Bill Text: CA AB390 | 2015-2016 | Regular Session | Amended
Bill Title: Criminal law: DNA evidence.
Spectrum: Slight Partisan Bill (Democrat 9-4)
Status: (Failed) 2016-11-30 - From Senate committee without further action. [AB390 Detail]
Download: California-2015-AB390-Amended.html
BILL NUMBER: AB 390 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 6, 2015
AMENDED IN ASSEMBLY MAY 28, 2015
AMENDED IN ASSEMBLY APRIL 6, 2015
INTRODUCED BY Assembly Member Cooper
(Principal coauthor: Senator Galgiani)
(Coauthors: Assembly Members Burke, Campos,
Cooley, Gonzalez, Irwin, Lackey, Obernolte,
Perea, Steinorth, and Wagner)
(Coauthor: Senator Wolk)
FEBRUARY 18, 2015
An act to amend Section 296 Sections 296
and 299 of the Penal Code, relating to DNA evidence.
LEGISLATIVE COUNSEL'S DIGEST
AB 390, as amended, Cooper. Criminal law: DNA evidence.
Existing law, as amended by the DNA Act, requires a person who has
been convicted of a felony offense 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 makes these
provisions retroactive, regardless of when the crime charged or
committed became a qualifying offense.
This bill would expand these provisions to require persons
convicted of specified misdemeanors, if they have a prior
conviction of other specified misdemeanors,
misdemeanors 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. By imposing additional duties on local law
enforcement agencies to collect and forward these samples, this bill
would impose a state-mandated local program.
Existing law prohibits a judge from relieving a person of the
separate administrative duty to provide specimens, samples, or print
impressions required by the DNA Act if the person has been found
guilty of an offense for which DNA collection is required. Existing
law, added by Proposition 47, 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 clarify that the prohibition on judges relieving a
person of the duty to provide specimens, samples, or print
impressions is not affected by resentencing under Proposition 47.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 296 of the Penal Code is amended to read:
296. (a) The following persons shall 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:
(1) 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
who is adjudicated under Section 602 of the Welfare and Institutions
Code for committing any felony offense.
(2) Any adult person who is arrested for or charged with any of
the following felony offenses:
(A) Any felony offense specified in Section 290 or attempt to
commit any felony offense described in Section 290, or any felony
offense that imposes upon a person the duty to register in California
as a sex offender under Section 290.
(B) Murder or voluntary manslaughter or any attempt to commit
murder or voluntary manslaughter.
(C) Commencing on January 1 of the fifth year following enactment
of the act that added this subparagraph, as amended, any adult person
arrested or charged with any felony offense.
(3) Any person, including any juvenile, who is required to
register under Section 290 or 457.1 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.
(4) Any person, excluding a juvenile, who has a prior
misdemeanor conviction of Section 136.1, 136.5, 171b, or 186.28,
subdivision (b), (c), or (d) of Section 243, Section 243.4, 244.5,
245, 245.5, 417, 417.6, 422, 646.9, or 25300, subdivision (d) of
Section 26100, or Section 32625, and who is convicted of,
or pleads guilty or no contest to, any of the following offenses:
(A) A misdemeanor violation of Section 459.5.
(B) Any misdemeanor punishable pursuant to subdivision (b) of
Section 473.
(C) A violation of subdivision (a) of Section 476a that is
punishable as a misdemeanor pursuant to subdivision (b) of Section
476a.
(D) A violation of Section 487 that is punishable as a misdemeanor
pursuant to Section 490.2.
(E) A violation of Section 496 that is punishable as a
misdemeanor.
(F) A misdemeanor violation of subdivision (a) of Section 11350 of
the Health and Safety Code.
(G) A misdemeanor violation of subdivision (a) of Section 11357 of
the Health and Safety Code.
(H) A misdemeanor violation of subdivision (a) of Section 11377 of
the Health and Safety Code.
(I) A misdemeanor violation of Section 666.
(5) The term "felony" as used in this subdivision includes an
attempt to commit the offense.
(6) Nothing in this chapter shall be construed as prohibiting
collection and analysis of specimens, samples, or print impressions
as a condition of a plea for nonqualifying offense.
(b) The provisions of this chapter and its requirements for
submission of specimens, samples and print impressions as soon as
administratively practicable shall apply to all qualifying persons
regardless of sentence imposed, including any sentence of death, life
without the possibility of parole, or any life or indeterminate
term, or any other disposition rendered in the case of an adult or
juvenile tried as an adult, or whether the person is diverted, fined,
or referred for evaluation, and regardless of disposition rendered
or placement made in the case of juvenile who is found to have
committed any felony offense or is adjudicated under Section 602 of
the Welfare and Institutions Code.
(c) The provisions of this chapter and its requirements for
submission of specimens, samples, and print impressions as soon as
administratively practicable by qualified persons as described in
subdivision (a) 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:
(1) Any person committed to a state hospital or other treatment
facility as a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code.
(2) Any person who has a severe mental disorder as set forth
within the provisions of Article 4 (commencing with Section 2960) of
Chapter 7 of Title 1 of Part 3 of the Penal Code.
(3) Any person found to be a sexually violent predator pursuant to
Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code.
(d) The provisions of this chapter are mandatory and apply whether
or not the court advises a person, including any juvenile, that he
or she must provide the data bank and database specimens, samples,
and print impressions as a condition of probation, parole, or any
plea of guilty, no contest, or not guilty by reason of insanity, or
any admission to any of the offenses described in subdivision (a).
(e) If at any stage of court proceedings the prosecuting attorney
determines that specimens, samples, and print impressions required by
this chapter have not already been taken from any person, as defined
under subdivision (a) of Section 296, the prosecuting attorney shall
notify the court orally on the record, or in writing, and request
that the court order collection of the specimens, samples, and print
impressions required by law. However, a failure by the prosecuting
attorney or any other law enforcement agency to notify the court
shall not relieve a person of the obligation to provide specimens,
samples, and print impressions pursuant to this chapter.
(f) Prior to final disposition or sentencing in the case the court
shall inquire and verify that the specimens, samples, and print
impressions required by this chapter have been obtained and that this
fact is included in the abstract of judgment or dispositional order
in the case of a juvenile. The abstract of judgment issued by the
court shall indicate that the court has ordered the person to comply
with the requirements of this chapter and that the person shall be
included in the state's DNA and Forensic Identification Data Base and
Data Bank program and be subject to this chapter.
However, 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 of this chapter.
SEC. 2. Section 299 of the Penal Code
is amended to read:
299. (a) 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 pursuant to the procedures set forth in subdivision
(b) 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.
(b) Pursuant to subdivision (a), a person who has no past or
present qualifying offense, and for whom there otherwise is no legal
basis for retaining the specimen or sample or searchable profile, may
make a written request to have his or her specimen and sample
destroyed and searchable database profile expunged from the data bank
program if:
(1) 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;
(2) The underlying conviction or disposition serving as the basis
for including the DNA profile has been reversed and the case
dismissed;
(3) The person has been found factually innocent of the underlying
offense pursuant to Section 851.8, or Section 781.5 of the Welfare
and Institutions Code; or
(4) The defendant has been found not guilty or the defendant has
been acquitted of the underlying offense.
(c) (1) The person requesting the data bank entry to be expunged
must 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
Department of Justice, 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 nonappealable order and shall not be reviewed by
petition for writ.
(2) Except as provided below, the Department of Justice shall
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
Department of Justice that expungement has been requested.
(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 Department of
Justice of the expungement request, and that the court has not
received an objection from the Department of Justice or the
prosecuting attorney.
(d) Upon order from the court, the Department of Justice shall
destroy any specimen or sample collected from the person and any
searchable DNA database profile pertaining to the person, unless the
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 subdivision (a) of Section 296,
or as a condition of a plea.
The Department of Justice 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.
Any identification, warrant, probable cause to arrest, or arrest
based upon a data bank or database match is not invalidated due to a
failure to expunge or a delay in expunging records.
(e) Notwithstanding any other provision of law, the Department of
Justice DNA Laboratory is not required to expunge DNA profile or
forensic identification information or destroy or return specimens,
samples, or print impressions taken pursuant to this section if the
duty to register under Section 290 or 457.1 is terminated.
(f) Notwithstanding any other provision of law, including Sections
17, 1170.18, 1203.4, and 1203.4a, a judge is not
authorized to relieve a person of the separate administrative duty to
provide specimens, samples, or print impressions required by this
chapter if a person has been found guilty or was adjudicated a ward
of the court by a trier of fact of a qualifying offense as defined in
subdivision (a) of Section 296, or was found not guilty by reason of
insanity or pleads no contest to a qualifying offense as defined in
subdivision (a) of Section 296.
SEC. 2. SEC. 3. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.
