BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2440       Hearing Date:    June 28, 2016    
          
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          |Author:    |Gatto                                                |
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          |Version:   |May 27, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                      Subject:  County DNA Identification Fund



          HISTORY

          Source:   Author

          Prior Legislation:SB 1006 (Budget) - Ch. 32, Stats. 2012
                         AB 434 (Logue) - Ch. 195, Stats. 2011
                         
          Support:  Association of Deputy District Attorneys; California  
                    District Attorneys Association; California Police  
                    Chiefs Association; Crime Victims United of  
                    California; Los Angeles County District Attorney's  
                    Office; Los Angeles County Professional Peace  
                    Officers; Los Angeles Deputy Sheriffs; Los Angeles  
                    Police Protective League; Riverside Sheriffs; Orange  
                    County District Attorney's Office

          Opposition:None known

          Assembly Floor Vote:                 77 - 0


          PURPOSE









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          The purpose of this bill is to appropriate  
          fifteen-million-dollars ($15,000,000) to a County DNA  
          Identification Fund.
          
          Existing law provides that for the purpose of implement the DNA  
          Fingerprint, Unsolved Crime and Innocence Protection Act  
          (Proposition 69) as approved by the voters at the November 2,  
          2004, statewide general election, there shall be levied an  
          addition penalty of $1 for every $10 or part of $10 in each  
          county upon every fine, penalty, or forfeiture imposed by the  
          courts for all criminal offenses including Vehicle Code  
          offenses. (Government Code  76104.6)

          Existing law 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. (Penal Code 14251 (a).) 

          Existing law state 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 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. (Penal Code  4251 (b).) 

          Existing law 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.  
          (Penal Code  14250 (a)(1).) 

          Existing law 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  








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          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. (Penal  
          Code, 14250 (a)(2).) 

          Existing law 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. (Penal Code 14250 (a)(3).) 

          Existing law 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. (Penal Code 14250  
          (a)(4).) 

          Existing law requires that DOJ shall develop standards and  
          guidelines for 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. (Penal Code 14250  
          (b).) 

          Existing law 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. (Penal Code 14250 (d).) 









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          Existing law 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.  
          (Penal Code 14250 (e).)


          This bill appropriates fifteen-million-dollars ($15,000,000)  
          from the General Fund to the Controller for apportionment to  
          counties based on a county's proportionate contribution to the  
          state's DNA Identification Fund in the most recent calendar year  
          for which information is available on January 1, 2017

          This bill provides that these funds shall be deposited into a  
          county treasury DNA Identification Fund by the county treasurer,  
          who shall clearly distinguish moneys collected under this  
          section from money collected pursuant to Government Code Section  
          76104.6 and shall be dispersed upon a resolution by the board of  
          supervisors the object of which shall be to assist the county  
          sheriff, district attorney and other local law enforcement  
          agencies with the investigation of cases.

          This bill 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 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  








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          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. 

          This bill requires the district attorney to publicize, as  
          specified, when an investigation using these funds results in a  
          solved case.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  








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          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for This Bill

          According to the author:

          California voters in November 2004 passed Proposition 69,  
          the "DNA Fingerprint, Unsolved Crime and Innocence  
          Protection Act," to expand and modify state law regarding  
          the collection and use of criminal offender DNA samples and  
          palm print impressions.  The initiative gives the Attorney  
          General's Office, California Department of Justice, and many  
          other state and local agencies the responsibility of  
          implementing the new law.








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          As part of this new allocation of responsibility, the  
          Proposition included an additional penalty of $1 per every  
          $10 of every criminal fine (including traffic violations),  
          to reimburse county and state agencies for the cost of  
          collection and to assist crime labs with analysis of DNA  
          evidence.<1>  However, no funds were specifically allocated  
          to assist with the DNA investigatory process.  This money is  
          split between the state and counties, but the fund has  
          decreased in recent years.  According to the County DNA  
          Identification Fund Annual Reports, in 2054 counties were  
          allocated roughly $12.5 million for the DNA Identification  
          fund, down from $17.5million in 2011. This drop in funding  
          comes at a critical juncture, as legislation in recent years  
          has put increased pressure on the fund.  

          For example, AB 1517 (Skinner, 2014), amended Penal Code  
          Section 680 to decrease the timelines for law enforcement  
          agencies and crime labs to perform and process DNA testing  
          of rape kit evidence.<2> This mandate to actually utilize  
          the DNA evidence procured during the commission of these  
          crimes is a laudable one, and certainly in the best interest  
          of the public safety at large.  But as the Senate  
          Appropriations Committee noted in its analysis, these public  
          safety directives result in significant non-reimbursable  
          costs to local crime labs to meet the testing timeframes and  
          to local law enforcement agencies to meet these new  
          turnaround time requirements for submittal of evidence to  
          crime labs.

          Additionally, as DNA evidence has become a more central part  
          of criminal investigations, and the technology has evolved  
          to be more accessible and conclusive, more DNA is being  
          submitted to crime labs, which is resulting in more cold  
          hits.  However, there isn't funding to support this increase  
          in cold hit follow-up for these serious crimes.  According  
          to figures provided by the DOJ, in 2004 when Prop. 69 was  
          passed, there was an average of 50 DNA cold hits per month.   
          -------------------------
          <1>
           http://oag.ca.gov/bfs/prop69 
          <2>
            
          http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1517 







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          Today, an average of 450 DNA cold hits occurs each month. 

          This bill would add Section 14252 to the Penal Code to  
          appropriate $15,000,000 from the General Fund to the State  
          Controller for apportionment to counties throughout the  
          state.  The Controller would distribute funds to counties  
          proportionately based on their contributions to the state's  
          DNA Identification Fund the previous year.<3> This funding  
          is meant to assist county sheriffs, district attorneys, and  
          other local law enforcement agencies investigate cold cases.  
           

          AB 2440 would require the district attorney to publicize, as  
          specified, when an investigation using these funds results  
          in a solved case. 

          The legislation would describe "cold cases" as unsolved  
          serious or violent cases where biological evidence exists,  
          and more than three years has elapsed since the commission  
          of the crime.  

          2.  $15,000,000 for DNA Identification
          
          This bill would $15,000,000 from the General Fund to the  
          Controller for distribution to counties to assist law  
          enforcement with investigations using DNA.  The money is to be  
          distributed based on the amount a county contributes to the  
          state's DNA Identification Fund.

          The California Police Chiefs Association supports this bill  
          stating:

               As DNA evidence has become increasingly central part of  
               criminal investigations, and the technology has evolved  
               to be more accessible and conclusive, greater amounts  
               of DNA is being submitted to crime labs, which is  
               resulting in more cold hits.  However, there isn't  
               funding to support this increase in cold hit follow-up  
               for these serious crimes. According to figures provided  
               by the Department of Justice, in 2004 when Prop. 69 was  
               -----------------------
          <3>
            
          https://www.oag.ca.gov/sites/all/files/agweb/pdfs/bfs/2015-dna-fund-report.pdf 







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               passed, there was an average of 50 DNA cold hits per  
               month.  Today, an average of 450 DNA cold hits occur  
               each month.  AB 2440 will assist law enforcement in  
               investigating these cases.


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