AB 390, as amended, Cooper. Criminal law: DNA evidence.
Existing law, as amended by the DNA Act, requires a person who has been convicted of a felony offense to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law makes these provisions retroactive, regardless of when the crime charged or committed became a qualifying offense.
This bill would expand these provisions to require persons convicted of specified
begin delete misdemeanors, if they have a prior conviction of other specified misdemeanors,end delete to provide buccal swab samples, right thumbprints, and
a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. By imposing additional duties on local law enforcement agencies to collect and forward these samples, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 296 of the Penal Code is amended to
(a) The following persons shall provide buccal swab
4samples, right thumbprints, and a full palm print impression of
5each hand, and any blood specimens or other biological samples
6required pursuant to this chapter for law enforcement identification
8(1) Any person, including any juvenile, who is convicted of or
9pleads guilty or no contest to any felony offense, or is found not
10guilty by reason of insanity of any felony offense, or any juvenile
11who is adjudicated under Section 602 of the Welfare and
12Institutions Code for committing any felony offense.
P3 1(2) Any adult person who is arrested
for or charged with any of
2the following felony offenses:
3(A) Any felony offense specified in Section 290 or attempt to
4commit any felony offense described in Section 290, or any felony
5offense that imposes upon a person the duty to register in California
6as a sex offender under Section 290.
7(B) Murder or voluntary manslaughter or any attempt to commit
8murder or voluntary manslaughter.
9(C) Commencing on January 1 of the fifth year following
10enactment of the act that added this subparagraph, as amended,
11any adult person arrested or charged with any felony offense.
12(3) Any person, including any juvenile, who is required to
13register under Section 290 or 457.1 because of the commission of,
14or the attempt to commit, a felony or misdemeanor offense, or any
15person, including any juvenile, who is housed in a mental health
16facility or sex offender treatment program after referral to such
17facility or program by a court after being charged with any felony
19(4) Any person, excluding a juvenile,
begin delete who has a prior who is convicted of, or pleads
20misdemeanor conviction of Section 136.1, 136.5, 171b, or 186.28,
21subdivision (b), (c), or (d) of Section 243, Section 243.4, 244.5,
22245, 245.5, 417, 417.6, 422, 646.9, or 25300, subdivision (d) of
23Section 26100, or Section 32625, andend delete
24guilty or no contest to, any of the following offenses:
25(A) A misdemeanor violation of Section 459.5.
26(B) Any misdemeanor punishable pursuant to subdivision (b)
27of Section 473.
28(C) A violation of subdivision (a) of Section 476a that is
29punishable as a misdemeanor pursuant to subdivision (b) of Section
31(D) A violation of Section 487 that is punishable as a
32misdemeanor pursuant to Section 490.2.
33(E) A violation of Section 496 that is punishable as a
35(F) A misdemeanor violation of subdivision (a) of Section 11350
36of the Health and Safety Code.
37(G) A misdemeanor violation of
subdivision (a) of Section
3811357 of the Health and Safety Code.
39(H) A misdemeanor violation of subdivision (a) of Section
4011377 of the Health and Safety Code.
P4 1(I) A misdemeanor violation of Section 666.
2(5) The term “felony” as used in this subdivision includes an
3attempt to commit the offense.
4(6) Nothing in this chapter shall be construed as prohibiting
5collection and analysis of specimens, samples, or print impressions
6as a condition of a plea for nonqualifying offense.
7(b) The provisions of this chapter and its requirements for
8submission of specimens, samples and print impressions as soon
9as administratively practicable shall apply to all qualifying persons
10regardless of sentence imposed, including any sentence of death,
11life without the possibility of parole, or any life or indeterminate
12term, or any other disposition rendered in the case of an adult or
13juvenile tried as an adult, or whether the person is diverted, fined,
14or referred for evaluation, and regardless of disposition rendered
15or placement made in the case of juvenile who is found to have
16committed any felony offense or is adjudicated under Section 602
17of the Welfare and Institutions Code.
18(c) The provisions of this chapter and its requirements for
19submission of specimens, samples, and print impressions as soon
20as administratively practicable by qualified persons as described
21in subdivision (a) shall apply regardless of placement or
22confinement in any mental hospital or other public or private
23treatment facility, and shall include, but not be limited to, the
24following persons, including juveniles:
25(1) Any person committed to a state hospital or other treatment
26facility as a mentally disordered sex offender under Article 1
27(commencing with Section 6300) of Chapter 2 of Part 2 of Division
286 of the Welfare and Institutions Code.
29(2) Any person who has a severe mental disorder as set forth
30within the provisions of Article 4 (commencing with Section 2960)
31of Chapter 7 of Title 1 of Part 3 of the Penal Code.
32(3) Any person found to be a sexually violent predator pursuant
33to Article 4 (commencing with Section 6600) of Chapter 2 of Part
342 of Division 6 of the Welfare and Institutions Code.
35(d) The provisions of this chapter are mandatory and apply
36whether or not the court advises a person, including any juvenile,
37that he or she must provide the data bank and database specimens,
38samples, and print impressions as a condition of probation, parole,
39or any plea of guilty, no contest, or not guilty by reason of insanity,
P5 1or any admission to any of the offenses described in subdivision
3(e) If at any stage of court proceedings the prosecuting attorney
4determines that specimens, samples, and print impressions required
5by this chapter have not already been taken from any person, as
6defined under subdivision (a) of Section 296, the prosecuting
7attorney shall notify the court orally on the record, or in writing,
8and request that the court order collection of the specimens,
9samples, and print impressions required by law. However, a failure
10by the prosecuting attorney or any other law enforcement agency
11to notify the court shall not relieve a person of the obligation to
12provide specimens, samples, and print impressions pursuant to this
14(f) Prior to final disposition or sentencing in the case the court
15shall inquire and verify that the specimens, samples, and print
16impressions required by this chapter have been obtained and that
17this fact is included in the abstract of judgment or dispositional
18order in the case of a juvenile. The abstract of judgment issued by
19the court shall indicate that the court has ordered the person to
20comply with the requirements of this chapter and that the person
21shall be included in the state’s DNA and Forensic Identification
22Data Base and Data Bank program and be subject to this chapter.
23However, failure by the court to verify specimen, sample, and
24print impression collection or enter these facts in the abstract of
25judgment or dispositional order in the case of a juvenile shall not
26invalidate an arrest, plea, conviction, or disposition, or otherwise
27relieve a person from the requirements of this chapter.
(a) A person whose DNA profile has been included in
30the data bank pursuant to this chapter shall have his or her DNA
31specimen and sample destroyed and searchable database profile
32expunged from the data bank program pursuant to the procedures
33set forth in subdivision (b) if the person has no past or present
34offense or pending charge which qualifies that person for inclusion
35within the state’s DNA and Forensic Identification Database and
36Data Bank Program and there otherwise is no legal basis for
37retaining the specimen or sample or searchable profile.
38(b) Pursuant to subdivision (a), a person who has no past or
39present qualifying offense, and for whom there otherwise is no
40legal basis for retaining the specimen or sample or searchable
P6 1profile, may make a written request to have his or her specimen
2and sample destroyed and searchable database profile expunged
3from the data bank program if:
4(1) Following arrest, no accusatory pleading has been filed
5within the applicable period allowed by law charging the person
6with a qualifying offense as set forth in subdivision (a) of Section
7296 or if the charges which served as the basis for including the
8DNA profile in the state’s DNA Database and Data Bank
9Identification Program have been dismissed prior to adjudication
10by a trier of fact;
11(2) The underlying conviction or disposition serving as the basis
12for including the DNA profile has been reversed and the case
14(3) The person has been found factually innocent of the
15underlying offense pursuant to Section 851.8, or Section 781.5 of
16 the Welfare and Institutions Code; or
17(4) The defendant has been found not guilty or the defendant
18has been acquitted of the underlying offense.
19(c) (1) The person requesting the data bank entry to be expunged
20must send a copy of his or her request to the trial court of the
21county where the arrest occurred, or that entered the conviction or
22rendered disposition in the case, to the DNA Laboratory of the
23Department of Justice, and to the prosecuting attorney of the county
24in which he or she was arrested or, convicted, or adjudicated, with
25proof of service on all parties. The court has the discretion to grant
26or deny the request for expungement. The denial of a request for
27expungement is a nonappealable order and shall not be reviewed
28by petition for writ.
29(2) Except as provided below, the
Department of Justice shall
30destroy a specimen and sample and expunge the searchable DNA
31database profile pertaining to the person who has no present or
32past qualifying offense of record upon receipt of a court order that
33verifies the applicant has made the necessary showing at a noticed
34hearing, and that includes all of the following:
35(A) The written request for expungement pursuant to this
37(B) A certified copy of the court order reversing and dismissing
38the conviction or case, or a letter from the district attorney
39certifying that no accusatory pleading has been filed or the charges
40which served as the basis for collecting a DNA specimen and
P7 1sample have been dismissed prior to adjudication by a trier of fact,
2the defendant has been found factually innocent, the defendant has
3been found not guilty, the defendant has been acquitted of the
4underlying offense, or the underlying conviction has been reversed
5and the case dismissed.
6(C) Proof of written notice to the prosecuting attorney and the
7Department of Justice that expungement has been requested.
8(D) A court order verifying that no retrial or appeal of the case
9is pending, that it has been at least 180 days since the defendant
10or minor has notified the prosecuting attorney and the Department
11of Justice of the expungement request, and that the court has not
12received an objection from the Department of Justice or the
14(d) Upon order from the court, the Department of Justice shall
15destroy any specimen or sample collected from the person and any
16searchable DNA database profile pertaining to the person, unless
17the department determines that the person is subject to the
18provisions of this chapter because of a past qualifying offense of
19record or is or has otherwise become obligated to submit a blood
20specimen or buccal swab sample as a result of a separate arrest,
21conviction, juvenile adjudication, or finding of guilty or not guilty
22by reason of insanity for an offense described in subdivision (a)
23of Section 296, or as a condition of a plea.
24The Department of Justice is not required to destroy analytical
25data or other items obtained from a blood specimen or saliva, or
26buccal swab sample, if evidence relating to another person subject
27to the provisions of this chapter would thereby be destroyed or
29Any identification, warrant, probable cause to arrest, or arrest
30based upon a data bank or database match is not invalidated due
31to a failure to expunge or a delay in expunging records.
32(e) Notwithstanding any other provision of law, the Department
33of Justice DNA Laboratory is not required to expunge DNA profile
34or forensic identification information or destroy or return
35specimens, samples, or print impressions taken pursuant to this
36section if the duty to register under Section 290 or 457.1 is
38(f) Notwithstanding any other provision of law, including
39Sections 17, 1203.4, and 1203.4a, a judge is not
40authorized to relieve a person of the separate administrative duty
P8 1to provide specimens, samples, or print impressions required by
2this chapter if a person has been found guilty or was adjudicated
3a ward of the court by a trier of fact of a qualifying offense as
4defined in subdivision (a) of Section 296, or was found not guilty
5by reason of insanity or pleads no contest to a qualifying offense
6as defined in subdivision (a) of Section 296.
If the Commission on State Mandates determines that
9this act contains costs mandated by the state, reimbursement to
10local agencies and school districts for those costs shall be made
11pursuant to Part 7 (commencing with Section 17500) of Division
124 of Title 2 of the Government Code.