BILL ANALYSIS                                                                                                                                                                                                    






                                                                    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  











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               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  











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            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  











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            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  











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            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:












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                ------------------------------------------------------- 
               |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|
               |                                              |        |
               |                                              |        |











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               |----------------------------------------------+--------|
               |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  














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               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  









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               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.  








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            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 











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          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