Senate BillNo. 1109


Introduced by Senator Runner

February 17, 2016


An act to amend Sections 299 and 1170.18 of the Penal Code, relating to DNA evidence.

LEGISLATIVE COUNSEL’S DIGEST

SB 1109, as introduced, Runner. DNA evidence: expungement.

Existing law, as amended by the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, statewide general election, requires any adult person who is arrested, charged, or convicted of specified offenses to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis and inclusion in state and federal DNA databases. Existing law requires a person’s DNA profile to be expunged from this database if no accusatory pleading is filed within the applicable period allowed by law, the underlying conviction serving as the basis for the DNA profile has been reversed and the case dismissed, the person has been found factually innocent of the underlying offense, or the defendant has been found not guilty or has been acquitted of the underlying offense.

Existing law, added by Proposition 47, approved by the voters at the November 4, 2014, statewide general election, allows a person to petition the court for resentencing if he or she was convicted of a felony that was reduced to a misdemeanor by Proposition 47. Existing law requires the court to resentence the petitioner, unless the court determines that the person would pose an unreasonable risk to public safety.

This bill would prevent resentencing under Proposition 47 from being considered a basis for expungement of DNA evidence.

Vote: 23. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 299 of the Penal Code, as amended by
2Section 4 of Chapter 487 of the Statutes of 2015, is amended to
3read:

4

299.  

(a) A person whose DNA profile has been included in
5the databank pursuant to this chapter shall have his or her DNA
6specimen and sample destroyed and searchable database profile
7expunged from the databank program pursuant to the procedures
8set forth in subdivision (b) if the person has no past or present
9offense or pending charge which qualifies that person for inclusion
10within the state’s DNA and Forensic Identification Database and
11Databank Program and there otherwise is no legal basis for
12retaining the specimen or sample or searchable profile.begin insert A DNA
13profile that was lawfully collected and included in the databank
14as a consequence of a conviction of a qualifying offense shall not
15be destroyed due to resentencing of that person pursuant to Section
161170.18.end insert

17(b) Pursuant to subdivision (a), a person who has no past or
18present qualifying offense, and for whom there otherwise is no
19legal basis for retaining the specimen or sample or searchable
20profile, may make a written request to have his or her specimen
21and sample destroyed and searchable database profile expunged
22from the databank program if any of the following apply:

23(1) Following arrest, no accusatory pleading has been filed
24within the applicable period allowed by law, charging the person
25with a qualifying offense as set forth in subdivision (a) of Section
26296 or if the charges which served as the basis for including the
27DNA profile in the state’s DNA and Forensic Identification
28Database and Databank Program have been dismissed prior to
29adjudication by a trier of fact;

P3    1(2) The underlying conviction or disposition serving as the basis
2for including the DNA profile has been reversed and the case
3dismissed;

4(3) The person has been found factually innocent of the
5underlying offense pursuant to Section 851.8, or Section 781.5 of
6the Welfare and Institutions Code; or

7(4) The defendant has been found not guilty or the defendant
8has been acquitted of the underlying offense.

9(c) (1) The person requesting the databank entry to be expunged
10must send a copy of his or her request to the trial court of the
11county where the arrest occurred, or that entered the conviction or
12rendered disposition in the case, to the DNA Laboratory of the
13Department of Justice, and to the prosecuting attorney of the county
14in which he or she was arrested or, convicted, or adjudicated, with
15proof of service on all parties. The court has the discretion to grant
16or deny the request for expungement. The denial of a request for
17expungement is a nonappealable order and shall not be reviewed
18by petition for writ.

19(2) Except as provided in this section, the Department of Justice
20shall destroy a specimen and sample and expunge the searchable
21DNA database profile pertaining to the person who has no present
22or past qualifying offense of record upon receipt of a court order
23that verifies the applicant has made the necessary showing at a
24noticed hearing, and that includes all of the following:

25(A) The written request for expungement pursuant to this
26section.

27(B) A certified copy of the court order reversing and dismissing
28the conviction or case, or a letter from the district attorney
29certifying that no accusatory pleading has been filed or the charges
30which served as the basis for collecting a DNA specimen and
31sample have been dismissed prior to adjudication by a trier of fact,
32the defendant has been found factually innocent, the defendant has
33been found not guilty, the defendant has been acquitted of the
34underlying offense, or the underlying conviction has been reversed
35and the case dismissed.

36(C) Proof of written notice to the prosecuting attorney and the
37Department of Justice that expungement has been requested.

38(D) A court order verifying that no retrial or appeal of the case
39is pending, that it has been at least 180 days since the defendant
40or minor has notified the prosecuting attorney and the Department
P4    1of Justice of the expungement request, and that the court has not
2received an objection from the Department of Justice or the
3 prosecuting attorney.

4(d) begin insert(1)end insertbegin insertend insert Upon order from the court, the Department of Justice
5shall destroy any specimen or sample collected from the person
6and any searchable DNA database profile pertaining to the person,
7unless the department determines that the person is subject to the
8provisions of this chapter because of a past qualifying offense of
9record or is or has otherwise become obligated to submit a blood
10specimen or buccal swab sample as a result of a separate arrest,
11conviction, juvenile adjudication, or finding of guilty or not guilty
12by reason of insanity for an offense described in subdivision (a)
13of Section 296, or as a condition of a plea.

begin delete

14The

end delete

15begin insert(2)end insertbegin insertend insertbegin insertTheend insert Department of Justice is not required to destroy
16analytical data or other items obtained from a blood specimen or
17saliva, or buccal swab sample, if evidence relating to another
18person subject to the provisions of this chapter would thereby be
19destroyed or otherwise compromised.

begin delete

20Any

end delete

21begin insert(3)end insertbegin insertend insertbegin insertAnyend insert identification, warrant, probable cause to arrest, or arrest
22based upon a databank or database match is not invalidated due
23to a failure to expunge or a delay in expunging records.

24(e) Notwithstanding any other law, the Department of Justice
25DNA Laboratory is not required to expunge DNA profile or
26forensic identification information or destroy or return specimens,
27samples, or print impressions taken pursuant to this section if the
28duty to register under Section 290 or 457.1 is terminated.

29(f) Notwithstanding any other law, including Sections 17,
301170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve
31a person of the separate administrative duty to provide specimens,
32samples, or print impressions required by this chapter if a person
33has been found guilty or was adjudicated a ward of the court by a
34trier of fact of a qualifying offense as defined in subdivision (a)
35of Section 296, or was found not guilty by reason of insanity or
36pleads no contest to a qualifying offense as defined in subdivision
37(a) of Section 296.

38(g) This section shall become inoperative if the California
39Supreme Court rules to uphold the California Court of Appeal
40decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
P5    1to the provisions of Section 299 of the Penal Code, as amended
2by Section 9 of the DNA Fingerprint, Unsolved Crime and
3Innocence Protection Act, Proposition 69, approved by the voters
4at the November 2, 2004, statewide general election, in which case
5this section shall become inoperative immediately upon that ruling
6becoming final.

7

SEC. 2.  

Section 299 of the Penal Code, as amended by Section
85 of Chapter 487 of the Statutes of 2015, is amended to read:

9

299.  

(a) A person whose DNA profile has been included in
10the databank pursuant to this chapter shall have his or her DNA
11specimen and sample destroyed and searchable database profile
12expunged from the databank program if the person has no past or
13present offense or pending charge which qualifies that person for
14inclusion within the state’s DNA and Forensic Identification
15Database and Databank Program and there otherwise is no legal
16basis for retaining the specimen or sample or searchable profile.
17begin insert A DNA profile that was lawfully collected and included in the
18databank as a consequence of a conviction of a qualifying offense
19shall not be destroyed due to resentencing of that person pursuant
20to Section 1170.18.end insert

21(b) Pursuant to subdivision (a), a person who has no past or
22present qualifying offense, and for whom there otherwise is no
23legal basis for retaining the specimen or sample or searchable
24profile shall have his or her specimen and sample destroyed and
25searchable database profile expunged from the databank program
26if any of the following apply:

27(1) Following arrest, and after the applicable law enforcement
28agency has provided notice to the prosecuting attorney that the
29criminal case will not be presented to the prosecuting attorney for
30review, or after the applicable law enforcement agency has
31submitted a criminal case to the prosecuting attorney for review,
32no accusatory pleading has been filed within the applicable period
33allowed by law, charging the person with a qualifying offense as
34set forth in subdivision (a) of Section 296, in which case the
35prosecuting attorney shall immediately, or as soon as practically
36possible, submit a letter to the Department of Justice indicating
37that an accusatory pleading has not been filed.

38(2) The charges which served as the basis for including the DNA
39profile in the state’s DNA and Forensic Identification Database
40and Databank Program have been dismissed prior to adjudication
P6    1by a trier of fact, in which case the court shall forward an order to
2the Department of Justice upon disposition of the case, indicating
3that the charges have been dismissed.

4(3) The underlying conviction or disposition serving as the basis
5for including the DNA profile has been reversed and the case
6dismissed, in which case the court shall forward its order to the
7Department of Justice upon disposition of the case.

8(4) The person has been found factually innocent of the
9 underlying offense pursuant to Section 851.8, or Section 781.5 of
10the Welfare and Institutions Code, in which case the court shall
11forward its order to the Department of Justice upon disposition of
12the case.

13(5) The defendant has been found not guilty or the defendant
14has been acquitted of the underlying offense, in which case the
15court shall forward its order to the Department of Justice upon
16disposition of the case.

17(c) Except as provided in this section, the Department of Justice
18shall destroy a specimen and sample and expunge the searchable
19DNA database profile pertaining to the person who has no present
20or past qualifying offense of record upon receipt of the following:

21(1) A certified copy of the court order reversing and dismissing
22the conviction or case, or a letter from the district attorney
23certifying that no accusatory pleading has been filed or the charges
24which served as the basis for collecting a DNA specimen and
25sample have been dismissed prior to adjudication by a trier of fact,
26the defendant has been found factually innocent, the defendant has
27been found not guilty, the defendant has been acquitted of the
28underlying offense, or the underlying conviction has been reversed
29and the case dismissed.

30(2) A court order verifying that no retrial or appeal of the case
31is pending.

32(d) begin insert(1)end insertbegin insertend insert Pursuant to this section, the Department of Justice shall
33destroy any specimen or sample collected from the person and any
34searchable DNA database profile pertaining to the person, unless
35the department determines that the person is subject to the
36provisions of this chapter because of a past qualifying offense of
37record or is or has otherwise become obligated to submit a blood
38specimen or buccal swab sample as a result of a separate arrest,
39conviction, juvenile adjudication, or finding of guilty or not guilty
P7    1by reason of insanity for an offense described in subdivision (a)
2of Section 296, or as a condition of a plea.

begin delete

3The

end delete

4begin insert(2)end insertbegin insertend insertbegin insertTheend insert Department of Justice is not required to destroy
5analytical data or other items obtained from a blood specimen or
6saliva, or buccal swab sample, if evidence relating to another
7person subject to the provisions of this chapter would thereby be
8destroyed or otherwise compromised.

begin delete

9Any

end delete

10begin insert(3)end insertbegin insertend insertbegin insertAnyend insert identification, warrant, probable cause to arrest, or arrest
11based upon a databank or database match is not invalidated due
12to a failure to expunge or a delay in expunging records.

13(e) Notwithstanding any other law, the Department of Justice
14DNA Laboratory is not required to expunge DNA profile or
15forensic identification information or destroy or return specimens,
16samples, or print impressions taken pursuant to this section if the
17duty to register under Section 290 or 457.1 is terminated.

18(f) Notwithstanding any other law, including Sections 17,
191170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve
20a person of the separate administrative duty to provide specimens,
21samples, or print impressions required by this chapter if a person
22has been found guilty or was adjudicated a ward of the court by a
23trier of fact of a qualifying offense as defined in subdivision (a)
24of Section 296, or was found not guilty by reason of insanity or
25pleads no contest to a qualifying offense as defined in subdivision
26(a) of Section 296.

27(g) This section shall only become operative if the California
28Supreme Court rules to uphold the California Court of Appeal
29decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
30to the provisions of Section 299 of the Penal Code, as amended
31by Section 9 of the DNA Fingerprint, Unsolved Crime and
32Innocence Protection Act, Proposition 69, approved by the voters
33at the November 2, 2004, statewide general election, in which case
34this section shall become operative immediately upon that ruling
35becoming final.

36

SEC. 3.  

Section 1170.18 of the Penal Code is amended to read:

37

1170.18.  

(a) A person currently serving a sentence for a
38conviction, whether by trial or plea, of a felony or felonies who
39would have been guilty of a misdemeanor under the act that added
40this section (“this act”) had this act been in effect at the time of
P8    1the offense may petition for a recall of sentence before the trial
2court that entered the judgment of conviction in his or her case to
3request resentencing in accordance with Sections 11350, 11357,
4or 11377 of the Health and Safety Code, or Section 459.5, 473,
5476a, 490.2, 496, or 666 of the Penal Code, as those sections have
6been amended or added by this act.

7(b) Upon receiving a petition under subdivision (a), the court
8shall determine whether the petitioner satisfies the criteria in
9subdivision (a). If the petitioner satisfies the criteria in subdivision
10(a), the petitioner’s felony sentence shall be recalled and the
11petitioner resentenced to a misdemeanor pursuant to Sections
1211350, 11357, or 11377 of the Health and Safety Code, or Section
13459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those
14sections have been amended or added by this act, unless the court,
15in its discretion, determines that resentencing the petitioner would
16pose an unreasonable risk of danger to public safety. In exercising
17its discretion, the court may consider all of the following:

18(1) The petitioner’s criminal conviction history, including the
19type of crimes committed, the extent of injury to victims, the length
20of prior prison commitments, and the remoteness of the crimes.

21(2) The petitioner’s disciplinary record and record of
22rehabilitation while incarcerated.

23(3) Any other evidence the court, within its discretion,
24determines to be relevant in deciding whether a new sentence
25would result in an unreasonable risk of danger to public safety.

26(c) As used throughout this Code, “unreasonable risk of danger
27to public safety” means an unreasonable risk that the petitioner
28will commit a new violent felony within the meaning of clause
29(iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
30Section 667.

31(d) A person who is resentenced pursuant to subdivision (b)
32shall be given credit for time served and shall be subject to parole
33for one year following completion of his or her sentence, unless
34the court, in its discretion, as part of its resentencing order, releases
35the person from parole. Such person is subject to Section 3000.08
36parole supervision by the Department of Corrections and
37Rehabilitation and the jurisdiction of the court in the county in
38which the parolee is released or resides, or in which an alleged
39violation of supervision has occurred, for the purpose of hearing
40petitions to revoke parole and impose a term of custody.

P9    1(e) Under no circumstances may resentencing under this section
2result in the imposition of a term longer than the original sentence.

3(f) A person who has completed his or her sentence for a
4conviction, whether by trial or plea, of a felony or felonies who
5would have been guilty of a misdemeanor under this act had this
6act been in effect at the time of the offense, may file an application
7before the trial court that entered the judgment of conviction in
8his or her case to have the felony conviction or convictions
9designated as misdemeanors.

10(g) If the application satisfies the criteria in subdivision (f ), the
11court shall designate the felony offense or offenses as a
12misdemeanor.

13(h) Unless requested by the applicant, no hearing is necessary
14to grant or deny an application filed under subsection (f ).

15(i) The provisions of this section shall not apply to persons who
16have one or more prior convictions for an offense specified in
17clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
18of Section 667 or for an offense requiring registration pursuant to
19subdivision (c) of Section 290.

20(j) Any petition or application under this section shall be filed
21within three years after the effective date of the act that added this
22section or at a later date upon a showing of good cause.

23(k) Any felony conviction that is recalled and resentenced under
24 subdivision (b) or designated as a misdemeanor under subdivision
25(g) shall be considered a misdemeanor for all purposes, except that
26such resentencing shall not permit that person to own, possess, or
27have in his or her custody or control anybegin delete firearm orend deletebegin insert firearm,end insert prevent
28his or her conviction under Chapter 2 (commencing with Section
2929800) of Division 9 of Title 4 of Partbegin delete 6.end deletebegin insert 6, or be considered a
30basis for expungement of DNA evidence pursuant to Section 299.end insert

31(l) If the court that originally sentenced the petitioner is not
32available, the presiding judge shall designate another judge to rule
33on the petition or application.

34(m) Nothing in this section is intended to diminish or abrogate
35any rights or remedies otherwise available to the petitioner or
36applicant.

37(n) Nothing in this and related sections is intended to diminish
38or abrogate the finality of judgments in any case not falling within
39the purview of this act.

P10   1(o) A resentencing hearing ordered under this act shall constitute
2a “post-conviction release proceeding” under paragraph (7) of
3subdivision (b) of Section 28 of Article I of the California
4Constitution (Marsy’s Law).



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