BILL ANALYSIS Ó
AB 390
Page 1
ASSEMBLY THIRD READING
AB
390 (Cooper)
As Amended May 28, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+-----------------------+-------------------|
|Public Safety |5-1 |Melendez, Lackey, Low, |Quirk |
| | |Santiago, Thurmond | |
| | | | |
|----------------+------+-----------------------+-------------------|
|Appropriations |15-0 |Gomez, Bigelow, Bonta, | |
| | |Calderon, Chang, Daly, | |
| | |Eggman, Gallagher, | |
| | |Eduardo Garcia, | |
| | |Gordon, Holden, Jones, | |
| | |Rendon, Wagner, Wood | |
| | | | |
| | | | |
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SUMMARY: Requires persons convicted of misdemeanor Proposition 47
(2014) offenses, who have previously been convicted of specified
violent misdemeanors, to provide deoxyribonucleic acid (DNA) cheek
swab samples, right thumbprints, and a full palm print impression
of each hand, and any blood specimens or other biological samples
for law enforcement identification analysis. The specified prior
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violent misdemeanor offenses are as follows:
1)Intimidating a witness or victim.
2)Preventing or dissuading a witness or victim from giving
testimony at trial.
3)Bringing a firearm, or specified weapon, into a state or local
building, or open meeting.
4)Supplying a firearm to a person to use in a felony while
actively participating in a criminal street gang.
5)Battery against specified individuals, including peace officers
and firefighters, engaged in the performance of their duties.
6)Battery with serious bodily injury.
7)Assault with a stun gun.
8)Assault with force likely to produce great bodily injury, or
with a firearm or deadly weapon.
9)Assault on a school employee with force likely to produce great
bodily injury, or with a firearm or deadly weapon.
10)Brandishing a firearm of deadly weapon.
11)Brandishing a firearm or deadly weapon that inflicts serious
bodily injury.
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12)Threatening to commit a crime that will result in death or
great bodily injury.
13)Stalking.
14)Carrying a firearm in public while masked.
15)Discharging a firearm from a vehicle.
16)Possession of a machine gun.
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 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.
b) Any adult person who is arrested for or charged with a
felony offense.
c) Any person, including any juvenile, who is required to
register as a sex offender or arson offender because of the
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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.
1)The term "felony" includes an attempt to commit the offense.
2)Allows the collection and analysis of specimens, samples, or
print impressions as a condition of a plea for a non-qualifying
offense.
3)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
a) Any person committed to a state hospital or other
treatment facility as a mentally disordered sex offender.
b) Any person who is designated a mentally ordered offender.
c) Any person found to be a sexually violent predator.
4)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.
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5)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.
6)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.
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
state's DNA Database and Data Bank Identification Program
have been dismissed prior to adjudication by a trier of fact;
or
b) The underlying conviction or disposition serving as the
basis for including the DNA profile has been reversed and the
case dismissed; or,
c) The person has been found factually innocent of the
underlying offense; or,
d) The defendant has been found not guilty or the defendant
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has been acquitted of the underlying offense.
7)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.
8)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.
9)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.
10) 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
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misdemeanor, or dismissal following conviction.
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
1)Potential reimbursable state mandated costs in the hundreds of
thousands (General Fund) for the additional requirements on
misdemeanors offenses. Some of these costs may not be covered
under Proposition 69 (2004) funding because the misdemeanors
identified in this bill were not violent felonies.
2)Minor absorbable costs to the Department of Justice.
COMMENTS: 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
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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."
Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744 FN:
0000732