BILL ANALYSIS Ó AB 84 Page 1 Date of Hearing: April 14, 2015 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 84 (Gatto) - As Introduced January 6, 2015 As Proposed to be Amended in Committee REVISED SUMMARY: Expands the collection of DNA samples to include persons convicted of specified misdemeanors. Authorizes samples collected during felony arrests to be forwarded to Department of Justice (DOJ) upon a judicial finding of probable cause. Allows law enforcement to access publicly available databases. Specifically, this bill: 1)Requires adults who have been convicted of specified serious misdemeanors to provide DNA samples. 2)Requires that DNA samples obtained during an arrest on a felony not be sent to Department of Justice for analysis until after a judicial determination of probable cause, operative if the California Supreme Court upholds the case of People v. AB 84 Page 2 Buza, review granted February 18, 2015, S223698. 3)Establishes procedure for a person's DNA sample and searchable database profile to be expunged if the case is dismissed, or the accused is acquitted, or otherwise exonerated, and the person has no past qualifying offense, without the requirement of an application from the person, operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015, S223698. If Buza is upheld, any of the following apply. a) Law enforcement has not received notice that a court has found probable cause for a qualifying offense. Or if the charges which served as the basis for including the DNA profile in the state's DNA Database and Data Bank Identification Program have been dismissed by to adjudication by a trier of fact, in which case the district attorney shall submit a letter to the Department of Justice as soon as these conditions have been met. b) The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed, in which case the court shall forward its order to the Department of Justice upon disposition of the case. AB 84 Page 3 c) The person has been found factually innocent of the underlying offense, in which case the court shall forward its order to the Department of Justice upon disposition of the case. d) The defendant has been found not guilty or the defendant has been acquitted of the underlying offense, in which case the court shall forward its order to the Department of Justice upon disposition of the case. 4)Allows law enforcement agency to use any publicly available database, excluding any non CODIS law enforcement databases, if (1) the case involves a homicide or a sexual assault involving force; (2) the case is unsolved and all investigative leads have been exhausted; (3) the law enforcement agency must review non-forensic information in order to identify additional evidence bearing on relatedness. EXISTING LAW: 1)Requires the following persons provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required pursuant to this chapter for law enforcement identification analysis. a) Any person, including any juvenile, who is convicted of AB 84 Page 4 or pleads guilty or no contest to any felony offense, or is found not guilty by reason of insanity of any felony offense, or any juvenile where a court has found that they have committed any felony offense. (Pen. Code, § 296, subd. (a)(1).) b) Any adult person who is arrested for or charged with a felony offense. (Pen. Code, § 296, subd. (a)(2)(C).) c) Any person, including any juvenile, who is required to register as a sex offender or arson offender because of the commission of, or the attempt to commit, a felony or misdemeanor offense, or any person, including any juvenile, who is housed in a mental health facility or sex offender treatment program after referral to such facility or program by a court after being charged with any felony offense. (Pen. Code, § 296, subd. (a)(3).) 2)The term "felony" includes an attempt to commit the offense. (Pen. Code, § 296, subd. (a)(4).) 3)Allows the collection and analysis of specimens, samples, or print impressions as a condition of a plea for a non-qualifying offense. (Pen. Code, § 296, subd. (a)(5).) 4)Requires submission of specimens, samples, and print impressions as soon as administratively practicable by qualified persons and shall apply regardless of placement or confinement in any mental hospital or other public or private treatment facility, and shall include, but not be limited to, the following persons, including juveniles (Pen. Code, § 296, subd. (c).) AB 84 Page 5 a) Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender. (Pen. Code, § 296, subd. (c)(1).) b) Any person who is designated a mentally ordered offender. (Pen. Code, § 296, subd. (c)(2).) c) Any person found to be a sexually violent predator. (Pen. Code, § 296, subd. (c)(3).) 5)Specifies that the court shall inquire and verify, prior to final disposition or sentencing in the case, that the specimens, samples, and print impressions have been obtained and that this fact is included in the abstract of judgment or dispositional order in the case of a juvenile. (Pen. Code, § 296, subd. (f).) 6)Provides that failure by the court to verify specimen, sample, and print impression collection or enter these facts in the abstract of judgment or dispositional order in the case of a juvenile shall not invalidate an arrest, plea, conviction, or disposition, or otherwise relieve a person from the requirements to provide samples. (Pen. Code, § 296, subd. (f).) 7)Provides that The Department of Justice(DOJ), through its DNA Laboratory, is responsible for the management and administration of the state's DNA and Forensic Identification Database and Data Bank Program and for liaising with the AB 84 Page 6 Federal Bureau of Investigation (FBI) regarding the state's participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Pen. Code, § 295, subd. (g).) 8)Provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes. (Pen. Code, § 295.1, subds. (a) & (b).) 9)Provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following (Pen. Code, § 295.1, subd. (c).): a) Forensic casework and forensic unknowns. (Pen. Code, § 295.1, subd. (c)(1).) b) Known and evidentiary specimens and samples from crime scenes or criminal investigations. (Pen. Code, § 295.1, subd. (c)(2).) c) Missing or unidentified persons. (Pen. Code, § 295.1, subd. (c)(3).) AB 84 Page 7 d) Persons required to provide specimens, samples, and print impressions. (Pen. Code, § 295.1, subd. (c)(4).) e) Legally obtained samples. (Pen. Code, § 295.1, subd. (c)(5).) f) Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. (Pen. Code, § 295.1, subd. (c)(6).) 10)States that all DNA and forensic identification profiles and other identification information retained by DOJ pursuant to the Act are exempt from any law requiring disclosure of information to the public and are confidential except as otherwise provided in the Act. (Pen. Code, § 299.5, subd. (a).) 11)Provides that, except to the defense counsel, upon court order, of a defendant whose DNA and other forensic identification information were developed pursuant to the Act, DOJ and local public DNA laboratories shall not otherwise be compelled in a criminal or civil proceeding to provide any DNA profile or forensic identification database or data bank information or its computer database program software or structures to any person or party seeking such records or information whether by subpoena, discovery, or other procedural device or inquiry. (Pen. Code, § 299.5, subd. (h).) 12)Punishes as an alternate misdemeanor/felony any person who knowingly uses an offender specimen, sample, or DNA profile collected pursuant to the Act for other than criminal AB 84 Page 8 identification or exclusion purposes, or for other than the identification of missing persons, or who knowingly discloses DNA or other forensic identification information developed as specified to an unauthorized individual or agency, for other than criminal identification or exclusion purposes, or for the identification of missing persons, by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code, § 299.5, subd. (i)(1)(A).) 13)Specifies that it is not a violation of the above provision for the DOJ DNA Laboratory, or an organization retained as a DOJ agent, or a local public laboratory to use anonymous records or criminal history information obtained pursuant to the Act for training, research, statistical analysis of populations, quality assurance, or quality control. (Pen. Code, § 299.5, subd. (m).) 14)Provides that the Act does not prohibit DOJ, in its sole discretion, from the sharing or disseminating of population database or data bank information, DNA profile or forensic identification database or data bank information, analytical data and results generated for forensic identification database and data bank purposes, or protocol and forensic DNA analysis methods and quality assurance or quality control procedures with any third party that DOJ deems necessary to assist the department's crime laboratory with statistical analyses of population databases, or the analyses of forensic protocol, research methods, or quality control procedures, or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons. (Pen. Code, § 299.6, subd. (a)(5).) 15)Specifies the Director of Corrections, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab AB 84 Page 9 samples, and thumb and palm print impressions were collected send them promptly to the Department of Justice.(Pen. Code, § 298.) 16)Requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. (Cal. Penal Code § 298(b)(6).) 17) Specifies that a person whose DNA profile has been included in the data bank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank program if the person has no past or present offense or pending charge which qualifies that person for inclusion within the state's DNA and Forensic Identification Database and Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile. (Cal. Pen. Code § 299, subd. (b).) a) Following arrest, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense as set forth in subdivision (a) of Section 296 or if the charges which served as the basis for including the DNA profile in the state's DNA Database and Data Bank Identification Program have been dismissed prior to adjudication by a trier of fact (Pen. Code, § 299, subd.(b)(1).); or AB 84 Page 10 b) The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed (Pen. Code, § 299, subd.(b)(2).),; or, c) The person has been found factually innocent of the underlying offense pursuant to Section 851.8, or Section 781.5 of the Welfare and Institutions Code (Pen. Code, § 299, subd.(b)(3).); or, d) The defendant has been found not guilty or the defendant has been acquitted of the underlying offense. (Pen. Code, § 299, subd.(b)(4).) 18)Requires the person requesting the data bank entry to be expunged send a copy of his or her request to the trial court of the county where the arrest occurred, or that entered the conviction or rendered disposition in the case, to the DNA Laboratory of the Department of Justice, and to the prosecuting attorney of the county in which he or she was arrested or, convicted, or adjudicated, with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition for writ. (Pen. Code, § 299, subd. (c)(1).) 19)Requires DOJ destroy a specimen and sample and expunge the searchable DNA database profile pertaining to the person who has no present or past qualifying offense of record upon receipt of a court order that verifies the applicant has made AB 84 Page 11 the necessary showing at a noticed hearing, and that includes all of the following (Pen. Code, § 299, subd. (c)(2).): a) The written request for expungement pursuant to this section. (Pen. Code, § 299, subd.(c)(2)(A).); b) A certified copy of the court order reversing and dismissing the conviction or case, or a letter from the district attorney certifying that no accusatory pleading has been filed or the charges which served as the basis for collecting a DNA specimen and sample have been dismissed prior to adjudication by a trier of fact, the defendant has been found factually innocent, the defendant has been found not guilty, the defendant has been acquitted of the underlying offense, or the underlying conviction has been reversed and the case dismissed. (Pen. Code, § 299, subd.(c)(2)(B).) c) Proof of written notice to the prosecuting attorney and the Department of Justice that expungement has been requested. (Pen. Code, § 299, subd.(c)(2)(C).) d) A court order verifying that no retrial or appeal of the case is pending, that it has been at least 180 days since the defendant or minor has notified the prosecuting attorney and the Department of Justice of the expungement request, and that the court has not received an objection from the Department of Justice or the prosecuting attorney AB 84 Page 12 . (Pen. Code, § 299, subd.(c)(2)(D).) 20)States that the Department of Justice shall destroy not any specimen or sample collected from the person and any searchable DNA database profile pertaining to the person, if department determines that the person is subject to the provisions of this chapter because of a past qualifying offense of record or is or has otherwise become obligated to submit a blood specimen or buccal swab sample as a result of a separate arrest, conviction, juvenile adjudication, or finding of guilty or not guilty by reason of insanity for an offense described in subdivision (a) of Section 296, or as a condition of a plea. (Pen. Code, § 299, subd. (d).) 21)The Department of Justice is not required to destroy analytical data or other items obtained from a blood specimen or saliva, or buccal swab sample, if evidence relating to another person subject to the provisions of this chapter would thereby be destroyed or otherwise compromised. (Pen. Code, § 299, subd. (d).) 22) States that a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, samples, or print impressions required, including reduction to a misdemeanor(Cal. Penal Code § 17.), or dismissal following conviction. (Cal. Penal Code §§ 1203.4, 1203.4a.) (Cal. Penal Code § 299(f).) AB 84 Page 13 FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "AB 84 will ensure that California has a back-up DNA collection process in place, while the California Supreme Court considers People v. Buza. DNA collection from felony arrestees was halted during the months between the lower court's decision and the California Supreme Court granting review of the Buza decision and AB 84 seeks to ensure that there is a system for DNA collection from felony arrestees in place should the California Supreme Court uphold the lower court's decision. AB 84 would provide for DNA collection of those charged with a serious felony (rather than every felony, as is currently being decided in the Buza case), thus furthering the voters' intent in passing Proposition 69 and creating parity between California's DNA collection laws and those upheld by the US Supreme Court. It strikes a careful balance by enhancing law enforcement's ability to fully utilize the tools necessary to solve crimes, while ensuring for the protection of Californians' constitutional rights. DNA testing is crucial to our ability to solve crimes, and AB 84 strives to make sure that best practices are implemented, the constitution is respected, the innocent are exonerated, and the guilty are brought to justice." 2)People v. Buza. Presently pending before the California Supreme Court is People v. Buza, review granted February 18, 2015, S223698. At issue in Buza was the legality of California's DNA collection from arrestees on felony offenses. (Prosition 69 (2004).) The Buza court found the California DNA scheme unconstitutional. In finding Proposition 69 invalid, the Appellate Court focused on the fact that the California Supreme Court has found that article I, section 13, of the California Constitution as imposing a "more exacting standard" than the equivalent language found in the Fourth Amendment of the U.S. Constitution. People v. Ruggles (1985) 39 Cal.3d 1, 11-12, People v. Brisendine (1975) 13 Cal.3d 528, 545. The AB 84 Page 14 court in Buza held that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestee's expectation of privacy and is invalid under the California Constitution. The language of article I, section 13, of the California Constitution mirrors the language contained in the Fourth Amendment of the U.S. Constitution regarding the right to be free from unreasonable search and seizure. The court in Buza stated, ". . ., the fact that DNA is collected and analyzed immediately after arrest means that some of the arrestees subjected to collection will never be charged, much less convicted, of any crime-and, therefore, that the governmental interest in DNA collection is inapplicable while the privacy interest is effectively that of an ordinary citizen. The absence of automatic expungement procedures increases the privacy intrusion because DNA profiles and samples are likely to remain available to the government for some period of time after the justification for their collection has disappeared, potentially indefinitely. And the fact that familial DNA searches are not prohibited means that the act would permit intrusion into the privacy interests of arrestees' biological relatives if the DOJ were to alter its current policy of not using arrestees' DNA for such searches." The Buza case is under review by the California Supreme Court. Because the case is under review it has no authority, or value as precedent. As such, Proposition 69 continues to be the law in California. DNA samples continue to be taken, stored, and tested as in the manner laid out by Proposition 69. It is unclear when the Supreme Court will issue a decision in the Buza case. The case is currently being briefed. The Supreme Court has wide latitude in setting the briefing schedule and establishing a date for argument. "In California, the burdened group includes not only those ultimately acquitted of criminal conduct but also those never even charged. The percentage of arrestees potentially AB 84 Page 15 affected in the latter way is not small: Statistics published by the DOJ indicate that in 2012, 62 percent of felony arrestees who were not ultimately convicted-almost 20 percent of total felony arrestees-were never even charged with a crime. People v. Buza (2014) 231 Cal.app.4th 1446,187 (citing Crime in California, California DOJ (2012) at 49.) 3)California DNA Database: The profile derived from the DNA sample is uploaded into the state's DNA databank, which is part of the national Combined DNA Index System (CODIS), and can be accessed by local, state and federal law enforcement agencies and officials. When a DNA profile is uploaded, it is compared to profiles contained in the Convicted Offender and Arrestee Indices; if there is a "hit," the laboratory conducts procedures to confirm the match and, if confirmed, obtains the identity of the suspect. The uploaded profile is also compared to crime scene profiles contained in the Forensic Index; again, if there is a hit, the match is confirmed by the laboratory. CODIS also performs weekly searches of the entire system. In CODIS, the profile does not include the name of the person from whom the DNA was collected or any case-related information, but only a specimen identification number, an identifier for the agency that provided the sample, and the name of the personnel associated with the analysis. CODIS is a massive computer system which connects federal, state, and local DNA databanks. CODIS is also the name of the related computer software program. CODIS's national component is the National DNA Index System (NDIS), the receptacle for all DNA profiles submitted by federal, state, and local forensic laboratories. DNA profiles typically originate at the Local DNA Index System (LDIS), then migrate to the State DNA Index System (SDIS), containing forensic profiles analyzed by local and state laboratories, and then to NDIS. 4)Proposition 69: Proposition 69 was passed by the voters in 2004. That proposition expanded the categories of people required to provide DNA samples for law enforcement identification analysis to include any adult person arrested or charged with any felony offense. The language of the proposition included a Section V related to amendments to the AB 84 Page 16 proposition which states: The provisions of this measure may be amended by a statute that is passed by each house of the Legislature and signed by the Governor. All amendments to this measure shall be to further the measure and shall be consistent with is purposes to enhance the use of DNA identification evidence for the purpose of accurate and expeditious crime solving and exonerating the innocent. 5)Proposed Amendments: The introduced version of the bill would have gone into effect immediately. The proposed amendments includes language which makes the requirement of a probable finding prior to a DNA sample being forwarded to DOJ dependent on a ruling by the California Supreme Court to uphold People v. Buza, review granted February 18, 2015, S223698. The proposed amendments contain the same contingency language regarding Buza with respect to the implementation of the DNA expungement process described in the bill. The proposed amendments narrows the list of misdemeanors which would require a DNA sample to be provided upon conviction. The requirement for DNA to be provided upon conviction of the specified misdemeanors would be effective upon enactment. Arguments in support and opposition were submitted prior to proposed amendments. 6)Argument in Support: According to Law Center to Prevent Gun Violence, "Under existing California law, the DNA Act requires a person who has been convicted of a felony offense to provide buccal swab samples, right thumbprints, a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis "AB 84 would, among other things, extend these requirement to any person who has been convicted of a misdemeanor to which the 10-year prohibition on the possession of a firearm applies. These misdemeanor offenses include crimes such as sexual battery, assault, stalking, and threatening public officials. The use of DNA data provides law enforcement with a valuable tool for identifying criminal offenders, and it AB 84 Page 17 makes sense to extend the collection of this data to individuals who have committed crimes serious enough to subject them to the 10-year firearm prohibition." 7)Argument in Opposition: According to California Attorneys for Criminal Justice, "This bill proposes collecting DNA from people arrested for minor crimes, like Penal code Section 240. It also proposes collecting DNA from people merely arrested, rather than convicted of crimes. While your office's talking points on this bill states that the bill is in response to "People v. Buza, and seeks to bring California law into line with the U.S. Supreme Court's decision in Maryland v. King, these talking points are outdated, and misguided, in several respects. "First, The Buza decision is currently under review by the California Supreme Court. Any law passed prior to the ultimate outcome in Buza is premature, as the final decision in Buza could either eliminate the need for AB 84, or conflict with it. "Secondly, Maryland v. King was a 5-4 decision. The Maryland law, which was narrowly upheld, allowed collection of DNA from people arrested in Maryland for a very narrow class of serious, violent felonies. By contrast, your bill seeks to collect DNA samples from California citizens merely arrested for very minor crimes, including a misdemeanor violation of Penal Code section 240, simple assault. "The Maryland law requires that probable cause exist to arrest for one of the limited, serious violent felonies to which it applies. By contrast, in this state, any citizen may affect an arrest for a misdemeanor. Non-law enforcement citizens are not normally trained in determining probable cause - and presumably you bill would apply to misdemeanants arrested via citizen's arrest." 8)Related Legislation: AB-390 (Cooper), of the 2015 - 2016 legislative session. Would require that individuals, excluding juveniles, who are convicted of specified misdemeanors (drug and property crimes affected by Proposition 47) to provide DNA samples. AB 84 Page 18 REGISTERED SUPPORT / OPPOSITION: Support Crime Victims United Law Center to Prevent Gun Violence Opposition California Attorneys for Criminal Justice California Public Defenders Association California State Sheriffs' Association Firearms Policy Coalition Legal Services for Prisoners with Children Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744