BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                       AB 1492|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   THIRD READING 


          Bill No:  AB 1492
          Author:   Gatto (D), et al.
          Amended:  8/31/15 in Senate
          Vote:     21  

           PRIOR SENATE VOTE NOT RELEVANT

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 7/14/15
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

           SENATE APPROPRIATIONS COMMITTEE:  6-0, 8/27/15
           AYES:  Lara, Bates, Beall, Hill, Leyva, Mendoza
           NO VOTE RECORDED:  Nielsen

           ASSEMBLY FLOOR:  Not relevant

           SUBJECT:   Forensic testing:  DNA samples


          SOURCE:    Author

          DIGEST:   This bill allows for DNA collection of a person  
          convicted of a serious or violent felony if the ruling of People  
          v Buza is upheld by the California Supreme Court.  

          ANALYSIS:   


          Existing law:

          1)Requires the following persons provide buccal swab samples,  
            right thumbprints, and a full palm print impression of each  
            hand, and any blood specimens or other biological samples  








                                                                    AB 1492  
                                                                    Page  2


            required pursuant to this chapter for law enforcement  
            identification analysis:

             a)   Any person, including any juvenile, who is convicted of  
               or pleads guilty or no contest to any felony offense, or is  
               found not guilty by reason of insanity of any felony  
               offense, or any juvenile where a court has found that they  
               have committed any felony offense. (Penal Code § 296  
               (a)(1).)

             b)   Any adult person who is arrested for or charged with a  
               felony offense. (Penal Code § 296 (a)(2)(C).) 

          2)Requires the DNA Laboratory of the Department of Justice (DOJ)  
            to establish procedures for entering data bank and database  
            information. (Penal Code § 298(b)(6).) 

          3)Specifies that a person whose DNA profile has been included in  
            the data bank pursuant to this chapter shall have his or her  
            DNA specimen and sample destroyed and searchable database  
            profile expunged from the data bank program if the person has  
            no past or present offense or pending charge which qualifies  
            that person for inclusion within the state's DNA and Forensic  
            Identification Database and Data Bank Program and there  
            otherwise is no legal basis for retaining the specimen or  
            sample or searchable profile:

             a)   Following arrest, no accusatory pleading has been filed  
               within the applicable period allowed by law charging the  
               person with a qualifying offense or if the charges which  
               served as the basis for including the DNA profile in the  
               state's DNA Database and Data Bank Identification Program  
               have been dismissed prior to adjudication by a trier of  
               fact; or ,

             b)   The underlying conviction or disposition serving as the  
               basis for including the DNA profile has been reversed and  
               the case dismissed; or,

             c)   The person has been found factually innocent of the  
               underlying offense; or, 

             d)   The defendant has been found not guilty or the defendant  
               has been acquitted of the underlying offense. (Penal Code §  







                                                                    AB 1492  
                                                                    Page  3


               299 (b).)

          1)Requires the person requesting the data bank entry to be  
            expunged send a copy of his or her request to the trial court  
            of the county where the arrest occurred, or that entered the  
            conviction or rendered disposition in the case, to the DNA  
            Laboratory of the Department of Justice, and to the  
            prosecuting attorney of the county in which he or she was  
            arrested or, convicted, or adjudicated, with proof of service  
            on all parties. The court has the discretion to grant or deny  
            the request for expungement. The denial of a request for  
            expungement is a non-appealable order and shall not be  
            reviewed by petition for writ. (Penal Code, § 299 (c)(1).) 


          2)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  
            specified information. (Penal Code, § 299 (c)(2).):

          3)States that DOJ shall destroy not any specimen or sample  
            collected from the person and any searchable DNA database  
            profile pertaining to the person, if DOJ determines that the  
            person is subject to the provisions of this chapter because of  
            a past qualifying offense of record or is or has otherwise  
            become obligated to submit a blood specimen or buccal swab  
            sample as a result of a separate arrest, conviction, juvenile  
            adjudication, or finding of guilty or not guilty by reason of  
            insanity for an offense requiring a DNA sample, or as a  
            condition of a plea. (Penal Code, § 299 (d).) 

          4)Provides that 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).) 

          5)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 §  







                                                                    AB 1492  
                                                                    Page  4


            299(f).) 

          This bill:

          1)Requires that DNA samples obtained during an arrest for a sex  
            offense or a serious or violent felony not be sent to DOJ for  
            analysis until after a finding of probable cause, as  
            specified, operative if the California Supreme Court upholds  
            the case of People v. Buza, review granted February 18, 2015.

          2)Establishes a procedure for a person's DNA sample and  
            searchable database profile to be expunged if the case is  
            dismissed, or the accused is acquitted, or otherwise  
            exonerated, and the person has no past qualifying offense,  
            without the requirement of an application from the person,  
            operative if the California Supreme Court upholds the case of  
            People v. Buza, review granted February 18, 2015, S223698. If  
            Buza is upheld, any of the following apply:

             a)   Law enforcement has not received notice that a court has  
               found probable cause for 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 by to  
               adjudication by a trier of fact, in which case the district  
               attorney shall submit a letter to DOJ as soon as these  
               conditions have been met.
                
             b)   The underlying conviction or disposition serving as the  
               basis for including the DNA profile has been reversed and  
               the case dismissed, in which case the court shall forward  
               its order to DOJ upon disposition of the case. 

             c)   The person has been found factually innocent of the  
               underlying offense, in which case the court shall forward  
               its order to DOJ upon disposition of the case. 

             d)   The defendant has been found not guilty or the defendant  
               has been acquitted of the underlying offense, in which case  
               the court shall forward its order to the Department of  
               Justice upon disposition of the case. 

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No







                                                                    AB 1492  
                                                                    Page  5




          According to the Senate Appropriations Committee:


           One-time and ongoing significant costs of $310,000 (General  
            Fund), for the DOJ to enhance the DNA database system and  
            perform the ongoing activities required in this bill.


           Potentially significant state reimbursable costs (General  
            Fund), potentially in excess of hundreds of thousands of  
            dollars annually, for the specific handling of the DNA samples  
            collected, including storing the samples for up to six months  
            and/or destroying samples that have not been forwarded to DOJ  
            within six months following arrest. 


           Potential increase in court workload (General Fund*) for  
            judicial determinations of probable cause and subsequent  
            notification to agencies that otherwise would not occur under  
            existing law.


          *Trial Court Trust Fund


          




          SUPPORT:   (Verified  8/28/15)




          Crime Victims United




          OPPOSITION:   (Verified  8/28/15)








                                                                    AB 1492  
                                                                    Page  6



          California State Sheriffs' Association
          Legal Services for Prisoners with Children

          Prepared by:Mary Kennedy / PUB. S. / 
          8/31/15 9:05:44


                                   ****  END  ****