entered into the system in August, 2007. The CalGang system operates pursuant to the United States Code of Federal Regulations, title 28, section 23 (28CFR23), et seq., as a Criminal Intelligence System. Records not modified by the addition of new criteria for a 5 year period will be purged. Once a subject is documented, information retained in the system must be reviewed and validated for continuing compliance with system submission criteria before the expiration of its retention period, which in no event shall be longer than five (5) years. Your client is currently 1401 Broadway, MS 786 San Diego, CA92101 7(619)531-2847 sandiego.goy 001 , • DIEGO") ; e (114 Police Department Street Gang Unit scheduled to purge from the system on April zo, 2019. Your client is documented as a "Lincoln Park" Gang Member. Lincoln Park gang members also refer to themselves as "Bloods" or "Piru". Lincoln Park gang members may associate with the colors Red and/or Green. Lincoln Park gang members may also display the letters "B" for blood, "L" or "LPK" for Lincoln Park and "a green four leaf clover". These colors and symbols can range from being bold and prominent to being subdued and subtle. The San Diego Police Department has collected the following information used to document and continue your client's entry into the CalGang shared database: • February 23, 2007, Simmons was contacted by police at Boo Otay Lakes Road. Simmons was with two Lincoln Park gang members. • June 9, 2007, Simmons was arrested for being in possession of a loaded firearm in a vehicle after he was stopped for reckless driving on 500 Elm Street (he was following a homicide victim to the hospital). He was also in association with Lincoln Park gang members. • June 15, 2007, Simmons was contacted on 4900 Magnus Way after leaving a Lincoln Park gang gathering. Simmons claimed "Lincoln Park" gang. • September 27, 2007, Simmons was contacted by police in a vehicle at 5400 Imperial Avenue. A loaded handgun was found inside the car. Simmons claimed possession of the gun and he was ultimately arrested for carrying a concealed weapon in a vehicle. • June 7, 2008, Simmons was contacted by police at 6300 Broadway and claimed "Lincoln Park" gang. He also was with at least two companions who claimed "Lincoln Park" gang. He was wearing a red hat, red shirt and black shorts. • March 17, 2008, Simmons was contacted by police with two documented Lincoln Park gang members on 3000 Mission Blvd after a murder took place one block away. Simmons was wearing a green shirt and black jeans. • On April 20, 2014, Simmons was contacted by police leaving a gang party at Emerald Hills Park and Recreation. Simmons was with a known Lincoln Park gang member. Simmons has claimed membership, in the past, in the Lincoln Park Blood Gang. The Lincoln Park Gang at the time was considered an allied gang of the Emerald Hills Blood Gang. April 20 (Easter) is considered an important day in the history of the Emerald Hills Blood Gang and Emerald Hills Park and Recreation is a common place to hold gang gatherings to celebrate the day. It is not uncommon to have allied gang members in attendance at such a gathering. Your client's attendance at this gathering of Emerald Hills Blood Gang Members and associates, as well as h18 " 0•' association with a known Lincoln Park gang member, indicates his continued allegiance and association with gangs. , • •,: -11 1401 Broadway, MS 786 San Diego, CA 92101 T(619)531-2847 sandiego.gov 002 q . • The City of SAN DIEGO") Police Department Street Gang Unit In addition to the above listed criteria, the San Diego Police Department reserves the right to present information protected from public disclosure by Section 1040 or 1041 of the California Evidence Code or Section 6254 of the California Government Code and by Section 28 Part 23 of the Code of Federal Regulations. In an appeal pursuant to Penal Code section 186.35, this information may be presented to the court during an in camera hearing. California Penal Code Section 186.34(f) gives your client, or you, as his attorney, the right to contest his inclusion in the CalGang database to the San Diego Police Department. Accordingly, your client may submit written documentation along with any supporting information to the San Diego Police Department contesting his inclusion into the CalGang database. The San Diego Police Department will review all relevant information, including your client's supporting documentation. The San Diego Police Department will make a decision and provide written verification of its decision within 30 days of the receipt of the contesting letter. The verification reply will state one of the following: 1. A reply that your client's name and information will not be removed from the shared gang database; or, 2. A reply that your client's name and information will be removed from the shared gang database. California Penal Code Section 186.35 also gives your client the right to appeal the San Diego Police Department's decision to the Superior Court. This limited civil case is heard by a Superior Court Judge and the San Diego Police Department will abide by the judge's order. To ensure you receive the reply, the police department will require a valid contact address and/or telephone number for you or your client. For more information, please see California Penal Code Sections 186.34 and 186.35. Thank you, Marshall White, Lieutenant San Diego Police Department, Street Gang Unit MKW/micw 1401 Broadway, MS 786 San Diego, CA 92101 T (619) 531-2847 sandlego.goy 003 DANIELLE IREDALE, SBN: 304693 105 West F Street, 4th Floor San Diego, California 92101-6036 TEL: (619) 233-1525 FAX: (619) 233-3221 danielledredale@gmail.cora RE: Tyrone Simmons; DOB: 4/21/1986 September 6, 2017 Dear Lieutenant Marshall White, Please consider this letter Tyrone Simmons' request under Penal Code §186.34 to remove his name from the CalGang shared database.' Mr. Simmons is in receipt of your correspondence dated August 3, 2017, detailing the criteria for his inclusion, as well as a brief summary of the information used to initially enter, and continue his entry, in the CalGang shared database. Your August 3, 2017 response makes clear that, but for an innocuous encounter in 2014, since 2008, Mr. Simmons has had no contacts making him eligible for continued entry in the database. This lack of contact was no accident on Mr. Simmons' part. Mr. Simmons made a conscious decision to disassociate with any criminality in order to insure his presence in his daughter's life on a day-to-day basis His daughter is his motivation and she spurred a metamorphosis in her father. LAW-ABIDING AND FULLY EMPLOYED Tyrone's "daughter motivates [him] to be a better person." 2 When he was incarcerated, and only able to see her a couple times a month, he vowed never to return once released. He promised himself and his daughter that he would "never again put [him]self in a position that risks [his]ability to be a great father to [his] daughter." He has been out for seven years and he has kept that promise. Part of being a good father means staying out of trouble and working full-time to support his child. In addition to working full-time in construction, Mr. Simmons contributes many hours to his own business, I Your correspondence referred to the same as a "contesting letter." All quotes are from Mr. Simmons' declaration, attached hereto, together with Exhibits A — J. 2 004 THM San Diego. He officially started THM —Towing, Hauling and Moving— in 2014, but he had been providing the same services since 2012. THM has taken off. Tyrone states, "I am the sole proprietor of the company and it just continues to grow." He "continue[s] to get closer to his goal of being 100 percent self-employed." EDUCATION Tyrone believes the key to success is a good education and he makes sure that his daughter fully applies herself to her schoolwork. Mr. Simmons graduated from Mission Bay High School in 2004. He obtained a Bachelor's Degree in Business Management from the University of Phoenix in 2015. In addition to leading by example, Tyrone also takes an active role in Tyjee's schooling. The two sit down together every evening to go over Tyjee's homework due the next day. FATHERHOOD Mr. Simmons has one child, a ten-year old daughter named Tyjee LaNiya Simmons. He has been in her life since birth and remains a hands-on parent, sharing custody with Tyjee's mother. Although the two are no longer romantically involved, the parents have maintained a great relationship. As Mr. Simmons states in his declaration regarding his daughter's mother, "Although we aren't together, we have figured out a way to be great coparents for our child." The parents split custody 50/50, with Tyjee spending one full week, Sunday to Sunday, with her father, and the next full week with her mother. Tyrone spends quality time with his daughter, keeps her safe, instills in her good morals and a strong sense of community, and fosters her extracurricular activities. Tyjee is "a dancer who dances with Mighty Shock San Diego." She does competitions all over California, which means Tyrone takes Tyjee to competitions all over California. Mr. Simmons even took it upon himself to learn how to do the hairstyles required for competition so he could do them for Tyjee. Tyrone fosters his daughter's love of dance and believes she got her rhythm from her uncle who is a choreographer. CLOSE-KNIT FAMILY Tyrone's daughter has been brought up with a strong sense of community and family. In addition to a newborn son, Tyrone's brother has a ten-year old daughter, Rayne, and a 9-ie`ar old son, , Joslah: Tyrone notes in 2 005 his declaration that the first cousins have been in school together since kindergarten. He continues, "all the kids are smart and they have a tight bond because they have been together since birth." Tyrone "nicknamed them The Rugrats'." The Rugrats, their parents, and grandmother, all live together in Chula Vista. They say it takes a village to raise a child, and Tyjee is lucky to have parents, grandparents, cousins, aunts, and uncles who all have her best interest at heart. COMMUNITY INVOLVEMENT Tyrone also gives back to the community. In 2015, he co-founded and became the president of Above Average Motorcycle Club, hereinafter "MC." It is an officially recognized motorcycle club that respects set protocol established for such clubs, as well as the law of the United States. The name denotes a prodigious purpose and Mr. Simmons chose the name for a reason. He holds himself, the charter, and its members to a high standard. He and his members must demonstrate strong moral character. Participation in any illegal activities or operations is strictly forbidden. Tyrone explains that members must obtain and maintain a valid "California Motorcycle license, as well as keep their bike registered and insured in order to wear our patch." Members must respect the laws of the United States, including the prohibition on drunk driving. Members who ride drunk are subject to fines, suspension, and possible expulsion from the club. The MC is a way for a group of friends to come together in a legal way, and become "involved in [their] community and preach positivity." Mr. Simmons makes clear that "the movies or TV shows about bikers [in] no way, shape, or form [represent] how Above Average MC operates." As previously stated, in drafting the bylaws, in addition to requiring all members to be fully licensed, registered, and insured, the bylaws forbid members from engaging in criminal activity. The main thrust of the organization is comradery, brotherhood, and community involvement. . Above Average holds a yearly "Back to School Drive" for the community of South East, San Diego. August 20, 2017 marked the fourt annual drive. Tyrone and his members provide backpacks full of school supplies to any child who signs up or shows up. The event is held at the community center and children and their parents pick up the supplies and spend the day with neighbors and friends for a celebration of community and the impending school year. Tyrone continues, "we partner with a barber shop and a hair salon who provide nominated kids with free haircuts (for the boys) and for the girls, they get [,] a wash, blow dry, and straighten so they look nice, and sharp on their first day of school." Tyrone notes the ripple effect the group's good works have had on the community, "We have set a new trend 3 006 because now a lot of different groups or individuals from our community are doing the same thing, partnering with barbershops and hair salons." In addition to holding their own events, "the other members and [Tyrone] make it a point to attend and support other community events, such as shoe drives for the homeless, feeding the homeless, blanket giveaways, and youth mentoring events, to name a few." SDPD'S FAILURE TO ADEQUATELY PURGE RECORDS Before we end the letter, we reiterate what was contained in your August 3, 2017 correspondence: The CalGang system operates pursuant to the United States Code of Federal Regulations, title 28, section 23 (28CFR23), et seq., as a Criminal Intelligence System. Records not modified by the addition of new criteria for a 5-year period will be purged. Once a subject is documented, information retained in the system must be reviewed and validated for continuing compliance with system submission criteria before the expiration of its retention period, which in no event shall be no longer than five (5) years. Your client is currently set to purge from the system on April 20, 2019. In your August 3, 2017 letter, your agency provided the information used to initially enter and then continue Mr. Simmons' entry into the CalGang database. The information was entered on seven different dates. Entries one through six all relate to incidents in 2007 and 2008. Entry six reflects the date March 17, 2008. There are no entries between March 17, 2008 and April 19, 2014. The most recent entry is April 20, 2014. According to the above-stated rules, "records not modified by the addition of new criteria for a 5•year period will be purged." Therefore, Mr. Simmons's records in the CalGang database should have been purged on March 17, 2013. Because you have provided the information pre-dating March 17, 2013, we assume that the information was obviously not purged. We object to your presentation of any information preceding March 17, 2013, at which time, Mr. Simmons should have been removed from the database and all inforrnation previously entered should have been purged. ' • Should your department fail to honor our request for removal after review of this letter, we will formally object to the Court's consideration 'of the above-mentioned information that was erroneously maintained' on the ", database despite the lack of any contact within the last 5 yeas:• • 4 007 We also object to his re-entry based on the encounter of April 20, 2014. The entry states that Mr. Simmons was "contacted by police leaving a gang party at Emerald Hills and Recreation." This was an innocuous encounter wherein Mr. Simmons did not "admit to gang membership," did not perpetrate any violations of the law, and did not engage in any behavior other than allegedly attending a public event for which a permit was obtained. We inquire as to the basis for the stop of the car in which he was a passenger and again reiterate that no contraband was recovered from the car and no contraband was recovered from Mr. Simmons. Since the previous six entries should have been deleted, Mr. Simmons is now currently on the CalGang database for an encounter in which he was a passenger in a vehicle in his neighborhood. Tyrone Simmons is an exemplary human being, who is a good father, good neighbor, and a strong asset to his community. He is educated, hard working, and maintains a life free of criminal activity and rich with family support, close friendships, and giving back. He is not a member of the Lincoln Park Gang. He is not a member of any gang. He should not be included in the CalGang Shared Database. We respectfully request that you grant his request for removal pursuant to Penal Code Section 186.34. Sincerely, anielle Iredale, Esq. Attorney for Tyrone Simmons 5 008 1 DECLARATION OF Tyrone Simmons 2 I, TYRONE SIMMONS, declare as follows: 3 1. I am requesting removal of my name from the CalGang shared database 4 pursuant to Penal Code §186.34. 5 6 EDUCATION 7 2. I graduated from Mission Bay High School in 2004. 8 3. I graduated from the University of Phoenix in 2015 with a Bachelor's 9 10 11 12 13 Degree in Business Management. 4. Education is very important to me. It is important that my daughter take school seriously. 5. Every evening we go over her homework to make sure it is done and I also answer any questions she has. 14 15 WORK 16 6. I work full-time in construction. 17 7. I've also started multiple different businesses, but THM seems to be the 18 19 20 gem. THM stands for Towing, Hauling, and Moving. 8. I officially started THM in 2014, but had been providing the same services since 2012. 21 9. I am the sole proprietor of the company. As the company continues to 22 grow, I continue to get closer to my goal of being one hundred percent self-employed. 23 24 FATHERHOOD 25 10. I have 1 Daughter, .Tyjee LaNiyah Simmons, who will turn 10 on August 26 28, 2017. 27 11. I've been in her life since birth and, while her mother and I are no longer 28 romantically involved, we have built and maintained a great relationship. Page I 009 12. Tyjee's mother and I have 50/50 custody (not court-ordered). Although 2 we aren't together, we have figured out a way to be great co-parents for our child. 3 13. My daughter stays with me for a week and the next week she stays with 4 her mother. Our schedule is Sunday to Sunday. 5 14. Even when I spent the time I did incarcerated, I was still able to see my 6 daughter at visits in the county jail, as well as state prisons. 7 15. My daughter motivates me to be a better person. When I went away, all I 8 did was think everyday of how there is no way in the world I should be in here and 9 no way in the world my daughter shouldn't have her father in her life everyday, not 10 just 1 to 2 times a month. 11 16. I set my mind to never return to prison. Since they released me on 12 October 24, 2010, I have not been back. I will never again put myself in a position 13 that risks my ability to be a great father to my daughter. 14 17. My daughter is a dancer who dances with Mighty Shock San Diego. Her 15 group consists of kids ages 8 to 13 years old. 16 18. She does competitions all over California. My brother is a choreographer, 17 so I guess she gets her moves from him. 18 19 FAMILY 20 19. My brother has a newborn baby; an older daughter, Rayne, who will turn 21 11 in October 2017; and an older son, JoeSiah, who just turned 9 this past January. 22 20. The cousins are all close in age and have attended the same elementary 23 school since Kindergarten. All the kids are smart and they have a close tight bond 24 because they been together since birth. 25 21. I've nicknamed them `TherRugrate We all currently live together in 26 Chula Vista with my brother, sister-in-law, and mother. 27 28 COMMUNITY INVOLVEMENT Page 2 010 1 2 3 4 5 6 7 8 9 22. In 2015, with five other friends, I co-founded and became the President of Above Average MC. 23. Riding motorcycles was just a hobby we enjoyed, but it turned into this official San Diego, MC. 24. I hold myself and my members to a high standard. We must all be lawabiding and demonstrate high moral character. 25. Our bylaws strictly prohibit any of our members from participating in any illegal activities or operations. 26. In addition to leading a law-abiding life, our members must obtain and 10 maintain a valid California Motorcycle license, as well as keep their bike registered 11 and insured in order to wear our patch. 12 27. Our mission is to be involved in our community and to preach positivity. 13 We are a one-of-a-kind club that plays by our own rules, but at the same time, we 14 respect the San Diego Motorcycle set protocol, as well as laws of the United States. 15 28. Our application and by laws make clear that drunk driving is never 16 tolerated. Violators must immediately hand over their keys and bike to a sober 17 member. Violators are subject to discipline including fines, suspensions, and 18 possible removal from the club. 19 20 21 22 23 24 25 29. The movies or TV shows about bikers are strictly "Hollywood." In no way, shape, or form do they present an example of how Above Average MC operates. 30. I chose our name for a reason. I strive to be a better person and I always hold all my members to the same high standards to which I hold myself. 31. We hold a yearly. "Back 2 School Drive." This year, on August 20, 2017, • we held our 4th Annual "Back 2 School Drive." At-this event we provide backpacks and school supplies to however many 26 • kids are nominated to receive those school supplies. 27 28 ..;,- , 33.,-We also partner with a barbershop and a hair salon. They provide the• n• . . noniinated kids with free haircuts (for the boys) and a wash and blow dry for the girls), so they look nice and sharp on their first day of school. Page 3 011 1 34. We have set a trend because now a lot of different groups or individuals 2 from our community are doing the same things, like partnering with barbershops 3 and hair salons to donate services. 4 5 35. Around the same time as our Back to School drive, a former coach of mine, Jeff Harper, hosts an annual "Increase The Peace Black Top Classic." 6 36. It is a community basketball game aimed at decreasing violence and 7 increasing harmony in the community. I, along with the members of Above 8 Average, proudly attend each year. 9 37. In addition to participating in the "Increase the Peace Black Top Classic," 10 the other members and I make it a point to attend and support other community 11 events, such as shoe drives for the homeless, feeding the homeless, blanket 12 giveaways, and youth mentoring events, to name a few. 13 14 38. I am not a Lincoln Park Gang Member. I should not be in the CalGang Shared Database. 15 16 I declare under penalty of perjury of the laws of the State of California that the 17 foregoing is true and correct. 18 19 Executed this 25th day of August 2017 20 ( _____— ify9ortie Simmons 21 22 23 24 25 - 26 - 27 28 Page 4 012 EXHBIT LIST EXHIBIT A — Mr. Simmons at his college graduation, with his daughter. EXHIBIT B — Mr. Simmons' company. EXHIBIT C — The kids at this year's Back to School Drive sponsored by Mr. Simmons. They are holding up "A" signs to symbolize their goal of receiving straight A's this upcoming school year. EXHIBIT D — The kids getting free haircuts as part of the Back to School Drive event. EXHIBIT E — The 2017 Back to School Drive Flyer. EXHIBIT F — First, Second, Third, and Fourth Annual Back to School Drive Flyers EXHIBIT G — Mr. Simmons and his daughter. EXHIBIT H — Mr. Simmons' daughter at a dance competition. EXHIBIT I — Mr. Simmons' daughter, niece, and nephew, affectionately referred to as the "Rugrats," on the first day of school. EXHIBIT J — A flyer for orie of the Many philanthropic events sponsored by Mr. 8iiiiniOns' club. :s • 013 -k 014 '1 r? 3'13 EXHIBIT 015 EXHEBKT 016 EKHIBET 017 20178 Name, iSubjee Viatainziag Out t ilitiniuzitrl i• yko.t. 'fif( Commlittity Scrcia IL 9 &PrI vi 'Bath 2 Sch 00 11.4 4.4, . 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