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.
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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).)
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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).)
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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).)
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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).)
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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
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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).)
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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Justice Now
Legal Services for Prisoners with Children
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744