BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1492|
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THIRD READING
Bill No: AB 1492
Author: Gatto (D), et al.
Amended: 9/4/15 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 felony if the ruling of People v Buza is upheld
by the California Supreme Court.
Senate Floor Amendments of 9/4/15 remove the limitation of DNA
collection to serious or violent felonies and clarify who shall
notify the Department of Justice (DOJ) when a case does not move
forward.
ANALYSIS:
Existing law:
1)Requires the following persons provide buccal swab samples,
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right thumbprints, and a full palm print impression of each
hand, and any blood specimens or other biological samples
required pursuant to this chapter for law enforcement
identification analysis:
a) Any person, including any juvenile, who is convicted of
or pleads guilty or no contest to any felony offense, or is
found not guilty by reason of insanity of any felony
offense, or any juvenile where a court has found that they
have committed any felony offense. (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 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
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underlying offense; or,
d) The defendant has been found not guilty or the defendant
has been acquitted of the underlying offense. (Penal Code §
299 (b).)
4)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 DOJ, 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).)
5)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).):
6)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).)
7)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).)
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8)States that a judge is not authorized to relieve a person of
the separate administrative duty to provide specimens,
samples, or print impressions required, including reduction to
a misdemeanor(Penal Code § 17.), or dismissal following
conviction. (Penal Code §§ 1203.4, 1203.4a.) (Penal Code §
299(f).)
This bill:
1)Requires that DNA samples obtained during an arrest for a sex
offense or a 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
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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 DOJ upon disposition
of the case.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
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 9/4/15)
Crime Victims United
OPPOSITION:(Verified 9/4/15)
California State Sheriffs' Association
Legal Services for Prisoners with Children
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ASSEMBLY FLOOR: 74-0, 5/22/15
AYES: Achadjian, Travis Allen, Baker, Bigelow, Bloom, Bonilla,
Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Alejo, Jones, O'Donnell, Olsen, Waldron,
Weber
Prepared by:Mary Kennedy / PUB. S. /
9/9/15 9:19:37
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