Amended in Senate August 31, 2015

Amended in Senate July 16, 2015

Amended in Senate June 29, 2015

Amended in Assembly April 30, 2015

Amended in Assembly April 15, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1492


Introduced by Assembly Member Gatto

(Coauthor: Assembly Member Atkins)

February 27, 2015


An act to amendbegin delete Section 300 of, and to amendend delete and add Sections 296, 298, and 299begin delete of,end deletebegin insert ofend insert the Penal Code, relating to DNA samples.

LEGISLATIVE COUNSEL’S DIGEST

AB 1492, as amended, Gatto. Forensic testing: DNA samples.

(1) Existing law, as amended by the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election (the DNA Act) requires any adult person who is arrested or charged with any felony offense to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestee’s expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.

This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would, if the California Supreme Court rules to uphold People v. Buza, limit the above-specified requirements to persons arrested for specified sex offenses or serious or violent felonies. The bill would, if the California Supreme Court rules to uphold People v. Buza, require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department afterbegin insert a felony arrest warrant has been signed by a judicial officer, a grand jury indictment has been found and issued, orend insert a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has beenbegin delete made.end deletebegin insert made at the time the defendant has been arraignedend insertbegin insert.end insert

(2) Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.

This bill would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.

(3) Existing law, as amended by the DNA Act, states that its provisions do not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for an offense that does not require the taking of samples and specimens.

The bill would state that it is the intent of the Legislature that if buccal swab samples are taken for DNA analysis as a condition of a plea or reduction or dismissal of charges, that all uses of the DNA sample be disclosed to the defendant in writing, that consent be obtained in writing, that the defendant sign a written agreement allowing his or her buccal swab sample or blood sample to be taken for DNA analysis, and that the defendant have an opportunity to consult with counsel prior to signing the agreement.begin delete The bill would permit a law enforcement agency to use any publicly available database to aid in the investigation of a crime.end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

It is the intent of the Legislature to limit the
2analysis of buccal swab samples and blood samples taken from
3felony arrestees for purposes of DNA analysis only to the extent
4required by the decision in People v. Buza, and to further the
5purposes of the DNA Fingerprint, Unsolved Crime and Innocence
6Protection Act, Proposition 69, approved by the voters at the
7November 2, 2004, statewide general election, in light of that
8decision.

9

SEC. 2.  

It is the intent of the Legislature that if buccal swab
10samples are taken for DNA analysis as a condition of a plea or
11reduction or dismissal of charges, that all uses of the DNA sample
12shall first be disclosed to the defendant in writing, that consent
13shall be obtained in writing, that the defendant shall sign a written
14agreement allowing his or her buccal swab sample or blood sample
15to be taken for DNA analysis, and that the defendant shall have
16an opportunity to consult with his or her legal counsel prior to
17signing the agreement. It is the intent of the Legislature that buccal
18swab samples taken as a condition of a plea or reduction or
19dismissal of charges be done on the basis of individualized
20 consideration.

21

SEC. 3.  

Section 296 of the Penal Code is amended to read:

22

296.  

(a) The following persons shall provide buccal swab
23samples, right thumbprints, and a full palm print impression of
24each hand, and any blood specimens or other biological samples
25required pursuant to this chapter for law enforcement identification
26analysis:

27(1) Any person, including any juvenile, who is convicted of or
28pleads guilty or no contest to any felony offense, or is found not
P4    1guilty by reason of insanity of any felony offense, or any juvenile
2who is adjudicated under Section 602 of the Welfare and
3Institutions Code for committing any felony offense.

4(2) Any adult person who is arrested for or charged with any of
5the following felony offenses:

6(A) Any felony offense specified in Section 290 or attempt to
7commit any felony offense described in Section 290, or any felony
8offense that imposes upon a person the duty to register in California
9as a sex offender under Section 290.

10(B) Murder or voluntary manslaughter or any attempt to commit
11murder or voluntary manslaughter.

12(C) Commencing on January 1, 2009, any adult person arrested
13or charged with any felony offense.

14(3) Any person, including any juvenile, who is required to
15register under Section 290 or 457.1 because of the commission of,
16or the attempt to commit, a felony or misdemeanor offense, or any
17person, including any juvenile, who is housed in a mental health
18facility or sex offender treatment program after referral to such
19facility or program by a court after being charged with any felony
20offense.

21(4) The term “felony” as used in this subdivision includes an
22attempt to commit the offense.

23(5) This chapter does not prohibit collection and analysis of
24specimens, samples, or print impressions as a condition of a plea
25for a nonqualifying offense.

26(b) The provisions of this chapter and its requirements for
27submission of specimens, samples, and print impressions as soon
28as administratively practicable shall apply to all qualifying persons
29regardless of sentence imposed, including a sentence of death, life
30without the possibility of parole, or a life or indeterminate term,
31or other disposition rendered in the case of an adult or juvenile
32tried as an adult, or whether the person is diverted, fined, or referred
33for evaluation, and regardless of disposition rendered or placement
34made in the case of a juvenile who is found to have committed
35any felony offense or is adjudicated under Section 602 of the
36Welfare and Institutions Code.

37(c) The provisions of this chapter and its requirements for
38submission of specimens, samples, and print impressions as soon
39as administratively practicable by qualified persons as described
40in subdivision (a) shall apply regardless of placement or
P5    1confinement in any mental hospital or other public or private
2treatment facility, and shall include, but not be limited to, the
3following persons, including juveniles:

4(1) Any person committed to a state hospital or other treatment
5facility as a mentally disordered sex offender under former Article
61 (commencing with Section 6300) of Chapter 2 of Part 2 of
7Division 6 of the Welfare and Institutions Code.

8(2) Any person who has a severe mental disorder as set forth
9within the provisions of Article 4 (commencing with Section 2960)
10of Chapter 7 of Title 1 of Part 3 of the Penal Code.

11(3) Any person found to be a sexually violent predator pursuant
12to Article 4 (commencing with Section 6600) of Chapter 2 of Part
132 of Division 6 of the Welfare and Institutions Code.

14(d) The provisions of this chapter are mandatory and apply
15 whether or not the court advises a person, including any juvenile,
16that he or she must provide the databank and database specimens,
17samples, and print impressions as a condition of probation, parole,
18or any plea of guilty, no contest, or not guilty by reason of insanity,
19or any admission to any of the offenses described in subdivision
20(a).

21(e) If at any stage of court proceedings the prosecuting attorney
22determines that specimens, samples, and print impressions required
23by this chapter have not already been taken from any person, as
24defined under subdivision (a) of Section 296, the prosecuting
25attorney shall notify the court orally on the record, or in writing,
26and request that the court order collection of the specimens,
27samples, and print impressions required by law. However, a failure
28by the prosecuting attorney or any other law enforcement agency
29to notify the court shall not relieve a person of the obligation to
30provide specimens, samples, and print impressions pursuant to this
31chapter.

32(f) Prior to final disposition or sentencing in thebegin delete caseend deletebegin insert case,end insert the
33court shall inquire and verify that the specimens, samples, and
34print impressions required by this chapter have been obtained and
35that this fact is included in the abstract of judgment or dispositional
36order in the case of a juvenile. The abstract of judgment issued by
37the court shall indicate that the court has ordered the person to
38comply with the requirements of this chapter and that the person
39shall be included in the state’s DNA and Forensic Identification
40Database and Databank Program and be subject to this chapter.

P6    1However, failure by the court to verify specimen, sample, and
2print impression collection or enter these facts in the abstract of
3judgment or dispositional order in the case of a juvenile shall not
4invalidate an arrest, plea, conviction, or disposition, or otherwise
5relieve a person from the requirements of this chapter.

6(g)  This section shall become inoperative if the California
7Supreme Court rules to uphold the California Court of Appeal
8decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
9to the provisions of Section 296 of the Penal Code, as amended
10by Section 3 of the DNA Fingerprint, Unsolved Crime and
11Innocence Protection Act, Proposition 69, approved by the voters
12at the November 2, 2004, general election, in which case this
13section shall become inoperative immediately upon that ruling
14becoming final.

15

SEC. 4.  

Section 296 is added to the Penal Code, to read:

16

296.  

(a) The following persons shall provide buccal swab
17samples, right thumbprints, and a full palm print impression of
18each hand, and any blood specimens or other biological samples
19required pursuant to this chapter for law enforcement identification
20analysis:

21(1) Any person, including any juvenile, who is convicted of or
22pleads guilty or no contest to any felony offense, or is found not
23guilty by reason of insanity of any felony offense, or any juvenile
24who is adjudicated under Section 602 of the Welfare and
25Institutions Code for committing any felony offense.

26(2) Any adult person who is arrested for or charged with any of
27the following felony offenses:

28(A) Any felony offense specified in Section 290 or attempt to
29commit any felony offense described in Section 290, or any felony
30offense that imposes upon a person the duty to register in California
31as a sex offender under Section 290.

32(B) Murder or voluntary manslaughter or any attempt to commit
33murder or voluntary manslaughter.

34(C) Any adult person arrested or charged with a felony offense
35specified in subdivision (c) of Section 667.5 or subdivision (c) of
36Section 1192.7.

37(3) Any person, including any juvenile, who is required to
38register under Section 290 or 457.1 because of the commission of,
39or the attempt to commit, a felony or misdemeanor offense, or any
40person, including any juvenile, who is housed in a mental health
P7    1facility or sex offender treatment program after referral to such
2facility or program by a court after being charged with any felony
3offense.

4(4) The term “felony” as used in this subdivision includes an
5attempt to commit the offense.

6(5) This chapter does not prohibit collection and analysis of
7specimens, samples, or print impressions as a condition of a plea
8for a nonqualifying offense.

9(b) The provisions of this chapter and its requirements for
10submission of specimens, samples, and print impressions as soon
11as administratively practicable shall apply to all qualifying persons
12regardless of sentence imposed, including a sentence of death, life
13without the possibility of parole, or a life or indeterminate term,
14or other disposition rendered in the case of an adult or juvenile
15tried as an adult, or whether the person is diverted, fined, or referred
16for evaluation, and regardless of disposition rendered or placement
17made in the case of juvenile who is found to have committed any
18felony offense or is adjudicated under Section 602 of the Welfare
19and Institutions Code.

20(c) The provisions of this chapter and its requirements for
21submission of specimens, samples, and print impressions as soon
22as administratively practicable by qualified persons as described
23in subdivision (a) shall apply regardless of placement or
24confinement in any mental hospital or other public or private
25treatment facility, and shall include, but not be limited to, the
26following persons, including juveniles:

27(1) Any person committed to a state hospital or other treatment
28facility as a mentally disordered sex offender under former Article
291 (commencing with Section 6300) of Chapter 2 of Part 2 of
30Division 6 of the Welfare and Institutions Code.

31(2) Any person who has a severe mental disorder as set forth
32within the provisions of Article 4 (commencing with Section 2960)
33of Chapter 7 of Title 1 of Part 3 of the Penal Code.

34(3) Any person found to be a sexually violent predator pursuant
35to Article 4 (commencing with Section 6600) of Chapter 2 of Part
362 of Division 6 of the Welfare and Institutions Code.

37(d) The provisions of this chapter are mandatory and apply
38whether or not the court advises a person, including any juvenile,
39that he or she must provide the data bank and database specimens,
40samples, and print impressions as a condition of probation, parole,
P8    1or any plea of guilty, no contest, or not guilty by reason of insanity,
2or any admission to any of the offenses described in subdivision
3(a).

4(e) If at any stage of court proceedings the prosecuting attorney
5determines that specimens, samples, and print impressions required
6by this chapter have not already been taken from any person, as
7defined under subdivision (a) of Section 296, the prosecuting
8attorney shall notify the court orally on the record, or in writing,
9and request that the court order collection of the specimens,
10samples, and print impressions required by law. However, a failure
11by the prosecuting attorney or any other law enforcement agency
12to notify the court shall not relieve a person of the obligation to
13provide specimens, samples, and print impressions pursuant to this
14chapter.

15(f) Prior to final disposition or sentencing in thebegin delete caseend deletebegin insert case,end insert the
16court shall inquire and verify that the specimens, samples, and
17print impressions required by this chapter have been obtained and
18that this fact is included in the abstract of judgment or dispositional
19order in the case of a juvenile. The abstract of judgment issued by
20the court shall indicate that the court has ordered the person to
21comply with the requirements of this chapter and that the person
22shall be included in the state’s DNA and Forensic Identification
23Database and Databank Program and be subject to this chapter.

24However, failure by the court to verify specimen, sample, and
25print impression collection or enter these facts in the abstract of
26judgment or dispositional order in the case of a juvenile shall not
27invalidate an arrest, plea, conviction, or disposition, or otherwise
28relieve a person from the requirements of this chapter.

29(g) This section shall only become operative if the California
30Supreme Court rules to uphold the California Court of Appeal
31decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
32to the provisions of Section 296 of the Penal Code, as amended
33by Section 3 of the DNA Fingerprint, Unsolved Crime and
34Innocence Protection Act, Proposition 69, approved by the voters
35at the November 2, 2004, general election, in which case this
36section shall become operative immediately upon that ruling
37becoming final.

38

SEC. 5.  

Section 298 of the Penal Code is amended to read:

39

298.  

(a) The Secretary of the Department of Corrections and
40Rehabilitation, or the Chief Administrative Officer of the detention
P9    1facility, jail, or other facility at which the blood specimens, buccal
2swab samples, and thumb and palm print impressions were
3collected shall cause these specimens, samples, and print
4impressions to be forwarded promptly to the Department of Justice.
5The specimens, samples, and print impressions shall be collected
6by a person using a Department of Justice approved collection kit
7and in accordance with the requirements and procedures set forth
8in subdivision (b).

9(b) (1) The Department of Justice shall provide all blood
10specimen vials, buccal swab collectors, mailing tubes, labels, and
11instructions for the collection of the blood specimens, buccal swab
12samples, and thumbprints. The specimens, samples, and
13thumbprints shall thereafter be forwarded to the DNA Laboratory
14of the Department of Justice for analysis of DNA and other forensic
15identification markers.

16Additionally, the Department of Justice shall provide all full
17palm print cards, mailing envelopes, and instructions for the
18collection of full palm prints. The full palm prints, on a form
19prescribed by the Department of Justice, shall thereafter be
20forwarded to the Department of Justice for maintenance in a file
21for identification purposes.

22(2) The withdrawal of blood shall be performed in a medically
23approved manner. Only health care providers trained and certified
24to draw blood may withdraw the blood specimens for purposes of
25this section.

26(3) Buccal swab samples may be procured by law enforcement
27or corrections personnel or other individuals trained to assist in
28buccal swab collection.

29(4) Right thumbprints and a full palm print impression of each
30hand shall be taken on forms prescribed by the Department of
31Justice. The palm print forms shall be forwarded to and maintained
32by the Bureau of Criminal Identification and Information of the
33Department of Justice. Right thumbprints also shall be taken at
34the time of the collection of samples and specimens and shall be
35placed on the sample and specimen containers and forms as
36directed by the Department of Justice. The samples, specimens,
37and forms shall be forwarded to and maintained by the DNA
38Laboratory of the Department of Justice.

39(5) The law enforcement or custodial agency collecting
40specimens, samples, or print impressions is responsible for
P10   1confirming that the person qualifies for entry into the Department
2of Justice DNA Database and Databank Program prior to collecting
3the specimens, samples, or print impressions pursuant to this
4chapter.

5(6) The DNA Laboratory of the Department of Justice is
6responsible for establishing procedures for entering databank and
7database information.

8(c) (1) Persons authorized to draw blood or obtain samples or
9print impressions under this chapter for the databank or database
10shall not be civilly or criminally liable either for withdrawing blood
11when done in accordance with medically accepted procedures, or
12for obtaining buccal swab samples by scraping inner cheek cells
13of the mouth, or thumb or palm print impressions when performed
14in accordance with standard professional practices.

15(2) There is no civil or criminal cause of action against any law
16enforcement agency or the Department of Justice, or any employee
17thereof, for a mistake in confirming a person’s or sample’s
18qualifying status for inclusion within the database or databank or
19in placing an entry in a databank or a database.

20(3) The failure of the Department of Justice or local law
21enforcement to comply with Article 4 or any other provision of
22this chapter shall not invalidate an arrest, plea, conviction, or
23disposition.

24(d) This section shall become inoperative if the California
25Supreme Court rules to uphold the California Court of Appeal
26decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
27to the provisions of Section 298 of the Penal Code, as amended
28by Section 6 of the DNA Fingerprint, Unsolved Crime and
29Innocence Protection Act, Proposition 69, approved by the voters
30at the November 2, 2004, statewide general election, in which case
31this section shall become inoperative immediately upon that ruling
32becoming final.

33

SEC. 6.  

Section 298 is added to the Penal Code, to read:

34

298.  

(a) (1) begin insert(A)end insertbegin insertend insertThe Secretary of the Department of
35Corrections and Rehabilitation, or the Chief Administrative Officer
36of the detention facility, jail, or other facility at which the blood
37specimens, buccal swab samples, and thumb and palm print
38impressions were collected shall cause these specimens, samples,
39and print impressions to be forwarded promptly to the Department
40of Justice, except that a blood specimen or buccal swab sample
P11   1taken from a person arrested for the commission of a felony as
2specified in paragraph (2) of subdivision (a) of Section 296 shall
3be forwarded to the Department of Justicebegin delete after a judicial
4determination of probable cause to believe the person has
5committed the offense for which he or she was arrested has been
6made pursuant to Section 825. Theend delete
begin insert only after one of the following
7has occurred, which shall be deemed a finding of probable cause,
8whichever occurs first:end insert

begin insert

9(i) A felony arrest warrant has been signed by a judicial officer
10pursuant to Section 813 or 817.

end insert
begin insert

11(ii) A grand jury indictment has been found and issued pursuant
12to Sections 939.8, 940, or 944.

end insert
begin insert

13(iii) A judicial officer has determined that probable cause exists
14to believe the person has committed the offense for which he or
15she was arrested at the time the defendant has been arraigned.

end insert

16begin insert(B)end insertbegin insertend insertbegin insertTheend insert specimens, samples, and print impressions shall be
17collected by a person using a Department of Justice approved
18collection kit and in accordance with the requirements and
19procedures set forth in subdivision (b).

20(2) A blood specimen or buccal swab sample taken from a
21person arrested for the commission of a felony as specified in
22paragraph (2) of subdivision (a) of Section 296 that has not been
23forwarded to the Department of Justice within six months following
24the arrest of that person because the agency that took the blood
25specimen or buccal swab sample has not received notice to forward
26the DNA specimen or sample to the Department of Justice for
27inclusion in the state’s DNA and Forensic Identification Database
28and Databank Program pursuant to paragraph (1) following a
29determination of probable cause, shall be destroyed by the agency
30that collected the blood specimen or buccal swab sample.

31(b) (1) The Department of Justice shall provide all blood
32specimen vials, buccal swab collectors, mailing tubes, labels, and
33instructions for the collection of the blood specimens, buccal swab
34samples, and thumbprints. The specimens, samples, and
35thumbprints shall thereafter be forwarded to the DNA Laboratory
36of the Department of Justice for analysis of DNA and other forensic
37identification markers.

38Additionally, the Department of Justice shall provide all full
39palm print cards, mailing envelopes, and instructions for the
40collection of full palm prints. The full palm prints, on a form
P12   1prescribed by the Department of Justice, shall thereafter be
2forwarded to the Department of Justice for maintenance in a file
3for identification purposes.

4(2) The withdrawal of blood shall be performed in a medically
5approved manner. Only health care providers trained and certified
6to draw blood may withdraw the blood specimens for purposes of
7this section.

8(3) Buccal swab samples may be procured by law enforcement
9or corrections personnel or other individuals trained to assist in
10buccal swab collection.

11(4) Right thumbprints and a full palm print impression of each
12hand shall be taken on forms prescribed by the Department of
13Justice. The palm print forms shall be forwarded to and maintained
14by the Bureau of Criminal Identification and Information of the
15Department of Justice. Right thumbprints also shall be taken at
16the time of the collection of samples and specimens and shall be
17placed on the sample and specimen containers and forms as
18directed by the Department of Justice. The samples, specimens,
19and forms shall be forwarded to and maintained by the DNA
20Laboratory of the Department of Justice.

21(5) The law enforcement or custodial agency collecting
22specimens, samples, or print impressions is responsible for
23confirming that the person qualifies for entry into the Department
24of Justice DNA and Forensic Identification Database and Databank
25Program prior to collecting the specimens, samples, or print
26impressions pursuant to this chapter.

27(6) The DNA Laboratory of the Department of Justice is
28responsible for establishing procedures for entering databank and
29database information.

30(c) (1) Persons authorized to draw blood or obtain samples or
31print impressions under this chapter for the databank or database
32shall not be civilly or criminally liable either for withdrawing blood
33when done in accordance with medically accepted procedures, or
34for obtaining buccal swab samples by scraping inner cheek cells
35of the mouth, or thumb or palm print impressions when performed
36in accordance with standard professional practices.

37(2) There is no civil or criminal cause of action against any law
38enforcement agency or the Department of Justice, or any employee
39thereof, for a mistake in confirming a person’s or sample’s
P13   1qualifying status for inclusion within the database or databank or
2in placing an entry in a databank or a database.

3(3) The failure of the Department of Justice or local law
4enforcement to comply with Article 4 or any other provision of
5this chapter shall not invalidate an arrest, plea, conviction, or
6disposition.

7(d) This section shall only become operative if the California
8Supreme Court rules to uphold the California Court of Appeal
9decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
10to the provisions of Section 298 of the Penal Code, as amended
11by Section 6 of the DNA Fingerprint, Unsolved Crime and
12Innocence Protection Act, Proposition 69, approved by the voters
13at the November 2, 2004, statewide general election, in which case
14this section shall become operative immediately upon that ruling
15becoming final.

16

SEC. 7.  

Section 299 of the Penal Code is amended to read:

17

299.  

(a) A person whose DNA profile has been included in
18the databank pursuant to this chapter shall have his or her DNA
19specimen and sample destroyed and searchable database profile
20expunged from the databank program pursuant to the procedures
21set forth in subdivision (b) if the person has no past or present
22offense or pending charge which qualifies that person for inclusion
23within the state’s DNA and Forensic Identification Database and
24Databank Program and there otherwise is no legal basis for
25retaining the specimen or sample or searchable profile.

26(b) Pursuant to subdivision (a), a person who has no past or
27present qualifying offense, and for whom there otherwise is no
28legal basis for retaining the specimen or sample or searchable
29profile, may make a written request to have his or her specimen
30and sample destroyed and searchable database profile expunged
31from the databank program if any of the following apply:

32(1) Following arrest, no accusatory pleading has been filed
33within the applicable period allowed bybegin delete lawend deletebegin insert law,end insert charging the
34person with a qualifying offense as set forth in subdivision (a) of
35Section 296 or if the charges which served as the basis for including
36the DNA profile in the state’s DNA and Forensic Identification
37Database and Databank Program have been dismissed prior to
38adjudication by a trier of fact;

P14   1(2) The underlying conviction or disposition serving as the basis
2for including the DNA profile has been reversed and the case
3dismissed;

4(3) The person has been found factually innocent of the
5underlying offense pursuant to Section 851.8, or Section 781.5 of
6the Welfare and Institutions Code; or

7(4) The defendant has been found not guilty or the defendant
8has been acquitted of the underlying offense.

9(c) (1) The person requesting the databank entry to be expunged
10must send a copy of his or her request to the trial court of the
11county where the arrest occurred, or that entered the conviction or
12rendered disposition in the case, to the DNA Laboratory of the
13Department of Justice, and to the prosecuting attorney of the county
14in which he or she was arrested or, convicted, or adjudicated, with
15proof of service on all parties. The court has the discretion to grant
16or deny the request for expungement. The denial of a request for
17expungement is a nonappealable order and shall not be reviewed
18by petition for writ.

19(2) Except as provided in this section, the Department of Justice
20shall destroy a specimen and sample and expunge the searchable
21DNA database profile pertaining to the person who has no present
22or past qualifying offense of record upon receipt of a court order
23that verifies the applicant has made the necessary showing at a
24noticed hearing, and that includes all of the following:

25(A) The written request for expungement pursuant to this
26section.

27(B) A certified copy of the court order reversing and dismissing
28the conviction or case, or a letter from the district attorney
29certifying that no accusatory pleading has been filed or the charges
30which served as the basis for collecting a DNA specimen and
31sample have been dismissed prior to adjudication by a trier of fact,
32the defendant has been found factually innocent, the defendant has
33been found not guilty, the defendant has been acquitted of the
34underlying offense, or the underlying conviction has been reversed
35and the case dismissed.

36(C) Proof of written notice to the prosecuting attorney and the
37Department of Justice that expungement has been requested.

38(D) A court order verifying that no retrial or appeal of the case
39is pending, that it has been at least 180 days since the defendant
40or minor has notified the prosecuting attorney and the Department
P15   1of Justice of the expungement request, and that the court has not
2received an objection from the Department of Justice or the
3prosecuting attorney.

4(d) Upon order from the court, the Department of Justice shall
5destroy any specimen or sample collected from the person and any
6searchable DNA database profile pertaining to the person, unless
7the department determines that the person is subject to the
8provisions of this chapter because of a past qualifying offense of
9record or is or has otherwise become obligated to submit a blood
10specimen or buccal swab sample as a result of a separate arrest,
11conviction, juvenile adjudication, or finding of guilty or not guilty
12 by reason of insanity for an offense described in subdivision (a)
13of Section 296, or as a condition of a plea.

14The Department of Justice is not required to destroy analytical
15data or other items obtained from a blood specimen or saliva, or
16buccal swab sample, if evidence relating to another person subject
17to the provisions of this chapter would thereby be destroyed or
18otherwise compromised.

19Any identification, warrant, probable cause to arrest, or arrest
20based upon a databank or database match is not invalidated due
21to a failure to expunge or a delay in expunging records.

22(e) Notwithstanding any other law, the Department of Justice
23DNA Laboratory is not required to expunge DNA profile or
24forensic identification information or destroy or return specimens,
25samples, or print impressions taken pursuant to this section if the
26duty to register under Section 290 or 457.1 is terminated.

27(f) Notwithstanding any other law, including Sections 17,
281170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve
29a person of the separate administrative duty to provide specimens,
30samples, or print impressions required by this chapter if a person
31has been found guilty or was adjudicated a ward of the court by a
32trier of fact of a qualifying offense as defined in subdivision (a)
33of Section 296, or was found not guilty by reason of insanity or
34pleads no contest to a qualifying offense as defined in subdivision
35(a) of Section 296.

36(g) This section shall become inoperative if the California
37Supreme Court rules to uphold the California Court of Appeal
38decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
39to the provisions of Section 299 of the Penal Code, as amended
40by Section 9 of the DNA Fingerprint, Unsolved Crime and
P16   1Innocence Protection Act, Proposition 69, approved by the voters
2at the November 2, 2004, statewide general election, in which case
3this section shall become inoperative immediately upon that ruling
4becoming final.

5

SEC. 8.  

Section 299 is added to the Penal Code, to read:

6

299.  

(a) A person whose DNA profile has been included in
7the databank pursuant to this chapter shall have his or her DNA
8specimen and sample destroyed and searchable database profile
9expunged from the databank program if the person has no past or
10present offense or pending charge which qualifies that person for
11inclusion within the state’s DNA and Forensic Identification
12Database and Databank Program and there otherwise is no legal
13basis for retaining the specimen or sample or searchable profile.

14(b) Pursuant to subdivision (a), a person who has no past or
15present qualifying offense, and for whom there otherwise is no
16legal basis for retaining the specimen or sample or searchable
17profile shall have his or her specimen and sample destroyed and
18searchable database profile expunged from the databank program
19if any of the following apply:

20(1) Following arrest, no accusatory pleading has been filed
21within the applicable period allowed bybegin delete lawend deletebegin insert law,end insert charging the
22person with a qualifying offense as set forth in subdivision (a) of
23Section 296 or if the charges which served as the basis for including
24the DNA profile in the state’s DNA and Forensic Identification
25Database and Databank Program have been dismissed prior to
26adjudication by a trier of fact, in which case the district attorney
27shall submit a letter to the Department of Justice as soon as these
28conditions have been met.

29(2) The underlying conviction or disposition serving as the basis
30for including the DNA profile has been reversed and the case
31dismissed, in which case the court shall forward its order to the
32Department of Justice upon disposition of the case.

33(3) The person has been found factually innocent of the
34underlying offense pursuant to Section 851.8, or Section 781.5 of
35the Welfare and Institutions Code, in which case the court shall
36forward its order to the Department of Justice upon disposition of
37the case.

38(4) The defendant has been found not guilty or the defendant
39has been acquitted of the underlying offense, in which case the
P17   1court shall forward its order to the Department of Justice upon
2disposition of the case.

3(c) Except as provided in this section, the Department of Justice
4shall destroy a specimen and sample and expunge the searchable
5DNA database profile pertaining to the person who has no present
6or past qualifying offense of record upon receipt of the following:

7(1) A certified copy of the court order reversing and dismissing
8the conviction or case, or a letter from the district attorney
9certifying that no accusatory pleading has been filed or the charges
10which served as the basis for collecting a DNA specimen and
11sample have been dismissed prior to adjudication by a trier of fact,
12the defendant has been found factually innocent, the defendant has
13been found not guilty, the defendant has been acquitted of the
14underlying offense, or the underlying conviction has been reversed
15and the case dismissed.

16(2) A court order verifying that no retrial or appeal of the case
17is pending.

18(d) Pursuant to this section, the Department of Justice shall
19destroy any specimen or sample collected from the person and any
20searchable DNA database profile pertaining to the person, unless
21the department determines that the person is subject to the
22provisions of this chapter because of a past qualifying offense of
23record or is or has otherwise become obligated to submit a blood
24specimen or buccal swab sample as a result of a separate arrest,
25conviction, juvenile adjudication, or finding of guilty or not guilty
26by reason of insanity for an offense described in subdivision (a)
27of Section 296, or as a condition of a plea.

28The Department of Justice is not required to destroy analytical
29data or other items obtained from a blood specimen or saliva, or
30buccal swab sample, if evidence relating to another person subject
31to the provisions of this chapter would thereby be destroyed or
32otherwise compromised.

33Any identification, warrant, probable cause to arrest, or arrest
34based upon a databank or database match is not invalidated due
35to a failure to expunge or a delay in expunging records.

36(e) Notwithstanding any other law, the Department of Justice
37DNA Laboratory is not required to expunge DNA profile or
38forensic identification information or destroy or return specimens,
39samples, or print impressions taken pursuant to this section if the
40duty to register under Section 290 or 457.1 is terminated.

P18   1(f) Notwithstanding any other law, including Sections 17,
21170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve
3a person of the separate administrative duty to provide specimens,
4samples, or print impressions required by this chapter if a person
5has been found guilty or was adjudicated a ward of the court by a
6trier of fact of a qualifying offense as defined in subdivision (a)
7of Section 296, or was found not guilty by reason of insanity or
8pleads no contest to a qualifying offense as defined in subdivision
9(a) of Section 296.

10(g) This section shall only become operative if the California
11Supreme Court rules to uphold the California Court of Appeal
12decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
13to the provisions of Section 299 of the Penal Code, as amended
14by Section 9 of the DNA Fingerprint, Unsolved Crime and
15Innocence Protection Act, Proposition 69, approved by the voters
16at the November 2, 2004, statewide general election, in which case
17this section shall become operative immediately upon that ruling
18becoming final.

begin delete
19

SEC. 9.  

Section 300 of the Penal Code is amended to read:

20

300.  

(a) This chapter does not limit or abrogate any existing
21authority of law enforcement officers to take, maintain, store, and
22utilize DNA or forensic identification markers, blood specimens,
23buccal swab samples, saliva samples, or thumb or palm print
24impressions for identification purposes.

25(b) A law enforcement agency may use a publicly available
26database, excluding a law enforcement database that is not linked
27to the Combined DNA Index System (CODIS), if the case being
28investigated involves a homicide or sexual assault involving force
29and the case is unsolved and all investigative leads have been
30exhausted, in which case the law enforcement agency shall review
31nonforensic information in order to identify additional evidence
32 bearing on relatedness.

end delete


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