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.begin delete 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.end delete 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 after a felony arrest warrant has been signed by a judicial officer, a grand jury indictment has been found and issued, or 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 at the time the defendant has been arraigned.end deletebegin insert made.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.
end deleteThe 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.
end deleteVote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
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.
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.
Section 296 of the Penal Code is amended to read:
(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:
P4 1(1) Any person, including any juvenile, who is convicted of or
2pleads guilty or no contest to any felony offense, or is found not
3guilty by reason of insanity of any felony offense, or any juvenile
4who is adjudicated under Section 602 of the Welfare and
5Institutions Code for committing any felony offense.
6(2) Any adult person who
is arrested for or charged with any of
7the following felony offenses:
8(A) Any felony offense specified in Section 290 or attempt to
9commit any felony offense described in Section 290, or any felony
10offense that imposes upon a person the duty to register in California
11as a sex offender under Section 290.
12(B) Murder or voluntary manslaughter or any attempt to commit
13murder or voluntary manslaughter.
14(C) Commencing on January 1, 2009, any adult person arrested
15or charged with any felony offense.
16(3) Any person, including any juvenile, who is required to
17register under Section 290 or 457.1 because of the commission of,
18or the attempt to commit, a felony or misdemeanor
offense, or any
19person, including any juvenile, who is housed in a mental health
20facility or sex offender treatment program after referral to such
21facility or program by a court after being charged with any felony
22offense.
23(4) The term “felony” as used in this subdivision includes an
24attempt to commit the offense.
25(5) This chapter does not prohibit collection and analysis of
26specimens, samples, or print impressions as a condition of a plea
27for a nonqualifying offense.
28(b) The provisions of this chapter and its requirements for
29submission of specimens, samples, and print impressions as soon
30as administratively practicable shall apply to all qualifying persons
31regardless of sentence imposed, including a sentence of
death, life
32without the possibility of parole, or a life or indeterminate term,
33or other disposition rendered in the case of an adult or juvenile
34tried as an adult, or whether the person is diverted, fined, or referred
35for evaluation, and regardless of disposition rendered or placement
36made in the case of a juvenile who is found to have committed
37any felony offense or is adjudicated under Section 602 of the
38Welfare and Institutions Code.
39(c) The provisions of this chapter and its requirements for
40submission of specimens, samples, and print impressions as soon
P5 1as administratively practicable by qualified persons as described
2in subdivision (a) shall apply regardless of placement or
3confinement in any mental hospital or other public or private
4treatment facility, and shall include, but not be limited to, the
5following persons,
including juveniles:
6(1) Any person committed to a state hospital or other treatment
7facility as a mentally disordered sex offender under former Article
81 (commencing with Section 6300) of Chapter 2 of Part 2 of
9Division 6 of the Welfare and Institutions Code.
10(2) Any person who has a severe mental disorder as set forth
11within the provisions of Article 4 (commencing with Section 2960)
12of Chapter 7 of Title 1 of Part 3 of the Penal Code.
13(3) Any person found to be a sexually violent predator pursuant
14to Article 4 (commencing with Section 6600) of Chapter 2 of Part
152 of Division 6 of the Welfare and Institutions Code.
16(d) The provisions of this chapter are mandatory and apply
17
whether or not the court advises a person, including any juvenile,
18that he or she must provide the databank and database specimens,
19samples, and print impressions as a condition of probation, parole,
20or any plea of guilty, no contest, or not guilty by reason of insanity,
21or any admission to any of the offenses described in subdivision
22(a).
23(e) If at any stage of court proceedings the prosecuting attorney
24determines that specimens, samples, and print impressions required
25by this chapter have not already been taken from any person, as
26defined under subdivision (a) of Section 296, the prosecuting
27attorney shall notify the court orally on the record, or in writing,
28and request that the court order collection of the specimens,
29samples, and print impressions required by law. However, a failure
30by the prosecuting attorney or any other law
enforcement agency
31to notify the court shall not relieve a person of the obligation to
32provide specimens, samples, and print impressions pursuant to this
33chapter.
34(f) Prior to final disposition or sentencing in the case, the court
35shall inquire and verify that the specimens, samples, and print
36impressions required by this chapter have been obtained and that
37this fact is included in the abstract of judgment or dispositional
38order in the case of a juvenile. The abstract of judgment issued by
39the court shall indicate that the court has ordered the person to
40comply with the requirements of this chapter and that the person
P6 1shall be included in the state’s DNA and
Forensic Identification
2Database and Databank Program and be subject to this chapter.
3However, failure by the court to verify specimen, sample, and
4print impression collection or enter these facts in the abstract of
5judgment or dispositional order in the case of a juvenile shall not
6invalidate an arrest, plea, conviction, or disposition, or otherwise
7relieve a person from the requirements of this chapter.
8(g) This section shall become inoperative if the California
9Supreme Court rules to uphold the California Court of Appeal
10decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
11to the provisions of Section 296 of the Penal Code, as amended
12by Section 3 of the DNA Fingerprint, Unsolved Crime and
13Innocence Protection Act, Proposition 69, approved by the voters
14at the
November 2, 2004, general election, in which case this
15section shall become inoperative immediately upon that ruling
16becoming final.
Section 296 is added to the Penal Code, to read:
(a) The following persons shall provide buccal swab
19samples, right thumbprints, and a full palm print impression of
20each hand, and any blood specimens or other biological samples
21required pursuant to this chapter for law enforcement identification
22analysis:
23(1) Any person, including any juvenile, who is convicted of or
24pleads guilty or no contest to any felony offense, or is found not
25guilty by reason of insanity of any felony offense, or any juvenile
26who is adjudicated under Section 602 of the Welfare and
27Institutions Code for committing any felony offense.
28(2) Any adult person who is arrested for or charged with any of
29the following felony offenses:
30(A) Any felony offense specified in Section 290 or attempt to
31commit any felony offense described in Section 290, or any felony
32offense that imposes upon a person the duty to register in California
33as a sex offender under Section 290.
34(B) Murder or voluntary manslaughter or any attempt to commit
35murder or voluntary manslaughter.
36(C) Any adult
person arrested or charged with a felony offense
37specified in subdivision (c) of Section 667.5 or subdivision (c) of
38Section 1192.7.
39(3) Any person, including any juvenile, who is required to
40register under Section 290 or 457.1 because of the commission of,
P7 1or the attempt to commit, a felony or misdemeanor offense, or any
2person, including any juvenile, who is housed in a mental health
3facility or sex offender treatment program after referral to such
4facility or program by a court after being charged with any felony
5offense.
6(4) The term “felony” as used in this subdivision includes an
7attempt to commit the offense.
8(5) This chapter does not prohibit collection and analysis of
9specimens, samples, or print impressions as a condition of a plea
10for a nonqualifying offense.
11(b) The provisions of this chapter and its requirements for
12submission of specimens, samples, and print impressions as soon
13as administratively practicable shall apply to all qualifying persons
14regardless of sentence imposed, including a sentence of death, life
15without the possibility of parole, or a life or indeterminate term,
16or other disposition rendered in the case of an adult or juvenile
17tried as an adult, or whether the person is diverted, fined, or referred
18for evaluation, and regardless of disposition rendered or placement
19made in the case of
juvenile who is found to have committed any
20felony offense or is adjudicated under Section 602 of the Welfare
21and Institutions Code.
22(c) The provisions of this chapter and its requirements for
23submission of specimens, samples, and print impressions as soon
24as administratively practicable by qualified persons as described
25in subdivision (a) shall apply regardless of placement or
26confinement in any mental hospital or other public or private
27treatment facility, and shall include, but not be limited to, the
28following persons, including juveniles:
29(1) Any person committed to a state hospital or other treatment
30facility as a mentally
disordered sex offender under former Article
311 (commencing with Section 6300) of Chapter 2 of Part 2 of
32Division 6 of the Welfare and Institutions Code.
33(2) Any person who has a severe mental disorder as set forth
34within the provisions of Article 4 (commencing with Section 2960)
35of Chapter 7 of Title 1 of Part 3 of the Penal Code.
36(3) Any person found to be a sexually violent predator pursuant
37to Article 4 (commencing with Section 6600) of Chapter 2 of Part
382 of Division 6 of the Welfare and Institutions Code.
39(d) The provisions of this chapter are mandatory and apply
40whether or not the court advises a person, including any juvenile,
P8 1that he or she must provide the data bank and database specimens,
2 samples, and print impressions as a condition of probation, parole,
3or any plea of guilty, no contest, or not guilty by reason of insanity,
4or any admission to any of the offenses described in subdivision
5(a).
6(e) If at any stage of court proceedings the prosecuting attorney
7determines that specimens, samples, and print impressions required
8by this chapter have not already been taken from any person, as
9defined under subdivision (a) of Section 296, the prosecuting
10attorney shall notify the court orally on the record, or in writing,
11and request that the court order
collection of the specimens,
12samples, and print impressions required by law. However, a failure
13by the prosecuting attorney or any other law enforcement agency
14to notify the court shall not relieve a person of the obligation to
15provide specimens, samples, and print impressions pursuant to this
16chapter.
17(f) Prior to final disposition or sentencing in the case, the court
18shall inquire and verify that the specimens, samples, and print
19impressions required by this chapter have been obtained and that
20this fact is included in the abstract of judgment or dispositional
21order in the case of a
juvenile. The abstract of judgment issued by
22the court shall indicate that the court has ordered the person to
23comply with the requirements of this chapter and that the person
24shall be included in the state’s DNA and Forensic Identification
25Database and Databank Program and be subject to this chapter.
26However, failure by the court to verify specimen, sample, and
27print impression collection or enter these facts in the abstract of
28judgment or dispositional order in the case of a juvenile shall not
29invalidate an arrest, plea, conviction, or disposition, or otherwise
30relieve a person from the requirements of this chapter.
31(g) This section shall only become
operative if the California
32Supreme Court rules to uphold the California Court of Appeal
33decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
34to the provisions of Section 296 of the Penal Code, as amended
35by Section 3 of the DNA Fingerprint, Unsolved Crime and
36Innocence Protection Act, Proposition 69, approved by the voters
37at the November 2, 2004, general election, in which case this
38section shall become operative immediately upon that ruling
39becoming final.
Section 298 of the Penal Code is amended to read:
(a) The Secretary of the Department of Corrections and
4Rehabilitation, or the Chief Administrative Officer of the detention
5facility, jail, or other facility at which the blood specimens, buccal
6swab samples, and thumb and palm print impressions were
7collected shall cause these specimens, samples, and print
8impressions to be forwarded promptly to the Department of Justice.
9The specimens, samples, and print impressions shall be collected
10by a person using a Department of Justice approved collection kit
11and in accordance with the requirements and procedures set forth
12in subdivision (b).
13(b) (1) The Department of Justice shall provide
all blood
14specimen vials, buccal swab collectors, mailing tubes, labels, and
15instructions for the collection of the blood specimens, buccal swab
16samples, and thumbprints. The specimens, samples, and
17thumbprints shall thereafter be forwarded to the DNA Laboratory
18of the Department of Justice for analysis of DNA and other forensic
19identification markers.
20Additionally, the Department of Justice shall provide all full
21palm print cards, mailing envelopes, and instructions for the
22collection of full palm prints. The full palm prints, on a form
23prescribed by the Department of Justice, shall thereafter be
24forwarded to the Department of Justice for maintenance in a file
25for identification purposes.
26(2) The withdrawal of blood shall be performed in a medically
27approved manner. Only health care
providers trained and certified
28to draw blood may withdraw the blood specimens for purposes of
29this section.
30(3) Buccal swab samples may be procured by law enforcement
31or corrections personnel or other individuals trained to assist in
32buccal swab collection.
33(4) Right thumbprints and a full palm print impression of each
34hand shall be taken on forms prescribed by the Department of
35Justice. The palm print forms shall be forwarded to and maintained
36by the Bureau of Criminal Identification and Information of the
37Department of Justice. Right thumbprints also shall be taken at
38the time of the collection of samples and specimens and shall be
39placed on the sample and specimen containers and forms as
40directed by the Department of Justice. The samples, specimens,
P10 1and forms shall
be forwarded to and maintained by the DNA
2Laboratory of the Department of Justice.
3(5) The law enforcement or custodial agency collecting
4specimens, samples, or print impressions is responsible for
5confirming that the person qualifies for entry into the Department
6of Justice DNA Database and Databank Program prior to collecting
7the specimens, samples, or print impressions pursuant to this
8chapter.
9(6) The DNA Laboratory of the Department of Justice is
10responsible for establishing procedures for entering databank and
11database information.
12(c) (1) Persons authorized to draw blood or obtain samples or
13print impressions under this chapter for the databank or database
14shall not be civilly or
criminally liable either for withdrawing blood
15when done in accordance with medically accepted procedures, or
16for obtaining buccal swab samples by scraping inner cheek cells
17of the mouth, or thumb or palm print impressions when performed
18in accordance with standard professional practices.
19(2) There is no civil or criminal cause of action against any law
20enforcement agency or the Department of Justice, or any employee
21thereof, for a mistake in confirming a person’s or sample’s
22qualifying status for inclusion within the database or databank or
23in placing an entry in a databank or a database.
24(3) The failure of the Department of Justice or local law
25enforcement to comply with Article 4 or any other provision of
26this chapter shall not invalidate an arrest, plea, conviction, or
27disposition.
28(d) This section shall become inoperative if the California
29Supreme Court rules to uphold the California Court of Appeal
30decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
31to the provisions of Section 298 of the Penal Code, as amended
32by Section 6 of the DNA Fingerprint, Unsolved Crime and
33Innocence Protection Act, Proposition 69, approved by the voters
34at the November 2, 2004, statewide general election, in which case
35this section shall become inoperative immediately upon that ruling
36becoming final.
Section 298 is added to the Penal Code, to read:
(a) (1) (A) The Secretary of the Department of
40Corrections and Rehabilitation, or the Chief Administrative Officer
P11 1of the detention facility, jail, or other facility at which the blood
2specimens, buccal swab samples, and thumb and palm print
3impressions were collected shall cause these specimens, samples,
4and print impressions to be forwarded promptly to the Department
5of Justice, except that a blood specimen or buccal swab sample
6taken from a person arrested for the commission of a felony as
7specified in paragraph (2) of subdivision (a) of Section 296 shall
8be forwarded to the Department of Justice only after one of the
9following has occurred, which shall be deemed a finding of
10
probable cause, whichever occurs first:
11(i) A felony arrest warrant has been signed by a judicial officer
12pursuant to Section 813 or 817.
13(ii) A grand jury indictment has been found and issued pursuant
14tobegin delete Sectionsend deletebegin insert Sectionend insert 939.8, 940, or 944.
15(iii) A judicial officer has determined that probable cause exists
16to believe the person has committed the offense for which he or
17she wasbegin delete arrested at the time the defendant has been arraigned.end delete
18begin insert
arrested.end insert
19(B) The specimens, samples, and print impressions shall be
20collected by a person using a Department of Justice approved
21collection kit and in accordance with the requirements and
22procedures set forth in subdivision (b).
23(2) A blood specimen or buccal swab sample taken from a
24person arrested for the commission of a felony as specified in
25 paragraph (2) of subdivision (a) of Section 296 that has not been
26forwarded to the Department of Justice within six months following
27the arrest of that person because the agency that took the blood
28specimen or buccal swab sample has not received notice to forward
29the DNA specimen or sample to the Department of Justice for
30inclusion in the state’s DNA and Forensic Identification Database
31and
Databank Program pursuant to paragraph (1) following a
32determination of probable cause, shall be destroyed by the agency
33that collected the blood specimen or buccal swab sample.
34(b) (1) The Department of Justice shall provide all blood
35specimen vials, buccal swab collectors, mailing tubes, labels, and
36instructions for the collection of the blood specimens, buccal swab
37samples, and thumbprints. The specimens, samples, and
38thumbprints shall thereafter be forwarded to the DNA Laboratory
39of the Department of Justice for analysis of DNA and other forensic
40identification markers.
P12 1Additionally, the Department of Justice shall provide all full
2palm print cards, mailing envelopes, and instructions for the
3collection of full palm prints. The full palm prints, on a form
4prescribed by the Department of
Justice, shall thereafter be
5forwarded to the Department of Justice for maintenance in a file
6for identification purposes.
7(2) The withdrawal of blood shall be performed in a medically
8approved manner. Only health care providers trained and certified
9to draw blood may withdraw the blood specimens for purposes of
10this section.
11(3) Buccal swab samples may be procured by law enforcement
12or corrections personnel or other individuals trained to assist in
13buccal swab collection.
14(4) Right thumbprints and a full palm print impression of each
15hand shall be taken on forms prescribed by the Department of
16Justice. The palm print forms shall be forwarded to and maintained
17by the Bureau of Criminal Identification and Information of the
18
Department of Justice. Right thumbprints also shall be taken at
19the time of the collection of samples and specimens and shall be
20placed on the sample and specimen containers and forms as
21directed by the Department of Justice. The samples, specimens,
22and forms shall be forwarded to and maintained by the DNA
23Laboratory of the Department of Justice.
24(5) The law enforcement or custodial agency collecting
25specimens, samples, or print impressions is responsible for
26confirming that the person qualifies for entry into the Department
27of Justice DNA and Forensic Identification Database and Databank
28Program prior to collecting the specimens, samples, or print
29impressions pursuant to this chapter.
30(6) The DNA Laboratory of the Department of Justice is
31responsible for establishing
procedures for entering databank and
32database information.
33(c) (1) Persons authorized to draw blood or obtain samples or
34print impressions under this chapter for the databank or database
35shall not be civilly or criminally liable either for withdrawing blood
36when done in accordance with medically accepted procedures, or
37for obtaining buccal swab samples by scraping inner cheek cells
38of the mouth, or thumb or palm print impressions when performed
39in accordance with standard professional practices.
P13 1(2) There is no civil or criminal cause of action against any law
2enforcement agency or the Department of Justice, or any employee
3thereof, for a mistake in confirming a person’s or sample’s
4qualifying status for inclusion within the database or databank or
5in
placing an entry in a databank or a database.
6(3) The failure of the Department of Justice or local law
7enforcement to comply with Article 4 or any other provision of
8this chapter shall not invalidate an arrest, plea, conviction, or
9disposition.
10(d) 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 298 of the Penal Code, as amended
14by Section 6 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.
Section 299 of the Penal Code is amended to read:
(a) A person whose DNA profile has been included in
22the databank pursuant to this chapter shall have his or her DNA
23specimen and sample destroyed and searchable database profile
24expunged from the databank program pursuant to the procedures
25set forth in subdivision (b) if the person has no past or present
26offense or pending charge which qualifies that person for inclusion
27within the state’s DNA and Forensic Identification Database and
28Databank Program and there otherwise is no legal basis for
29retaining the specimen or sample or searchable profile.
30(b) Pursuant to subdivision (a), a person who has no past or
31present qualifying offense, and for whom
there otherwise is no
32legal basis for retaining the specimen or sample or searchable
33profile, may make a written request to have his or her specimen
34and sample destroyed and searchable database profile expunged
35from the databank program if any of the following apply:
36(1) Following arrest, no accusatory pleading has been filed
37within the applicable period allowed by law, charging the person
38with a qualifying offense as set forth in subdivision (a) of Section
39296 or if the charges which served as the basis for including the
40DNA profile in the state’s DNA and Forensic Identification
P14 1Database and Databank Program have been dismissed prior to
2adjudication by a trier of fact;
3(2) The underlying conviction or disposition serving as the basis
4for including the DNA profile has been
reversed and the case
5dismissed;
6(3) The person has been found factually innocent of the
7underlying offense pursuant to Section 851.8, or Section 781.5 of
8the Welfare and Institutions Code; or
9(4) The defendant has been found not guilty or the defendant
10has been acquitted of the underlying offense.
11(c) (1) The person requesting the databank entry to be expunged
12must send a copy of his or her request to the trial court of the
13county where the arrest occurred, or that entered the conviction or
14rendered disposition in the case, to the DNA Laboratory of the
15Department of Justice, and to the prosecuting attorney of the county
16in which he or she was arrested or, convicted, or adjudicated, with
17proof of
service on all parties. The court has the discretion to grant
18or deny the request for expungement. The denial of a request for
19expungement is a nonappealable order and shall not be reviewed
20by petition for writ.
21(2) Except as provided in this section, the Department of Justice
22shall destroy a specimen and sample and expunge the searchable
23DNA database profile pertaining to the person who has no present
24or past qualifying offense of record upon receipt of a court order
25that verifies the applicant has made the necessary showing at a
26noticed hearing, and that includes all of the following:
27(A) The written request for expungement pursuant to this
28section.
29(B) A certified copy of the court order reversing and dismissing
30the
conviction or case, or a letter from the district attorney
31certifying that no accusatory pleading has been filed or the charges
32which served as the basis for collecting a DNA specimen and
33sample have been dismissed prior to adjudication by a trier of fact,
34the defendant has been found factually innocent, the defendant has
35been found not guilty, the defendant has been acquitted of the
36underlying offense, or the underlying conviction has been reversed
37and the case dismissed.
38(C) Proof of written notice to the prosecuting attorney and the
39Department of Justice that expungement has been requested.
P15 1(D) A court order verifying that no retrial or appeal of the case
2is pending, that it has been at least 180 days since the defendant
3or minor has notified the prosecuting attorney and the
Department
4of Justice of the expungement request, and that the court has not
5received an objection from the Department of Justice or the
6prosecuting attorney.
7(d) Upon order from the court, the Department of Justice shall
8destroy any specimen or sample collected from the person and any
9searchable DNA database profile pertaining to the person, unless
10the department determines that the person is subject to the
11provisions of this chapter because of a past qualifying offense of
12record or is or has otherwise become obligated to submit a blood
13specimen or buccal swab sample as a result of a separate arrest,
14conviction, juvenile adjudication, or finding of guilty or not guilty
15
by reason of insanity for an offense described in subdivision (a)
16of Section 296, or as a condition of a plea.
17The Department of Justice is not required to destroy analytical
18data or other items obtained from a blood specimen or saliva, or
19buccal swab sample, if evidence relating to another person subject
20to the provisions of this chapter would thereby be destroyed or
21otherwise compromised.
22Any identification, warrant, probable cause to arrest, or arrest
23based upon a databank or database match is not invalidated due
24to a failure to expunge or a delay in expunging records.
25(e) Notwithstanding any other law, the Department of Justice
26DNA Laboratory is not required to expunge DNA profile or
27forensic identification information or destroy or return
specimens,
28samples, or print impressions taken pursuant to this section if the
29duty to register under Section 290 or 457.1 is terminated.
30(f) Notwithstanding any other law, including Sections 17,
311170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve
32a person of the separate administrative duty to provide specimens,
33samples, or print impressions required by this chapter if a person
34has been found guilty or was adjudicated a ward of the court by a
35trier of fact of a qualifying offense as defined in subdivision (a)
36of Section 296, or was found not guilty by reason of insanity or
37pleads no contest to a qualifying offense as defined in subdivision
38(a) of Section 296.
39(g) This section shall become inoperative if the California
40Supreme Court rules to uphold the California
Court of Appeal
P16 1decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
2to the provisions of Section 299 of the Penal Code, as amended
3by Section 9 of the DNA Fingerprint, Unsolved Crime and
4Innocence Protection Act, Proposition 69, approved by the voters
5at the November 2, 2004, statewide general election, in which case
6this section shall become inoperative immediately upon that ruling
7becoming final.
Section 299 is added to the Penal Code, to read:
(a) A person whose DNA profile has been included in
11the databank pursuant to this chapter shall have his or her DNA
12specimen and sample destroyed and searchable database profile
13expunged from the databank program if the person has no past or
14present offense or pending charge which qualifies that person for
15inclusion within the state’s DNA and Forensic Identification
16Database and Databank Program and there otherwise is no legal
17basis for retaining the specimen or sample or searchable profile.
18(b) Pursuant to subdivision (a), a person who has no past or
19present qualifying offense, and for whom there otherwise is no
20legal basis for retaining the specimen or sample or searchable
21profile
shall have his or her specimen and sample destroyed and
22searchable database profile expunged from the databank program
23if any of the following apply:
24(1) Following arrest,begin insert and after the applicable law enforcement
25agency has provided notice to the prosecuting attorney that the
26criminal case will not be presented to the prosecuting attorney for
27review, or after the applicable law enforcement agency has
28submitted a criminal case to the prosecuting attorney for review,end insert
29 no accusatory pleading has been filed within the applicable period
30allowed by law, charging the person with a qualifying offense as
31set forth in subdivision (a) of Sectionbegin delete 296 or if theend deletebegin insert
296, in which
32case the prosecuting attorney shall immediately, or as soon as
33practically possible, submit a letter to the Department of Justice
34indicating that an accusatory pleading has not been filed.end insert
35begin insert(2)end insertbegin insert end insertbegin insertTheend insert charges which served as the basis for including the DNA
36profile in the state’s DNA and Forensic Identification Database
37and Databank Program have been dismissed prior to adjudication
38by a trier ofbegin delete fact, in which case the district attorney shall submit a
39letter to the Department of Justice as soon as
these conditions have
40been met.end delete
P17 1the Department of Justice upon disposition of the case, indicating
2that the charges have been dismissed.end insert
29 3(2)
end delete
4begin insert(3)end insert The underlying conviction or disposition serving as the basis
5for including the DNA profile has been reversed and the case
6dismissed, in which case the court shall forward its order to the
7Department of Justice upon disposition of the case.
33 8(3)
end delete
9begin insert(4)end insert The person has been found factually innocent of the
10underlying offense pursuant to Section 851.8, or Section 781.5 of
11the Welfare and Institutions Code, in which case the court shall
12forward its order to the Department of Justice upon disposition of
13the case.
38 14(4)
end delete
15begin insert(5)end insert The defendant has been found not guilty or the defendant
16has been acquitted of the underlying offense, in which case the
17court shall forward its order to the Department of
Justice upon
18disposition of the case.
19(c) 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 the following:
23(1) A certified copy of the court order reversing and dismissing
24the conviction or case, or a letter from the district attorney
25certifying that no accusatory pleading has been filed or the charges
26which served as the basis for collecting a DNA specimen and
27sample have been dismissed prior to adjudication by a trier of fact,
28the defendant has been found factually innocent, the defendant has
29been found not guilty, the defendant has been acquitted of the
30underlying offense, or the underlying
conviction has been reversed
31and the case dismissed.
32(2) A court order verifying that no retrial or appeal of the case
33is pending.
34(d) Pursuant to this section, the Department of Justice shall
35destroy any specimen or sample collected from the person and any
36searchable DNA database profile pertaining to the person, unless
37the department determines that the person is subject to the
38provisions of this chapter because of a past qualifying offense of
39record or is or has otherwise become obligated to submit a blood
40specimen or buccal swab sample as a result of a separate arrest,
P18 1conviction, juvenile adjudication, or finding of guilty or not guilty
2by reason of insanity for an offense described in subdivision (a)
3of Section 296, or as a condition of a plea.
4The Department of Justice is not required to destroy analytical
5data or other items obtained from a blood specimen or saliva, or
6buccal swab sample, if evidence relating to another person subject
7to the provisions of this chapter would thereby be destroyed or
8otherwise compromised.
9Any identification, warrant, probable cause to arrest, or arrest
10based upon a databank or database match is not invalidated due
11to a failure to expunge or a delay in expunging records.
12(e) Notwithstanding any other law, the Department of Justice
13DNA Laboratory is not required to expunge DNA profile or
14forensic identification information or destroy or return specimens,
15samples, or print impressions taken pursuant to this section if the
16duty to register under Section 290 or 457.1 is
terminated.
17(f) Notwithstanding any other law, including Sections 17,
181170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve
19a person of the separate administrative duty to provide specimens,
20samples, or print impressions required by this chapter if a person
21has been found guilty or was adjudicated a ward of the court by a
22trier of fact of a qualifying offense as defined in subdivision (a)
23of Section 296, or was found not guilty by reason of insanity or
24pleads no contest to a qualifying offense as defined in subdivision
25(a) of Section 296.
26(g) This section shall only become operative if the California
27Supreme Court rules to uphold the California Court of Appeal
28decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
29to the provisions of Section 299 of the
Penal Code, as amended
30by Section 9 of the DNA Fingerprint, Unsolved Crime and
31Innocence Protection Act, Proposition 69, approved by the voters
32at the November 2, 2004, statewide general election, in which case
33this section shall become operative immediately upon that ruling
34becoming final.
O
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