BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 390 Hearing Date: July 14, 2015
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|Author: |Cooper |
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|Version: |July 6, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Criminal Law: DNA Evidence
HISTORY
Source: Sacramento County District Attorney
Prior Legislation:Proposition 69 November 2, 2004
SB 883 (Margett) not heard Assembly Public Safety
2004
SB 284 (Brulte) - failed Senate Public Safety
2003
SB 1242 (Brulte) - Chapter 632, Stats. 2002
AB 2105 (La Suer) - Chapter 160, Stats. 2002
AB 673 (Migden) - Chapter 906, Stats. 2001
AB 2814 (Machado) - Chapter 823, Stats. 2000
AB 557 (Nakano) - not heard in Senate Public
Safety 1999-2000
SB 654 (Schiff) - Chapter 475,
Stats. 1999
AB 1332 (Murray) - Chapter
696, Stats. 1998
Support: Dave Jones, Insurance Commissioner; Alameda County
District Attorney; Association of Deputy District
Attorneys; Association for Los Angeles Deputy
Sheriffs; California Association of Code Enforcement
Officers; California Association of Crime Laboratory
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Directors; California College and University Police
Chiefs Association; California District Attorneys
Association; California Fraternal Order of Police;
California Narcotic Officers Association; California
Peace Officers' Association; California Police Chiefs
Association; California State Association of Counties;
California State Sheriffs' Crime Victims United;
Chief Probation Officers of California; Fresno County
District Attorney; Kern County District Attorney;
Long Beach Police Officers Association; Los Angeles
Deputy Sheriffs; Los Angeles County District
Attorney's Office; Los Angeles County Professional
Peace Officers Association; Los Angeles County
Sheriff's Department; The Los Angeles Police
Protective League; Orange County District Attorney;
Peace Officers Research Association; Riverside
Sheriffs Association; Rural County Representatives of
California; Sacramento County Deputy Sheriffs'
Association; San Luis Obispo District Attorney; San
Diego County District Attorney; Santa Ana Police
Officers Association; Santa Clara District Attorney
Opposition:ACLU; Alameda County Public Defender; American
Friends Committee; California Attorneys for Criminal
Justice; California Civil Liberties Advocacy;
California Public Defenders Association; Californians
for Safety and Justice; Ella Baker Center for Human
Rights; Friends Committee on Legislation of
California; Justice Now; Legal Services for Prisoners
with Children
Assembly Floor Vote: 74 - 2
PURPOSE
The purpose of this bill is to require DNA collection of people
who commit the crimes that used to be wobblers but are now
misdemeanors after the passage of Proposition 47.
Existing law 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
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identification analysis:
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. (Penal Code § 296
(a)(1).)
Any adult person who is arrested for or charged with a
felony offense. (Penal Code § 296 (a)(2)(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. (Penal Code, § 296 (a)(3).)
Existing law provides that the term "felony" includes an attempt
to commit the offense. (Penal Code, §296 (a)(4).)
Existing law allows the collection and analysis of specimens,
samples, or print impressions as a condition of a plea for a
non-qualifying offense. (Penal Code §296 (a)(5).)
Existing law 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:
Any person committed to a state hospital or other
treatment facility as a mentally disordered sex offender.
Any person who is designated a mentally ordered
offenders
Any person found to be a sexually violent predator.
(Penal Code, §296 (c)(3).)
Existing law 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
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dispositional order in the case of a juvenile. (Penal Code §296
(f).)
Existing law 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. (Penal Code §296(f).)
Existing law 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. (Penal Code, § 295 (g).)
Existing law provides that DOJ can perform DNA analysis, other
forensic identification analysis, and examination of palm prints
pursuant to the Act only for identification purposes. (Penal
Code § 295.1 (a) & (b).)
Existing law 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:
Forensic casework and forensic unknowns;
Known and evidentiary specimens and samples from crime
scenes or criminal investigations;
Missing or unidentified persons;
Persons required to provide specimens, samples, and
print impressions;
Legally obtained samples; and
Anonymous DNA records used for training, research,
statistical analysis of populations, quality assurance, or
quality control.
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Existing law specifies that 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 DOJ.(Penal Code § 298.)
Existing law requires the DNA Laboratory of DOJ to establish
procedures for entering data bank and database information.
(Penal Code § 298(b)(6).)
Existing law 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.
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;
The underlying conviction or disposition serving as the
basis for including the DNA profile has been reversed and
the case dismissed;
The person has been found factually innocent of the
underlying offense; or,
The defendant has been found not guilty or the defendant
has been acquitted of the underlying offense. (Penal Code §
299 (b).)
Existing law 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
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expungement. The denial of a request for expungement is a
nonappealable order and shall not be reviewed by petition for
writ. (Penal Code, § 299 (c)(1).)
Existing law 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:
The written request for expungement pursuant to this
section;
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;
Proof of written notice to the prosecuting attorney and
the Department of Justice that expungement has been
requested; and
A court order verifying that no retrial or appeal of the
case is pending, that it has been at least 180 days since
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
. (Penal Code, § 299 (c)(2).):
Existing law states that the DOJ shall not destroy 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
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a condition of a plea. (Penal Code, § 299 (d).)
Existing law provides that the DOJ 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. (Penal Code, § 299 (d).)
Existing law 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
misdemeanor(Penal Code § 17.), or dismissal following
conviction. (Penal Code §§ 1203.4, 1203.4a.) (Penal Code §
299(f).)
This bill expands these 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.
This bill provides that the following misdemeanor offenses will
be included in the DNA Databank :
Shoplifting; forgery where the value for the forged
document does not exceed $950;
Check fraud where the total amount of checks does not
exceed $950;
Grand theft that is punishable as a misdemeanor;
possession of stolen property that is punishable as a
misdemeanor;
A misdemeanor violation for possession of a list of
specified drugs, including cocaine, methamphetamine,
concentrated cannabis; and
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 provides that notwithstanding any other provision
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of law, including specified sections, a judge is not authorized
to relieve a person of the separate administrative duty to
provide specimens, samples, or print impressions required if a
person has been found guilty or was adjudicated a ward of the
court by a trier of fact of an offense requiring the submission
of a DNA sample, or was found not guilty by reason of insanity
or pleads no contest to an offense requiring the submission of a
DNA sample. (Penal Code § 299)
This bill includes the provision allowing the recall of a
sentence where a person was convicted of a felony that has been
reduced to a misdemeanor after Proposition 47, as one of the
specified sections in Penal Code Section 299.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
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v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
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 or Proposition 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.
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This has benefited 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) 379 F. 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 thorough
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 a DNA sample is uploaded into the
state's DNA databank, which is part of the national Combined DNA
Index System (CODIS), and 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
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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 and Safety Code, § 11350(a).)
5. Expansion of DNA Data Bank to Include Misdemeanors
This bill would expand the collection of DNA to include
misdemeanors that used to be wobblers or felonies
pre-Proposition 47. Currently in California the only
misdemeanors that are included are those for which a person must
register as a sex offender or as an arsonist.
According to the National Conference on State Legislatures,
while 29 states collect DNA from at least some felonies only
eight states collect DNA from specified misdemeanors. Of those
states, Alabama, Arizona, Kansas, Louisiana, Minnesota, North
Carolina, South Carolina and South Dakota, in all but Kansas and
Minnesota the misdemeanors that are collected are misdemeanor
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sex offenses. Minnesota does not include all felonies and
includes specifies misdemeanors that are either sex offenses or
things like stalking.
( http://www.ncsl.org/Documents/cj/ArresteeDNALaws.pdf )
This legislation requires that DNA samples be taken from
individuals convicted of misdemeanors that were all affected by
Prop. 47. Before Prop 47 these offenses were wobblers (except
possession of cocaine), and thus 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.
Assembly Appropriations Committee limited the Proposition 47
misdemeanors that will be included in the data bank to those
instances where the person has a prior conviction for one of
specified misdemeanors; that limitations was taken out of the
bill with the last set of amendments.
6. Can't Have DNA Removed if Felony is Now a Misdemeanor
Proposition 47 set up a process for people currently serving a
sentence for a conviction of a felony, who would have been
guilty of a misdemeanor now that Proposition 47 has passed, to
have his or her sentence recalled and to be resentenced as a
misdemeanor under specified circumstances. (Penal Code §
1170.18)
This bill provides that even if a person is resentenced under
the above provision, a court could not relieve their duty to
give a DNA sample and thus the person could not seek to have his
or her DNA removed from the data bank.
7. Support
According to one of the sponsors, the Sacramento County District
Attorney's Office:
With the passage of recently enacted Proposition
47(the Safe Neighborhoods and Schools Act), many of
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the goals of the State DNA Act have been thwarted by
allowing serious offenders to escape detection and
entry into the DNA database. AB 390 links the goals of
Proposition 69, passed in 2004 with Proposition 47 and
ensures that dangerous criminals do not get an
unintended benefit by reclassification of certain
felony crimes to misdemeanors.
Allowing collection of DNA samples from adults
convicted of recently reduced "Prop 47" misdemeanor
crimes and other specified sex and violent offenses
will better protect public safety and allow improved
allocation of law enforcement resources to focus on
serious violent offenders.
The California Department of Justice, Bureau of
Forensic Services has had tremendous success in
identifying recidivist sex offenders and violent
offenders. Limiting the number of collections, as
Proposition 47, did by making serious violent and
sexual offenders to conceal their identities for their
serious crimes and repeat them again. If collection of
samples is allowed to remain severely limited, many
more sexual and violent offenders will never be
identified for their crimes and other innocent
individuals may be investigated while the real
perpetrator goes free.
In support of this bill the Los Angeles County District
Attorney's Office states:
According to the Attorney General's Office, 61% of the
DNA samples entered into California DNA Datatbank that
resulted in a "cold hit" were for non-violent,
"lower-level" felony crimes such as drug offenses,
fraud or other property crimes. Without legislative
correction Proposition 47's unintended consequence
would lead to a disastrous reduction in "cold hits."
Solving rapes, murders and other violent crimes
through reliable DNA evidence will help meet Prop 47's
safety goals by keeping neighborhoods safe from
dangerous recidivist sex and vi9oletn offenders who
would otherwise remain undetected for their worst
offenses.
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8. Opposition
The ACLU opposes this bill stating in part:
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 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.<1>
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.<2>
Of those, most states limit collection to individuals
convicted of serious misdemeanors.<3> Alabama, for
example, collects misdemeanor DNA samples only from
people convicted of offenses involving danger to the
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<1> See Maryland v. King (U.S. 2013) 133 S. Ct. 1958.
<2> Convicted Offenders Required to Submit DNA Samples: National
Conference of State Legislatures, available at
http://www.ncsl.org/Documents/cj/ConvictedOffendersDNALaws.pdf
(data based on 2013 numbers).
<3> Id.
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person.<4> North Carolina limits its misdemeanor
collection to people convicted of certain sex
offenses, certain arson-related offenses, assaults on
handicapped persons, and stalking.<5>
Californians for Safety and Justice oppose this bill stating:
Our sister 501(c)(4) organization, Vote Safe, was the
sponsor of Proposition 47, the Safe Neighborhoods and
Schools Act. California voters overwhelmingly passed
Proposition 47 in November 2014, a measure that
reclassified six low--level nonviolent drug possession
and petty theft crimes from potential felonies to
misdemeanors and reallocates prison cost savings to
mental health treatment, school programs and victim
services.
We are concerned about AB 390 because it seeks to
require DNA testing specifically for the six crimes
Proposition 47 changed to misdemeanors, without
clarity as to how these particular crimes are more
deserving of DNA testing than any of the other
hundreds of misdemeanors that exist in California's
Penal Code.
9. Other legislation
AB 1492 (Gatto) also set for hearing today, 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.
It also streamlines the process to expunge DNA samples and
profiles, if the California Supreme Court upholds the decision
in People v. Buza and it allows DNA searches against any a
"publicly available" database.
-- END -
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<4> Ala. Code §§ 36-18-25; 36-18-24; 13a, et seq. .
<5> N.C. Gen. Stat. Ann. §15A-266.4.
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