BILL ANALYSIS Ó AB 2440 Page A Date of Hearing: April 12, 2016 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 2440 (Gatto) - As Amended March 17, 2016 As Proposed to be Amended in Committee SUMMARY: Appropriates fifteen-million-dollars ($15,000,000) to fund a County DNA Identification Fund. Specifically, this bill: 1)Appropriates fifteen-million-dollars ($15,000,000) to fund a County DNA Identification Fund. 2)Specifies funds pursuant to this section shall only be used for the following purposes: a) To assist law enforcement agencies within the county, including local sheriff and district attorney agencies, with the identification, review, and investigation of unsolved serious or violent cold cases to determine if biological evidence exists that could provide a DNA investigative lead to law enforcement, including, but not limited to, the DNA profile of a putative suspect that could be uploaded into national, state, local, or other law AB 2440 Page B enforcement DNA databases, and when more than three years have elapsed since the date of violation of the cold case crime. b) To assist law enforcement agencies within the county, including local sheriff and district attorney agencies, with the investigation of cases where crime scene biological evidence has been collected and analyzed and a DNA profile that could provide an investigative lead to law enforcement agencies, including, but not limited to, the DNA profile of a putative suspect, has been generated and uploaded into national, state, local, or other law enforcement DNA databases and a DNA match has resulted in the identification of a putative suspect or a match to a DNA profile from another crime scene. 3)Requires the district attorney to publicize, as specified, when an investigation using these funds results in a solved case. EXISTING LAW: 1)Specifies that the "Missing Persons DNA Database" shall be funded by a two dollar ($2) fee increase on death certificates issued by a local governmental agency or by the State of California. The issuing agencies may retain up to 5 percent of the funds from the fee increase for administrative costs. (Pen. Code, § 14251, subd. (a).) 2)Funds shall be directed on a quarterly basis to the "Missing Persons DNA Data Base Fund," hereby established, to be administered by the department for establishing and maintaining laboratory infrastructure, DNA sample storage, DNA analysis, and labor costs for cases of missing persons and unidentified remains. Funds may also be distributed by the department to various counties for the purposes of pathology and exhumation consistent with this title. The department may AB 2440 Page C also use those funds to publicize the database for the purpose of contacting parents and relatives so that they may provide a DNA sample for training law enforcement officials about the database and DNA sampling and for outreach. (Pen. Code, § 14251, subd. (b).) 3)Provides that the Department of Justice (DOJ) shall develop a DNA database for all cases involving the report of an unidentified deceased person or a high-risk missing person. (Pen. Code, § 14250, subd. (a)(1).) 4)Provides that the database shall be comprised of DNA data from genetic markers that are appropriate for human identification, but have no capability to predict biological function other than gender. These markers shall be selected by the department and may change as the technology for DNA typing progresses. The results of DNA typing shall be compatible with and uploaded into the CODIS DNA database established by the Federal Bureau of Investigation. The sole purpose of this database shall be to identify missing persons and shall be kept separate from the database established as specified. (Pen. Code, § 14250, subd. (a)(2).) 5)Provides that DOJ shall compare DNA samples taken from the remains of unidentified deceased persons with DNA samples taken from personal articles belonging to the missing person, or from the parents or appropriate relatives of high-risk missing persons. (Pen. Code, § 14250, subd. (a)(3).) 6)Defines "high-risk missing person" means a person missing as a result of a stranger abduction, a person missing under suspicious circumstances, a person missing under unknown circumstances, or where there is reason to assume that the person is in danger, or deceased, and that person has been missing more than 30 days, or less than 30 days in the discretion of the investigating agency. (Pen. Code, § 14250, subd. (a)(4).) 7)Requires that DOJ shall develop standards and guidelines for AB 2440 Page D the preservation and storage of DNA samples. Any agency that is required to collect samples from unidentified remains for DNA testing shall follow these standards and guidelines. These guidelines shall address all scientific methods used for the identification of remains, including DNA, anthropology, odontology, and fingerprints. (Pen. Code, § 14250, subd. (b).) 8)Specifies that all DNA samples and profiles developed therefrom shall be confidential and shall only be disclosed to personnel of the Department of Justice, law enforcement officers, coroners, medical examiners, district attorneys, and persons who need access to a DNA sample for purposes of the prosecution or defense of a criminal case, except that a law enforcement officer or agency may publicly disclose the fact of a DNA profile match after taking reasonable measures to first notify the family of an unidentified deceased person or the family of a high-risk missing person that there has been an identification. (Pen. Code § 14250, subd. (d).) States that all DNA, forensic identification profiles, and other identification information retained by the Department of Justice pursuant to this section are exempt from any law requiring disclosure of information to the public. (Pen. Code, § 14250, subd. (e).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author "AB 2440 will ensure that local law enforcement has the necessary funding to pursue DNA matches and investigate cold cases. Funds to local law enforcement have been reduced in recent years, and the resources to investigate and follow-up on DNA cold hits is AB 2440 Page E limited. Simultaneously, the value of DNA evidence has become even more apparent, and state mandates requiring expedited investigation of these leads has put additional tension on already strained local resources. AB 2440 will provide crucial funding to aid local law enforcement in the use of this valuable investigatory tool." 2)Amendments Taken in Committee: The amendments taken in committee today substantially change the funding source of the bill. The bill, as drafted, funds the DNA Investigation Fund by a penalty assessment of $4 for every $10 or part thereof to be levied in each county upon every fine, penalty, or forfeiture imposed and collected by the court for specified offenses, including, among others, misdemeanor and felony offenses, misdemeanor violations of any city, county, or city and county ordinance, and violations of the Penal Code initially charged as a misdemeanor and reduced to an infraction. The amendments avoid creating a new penalty assessment by authorizing an appropriation of $15,000,000 from the General Fund. Penalty assessments in California are already excessively high on criminal defendants. Offenders who are forced to pay these penalty assessments are often facing loss of employment, housing, and support. Additionally, they often have to make heavy restitution to victims. a) Penalty Assessments: The amount spelled out in statute as a fine for violating a criminal offense are base figures, as these amounts are subject to statutorily-imposed penalty assessments, such as fees and surcharges. Assuming a defendant is fined the default felony fine of $10,000 under the Penal Code, the following penalty assessments would be imposed pursuant to the Government and Penal codes: AB 2440 Page F ------------------------------------------------------- |Base Fine: |$10,000.| | | 00| | | | | | | |----------------------------------------------+--------| | | | |----------------------------------------------+--------| |Penal Code § 1464 assessment ($10 for every |$10,000.| |$10): | 00| | | | | | | |----------------------------------------------+--------| |Penal Code § 1465.7 assessment (20% |$2,000.0| |surcharge): | 0| | | | | | | |----------------------------------------------+--------| |Penal Code § 1465.8 assessment ($40 per | $40.00| |criminal offense): | | | | | | | | |----------------------------------------------+--------| |Government Code § 70372 assessment ($5 for |$5,000.0| |every $10): | 0| | | | | | | |----------------------------------------------+--------| |Government Code § 70373 assessment ($30 for | $30.00| |felony or misdemeanor offense): | | | | | | | | |----------------------------------------------+--------| |Government Code § 76000 assessment ($7 for |$7,000.0| |every $10): | 0| | | | | | | AB 2440 Page G |----------------------------------------------+--------| |Government Code § 76000.5 assessment ($2 for |$2,000.0| |every $10): | 0| | | | | | | |----------------------------------------------+--------| |Government Code § 76104.6 assessment ($1 for |$1,000.0| |every $10): | 0| | | | | | | |----------------------------------------------+--------| |Government Code § 76104.7 assessment ($4 for |$4,000.0| |every $10): |0 | | | | | | | |----------------------------------------------+--------| | | | |----------------------------------------------+--------| |Fine with Assessments: | | | |$41,070.00*| | | | | | | ------------------------------------------------------- *In addition to the assessments detailed in the chart, the defendant could be subject to pay "actual administrative costs" related to his or her arrest and booking (Gov. Code, § 29550 et seq.) and victim restitution for damages impose by the court. b) Abnormally High Criminal Penalties and Assessments in California: In a January 2016 report, the LAO found that California has abnormally high criminal penalties and AB 2440 Page H assessments. <1> According to the report, "[c]urrently, comprehensive information is not available on the criminal fine and fee levels of other states. However, in order to compare California's fine and fee levels to the rest of the nation, we surveyed other states. Specifically, we surveyed one large jurisdiction in each of 33 states (including many states similar to California) for the fines and fees associated with two offenses: a stop sign violation and speeding at 20 miles per hour over the limit. We found that California's fines and fees associated with these common traffic offenses are relatively high. For example, the total fines and fees for a stop sign violation in California is $238, which was higher than 28 of the [33] surveyed states (about 85 percent). The total in other surveyed states ranged from $58 to $277, and averaged $157. The total fines and fees for speeding at 20 miles per hour over the limit in California was $367, which was higher than all of the states we surveyed. The total in other surveyed states ranges from $73 to $350, and averaged $203. The LAO made a number of recommendations to improve the state's fine and fee system. "First, we recommend that the Legislature reevaluate the overall structure of the fine and fee system to ensure the system is consistent with its goals. As part of this process, the Legislature will want to determine the specific goals of the system, whether ability to pay should be incorporated into the system, what should be the consequences for failing to pay, and whether fines and fees should be regularly adjusted. Second, we recommend increasing legislative control over the use of criminal fine and fee revenue to ensure that its uses are in line with legislative priorities by (1) requiring that most criminal fine and fee revenue be deposited in the state General Fund, (2) consolidating most fines and fees ------------------------- <1> Improving California's Criminal Fine and Fee System. http://www.lao.ca.gov/Publications/Report/3322 AB 2440 Page I into a single, statewide charge, (3) evaluating the existing programs supported by fine and fee revenues, and (4) mitigating the impacts of potential changes to the fine and fee system on local governments." 3)Argument in Support: According to Los Angeles County Professional Peace Officers Association, "AB 2440 will ensure that local law enforcement has the necessary funding to pursue DNA matches and investigate cold cases. Funds to local law enforcement have been reduced in recent years and the resources to investigate and follow-up on DNA evidence is critical to solving cases and helping reduce the backlog of cold cases." 4)Argument in Opposition: According to California Public Defenders Association<2>, "As we understand this bill, it would add an additional $4 penalty assessment for every $10 in fines above the existing $1 penalty assessment for every $10 in fines. In other words this bill seeks to add a 40% penalty assessment to fines imposed on most infractions, misdemeanors and felonies. "Not only is this bad policy but this is bad for California. California is already notorious for imposing enormous penalty assessments on top of fines that disproportionately affect the poor in this state. "The majority of individuals who are charged with criminal -------------------------- <2> The amendments to this bill were negotiated approximately the same time that the analysis was published. None of the opposition had an opportunity to review the amendments prior to publication. As a result, the opposition letters reflect the "in print" version of the bill which includes penalty assessments. All of the opposition focused on the issue of penalty assessments as reflected by this letter. AB 2440 Page J offenses are indigent. Those who are employed typically work long hours and are paid low wages. In addition to jail time courts are required to impose victim restitution as well as fines and fees. The amount of money the indigent clients are required to pay in fines, fees, victim restitution and penalty assessments is already exorbitant and unrealistic. "The money defendants convicted of crimes must pay is frequently money that would otherwise go to feeding and providing support for themselves and their families. It is for this reason that the California Public Defenders Association strongly opposes this bill." REGISTERED SUPPORT / OPPOSITION: Support Association of Deputy District Attorneys Association for Los Angeles Deputy Sheriffs California District Attorneys Association California Police Chiefs Association Crime Victims United Los Angeles County Professional Peace Officers Association AB 2440 Page K Los Angeles Police Protective League Riverside Sheriffs Association Opposition American Civil Liberties Union California Public Defenders Association Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744