BILL NUMBER: SB 1109 INTRODUCED
BILL TEXT
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: 2/3. Appropriation: no. Fiscal committee: no. State-mandated
local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 299 of the Penal Code, as amended by Section 4
of Chapter 487 of the Statutes of 2015, is amended to read:
299. (a) A person whose DNA profile has been included in the
databank pursuant to this chapter shall have his or her DNA specimen
and sample destroyed and searchable database profile expunged from
the databank 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 Databank Program
and there otherwise is no legal basis for retaining the specimen or
sample or searchable profile. A DNA profile that was lawfully
collected and included in the databank as a consequence of a
conviction of a qualifying offense shall not be destroyed due to
resentencing of that person pursuant to Section 1170.18.
(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 databank
program if any of the following apply:
(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 and Forensic Identification Database and
Databank 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 databank 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 in this section, 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) (1) 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
(2) 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
(3) Any identification, warrant,
probable cause to arrest, or arrest based upon a databank or database
match is not invalidated due to a failure to expunge or a delay in
expunging records.
(e) Notwithstanding any other 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 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.
(g) This section shall become inoperative if the California
Supreme Court rules to uphold the California Court of Appeal decision
in People v. Buza (2014) 231 Cal.App.4th 1446 in regard to the
provisions of Section 299 of the Penal Code, as amended by Section 9
of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act,
Proposition 69, approved by the voters at the November 2, 2004,
statewide general election, in which case this section shall become
inoperative immediately upon that ruling becoming final.
SEC. 2. Section 299 of the Penal Code, as amended by Section 5 of
Chapter 487 of the Statutes of 2015, is amended to read:
299. (a) A person whose DNA profile has been included in the
databank pursuant to this chapter shall have his or her DNA specimen
and sample destroyed and searchable database profile expunged from
the databank program 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 Databank Program
and there otherwise is no legal basis for retaining the specimen or
sample or searchable profile. A DNA profile that was lawfully
collected and included in the databank as a consequence of a
conviction of a qualifying offense shall not be destroyed due to
resentencing of that person pursuant to Section 1170.18.
(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
shall have his or her specimen and sample destroyed and searchable
database profile expunged from the databank program if any of the
following apply:
(1) Following arrest, and after the applicable law enforcement
agency has provided notice to the prosecuting attorney that the
criminal case will not be presented to the prosecuting attorney for
review, or after the applicable law enforcement agency has submitted
a criminal case to the prosecuting attorney for review, 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, in which case the prosecuting
attorney shall immediately, or as soon as practically possible,
submit a letter to the Department of Justice indicating that an
accusatory pleading has not been filed.
(2) The charges which served as the basis for including the DNA
profile in the state's DNA and Forensic Identification Database and
Databank Program have been dismissed prior to adjudication by a trier
of fact, in which case the court shall forward an order to the
Department of Justice upon disposition of the case, indicating that
the charges have been dismissed.
(3) The underlying conviction or disposition serving as the basis
for including the DNA profile has been reversed and the case
dismissed, in which case the court shall forward its order to the
Department of Justice upon disposition of the case.
(4) 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, in which case the court shall forward its
order to the Department of Justice upon disposition of the case.
(5) The defendant has been found not guilty or the defendant has
been acquitted of the underlying offense, in which case the court
shall forward its order to the Department of Justice upon disposition
of the case.
(c) Except as provided in this section, 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 the following:
(1) 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.
(2) A court order verifying that no retrial or appeal of the case
is pending.
(d) (1) Pursuant to this section, 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
(2) 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
(3) Any identification, warrant,
probable cause to arrest, or arrest based upon a databank or database
match is not invalidated due to a failure to expunge or a delay in
expunging records.
(e) Notwithstanding any other 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 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.
(g) This section shall only become operative if the California
Supreme Court rules to uphold the California Court of Appeal decision
in People v. Buza (2014) 231 Cal.App.4th 1446 in regard to the
provisions of Section 299 of the Penal Code, as amended by Section 9
of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act,
Proposition 69, approved by the voters at the November 2, 2004,
statewide general election, in which case this section shall become
operative immediately upon that ruling becoming final.
SEC. 3. Section 1170.18 of the Penal Code is amended to read:
1170.18. (a) A person currently serving a sentence for a
conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added this
section ("this act") had this act been in effect at the time of the
offense may petition for a recall of sentence before the trial court
that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496,
or 666 of the Penal Code, as those sections have been amended or
added by this act.
(b) Upon receiving a petition under subdivision (a), the court
shall determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in
subdivision (a), the petitioner's felony sentence shall be recalled
and the petitioner resentenced to a misdemeanor pursuant to Sections
11350, 11357, or 11377 of the Health and Safety Code, or Section
459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those
sections have been amended or added by this act, unless the court, in
its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety. In exercising
its discretion, the court may consider all of the following:
(1) The petitioner's criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes.
(2) The petitioner's disciplinary record and record of
rehabilitation while incarcerated.
(3) Any other evidence the court, within its discretion,
determines to be relevant in deciding whether a new sentence would
result in an unreasonable risk of danger to public safety.
(c) As used throughout this Code, "unreasonable risk of danger to
public safety" means an unreasonable risk that the petitioner will
commit a new violent felony within the meaning of clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.
(d) A person who is resentenced pursuant to subdivision (b) shall
be given credit for time served and shall be subject to parole for
one year following completion of his or her sentence, unless the
court, in its discretion, as part of its resentencing order, releases
the person from parole. Such person is subject to Section 3000.08
parole supervision by the Department of Corrections and
Rehabilitation and the jurisdiction of the court in the county in
which the parolee is released or resides, or in which an alleged
violation of supervision has occurred, for the purpose of hearing
petitions to revoke parole and impose a term of custody.
(e) Under no circumstances may resentencing under this section
result in the imposition of a term longer than the original sentence.
(f) A person who has completed his or her sentence for a
conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under this act had this act
been in effect at the time of the offense, may file an application
before the trial court that entered the judgment of conviction in his
or her case to have the felony conviction or convictions designated
as misdemeanors.
(g) If the application satisfies the criteria in subdivision (f ),
the court shall designate the felony offense or offenses as a
misdemeanor.
(h) Unless requested by the applicant, no hearing is necessary to
grant or deny an application filed under subsection (f ).
(i) The provisions of this section shall not apply to persons who
have one or more prior convictions for an offense specified in clause
(iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290.
(j) Any petition or application under this section shall be filed
within three years after the effective date of the act that added
this section or at a later date upon a showing of good cause.
(k) Any felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under subdivision (g)
shall be considered a misdemeanor for all purposes, except that such
resentencing shall not permit that person to own, possess, or have in
his or her custody or control any firearm or
firearm, prevent his or her conviction under Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part
6. 6, or be considered a basis for
expungement of DNA evidence pursuant to Section 299.
( l ) If the court that originally sentenced the
petitioner is not available, the presiding judge shall designate
another judge to rule on the petition or application.
(m) Nothing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the petitioner or
applicant.
(n) Nothing in this and related sections is intended to diminish
or abrogate the finality of judgments in any case not falling within
the purview of this act.
(o) A resentencing hearing ordered under this act shall constitute
a "post-conviction release proceeding" under paragraph (7) of
subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy's Law).