BILL ANALYSIS                                                                                                                                                                                                    







                      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:  April 5, 2011                   VOTE ONLY
           Penal Code
          MK:mc

                             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 
               torturing any mammal, bird, reptile, amphibian or fish. 




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               (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 
               partial undress for the purpose of viewing the body of, or 




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               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?
                                          






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          4.  Opposition  

          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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