BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 248 (Wyland)
As Introduced February 10, 2011
Hearing date: March 29, 2011
Penal Code
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FORENSIC SPECIMENS: OFFENDERS
HISTORY
Source: San Diego District Attorney
Prior Legislation: AB 2850 (Spitzer) - Chapter 170, Stats. 2008
Proposition 69 passed November 2, 2004
AB 2105 (La Suer) - Chapter 160, Stats. 2002
AB 673 (Migden) - Chapter 906, Stats. 2001
AB 557 (Nakano) - Not heard in Senate
Public Safety, 1999-2000
SB 654 (Schiff) - Chapter 475, Stats.
1999
AB 1332 (Murray) - Chapter 696, Stats.
1998
Support: California Police Chiefs Association, Inc.; California
State Sheriffs' Association; California District
Attorneys Association; California Peace Officers'
Association; Crime Victims United of California
Opposition:California Public Defenders Association; American
Civil Liberties Union; Legal Services for Prisoners
with Children; California Attorneys for Criminal
Justice
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KEY ISSUE
SHOULD THE PROVISIONS REQUIRING ALL PERSONS ARRESTED OR CHARGED
WITH A FELONY TO GIVE DNA SAMPLES BE EXPANDED TO REQUIRE ALL
THOSE CONVICTED OR ADJUDICATED OF SPECIFIED MISDEMEANORS FOR
ANIMAL CRUELTY, STALKING, PROSTITUTION, LOITERING AND PEEPING TO
GIVE DNA SAMPLES?
PURPOSE
The purpose of this bill is to require people convicted or
adjudicated of specified misdemeanors to give a DNA sample.
Existing law establishes the "DNA and Forensic Identification
Data Bank" to assist federal, state, and local criminal justice
and law enforcement agencies within and outside California in
the expeditious detection and prosecution of people responsible
for sex offenses and other violent crimes, exclusion of suspects
under investigation, and the identification of missing and
unidentified people, particularly abducted children. (Penal
Code § 295.)
Existing law provides that the following people are required to
give a buccal swab, right thumbprint, full palm print impression
of each hand and any blood or other biological samples as
required for law enforcement identification and analysis:
Any adult arrested, charged or convicted of any felony
offense including an attempted felony.
Any person, including a juvenile, who is required to
register for a felony or misdemeanor sex offense or arson.
(Penal Code § 296 (a).)
Existing law provides that the specimens, samples and print
impressions shall be taken as soon as administratively
practicable. (Penal Code § 296 (b).)
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Existing law provides that the court shall verify that samples
have been taken prior to the final disposition of the case.
(Penal Code § 296 (e), (f).)
Existing law provides that specimens, samples and print
impressions shall be collected from specified persons for
present and past qualifying offenses of record, including
collection from any adult person following arrest for a felony
offense, as specified. (Penal Code § 296.1(a)(1).)
Existing law states that every adult person arrested for a
felony offense as specified shall provide a buccal swab sample
and thumb and palm print impressions and any blood or other
specimens immediately following arrest, or during the booking or
intake or reception center process as soon as administratively
practicable after arrest, but in any case prior to release on
bail or pending trial or any physical release from custody.
(Penal Code § 296.1(a)(1)(A).)
Existing law provides that if the person did not have specimens,
samples, and prints taken immediately following arrest or during
booking, the court shall order the person to report within five
calendar days to a county jail facility or other designated
facility to provide the specimens. (Penal Code §
296.1(a)(1)(B).)
Existing law states that specified persons who are on probation
or parole for any felony or misdemeanor offense, as specified,
shall provide buccal swab samples under specified conditions.
(Penal Code § 296.1(a)(3).)
Existing law requires persons who are parole violators or
otherwise returned to custody shall provide buccal swab samples,
thumb and palm print impressions, and any other blood or
specimen required, under specified conditions. (Penal Code §
296.1(a)(4).)
Existing law states that such samples and specimens shall be
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collected from persons accepted into California from other
jurisdictions under the interstate compacts (Penal Code 11175)
or other reciprocal agreements with any state, federal agency or
other provision of law. (Penal Code § 296.1(a)(5).)
Existing law provides that collection of samples shall also
occur of people in federal institution who have committed
specified qualifying offenses in California. (Penal Code §
296.1(a)(6).)
This bill provides that in addition to those who must now give
samples for DNA testing any person, including any juvenile, who
is convicted, pleads no contest or is adjudicated of a
misdemeanor violation of any of the following shall be required
to give the required samples and prints:
Willfully administering poison to any animal. (Penal
Code § 596)
Maliciously and intentionally maiming, mutilating, or
torturing any mammal, bird, reptile, amphibian or fish.
(Penal Code § 597(c).)
Willfully, maliciously and repeatedly following or
willfully and maliciously harassing another person and
making a credible threat with the intent to place the
person in reasonable fear for his or her safety or the
safety of his or her immediate family. (Penal Code § 646.9)
Solicits or engaging in lewd or dissolute conduct in any
public place or in any place open to the public or exposed
to public view. (Penal Code §647(a).)
Solicits or agrees to engage in or actually engages in
an act of prostitution. (Penal Code § 647(b).)
Loitering, prowling or wandering upon the private
property of another and peeking in the door or window of
any inhabited building or structure without visible or
lawful business with the owner or occupant. (Penal Code
§647(i).)
Looking through a hole or opening, into or otherwise
viewing by means of any instrumentality the interior of a
bedroom, bathroom, changing room etc. or the interior of
any other area in which the occupant has a reasonable
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expectation of privacy with the intent to invade the
privacy of a person inside. (Penal Code §647(j)(1).)
Using a concealed camcorder, motion picture camera, or
photographic camera of any type to secretly videotape,
film, photograph, or record by electronic means, another
identifiable person under or through the clothing being
worn by that other person for the purpose of viewing the
body of, or the undergarments worn by, that other person
without the consent or knowledge of that other person with
the intent to arouse, appeal to, or gratify the lust,
passions, or sexual desires of that person and invade the
privacy under that other person, under circumstances in
which the other person has a reasonable expectation of
privacy. (Penal Code § 647 (j)(2).)
Using a concealed camcorder, motion picture camera, or
photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person who may be in a state of full or
partial undress for the purpose of viewing the body of, or
the undergarments worn by, that other person, without the
consent of knowledge of that other person, in the interior
of a bedroom, bathroom, changing room etc. or any other
area where the person has a reasonable expectation of
privacy and with the intent to invade the privacy of that
person. (Penal Code § 647 (j)(3).)
Installing or maintaining any two-way mirror permitting
observation of any restroom, toilet, bathroom, washroom,
shower, locker room, fitting room, motel room, or hotel
room. (Penal Code § 653n)
Loitering with the intent to commit prostitution. (Penal
Code § 653.22)
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
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over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1 Need for This Bill
According to the author:
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Proposition 69, "The DNA Fingerprint, Unsolved Crime and
Innocence Protection Act", passed by voters in November
2004 expanded and modified state law requiring the
collection of DNA samples for criminal offenders. The
measure required that the collection of DNA be expanded
to include (1) all adults and juveniles convicted of any
felony, (2) adults arrested for or charged with any
felony offense, (2) adults and juveniles convicted of
any sex offense, arson offense or an attempt to commit
any such offense, (3) adults arrested for or charged
with felony sex offenses, murder, voluntary manslaughter
or any attempt to commit such offenses.
State and local law enforcement personnel are required
to collect a buccal swab sample, right thumbprint and
full palm print impression of each hand, and any blood
specimens or other biological samples immediately
following either arrest or conviction. The initiative
allowed for amendments of its provisions by the
Legislature if the amendments further the purposes of
the initiative and enhance the use of DNA identification
evidence to facilitate crime-solving.
It has been argued that individuals who commit certain
low level "sex crimes" are more likely to commit
additional, more serious sex offenses. Currently,
individuals who commit these offenses are not required
to provide a DNA sample. Requiring DNA samples from
these individuals and placing them in the data base
early will allow for more effective and prompt
identification if they commit additional, more serious
crimes in the future.
SB 248 would amend Penal Code section 296 to add the
following to the list of offenses for which an
individual is required to provide buccal swab samples,
right thumbprints, full palm print impressions and any
blood specimens or other biological samples:
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(1) Poisoning of an animal
(2) Animal cruelty (maiming, mutilating,
torturing, etc.)
(3) Stalking
(4) Solicitation or engaging in prostitution
(5) Installing of a 2-way mirror in specified
locations
(6) Specified species of disorderly or lewd
conduct
2. Proposition 69 November 2, 2004
Proposition 69 provided that DNA samples be taken of persons
arrested for specified sex offenses, murder or manslaughter upon
enactment of the initiative and taken from all persons arrested
for a felony starting in January 1, 2009. Prior to Proposition
69, DNA was taken from people convicted of specified sex
offenses, murder, manslaughter, spousal abuse, specified assault
and battery provisions, kidnapping, mayhem, burglary, felony
arson, carjacking and terrorist activities. No misdemeanors
were included prior to Proposition 69 and after its enactment
the only misdemeanors included are those for which a person must
register as a sex offender or as an arsonist.
3. Inclusion of Specified Misdemeanors
This bill adds new misdemeanors to the list of offenses for
which a person will have their DNA taken and entered into the
data bank if he or she is convicted or adjudicated of one of the
offenses. The following are the misdemeanors that will be added
by the bill:
Willfully administering poison to any animal. (Penal
Code § 596)
Maliciously and intentionally maiming, mutilating, or
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torturing any mammal, bird, reptile, amphibian or fish.
(Penal Code § 597(c).)
Willfully, maliciously and repeatedly following or
willfully and maliciously harassing another person and
making a credible threat with the intent to place the
person in reasonable fear for his or her safety or the
safety of his or her immediate family. (Penal Code 646.9)
Solicits or engaging in lewd or dissolute conduct in any
public place or in any place open to the public or exposed
to public view. (Penal Code §647(a).)
Solicits or agrees to engage in or actually engages in
an act of prostitution. (Penal Code § 647(b).)
Loitering, prowling or wandering upon the private
property of another and peeking in the door or window of
any inhabited building or structure without visible or
lawful business with the owner or occupant. (Penal Code
§647(i).)
Looking through a hole or opening, into or otherwise
viewing by means of any instrumentality the interior of a
bedroom, bathroom, changing room etc. or the interior of
any other area in which the occupant has a reasonable
expectation of privacy with the intent to invade the
privacy of a person inside. (Penal Code §647(j)(1).)
Using a concealed camcorder, motion picture camera, or
photographic camera of any type to secretly videotape,
film, photograph, or record by electronic means, another
identifiable person under or through the clothing being
worn by that other person for the purpose of viewing the
body of , or the undergarments worn by, that other person
without the consent or knowledge of that other person with
the intent to arouse, appeal to, or gratify the lust,
passions, or sexual desires of that person and invade the
privacy under that other person, under circumstances in
which the other person has a reasonable expectation of
privacy. (Penal Code § 647 (j)(2).)
Using a concealed camcorder, motion picture camera, or
photographic camera of any type, to secretly videotape,
film, photograph, o record by electronic means, another,
identifiable person who may be in a state of full or
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partial undress for the purpose of viewing the body of, or
the undergarments worn by, that other person, without the
consent of knowledge of that other person, in the interior
of a bedroom, bathroom, changing room etc. or any other
area where the person has a reasonable expectation of
privacy and with the intent to invade the privacy of that
person. (Penal Code § 647 (j)(3).)
Installing or maintaining any two-way mirror permitting
observation of any restroom, toilet, bathroom, washroom,
shower, locker room, fitting room, motel room, or hotel
room. (Penal Code § 653n)
Loitering with the intent to commit prostitution. (Penal
Code § 653.22)
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The author asserts that the rationale for adding these offenses
is that they are low level sex offenses and a person who commits
these are more likely to commit additional more serious
offenses. The author believes that the addition of DNA of
people convicted of these offenses will lead to prompt
identifications in any future offenses. While a quick look at
research shows that there may be some link to a person who
abuses an animal and one who will commit future violence against
a person, it is not clear that all of the offenses that are to
be included in this bill have such a link. It is also unclear
whether a juvenile who is adjudicated of one of these offenses
has the same propensity to reoffend as an adult since generally
juvenile sex offenders are not the same as adult sex offenders
and these offenses are not even those for which a person must
register. Is there a link between a person who solicits a
prostitute and future sex or violent offenses? What about a
link between the prostitute and future sex offenses against
others? Are people who peep in windows or with a device
necessarily the same people who later will commit a rape?
Should the teenager who peeps in a girl's locker room or uses a
telescope to look in the neighbor's window be required to give
his DNA? Is he the same as an adult who does a similar act?
Engaging in lewd conduct would apply to the consenting teenagers
or adults having sex in a parked car or behind a tree in a park,
should their DNA be taken? What about the homeless person who
urinates behind a building, should her DNA be taken?
While, according to the Attorney General, there is no current
"backlog" in entering DNA that is being taken from all felons,
registered sex offenders and registered arsonists, there is a
constant stream of DNA that needs to be inputted. At what
fiscal cost does the state begin taking samples from
misdemeanants who are not required to register as sex offenders?
Does this dilute the databank or slow down the entering of
samples from people who are more likely to recidivate? What
will the impact of inclusion of these misdemeanants be on the
databank?
4. Opposition
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The California Public Defenders Association opposes stating:
At a time when crime labs have a backlog of rape kits
and unsolved homicides due to the shortage of DNA
analysts due in part to a lack of funding, SB 248 would
set the wrong priorities for DNA collection and expand
such burdensome and intrusive methods on many common
misdemeanor crimes, which do not justify the invasion of
privacy nor the enormous costs to taxpayers for
collection, analysis, storage of hundreds of thousands
of new cases. Such samples will be stored for many years
to come, with each new year bringing an exponentially
larger number of cases that will burden an already
bursting system that has not been able to keep pace with
analysis of the most serious felonies where DNA
collection is already a mandate.
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