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.
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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.
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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
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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).)
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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
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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).)
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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
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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
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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
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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
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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
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. (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).)
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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
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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
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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
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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
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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.
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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