BILL ANALYSIS                                                                                                                                                                                                    



                                                                       AB 390


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          ASSEMBLY THIRD READING


          AB  
          390 (Cooper)


          As Amended  May 28, 2015


          Majority vote


           ------------------------------------------------------------------- 
          |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   |                   |
          |                |      |                       |                   |
          |                |      |                       |                   |
           ------------------------------------------------------------------- 


          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