BILL ANALYSIS Ó AB 390 Page 1 Date of Hearing: April 21, 2015 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 390 (Cooper) - As Amended April 6, 2015 SUMMARY: Expands provisions to require persons convicted of specified misdemeanors to provide buccal swab samples (DNA), right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law misdemeanor offenses, to the list of individuals required to provide DNA cheek swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples chapter for law enforcement identification analysis. The specified offenses are as follows: 1)Shoplifting. 2)Forgery where the value for the forged document does not exceed $950. 3)Check fraud where the total amount of checks does not exceed $950. AB 390 Page 2 4)Grand theft that is punishable as a misdemeanor. 5)Possession of stolen property that is punishable as a misdemeanor. 6)A misdemeanor violation for possession of a list of specified drugs, including cocaine, methamphetamine, concentrated cannabis. 7)A misdemeanor violation of petty theft with specified prior theft convictions, and prior convictions for serious or violent felonies, or required to register as a sex offender. EXISTING LAW:1) 2)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 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).) AB 390 Page 3 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).) 3)The term "felony" includes an attempt to commit the offense. (Pen. Code, § 296, subd. (a)(4).) 4)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).) 5)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).) a) Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender. (Pen. Code, § 296, subd. (c)(1).) AB 390 Page 4 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).) 6)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).) 7)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).) 8)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 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).) AB 390 Page 5 9)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).) 10)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).) 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).) AB 390 Page 6 f) Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. (Pen. Code, § 295.1, subd. (c)(6).) 11)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 samples, and thumb and palm print impressions were collected send them promptly to the Department of Justice.(Pen. Code, § 298.) 12)Requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. (Cal. Penal Code § 298(b)(6).) 13) 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 or if the charges which served as the basis for including the DNA profile in the AB 390 Page 7 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 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 (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).) 14)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).) AB 390 Page 8 15)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 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 AB 390 Page 9 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 . (Pen. Code, § 299, subd.(c)(2)(D).) 16)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 requiring a DNA sample, or as a condition of a plea. (Pen. Code, § 299, subd. (d).) 17)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).) 18) States that a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, AB 390 Page 10 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).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "AB 390 will allow for restoration of DNA sample collection for crimes which were previously felonies but were reclassified as misdemeanors by Proposition 47. The passage of Proposition 47 created an unintended consequence which will limit the ability of law enforcement to solve rapes, murders, robberies and other serious and violent crimes through reliable DNA evidence. With one of the largest databases in the world, California has been able to accurately identify those who have committed prior unsolved violent crimes. This has benefitted the people of California by allowing for the introduction of reliable scientific evidence that provides powerful proof of identity, both in exonerating some individuals and convicting others. "It has been said that DNA technology "constitutes the single greatest advance in the 'search for truth', and the goal of convicting the guilty and acquitting the innocent, since the advent of cross-examination." (See United States v. Kincade (9th Cir. 2004) 379F.3d 813; People v. Robinson (2010) 47 Cal. 4th 1104; People v. Wesley (1998) 533 N.YS. 2d 643, 644.) "AB 390 reaffirms Proposition 69 by making the criminal justice system more reliable and more just through accurate and expeditious identification using DNA of recidivist criminal offenders, and by focusing investigations on existing unsolved rapes, murders, robberies and other serious and violent cases." 2)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 AB 390 Page 11 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 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. 3)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. Proposition 69 provided for an expungement process for those individuals who were not convicted of a qualifying offense and had no prior qualifying offense. 4)Proposition 47: Proposition 47 was passed by the voters in 2014. By passing Proposition 47, the voters determined that certain offense can only be charged and punished as misdemeanors. The offenses that were affected by the voters in Prop. 47 were predominantly "wobblers." A wobbler is an offense which can be charged as a felony, or a misdemeanor, at the discretion of the district attorney's office responsible for charging the crime. The only offense affected by Proposition 47, that was chargeable exclusively as a felony, was possession of specified drugs, primarily cocaine. (Health AB 390 Page 12 and Saf. Code, § 11350(a).) 5)The Proposed Legislation Would Result in DNA Samples Being Taken From Individuals that Would Not Have Been Required to Provide DNA Prior to Proposition 47. The proposed legislation requires that DNA samples be taken from individuals convicted of misdemeanors that were all affected by Prop. 47. Given that these offenses were wobblers (except possession of cocaine), an individual arrested for one of these offenses, could have been arrested for a felony or a misdemeanor, at the discretion of the officer. Similarly, these offenses could have been charged as either misdemeanors or felonies at the discretion of the district attorney's offices responsible for making charging decisions. Thus, many instances covered by the proposed legislation would not have triggered DNA collection prior to Proposition 47. 6)Argument in Support: According to the California Peace Officers Association (CPOA), "California voters in November 2004 passed Proposition 69, the "DNA Fingerprint, Unsolved Crime and Innocence Protection Act", to expand and modify state law regarding the collection and use of criminal offender DNA samples and palm print impressions. Proposition 69 was aimed at making the criminal justice system a more reliable, accurate and expeditious identification system through the use of DNA from recidivist criminal offenders and by focusing investigations on existing unsolved rapes, murders, and other serious and violent cases. The impact of Proposition 69 has helped solve many old murders, rapes, assaults, home burglaries and other serious and violent crimes and has insured the integrity of convictions so that innocent individuals are not needlessly arrested, prosecuted or convicted. "Proposition 47, The Safe Neighborhoods and Schools Act, approved in November 2014, reclassified as misdemeanors a number of felonies including drug offenses, fraud crimes, theft and forgery. The reclassification of felony offenses to misdemeanors will result in a significant reduction of DNA samples collected from offenders and will negatively impact AB 390 Page 13 the ability of law enforcement to solve rapes, murders and other serious and violent crimes through reliable DNA evidence. It is estimated that approximately 255,000 DNA samples of criminal offenders could be affected by the passage of Proposition 47. Prior to Proposition 47, the DNA database was expanding and had tremendous success accurately identifying individuals who have committed prior unsolved violent crimes while exonerating others. "In Sacramento County, DNA helped solve a 20-year old murder of an elderly woman. Sophia McAllister, 80 years old, was brutally raped, robbed and murdered in her home in 1989. The killing went unsolved for 20 years until Donald Carter was arrested in 2009 on an unrelated low level drug possession charge. A DNA sample was taken and entered into the DNA database resulting in a match with the forensic sample taken at the scene of the murder. A jury found Carter guilty in the murder. "In Santa Cruz County, a young woman was kidnapped, beaten and sexually assaulted. A DNA sample was collected and entered into the database without any matches. A few months later Octavio Castillo was arrested in Watsonville for receiving stolen property and auto burglary and a DNA sample was collected. When the sample was entered into the DNA database, a match was made with the assault of the young woman. The suspect was arrested for the sexual assault and was convicted for assault, sodomy and false personation. "Both cases are examples of the many cases which have been solved through the DNA database by connecting low level offenders to unsolved crimes of the past. Under Proposition 47, neither case would have been solved. "AB 390 will enhance California's DNA Fingerprint, Unsolved Crime and Innocent Protection Act to include specified misdemeanor convictions subject to DNA sample database collection when such crimes are committed by adult offenders. Solving rapes, murders, and other serious or violent crimes through reliable DNA evidence will help keep neighborhoods safe from dangerous recidivist offenders who would otherwise remain undetected. The Association for Los Angeles Deputy AB 390 Page 14 Sheriffs, the Association of Deputy District Attorneys, the California Association of Code Enforcement Officers, the California College and University Police Chiefs Association, the California Narcotic Officers Association, the Los Angeles Police Protective League and the Riverside Sheriffs Association are all in favor of Assembly Bill 390. We commend you for bringing this bill forward." 7)Argument in Opposition: According to The American Civil Liberties Union of California, "AB 390 is an unnecessary invasion of our privacy and undermines the will of California voters who, by passing Proposition 47, determined that the minor crimes targeted by AB 390 should not be treated like felonies. "Expanding the DNA database will not necessarily make our communities safer. "Historically, increasing the number of people from whom DNA is collected in California has not increased the overall rate at which law enforcement have been able to identify perpetrators of violent crimes. In fact, just the opposite is true. According to the California Department of Justice (DOJ), the clearance rate for unsolved violent crimes in California was higher in 2004 - the year voters passed Prop 69, expanding the database - than it was nearly 10 years later, in 2013. This means that while more people have been added to the DNA database, and additional taxpayer dollars have gone towards greater collection efforts, the rate at which law enforcement officers have been able to solve violent crimes has not increased. "The use of DNA in solving crimes is limited by our ability to detect and collect DNA at crime scenes, not by the number of profiles in the DNA database. Needless expansion of the database could further overwhelm already backlogged crime labs, delaying investigations and forcing victims of crimes to wait even longer for evidence from their crime to be processed. "Law enforcement and governmental agencies often point towards higher "hit" rates as evidence of successful DNA database AB 390 Page 15 expansion. However, hit rates are misleading. Hits only indicate that a match was made - not whether the hit resulted in a person being apprehended and prosecuted, or, more importantly, whether the right person was apprehended and prosecuted. In addition, hit rates are not an accurate measure of cases solved by DNA evidence because such figures include cases in which individuals were charged and convicted without the use of DNA - for example, if the hit occurs subsequent to the conviction. "DNA evidence is not infallible. "Like any procedure that relies on human precision, DNA testing is susceptible to human error. There are already innumerable opportunities for error in the DNA sampling process, and putting more people into the DNA database could create backlogs and undermine quality control at crime laboratories. Even without the thousands of new samples that would require testing under AB 390, a number of cases have already come to light in which people have been wrongly convicted because of mishandled DNA evidence or mistakes made in DNA testing. Most notably, in Santa Clara County in 2013, Lukis Anderson - a 26-year-old man of color - spent six months in jail for a murder he could not possibly have committed, after paramedics accidentally transferred his DNA to the body of the crime victim. At the time the mistake was discovered, Mr. Lukis was facing life in prison and possibly the death penalty for the crime. "AB 390 seeks to expand California's DNA database beyond what most of the country has determined is necessary or reasonable. "DNA collection has very serious privacy implications. Unlike fingerprints - which are merely two dimensional representations of the surface of a person's finger and reveal nothing other than a person's identity - DNA contains our genetic codes, which reveal the most intimate, private information, not only about the person whose DNA is collected but for everyone else in that person's extended family. Permanent collection and storage of our genetic blueprints represents a serious threat of governmental intrusion when this database is inevitably used for other purposes. A single AB 390 Page 16 breach of security could divulge sensitive information that a person might not even know about him or herself to employers, insurance companies, and identity thieves. For this reason, most state legislatures and the United States Supreme Court have taken great care to limit collection of DNA to more serious crimes." "AB 390 - which seeks to add minor misdemeanor offenses, such as simple drug possession and shoplifting, to the list of crimes that trigger DNA collection - goes far beyond the scope of what most of the country has determined is necessary or reasonable. In 2013, while 41 other states required DNA collection from people convicted of misdemeanor sex offenses, only 18 required DNA samples from people convicted of misdemeanors other than sex offenses. Of those, most states limit collection to individuals convicted of serious misdemeanors. Alabama, for example, collects misdemeanor DNA samples only from people convicted of offenses involving danger to the person. North Carolina limits its misdemeanor collection to people convicted of certain sex offenses, certain arson-related offenses, assaults on handicapped persons, and stalking. "Expansion of the DNA database will reinforce racial disparities, and could lead to greater numbers of people of color being accused and convicted of crimes they did not commit. "People of color - who are stopped, searched, and arrested at much higher rates than white people - are disproportionately represented in DNA databases. This racial disparity means that communities of color will be exposed to the negative effects of crime lab error and intrusive police investigations far more often than white people. "Expanding the DNA database as AB 390 proposes to include low level, nonviolent misdemeanors could result in additional people of color being falsely accused and convicted of crimes they did not commit. This will only add to the existing racial inequalities in our criminal justice system." 8)Related Legislation: AB 84 (Gatto) expands the collection of AB 390 Page 17 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, if the California Supreme Court upholds the decision in People v. Buza. Streamlines the process to expunge DNA samples and profiles, if the California Supreme Court upholds the decision in People v. Buza. Pending hearing in Assembly Appropriations. REGISTERED SUPPORT / OPPOSITION: Support Association of Deputy District Attorneys California Association of Code Enforcement Officers California College and University Police chiefs Association California District Attorneys Association California Narcotic Officers Association California Peace Officers' Association California Police Chiefs Association California State Sheriffs' Association Chief Probation Officers of California Fraternal Order of Police Insurance Commissioner Dave Jones Long Beach Police Officers Association Los Angeles County Professional Peace Officers Association Los Angeles Deputy Sheriffs Los Angeles Police Protective League Riverside Sheriffs Association Sacramento County Deputy Sheriffs' Association Sacramento County District Attorney Anne Marie Schubert San Bernardino County District Attorney Mike Ramos Santa Ana Police officers Association Opposition American Civil Liberties Union of California American Friends Service Committee California Attorneys for Criminal Justice California Public Defenders Association AB 390 Page 18 Justice Now Legal Services for Prisoners with Children Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744