BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1492


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1492 (Gatto)


          As Amended  September 4, 2015


          Majority vote


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          |ASSEMBLY:  | 74-0 | (May 22,      |SENATE: | 40-0 | (September 10,  |
          |           |      |2015)          |        |      |2015)            |
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          Original Committee Reference:  E. & R.


          SUMMARY:  Provides contingency language that deoxyribonucleic  
          acid (DNA) samples taken pursuant to arrest shall not be sent to  
          the Department of Justice (DOJ) for analysis, unless there is a  
          finding of probable cause that the offense has been committed.   
          Simplifies the process to remove a DNA sample from the DNA  
          database.  Contingency language does not take effect unless the  
          California Supreme Court finds that existing law on the taking  
          of DNA samples is unconstitutional.


          The Senate amendments delete the Assembly version of this bill,  
          and instead:




          1)Require DNA samples to be taken when a person is arrested for  
            or charged with any serious or violent felony, or felony which  








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            requires registration as a sex offender.  This only becomes  
            operative if the California Supreme Court upholds the case of  
            People v. Buza, review granted February 18, 2015, S223698.


          2)Require that DNA samples obtained during an arrest on a felony  
            not be sent to DOJ for analysis until after a finding of  
            probable cause, operative if the California Supreme Court  
            upholds the case of People v. Buza, review granted February  
            18, 2015, S223698.


          3)Specify that a finding of probable cause is established by any  
            of the following:


             a)   A felony arrest warrant signed by a judicial officer;


             b)   A grand jury indictment; or


             c)   A determination by a judicial officer that probable  
               cause exists to believe the person has committed the  
               offense for which he or she was arrested.


          4)Specify that a DNA sample taken pursuant to a felony arrest  
            shall be destroyed after six months, if the law enforcement  
            agency has not received notice to forward the sample to DOJ  
            following a determination of probable cause, operative if  
            People v. Buza, supra, is upheld.


          5)Establish procedure for a person's DNA sample and searchable  
            database profile to be removed 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 People v.  
            Buza, supra, is upheld.  The removal process applies to the  
            following situations:









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             a)   The charge(s) which serve as the basis for including the  
               DNA sample in the database have been dismissed;


             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 the 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 the DOJ upon disposition of the case; and


             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 DOJ upon  
               disposition of the case.


             e)   Following arrest, and after a law enforcement agency has  
               provided notice to the prosecuting attorney that the  
               criminal case will not be presented to the prosecuting  
               attorney for review, or after the law enforcement agency  
               has submitted a criminal case to the prosecuting attorney  
               for review, no accusatory pleading has been filed within  
               the applicable period allowed by law charging the person  
               with a qualifying offense as specified, the prosecuting  
               attorney shall immediately, or as soon as practicably  
               possible, submit a letter to DOJ indicating that an  
               accusatory pleading has not been filed.   
          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  
            required pursuant to this chapter for law enforcement  
            identification analysis.









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             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; 


             b)   Any adult person who is arrested for or charged with a  
               felony offense; and 


             c)   Any person, including any juvenile, who is required to  
               register as a sex offender or arson offender because of the  
               commission of, or the attempt to commit, a felony or  
               misdemeanor offense, or any person, including any juvenile,  
               who is housed in a mental health facility or sex offender  
               treatment program after referral to such facility or  
               program by a court after being charged with any felony  
               offense. 


          2)Allows the collection and analysis of specimens, samples, or  
            print impressions as a condition of a plea for a  
            non-qualifying offense. 


          3)Requires submission of specimens, samples, and print  
            impressions as soon as administratively practicable by  
            qualified persons and shall apply regardless of placement or  
            confinement in any mental hospital or other public or private  
            treatment facility, and shall include, but not be limited to,  
            the following persons, including juveniles: 


             a)   Any person committed to a state hospital or other  
               treatment facility as a mentally disordered sex offender; 


             b)   Any person who is designated a mentally ordered  
               offender; and 









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             c)   Any person found to be a sexually violent predator. 


          4)Specifies that the court shall inquire and verify, prior to  
            final disposition or sentencing in the case, that the  
            specimens, samples, and print impressions have been obtained  
            and that this fact is included in the abstract of judgment or  
            dispositional order in the case of a juvenile. 


          5)Provides that failure by the court to verify specimen, sample,  
            and print impression collection or enter these facts in the  
            abstract of judgment or dispositional order in the case of a  
            juvenile shall not invalidate an arrest, plea, conviction, or  
            disposition, or otherwise relieve a person from the  
            requirements to provide samples. 


          6)Provides that The DOJ, through its DNA Laboratory, is  
            responsible for the management and administration of the  
            state's DNA and Forensic Identification Database and Data Bank  
            Program and for liaising with the Federal Bureau of  
            Investigation (FBI) regarding the state's participation in a  
            national or international DNA database and data bank program  
            such as the Combined DNA Index System (CODIS) that allows the  
            storage and exchange of DNA records submitted by state and  
            local forensic DNA laboratories nationwide.  


          7)Provides that DOJ can perform DNA analysis, other forensic  
            identification analysis, and examination of palm prints  
            pursuant to the DNA Act (Act) only for identification  
            purposes.  


          8)Provides that the DOJ DNA Laboratory is to serve as a  
            repository for blood specimens, buccal swab, and other  
            biological samples collected and is required to analyze  
            specimens and samples and store, compile, correlate, compare,  
            maintain, and use DNA and forensic identification profiles and  
            records related to the following:








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             a)   Forensic casework and forensic unknowns; 


             b)   Known and evidentiary specimens and samples from crime  
               scenes or criminal investigations; 


             c)   Missing or unidentified persons; 


             d)   Persons required to provide specimens, samples, and  
               print impressions 


             e)   Legally obtained samples; and


             f)   Anonymous DNA records used for training, research,  
               statistical analysis of populations, quality assurance, or  
               quality control. 


          9)States that all DNA and forensic identification profiles and  
            other identification information retained by DOJ pursuant to  
            the Act are exempt from any law requiring disclosure of  
            information to the public and are confidential except as  
            otherwise provided in the Act. 


          10)Provides that, except to the defense counsel, upon court  
            order, of a defendant whose DNA and other forensic  
            identification information were developed pursuant to the Act,  
            DOJ and local public DNA laboratories shall not otherwise be  
            compelled in a criminal or civil proceeding to provide any DNA  
            profile or forensic identification database or data bank  
            information or its computer database program software or  
            structures to any person or party seeking such records or  
            information whether by subpoena, discovery, or other  
            procedural device or inquiry.  









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          11)Punishes as an alternate misdemeanor/felony any person who  
            knowingly uses an offender specimen, sample, or DNA profile  
            collected pursuant to the Act for other than criminal  
            identification or exclusion purposes, or for other than the  
            identification of missing persons, or who knowingly discloses  
            DNA or other forensic identification information developed as  
            specified to an unauthorized individual or agency, for other  
            than criminal identification or exclusion purposes, or for the  
            identification of missing persons, by imprisonment in a county  
            jail not exceeding one year or by imprisonment in the state  
            prison for 16 months, or two or three years.  


          12)Specifies that it is not a violation of the above provision  
            for the DOJ DNA Laboratory, or an organization retained as a  
            DOJ agent, or a local public laboratory to use anonymous  
            records or criminal history information obtained pursuant to  
            the Act for training, research, statistical analysis of  
            populations, quality assurance, or quality control.  


          13)Provides that the Act does not prohibit DOJ, in its sole  
            discretion, from the sharing or disseminating of population  
            database or data bank information, DNA profile or forensic  
            identification database or data bank information, analytical  
            data and results generated for forensic identification  
            database and data bank purposes, or protocol and forensic DNA  
            analysis methods and quality assurance or quality control  
            procedures with any third party that DOJ deems necessary to  
            assist the department's crime laboratory with statistical  
            analyses of population databases, or the analyses of forensic  
            protocol, research methods, or quality control procedures, or  
            to assist in the recovery or identification of human remains  
            for humanitarian purposes, including identification of missing  
            persons.  


          14)Specifies the Director of Corrections, or the Chief  
            Administrative Officer of the detention facility, jail, or  
            other facility at which the blood specimens, buccal swab  
            samples, and thumb and palm print impressions were collected  








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            send them promptly to the DOJ.


          15)Requires the DNA Laboratory of DOJ to establish procedures  
            for entering data bank and database information. 




          16)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 as set forth in  
               subdivision (a) of Section 296 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 pursuant to Welfare and Institutions  
               Code Sections 851.8 or 781.5; or, 


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










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          17)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 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. 



          18)Requires DOJ destroy a specimen and sample and expunge the  
            searchable DNA database profile pertaining to the person who  
            has no present or past qualifying offense of record upon  
            receipt of a court order that verifies the applicant has made  
            the necessary showing at a noticed hearing, and that includes  
            all of the following: 


             a)   The written request for expungement pursuant to this  
               section;


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


             c)   Proof of written notice to the prosecuting attorney and  
               the DOJ that expungement has been requested. 









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             d)   A court order verifying that no retrial or appeal of the  
               case is pending, that it has been at least 180 days since  
               the defendant or minor has notified the prosecuting  
               attorney and the DOJ of the expungement request, and that  
               the court has not received an objection from the DOJ or the  
               prosecuting attorney. 


          19)States that the DOJ shall destroy not any specimen or sample  
            collected from the person and any searchable DNA database  
            profile pertaining to the person, if department determines  
            that the person is subject to the provisions of this chapter  
            because of a past qualifying offense of record or is or has  
            otherwise become obligated to submit a blood specimen or  
            buccal swab sample as a result of a separate arrest,  
            conviction, juvenile adjudication, or finding of guilty or not  
            guilty by reason of insanity for an offense described in Penal  
            Code Section 296(a), or as a condition of a plea. 


          20)The DOJ is not required to destroy analytical data or other  
            items obtained from a blood specimen or saliva, or buccal swab  
            sample, if evidence relating to another person subject to the  
            provisions of this chapter would thereby be destroyed or  
            otherwise compromised. 


          21) 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, or dismissal following conviction.


          AS PASSED BY THE ASSEMBLY, this bill provided that a person who  
          is found guilty of fraud related to the circulating or filing of  
          an in-lieu-filing-fee petition or political party qualification  
          petition is subject to the same penalties as a person found  
          guilty of other forms of petition fraud.   


          FISCAL EFFECT:  According to the Senate Appropriations  








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          Committee: 


          1)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 the bill.


          2)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 the  
            DOJ within six months following arrest. 


          3)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


          COMMENTS:  According to the author, "AB 1492 will ensure that  
          California has a back-up DNA collection process in place, while  
          the California Supreme Court considers People v. Buza.  DNA  
          collection from felony arrestees was halted during the months  
          between the lower court's decision and the California Supreme  
          Court granting review of the Buza decision and AB 1492 seeks to  
          ensure that there is a system for DNA collection from felony  
          arrestees in place should the California Supreme Court uphold  
          the lower court's decision.  AB 1492 would provide for DNA  
          collection of those charged with a serious felony (rather than  
          every felony, as is currently being decided in the Buza case),  
          thus furthering the voters' intent in passing Proposition 69  
          [2004] and creating parity between California's DNA collection  
          laws and those upheld by the US [United States] Supreme Court.   
          It strikes a careful balance by enhancing law enforcement's  
          ability to fully utilize the tools necessary to solve crimes,  
          while ensuring for the protection of Californians'  








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          constitutional rights.  DNA testing is crucial to our ability to  
          solve crimes, and AB 1492 strives to make sure that best  
          practices are implemented, the constitution is respected, the  
          innocent are exonerated, and the guilty are brought to justice."


          This bill was substantially amended in the Senate and the  
          Assembly approved provisions of this bill were deleted.  This  
          bill as amended in the Senate is inconsistent with Assembly  
          actions.  The language in this bill is substantially similar to  
          AB 84 (Gatto) of the current legislative session, which was held  
          in the Assembly Appropriations Committee


          Analysis Prepared by:                                             
                          David Billingsley / PUB. S. / (916) 319-3744   
          FN: 0002370