AB 1492: Forensic testing: DNA samples.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-10-04
(1)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, general election (the DNA Act) requires any adult person who is arrested or charged with any 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 requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestees expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.
This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would, if the California Supreme Court rules to uphold People v. Buza, require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department after a felony arrest warrant has been signed by a judicial officer, a grand jury indictment has been found and issued, or a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made.
(2)Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.
This bill would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.
(1)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, general election (the DNA Act) requires any adult person who is arrested or charged with any 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 requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestees expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.
This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would, if the California Supreme Court rules to uphold People v. Buza, require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department after a felony arrest warrant has been signed by a judicial officer, a grand jury indictment has been found and issued, or a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made.
(2)Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.
This bill would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.
(1)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, general election (the DNA Act) requires any adult person who is arrested or charged with any 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 requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestees expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.
This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would, if the California Supreme Court rules to uphold People v. Buza, limit the above-specified requirements to persons arrested for specified sex offenses or serious or violent felonies. The bill would, if the California Supreme Court rules to uphold People v. Buza, require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department after a felony arrest warrant has been signed by a judicial officer, a grand jury indictment has been found and issued, or a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made at the time the defendant has been arraigned. made.
(2)Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.
This bill would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.
(3)Existing law, as amended by the DNA Act, states that its provisions do not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for an offense that does not require the taking of samples and specimens.
The bill would state that it is the intent of the Legislature that if buccal swab samples are taken for DNA analysis as a condition of a plea or reduction or dismissal of charges, that all uses of the DNA sample be disclosed to the defendant in writing, that consent be obtained in writing, that the defendant sign a written agreement allowing his or her buccal swab sample or blood sample to be taken for DNA analysis, and that the defendant have an opportunity to consult with counsel prior to signing the agreement.
(1)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, general election (the DNA Act) requires any adult person who is arrested or charged with any 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 requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestees expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.
This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would, if the California Supreme Court rules to uphold People v. Buza, limit the above-specified requirements to persons arrested for specified sex offenses or serious or violent felonies. The bill would, if the California Supreme Court rules to uphold People v. Buza, require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department after a felony arrest warrant has been signed by a judicial officer, a grand jury indictment has been found and issued, or a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made. made at the time the defendant has been arraigned.
(2)Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.
This bill would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.
(3)Existing law, as amended by the DNA Act, states that its provisions do not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for an offense that does not require the taking of samples and specimens.
The bill would state that it is the intent of the Legislature that if buccal swab samples are taken for DNA analysis as a condition of a plea or reduction or dismissal of charges, that all uses of the DNA sample be disclosed to the defendant in writing, that consent be obtained in writing, that the defendant sign a written agreement allowing his or her buccal swab sample or blood sample to be taken for DNA analysis, and that the defendant have an opportunity to consult with counsel prior to signing the agreement. The bill would permit a law enforcement agency to use any publicly available database to aid in the investigation of a crime.
(1)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, general election (the DNA Act) requires any adult person who is arrested or charged with any 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 requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestees expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.
This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would, if the California Supreme Court rules to uphold People v. Buza, limit the above-specified requirements to persons arrested for specified sex offenses or serious or violent felonies. The bill would, if the California Supreme Court rules to uphold People v. Buza, require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department after a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made.
(2)Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.
This bill would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.
(3)Existing law, as amended by the DNA Act, states that its provisions do not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for an offense that does not require the taking of samples and specimens.
The bill would state that it is the intent of the Legislature to allow that if buccal swab samples to be are taken for DNA analysis as a condition of a plea or reduction or dismissal of charges, that all uses of the DNA sample be disclosed to the defendant in writing, that consent be obtained in writing, that the defendant sign a written agreement allowing his or her buccal swab sample or blood sample to be taken for DNA analysis, and that the defendant have an opportunity to consult with counsel prior to signing the agreement. The bill would permit a law enforcement agency to use any publicly available database to aid in the investigation of a crime.
(1)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, general election (the DNA Act) requires any adult person who is arrested or charged with any 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 requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestees expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.
This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would, if the California Supreme Court rules to uphold People v. Buza, limit the above-specified requirements to persons arrested for specified sex offenses or serious or violent felonies. The bill would, if the California Supreme Court rules to uphold People v. Buza, require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department after a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made.
(2)Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.
This bill would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.
(3)Existing law, as amended by the DNA Act, states that its provisions do not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for an offense that does not require the taking of samples and specimens.
The bill would state that it is the intent of the Legislature to allow buccal swab samples to be taken for DNA analysis as a condition of a plea or reduction or dismissal of charges. The bill would permit a law enforcement agency to use any publicly available database to aid in the investigation of a crime.
Existing law authorizes a political party to qualify to participate in a primary election if specified requirements are met, including the filing with the Secretary of State of a petition signed by voters declaring that the voters represent a proposed party desiring to participate in that primary election.
This bill would define the term political party qualification petition for these purposes to mean a petition circulated to qualify a political party in accordance with existing procedures.
Existing law provides that a person committing specified acts relating to the circulation, subscription, or signature of an initiative, referendum, or recall petition is guilty of a misdemeanor or felony subject to a fine, imprisonment, or both that fine and imprisonment.
This bill would additionally provide that a person committing these specified acts in relation to the circulation, subscription, or signature of a political party qualification petition would be subject to the above penal provisions. By creating additional crimes, this bill would impose a state-mandated local program.
Existing law authorizes a candidate to submit a petition containing signatures of registered voters in lieu of a filing fee, as specified. Existing law also provides that a person who commits specified fraudulent or deliberate acts relating to the filing of a nomination paper or declaration of candidacy is guilty of a misdemeanor subject to a fine, imprisonment, or both that fine and imprisonment.
This bill would additionally provide that a person committing these specified acts in relation to the submission of an in-lieu-filing-fee petition would be subject to the penal provisions specified above. By creating additional crimes, this bill would impose a state-mandated local program. The bill would also make nonsubstantive changes to these provisions.
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 no reimbursement is required by this act for a specified reason.
Existing law authorizes a political party to qualify to participate in a primary election if specified requirements are met, including the filing with the Secretary of State of a petition signed by voters declaring that the voters represent a proposed party desiring to participate in that primary election.
This bill would define the term political party qualification petition for these purposes to mean a petition circulated to qualify a political party in accordance with existing procedures.
Existing law provides that a person committing specified acts relating to the circulation, subscription, or signature of an initiative, referendum, or recall petition is guilty of a misdemeanor or felony subject to a fine or, imprisonment, or both that fine and imprisonment.
This bill would additionally provide that a person committing these specified acts in relation to the circulation, subscription, or signature of a political party qualification petition would be subject to the above penal provisions. By creating additional crimes, this bill would impose a state-mandated local program.
Existing law authorizes a candidate to submit a petition containing signatures of registered voters in lieu of a filing fee, as specified. Existing law also provides that a person who commits specified fraudulent or deliberate acts relating to the filing of a nomination paper or declaration of candidacy is guilty of a misdemeanor subject to a fine or, imprisonment, or both that fine and imprisonment.
This bill would additionally provide that a person committing these specified acts in relation to the submission of an in-lieu-filing-fee petition would be subject to the penal provisions specified above. By creating additional crimes, this bill would impose a state-mandated local program. The bill would also make nonsubstantive changes to these provisions.
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 no reimbursement is required by this act for a specified reason.
Existing law authorizes a political party to qualify to participate in a primary election if specified requirements are met, including the filing with the Secretary of State of a petition signed by voters declaring that the voters represent a proposed party desiring to participate in that primary election.
This bill would define the term political party qualification petition for these purposes to mean a petition circulated to qualify a political party in accordance with existing procedures.
Existing law provides that a person committing specified acts relating to the circulation, subscription, or signature of an initiative, referendum, or recall petition is guilty of a misdemeanor or felony subject to a fine or imprisonment or both that fine and imprisonment.
This bill would additionally provide that a person committing these specified acts in relation to the circulation, subscription, or signature of a political party qualification petition would be subject to the above penal provisions. By creating additional crimes, this bill would impose a state-mandated local program.
Existing law authorizes a candidate to submit a petition containing signatures of registered voters in lieu of a filing fee, as specified. Existing law also provides that a person who commits specified fraudulent or deliberate acts relating to the filing of a nomination paper or declaration of candidacy is guilty of a misdemeanor subject to a fine or imprisonment or both that fine and imprisonment.
This bill would additionally provide that a person committing these specified acts in relation to the submission of an in-lieu-filing-fee petition would be subject to the penal provisions specified above. By creating additional crimes, this bill would impose a state-mandated local program.
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 no reimbursement is required by this act for a specified reason.
Existing law prohibits an insurer from participating in a plan to offer or effect insurance or annuities as an inducement to the purchase or rental by the public of specified property or services without a separate charge for that insurance. Existing law also prohibits an agent, broker, or solicitor from arranging the sale of that insurance. Existing law authorizes the Insurance Commissioner to revoke the license, certificate, or other authority to do business or engage in his or her occupation, as applicable, of an insurer, agent, broker, or solicitor who willfully violates those prohibitions. Existing law specifies exceptions to those prohibitions for certain categories of insurance.
This bill would add to the existing exceptions described above private passenger automobile insurance issued in connection with the sale or lease of a new vehicle and paid for by the vehicle manufacturer, provided that prior to finalizing the purchase the purchaser is advised of the cost of that insurance included in connection with the sale or lease.
Existing law prohibits an insurer from participating in a plan to offer or effect insurance or annuities as an inducement to the purchase or rental by the public of specified property or services without a separate charge for that insurance. Existing law also prohibits an agent, broker, or solicitor from arranging the sale of that insurance. Existing law authorizes the Insurance Commissioner to revoke the license, certificate, or other authority to do business or engage in his or her occupation, as applicable, of an insurer, agent, broker, or solicitor who willfully violates those prohibitions. Existing law specifies exceptions to those prohibitions for certain categories of insurance.
This bill would add to the existing exceptions described above private passenger automobile insurance issued in connection with the sale or lease of a new vehicle and paid for by the vehicle manufacturer, provided that prior to finalizing the purchase the purchaser is advised of the cost of that insurance included in connection with the sale or lease.
Existing law authorizes groups of insurers not under common ownership or management to form a limited assignment distribution arrangement. Existing law requires each arrangement to have one servicing carrier that writes assigned risk business on behalf of the members of the arrangement in return for consideration from the other participating carriers for not writing the business.
This bill would make technical, nonsubstantive changes to that provision.
Existing law authorizes groups of insurers not under common ownership or management to form a limited assignment distribution arrangement. Existing law requires each arrangement to have one servicing carrier that writes assigned risk business on behalf of the members of the arrangement in return for consideration from the other participating carriers for not writing the business.
This bill would make technical, nonsubstantive changes to that provision.
It is the intent of the Legislature to limit the analysis of buccal swab samples and blood samples taken from felony arrestees for purposes of DNA analysis only to the extent required by the decision in People v. Buza, and to further the purposes 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 light of that decision.
SEC. 2.Section 298 of the Penal Code is amended to read:298.(a)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b)(1)The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 3.Section 298 is added to the Penal Code, to read:298.(a)(1)(A)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice, except that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 shall be forwarded to the Department of Justice only after one of the following has occurred, which shall be deemed a finding of probable cause, whichever occurs first:
(i)A felony arrest warrant has been signed by a judicial officer pursuant to Section 813 or 817.
(ii)A grand jury indictment has been found and issued pursuant to Section 939.8, 940, or 944.
(iii)A judicial officer has determined that probable cause exists to believe the person has committed the offense for which he or she was arrested.
(B)The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(2)A blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 that has not been forwarded to the Department of Justice within six months following the arrest of that person because the agency that took the blood specimen or buccal swab sample has not received notice to forward the DNA specimen or sample to the Department of Justice for inclusion in the states DNA and Forensic Identification Database and Databank Program pursuant to paragraph (1) following a determination of probable cause, shall be destroyed by the agency that collected the blood specimen or buccal swab sample.
(b)(1) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA and Forensic Identification Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 4.Section 299 of the Penal Code 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 states DNA and Forensic Identification Database and Databank 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 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 states 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)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 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. 5.Section 299 is added to the Penal Code, 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 states DNA and Forensic Identification Database and Databank 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 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 states 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)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 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 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.
It is the intent of the Legislature to limit the analysis of buccal swab samples and blood samples taken from felony arrestees for purposes of DNA analysis only to the extent required by the decision in People v. Buza, and to further the purposes 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 light of that decision.
SEC. 2.Section 298 of the Penal Code is amended to read:298.(a)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b)(1)The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 3.Section 298 is added to the Penal Code, to read:298.(a)(1)(A)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice, except that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 shall be forwarded to the Department of Justice only after one of the following has occurred, which shall be deemed a finding of probable cause, whichever occurs first:
(i)A felony arrest warrant has been signed by a judicial officer pursuant to Section 813 or 817.
(ii)A grand jury indictment has been found and issued pursuant to Section 939.8, 940, or 944.
(iii)A judicial officer has determined that probable cause exists to believe the person has committed the offense for which he or she was arrested.
(B)The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(2)A blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 that has not been forwarded to the Department of Justice within six months following the arrest of that person because the agency that took the blood specimen or buccal swab sample has not received notice to forward the DNA specimen or sample to the Department of Justice for inclusion in the states DNA and Forensic Identification Database and Databank Program pursuant to paragraph (1) following a determination of probable cause, shall be destroyed by the agency that collected the blood specimen or buccal swab sample.
(b)(1) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA and Forensic Identification Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 4.Section 299 of the Penal Code 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 states DNA and Forensic Identification Database and Databank 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 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 states 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)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 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. 5.Section 299 is added to the Penal Code, 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 states DNA and Forensic Identification Database and Databank 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 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 states 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)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 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 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.
It is the intent of the Legislature to limit the analysis of buccal swab samples and blood samples taken from felony arrestees for purposes of DNA analysis only to the extent required by the decision in People v. Buza, and to further the purposes 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 light of that decision.
SEC. 2.It is the intent of the Legislature that if buccal swab samples are taken for DNA analysis as a condition of a plea or reduction or dismissal of charges, that all uses of the DNA sample shall first be disclosed to the defendant in writing, that consent shall be obtained in writing, that the defendant shall sign a written agreement allowing his or her buccal swab sample or blood sample to be taken for DNA analysis, and that the defendant shall have an opportunity to consult with his or her legal counsel prior to signing the agreement. It is the intent of the Legislature that buccal swab samples taken as a condition of a plea or reduction or dismissal of charges be done on the basis of individualized consideration.
SEC. 3.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, 2009, 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)The term felony as used in this subdivision includes an attempt to commit the offense.
(5)This chapter does not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for a 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 a sentence of death, life without the possibility of parole, or a life or indeterminate term, or 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 a 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 former 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 databank 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 states DNA and Forensic Identification Database and Databank 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.
(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 296 of the Penal Code, as amended by Section 3 of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, in which case this section shall become inoperative immediately upon that ruling becoming final.
SEC. 4.Section 296 is added to the Penal Code, 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)Any adult person arrested or charged with a felony offense specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
(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)The term felony as used in this subdivision includes an attempt to commit the offense.
(5)This chapter does not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for a 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 a sentence of death, life without the possibility of parole, or a life or indeterminate term, or 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 former 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 states DNA and Forensic Identification Database and Databank 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.
(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 296 of the Penal Code, as amended by Section 3 of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, in which case this section shall become operative immediately upon that ruling becoming final.
SEC. 5.SEC. 2.Section 298 of the Penal Code is amended to read:298.(a)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b)(1)The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 6.SEC. 3.Section 298 is added to the Penal Code, to read:298.(a)(1)(A)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice, except that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 shall be forwarded to the Department of Justice only after one of the following has occurred, which shall be deemed a finding of probable cause, whichever occurs first:
(i)A felony arrest warrant has been signed by a judicial officer pursuant to Section 813 or 817.
(ii)A grand jury indictment has been found and issued pursuant to Sections Section 939.8, 940, or 944.
(iii)A judicial officer has determined that probable cause exists to believe the person has committed the offense for which he or she was arrested at the time the defendant has been arraigned. arrested.
(B)The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(2)A blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 that has not been forwarded to the Department of Justice within six months following the arrest of that person because the agency that took the blood specimen or buccal swab sample has not received notice to forward the DNA specimen or sample to the Department of Justice for inclusion in the states DNA and Forensic Identification Database and Databank Program pursuant to paragraph (1) following a determination of probable cause, shall be destroyed by the agency that collected the blood specimen or buccal swab sample.
(b)(1) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA and Forensic Identification Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 7.SEC. 4.Section 299 of the Penal Code 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 states DNA and Forensic Identification Database and Databank 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 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 states 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)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 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. 8.SEC. 5.Section 299 is added to the Penal Code, 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 states DNA and Forensic Identification Database and Databank 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 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 or if the 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 states DNA and Forensic Identification Database and Databank Program have been dismissed prior to adjudication by a trier of fact, in which case the district attorney shall submit a letter to the Department of Justice as soon as these conditions have been met. 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.
(2)
(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.
(3)
(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.
(4)
(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)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 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 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.
It is the intent of the Legislature to limit the analysis of buccal swab samples and blood samples taken from felony arrestees for purposes of DNA analysis only to the extent required by the decision in People v. Buza, and to further the purposes 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 light of that decision.
SEC. 2.It is the intent of the Legislature that if buccal swab samples are taken for DNA analysis as a condition of a plea or reduction or dismissal of charges, that all uses of the DNA sample shall first be disclosed to the defendant in writing, that consent shall be obtained in writing, that the defendant shall sign a written agreement allowing his or her buccal swab sample or blood sample to be taken for DNA analysis, and that the defendant shall have an opportunity to consult with his or her legal counsel prior to signing the agreement. It is the intent of the Legislature that buccal swab samples taken as a condition of a plea or reduction or dismissal of charges be done on the basis of individualized consideration.
SEC. 3.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, 2009, 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)The term felony as used in this subdivision includes an attempt to commit the offense.
(5)This chapter does not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for a 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 a sentence of death, life without the possibility of parole, or a life or indeterminate term, or 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 a 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 former 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 databank 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 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 states DNA and Forensic Identification Database and Databank 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.
(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 296 of the Penal Code, as amended by Section 3 of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, in which case this section shall become inoperative immediately upon that ruling becoming final.
SEC. 4.Section 296 is added to the Penal Code, 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)Any adult person arrested or charged with a felony offense specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
(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)The term felony as used in this subdivision includes an attempt to commit the offense.
(5)This chapter does not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for a 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 a sentence of death, life without the possibility of parole, or a life or indeterminate term, or 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 former 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 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 states DNA and Forensic Identification Database and Databank 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.
(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 296 of the Penal Code, as amended by Section 3 of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, in which case this section shall become operative immediately upon that ruling becoming final.
SEC. 5.Section 298 of the Penal Code is amended to read:298.(a)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b)(1)The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 6.Section 298 is added to the Penal Code, to read:298.(a)(1)(A)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice, except that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 shall be forwarded to the Department of Justice after a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made pursuant to Section 825. The only after one of the following has occurred, which shall be deemed a finding of probable cause, whichever occurs first:
(i)A felony arrest warrant has been signed by a judicial officer pursuant to Section 813 or 817.
(ii)A grand jury indictment has been found and issued pursuant to Sections 939.8, 940, or 944.
(iii)A judicial officer has determined that probable cause exists to believe the person has committed the offense for which he or she was arrested at the time the defendant has been arraigned.
(B)The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(2)A blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 that has not been forwarded to the Department of Justice within six months following the arrest of that person because the agency that took the blood specimen or buccal swab sample has not received notice to forward the DNA specimen or sample to the Department of Justice for inclusion in the states DNA and Forensic Identification Database and Databank Program pursuant to paragraph (1) following a determination of probable cause, shall be destroyed by the agency that collected the blood specimen or buccal swab sample.
(b)(1) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA and Forensic Identification Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 7.Section 299 of the Penal Code 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 states DNA and Forensic Identification Database and Databank 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 databank program if any of the following apply:
(1)Following arrest, no accusatory pleading has been filed within the applicable period allowed by law 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 states 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)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 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. 8.Section 299 is added to the Penal Code, 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 states DNA and Forensic Identification Database and Databank 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 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, no accusatory pleading has been filed within the applicable period allowed by law 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 states DNA and Forensic Identification Database and Databank Program have been dismissed prior to adjudication by a trier of fact, in which case the district attorney shall submit a letter to the Department of Justice as soon as these conditions have been met.
(2)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.
(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, in which case the court shall forward its order to the Department of Justice upon disposition of the case.
(4)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)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 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 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. 9.Section 300 of the Penal Code is amended to read:300.(a)This chapter does not limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize DNA or forensic identification markers, blood specimens, buccal swab samples, saliva samples, or thumb or palm print impressions for identification purposes.
(b)A law enforcement agency may use a publicly available database, excluding a law enforcement database that is not linked to the Combined DNA Index System (CODIS), if the case being investigated involves a homicide or sexual assault involving force and the case is unsolved and all investigative leads have been exhausted, in which case the law enforcement agency shall review nonforensic information in order to identify additional evidence bearing on relatedness.
It is the intent of the Legislature to limit the analysis of buccal swab samples and blood samples taken from felony arrestees for purposes of DNA analysis only to the extent required by the decision in People v. Buza, and to further the purposes 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 light of that decision.
SEC. 2.It is the intent of the Legislature to allow that if buccal swab samples to be are taken for DNA analysis as a condition of a plea or reduction or dismissal of charges, provided that all uses of the DNA sample have been shall first be disclosed to the defendant in writing, that consent has been shall be obtained in writing, and that the defendant has signed that the defendant shall sign a written agreement allowing his or her buccal swap swab sample or blood sample to be taken for DNA analysis, and that the defendant shall have an opportunity to consult with his or her legal counsel prior to signing the agreement. It is the intent of the Legislature that buccal swab samples taken as a condition of a plea or reduction or dismissal of charges be done on the basis of individualized consideration.
SEC. 3.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, 2009, 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)The term felony as used in this subdivision includes an attempt to commit the offense.
(5)This chapter does not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for a 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 a sentence of death, life without the possibility of parole, or a life or indeterminate term, or 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 a 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 former 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 databank 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 states DNA and Forensic Identification Database and Databank 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.
(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 296 of the Penal Code, as amended by Section 3 of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, in which case this section shall become inoperative immediately upon that ruling becoming final.
SEC. 4.Section 296 is added to the Penal Code, 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)Any adult person arrested or charged with a felony offense specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
(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)The term felony as used in this subdivision includes an attempt to commit the offense.
(5)This chapter does not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for a 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 a sentence of death, life without the possibility of parole, or a life or indeterminate term, or 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 former 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 states DNA and Forensic Identification Database and Databank 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.
(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 296 of the Penal Code, as amended by Section 3 of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, in which case this section shall become operative immediately upon that ruling becoming final.
SEC. 5.Section 298 of the Penal Code is amended to read:298.(a)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b)(1)The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 6.Section 298 is added to the Penal Code, to read:298.(a)(1)The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice, except that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 shall be forwarded to the Department of Justice after a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made pursuant to Section 825. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(2)A blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 that has not been forwarded to the Department of Justice within six months following the arrest of that person because the agency that took the blood specimen or buccal swab sample has not received notice to forward the DNA specimen or sample to the Department of Justice for inclusion in the states DNA and Forensic Identification Database and Databank Program pursuant to paragraph (1) following a determination of probable cause, shall be destroyed by the agency that collected the blood specimen or buccal swab sample.
(b)(1) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA and Forensic Identification Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 7.Section 299 of the Penal Code 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 states DNA and Forensic Identification Database and Databank 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 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 states 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)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 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. 8.Section 299 is added to the Penal Code, 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 states DNA and Forensic Identification Database and Databank 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 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, 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 states DNA and Forensic Identification Database and Databank Program have been dismissed prior to adjudication by a trier of fact, in which case the district attorney shall submit a letter to the Department of Justice as soon as these conditions have been met.
(2)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.
(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, in which case the court shall forward its order to the Department of Justice upon disposition of the case.
(4)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)Upon order from the court, the 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 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 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. 9.Section 300 of the Penal Code is amended to read:300.(a)This chapter does not limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize DNA or forensic identification markers, blood specimens, buccal swab samples, saliva samples, or thumb or palm print impressions for identification purposes.
(b)A law enforcement agency may use a publicly available database, excluding a law enforcement database that is not linked to the Combined DNA Index System (CODIS), if the case being investigated involves a homicide or sexual assault involving force and the case is unsolved and all investigative leads have been exhausted, in which case the law enforcement agency shall review nonforensic information in order to identify additional evidence bearing on relatedness.
It is the intent of the Legislature to limit the analysis of buccal swab samples and blood samples taken from felony arrestees for purposes of DNA analysis only to the extent required by the decision in People v. Buza, and to further the purposes 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 light of that decision.
SEC. 2.It is the intent of the Legislature to allow buccal swab samples to be taken for DNA analysis as a condition of a plea or reduction or dismissal of charges, provided that all uses of the DNA sample have been disclosed to the defendant in writing, that consent has been obtained in writing, and that the defendant has signed a written agreement allowing his or her buccal swap sample or blood sample to be taken for DNA analysis. It is the intent of the Legislature that buccal swab samples taken as a condition of a plea or reduction or dismissal of charges be done on the basis of individualized consideration.
SEC. 3.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 1, 2009, 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)The term felony as used in this subdivision includes an attempt to commit the offense.
(5)Nothing in this chapter shall be construed as prohibiting This chapter does not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for a non-qualifying nonqualifying offense.
(b)The provisions of this chapter and its requirements for submission of specimens, samples samples, and print impressions as soon as administratively practicable shall apply to all qualifying persons regardless of sentence imposed, including any a sentence of death, life without the possibility of parole, or any a 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 a 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 former 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 databank 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 states DNA and Forensic Identification Data Base Database and Data Bank program Databank 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.
(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 296 of the Penal Code, as amended by Section 3 of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, in which case this section shall become inoperative immediately upon that ruling becoming final.
SEC. 4.Section 296 is added to the Penal Code, 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)Any adult person arrested or charged with a felony offense specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
(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)The term felony as used in this subdivision includes an attempt to commit the offense.
(5)This chapter does not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for a 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 a sentence of death, life without the possibility of parole, or a life or indeterminate term, or 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 former 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 states DNA and Forensic Identification Databse and Databank 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.
(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 296 of the Penal Code, as amended by Section 3 of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, in which case this section shall become operative immediately upon that ruling becoming final.
SEC. 5.Section 298 of the Penal Code is amended to read:298.(a)The Director of Corrections Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b)(1)The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA Database and Data Bank Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering data bank databank and database information.
(c)(1)Persons authorized to draw blood or obtain samples or print impressions under this chapter for the data bank databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or data bank databank or in placing an entry in a data bank databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 6.Section 298 is added to the Penal Code, to read:298.(a)(1) The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice, except that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 shall be forwarded to the Department of Justice after a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made pursuant to Section 825. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(2)A blood specimen or buccal swab sample taken from a person arrested for the commission of a felony as specified in paragraph (2) of subdivision (a) of Section 296 that has not been forwarded to the Department of Justice within six months following the arrest of that person because the agency that took the blood specimen or buccal swab sample has not received notice to forward the DNA specimen or sample to the Department of Justice for inclusion in the states DNA and Forensic Identification Database and Databank Program pursuant to paragraph (1) following a determination of probable cause, shall be destroyed by the agency that collected the blood specimen or buccal swab sample.
(b)(1) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2)The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3)Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4)Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the collection of samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice. The samples, specimens, and forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5)The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA and Forensic Identification Database and Databank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(6)The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering databank and database information.
(c)(1) Persons authorized to draw blood or obtain samples or print impressions under this chapter for the databank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2)There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in confirming a persons or samples qualifying status for inclusion within the database or databank or in placing an entry in a databank or a database.
(3)The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
(d)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 298 of the Penal Code, as amended by Section 6 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. 7.Section 299 of the Penal Code is amended to read:299.(a)A person whose DNA profile has been included in the data bank databank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank 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 states DNA and Forensic Identification Database and Data Bank Databank 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: 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 states DNA and Forensic Identification Database and Data Bank Identification 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 data bank 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 below, 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)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 databank 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.
(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. 8.Section 299 is added to the Penal Code, 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 states DNA and Forensic Identification Database and Databank 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 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, 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 states DNA and Forensic Identification Database and Databank Program have been dismissed prior to adjudication by a trier of fact, in which case the district attorney shall submit a letter to the Department of Justice as soon as these conditions have been met.
(2)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.
(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, in which case the court shall forward its order to the Department of Justice upon disposition of the case.
(4)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)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 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. 9.Section 300 of the Penal Code is amended to read:300.Nothing in this chapter shall (a) This chapter does not limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize DNA or forensic identification markers, blood specimens, buccal swab samples, saliva samples, or thumb or palm print impressions for identification purposes.
(b)A law enforcement agency may use a publicly available database, excluding a law enforcement database that is not linked to the Combined DNA Index System (CODIS), if the case being investigated involves a homicide or sexual assault involving force and the case is unsolved and all investigative leads have been exhausted, in which case the law enforcement agency shall review nonforensic information in order to identify additional evidence bearing on relatedness.
SECTION 1.Section 338.5 is added to the Elections Code, to read:338.5.Political party qualification petition means a petition circulated to qualify a political party in accordance with Division 5 (commencing with Section 5000).
SEC. 2.Section 5100 of the Elections Code is amended to read:5100.A party is qualified to participate in a primary election under any of the following conditions:
(a)(1)At the last preceding gubernatorial primary election, the sum of the votes cast for all of the candidates for an office voted on throughout the state who disclosed a preference for that party on the ballot was at least 2 percent of the entire vote of the state for that office.
(2)Notwithstanding paragraph (1), a party may inform the Secretary of State that it declines to have the votes cast for any candidate who has disclosed that party as his or her party preference on the ballot counted toward the 2-percent qualification threshold. If the party wishes to have votes for any candidate not counted in support of its qualification under paragraph (1), the party shall notify the Secretary of State in writing of that candidates name by the seventh day before the gubernatorial primary election.
(b)On or before the 135th day before a primary election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their declared political preference transmitted to him or her by the county elections officials, that voters equal in number to at least 0.33 percent of the total number of voters registered on the 154th day before the primary election have declared their preference for that party.
(c)On or before the 135th day before a primary election, there is filed with the Secretary of State a political party qualification petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that the voters signing the petition support qualification of a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that primary election. The petition shall be circulated, signed, and verified, and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point boldface type, which caption shall be the name of the proposed party followed by the words Petition to participate in the primary election.
SEC. 3.Section 5151 of the Elections Code is amended to read:5151.A party is qualified to participate in a presidential general election under any of the following conditions:
(a)The party qualified to participate and participated in the presidential primary election preceding the presidential general election pursuant to Section 5100.
(b)(1)At the last preceding gubernatorial primary election, the sum of the votes cast for all of the candidates for an office voted on throughout the state who disclosed a preference for that party on the ballot was at least 2 percent of the entire vote of the state for that office.
(2)Notwithstanding paragraph (1), a party may inform the Secretary of State that it declines to have the votes cast for any candidate who has disclosed that party as his or her party preference on the ballot counted toward the 2-percent qualification threshold. If the party wishes to have votes for any candidate not counted in support of its qualification under paragraph (1), the party shall notify the Secretary of State in writing of that candidates name by the seventh day before the gubernatorial primary election.
(c)If, on or before the 102nd day before a presidential general election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their declared political preference transmitted to him or her by the county elections officials, that voters equal in number to at least 0.33 percent of the total number of voters registered on the 123rd day before the presidential general election have declared their preference for that party.
(d)On or before the 135th day before a presidential general election, there is filed with the Secretary of State a political party qualification petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that the voters signing the petition support qualification of a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that presidential general election. The petition shall be circulated, signed, and verified, and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point boldface type, which caption shall be the name of the proposed party followed by the words Petition to participate in the presidential general election.
SEC. 4.Section 18201 of the Elections Code is amended to read:18201.A person who falsely makes or fraudulently defaces or destroys all or any part of a nomination paper or an in-lieu-filing-fee petition is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or by both that fine and imprisonment.
SEC. 5.Section 18202 of the Elections Code is amended to read:18202.A person who, acting on behalf of a candidate, deliberately fails to file at the proper time and in the proper place a nomination paper, in-lieu-filing-fee petition, or declaration of candidacy in his or her possession that is entitled to be filed under this code is guilty of a misdemeanor.
SEC. 6.Section 18203 of the Elections Code is amended to read:18203.A person who files or submits for filing a nomination paper, in-lieu-filing-fee petition, or declaration of candidacy knowing that it or any part of it has been made falsely is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or by both that fine and imprisonment.
SEC. 7.Section 18204 of the Elections Code is amended to read:18204.A person who willfully suppresses all or any part of a nomination paper, in-lieu-filing-fee petition, or declaration of candidacy either before or after filing is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or by both that fine and imprisonment.
SEC. 8.Section 18600 of the Elections Code is amended to read:18600.A person is guilty of a misdemeanor who:
(a)Circulating, as principal or agent, or having charge or control of the circulation of, or obtaining signatures to, any state or local initiative, referendum, recall, or political party qualification petition, intentionally misrepresents or intentionally makes any false statement concerning the contents, purport, or effect of the petition to any person who signs, or who desires to sign, or who is requested to sign, or who makes inquiries with reference to it, or to whom it is presented for his or her signature.
(b)Willfully and knowingly circulates, publishes, or exhibits any false statement or misrepresentation concerning the contents, purport, or effect of any state or local initiative, referendum, recall, or political party qualification petition for the purpose of obtaining any signature to, or persuading or influencing any person to sign, that petition.
(c)Circulating, as principal or agent, or having charge or control of the circulation of, or obtaining signatures to, any state or local initiative, or political party qualification petition intentionally makes any false statement in response to any inquiry by any voter as to whether he or she is a paid signature gatherer or a volunteer.
SEC. 9.Section 18601 of the Elections Code is amended to read:18601.(a)A person working for the proponent or proponents of an initiative or referendum measure, recall petition, or political party qualification petition who refuses to allow a prospective signer to read the measure or petition is guilty of a misdemeanor.
(b)An arrest or conviction pursuant to this section shall not invalidate or otherwise affect the validity of any signature obtained by the person arrested or convicted.
SEC. 10.Section 18603 of the Elections Code is amended to read:18603.A person who offers or gives money or other valuable consideration to another in exchange for his or her signature on a state, county, municipal, or district initiative, referendum, recall, or political party qualification petition is guilty of a misdemeanor.
SEC. 11.Section 18604 of the Elections Code is amended to read:18604.Upon conviction of a violation of any provision of this article, Article 2 (commencing with Section 18610), Article 3 (commencing with Section 18620), Article 5 (commencing with Section 18640), Article 6 (commencing with Section 18650), or Article 7 (commencing with Section 18660), the court may order as a condition of probation that the convicted person be prohibited from receiving money or other valuable consideration for gathering signatures on an initiative, referendum, recall, or political party qualification petition.
SEC. 12.Section 18610 of the Elections Code is amended to read:18610.A person who solicits a circulator to affix a false or forged signature, or to cause or permit a false or forged signature to be affixed, to an initiative, referendum, recall, or political party qualification petition is guilty of a misdemeanor.
SEC. 13.Section 18611 of the Elections Code is amended to read:18611.A person who circulates or causes to be circulated an initiative, referendum, recall, or political party qualification petition knowing it to contain false, forged, or fictitious names is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 14.Section 18612 of the Elections Code is amended to read:18612.A person who knowingly signs his or her own name more than once to an initiative, referendum, recall, or political party qualification petition, or signs his or her name to that petition knowing at the time of signing that he or she is not qualified to sign it, is guilty of a misdemeanor.
SEC. 15.Section 18613 of the Elections Code is amended to read:18613.A person who subscribes to an initiative, referendum, recall, or political party qualification petition a fictitious name, or who subscribes to the petition the name of another, or who causes another to subscribe such a name to that petition, is guilty of a felony and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.
SEC. 16.Section 18614 of the Elections Code is amended to read:18614.A person who files in the office of the elections official or other officer designated by law to receive the filing, an initiative, referendum, recall, or political party qualification petition to which is attached, appended, or subscribed any signature that the person filing the petition or measure knows to be false or fraudulent, or not the genuine signature of the person whose name it purports to be, is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 17.Section 18620 of the Elections Code is amended to read:18620.A person who seeks, solicits, bargains for, or obtains any money, thing of value, or advantage of or from any person, firm, or corporation for the purpose or represented purpose of fraudulently inducing, persuading, or seeking the proponent or proponents of an initiative or referendum measure, recall petition, or political party qualification petition to (a) abandon the measure or petition, (b) fail, neglect, or refuse to file in the office of the elections official or other officer designated by law, within the time required by law, the initiative or referendum measure, recall petition, or political party qualification petition after securing the number of signatures required to qualify the measure or petition, (c) stop the circulation of the initiative or referendum measure, recall petition, or political party qualification petition, or (d) perform any act that will prevent or aid in preventing the initiative or referendum measure, recall petition, or political party qualification petition from qualifying as an initiative or referendum measure, or the recall petition from resulting in a recall election, or political party qualification petition from qualifying a party is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 18.Section 18621 of the Elections Code is amended to read:18621.A proponent of an initiative or referendum measure, recall petition, or political party qualification petition who seeks, solicits, bargains for, or obtains any money or thing of value of or from any person, firm, or corporation for the purpose of abandoning the same or stopping the circulation of petitions concerning the same, or failing or neglecting or refusing to file the measure or petition in the office of the elections official or other officer designated by law within the time required by law after obtaining the number of signatures required under the law to qualify the measure or petition, or withdrawing an initiative petition after filing it with the appropriate elections official, or performing any act that will prevent or aid in preventing the initiative, referendum, recall, or political party proposed from qualifying as an initiative or referendum measure, resulting in a recall election, or qualifying as a political party by a political party qualification petition is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 19.Section 18622 of the Elections Code is amended to read:18622.A person who offers to buy or does buy from a circulator any referendum, initiative, recall, or political party qualification petition on which one or more persons have affixed their signatures is guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment. This section does not prohibit a proponent of the petition, or his or her agent, from compensating a circulator for his or her services.
SEC. 20.Section 18630 of the Elections Code is amended to read:18630.A person who threatens to commit an assault or battery on a person circulating a referendum, initiative, recall, or political party qualification petition, or on a relative of a person circulating a referendum, initiative, recall, or political party qualification petition, or to inflict damage on the property of the circulator or the relative with the intent to dissuade the circulator from circulating the petition or in retribution for the circulation, is guilty of a misdemeanor.
SEC. 21.Section 18631 of the Elections Code is amended to read:18631.A person who forcibly or by stealth takes from the possession of a circulator an initiative, referendum, recall, or political party qualification petition on which one or more persons have affixed their signatures is guilty of a misdemeanor.
SEC. 22.Section 18640 of the Elections Code is amended to read:18640.A person working for the proponent or proponents of an initiative or referendum measure, or a recall or political party qualification petition, who solicits signatures to qualify the measure or petition, accepts payment therefor, and fails to surrender the measure or petition to the proponents of the measure or petition for filing is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 23.Section 18650 of the Elections Code is amended to read:18650.A person shall not knowingly or willfully permit the list of signatures on an initiative, referendum, recall, or political party qualification petition to be used for any purpose other than qualification of the initiative or referendum measure or recall question for the ballot or political party, except as provided in Section 6253.5 of the Government Code. Violation of this section is a misdemeanor.
SEC. 24.Section 18660 of the Elections Code is amended to read:18660.A person who makes a false affidavit concerning an initiative, referendum, recall, or political party qualification petition, or the signatures appended to the petition, is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 25.Section 18661 of the Elections Code is amended to read:18661.A public official or employee who knowingly makes a false return, certification, or affidavit concerning an initiative, referendum, recall, or political party qualification petition, or the signatures appended to the petition, is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 26.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
Political party qualification petition means a petition circulated to qualify a political party in accordance with Division 5 (commencing with Section 5000).
SEC. 2.Section 5100 of the Elections Code is amended to read:5100.A party is qualified to participate in a primary election under any of the following conditions:
(a)(1)At the last preceding gubernatorial primary election, the sum of the votes cast for all of the candidates for an office voted on throughout the state who disclosed a preference for that party on the ballot was at least 2 percent of the entire vote of the state for that office.
(2)Notwithstanding paragraph (1), a party may inform the Secretary of State that it declines to have the votes cast for any candidate who has disclosed that party as his or her party preference on the ballot counted toward the 2-percent qualification threshold. If the party wishes to have votes for any candidate not counted in support of its qualification under paragraph (1), the party shall notify the secretary Secretary of State in writing of that candidates name by the seventh day prior to before the gubernatorial primary election.
(b)On or before the 135th day before a primary election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their declared political preference transmitted to him or her by the county elections officials, that voters equal in number to at least 0.33 percent of the total number of voters registered on the 154th day before the primary election have declared their preference for that party.
(c)On or before the 135th day before a primary election, there is filed with the Secretary of State a political party qualification petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that the voters signing the petition support qualification of a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that primary election. This The petition shall be circulated, signed, and verified, and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point boldface type, which caption shall be the name of the proposed party followed by the words Petition to participate in the primary election.
SEC. 3.Section 5151 of the Elections Code is amended to read:5151.A party is qualified to participate in a presidential general election under any of the following conditions:
(a)The party qualified to participate and participated in the presidential primary election preceding the presidential general election pursuant to Section 5100.
(b)(1)At the last preceding gubernatorial primary election, the sum of the votes cast for all of the candidates for an office voted on throughout the state who disclosed a preference for that party on the ballot was at least 2 percent of the entire vote of the state for that office.
(2)Notwithstanding paragraph (1), a party may inform the Secretary of State that it declines to have the votes cast for any candidate who has disclosed that party as his or her party preference on the ballot counted toward the 2-percent qualification threshold. If the party wishes to have votes for any candidate not counted in support of its qualification under paragraph (1), the party shall notify the secretary Secretary of State in writing of that candidates name by the seventh day prior to before the gubernatorial primary election.
(c)If, on or before the 102nd day before a presidential general election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their declared political preference transmitted to him or her by the county elections officials, that voters equal in number to at least 0.33 percent of the total number of voters registered on the 123rd day before the presidential general election have declared their preference for that party.
(d)On or before the 135th day before a presidential general election, there is filed with the Secretary of State a political party qualification petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that the voters signing the petition support qualification of a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that presidential general election. This The petition shall be circulated, signed, and verified, and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point boldface type, which caption shall be the name of the proposed party followed by the words Petition to participate in the presidential general election.
SEC. 4.Section 18201 of the Elections Code is amended to read:18201.Any A person who falsely makes or fraudulently defaces or destroys all or any part of a nomination paper or an in-lieu-filing-fee petition, petition is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or by both that fine and imprisonment.
SEC. 5.Section 18202 of the Elections Code is amended to read:18202.Every A person who, acting on behalf of a candidate is guilty of a misdemeanor who, deliberately fails to file at the proper time and in the proper place any a nomination paper, in-lieu-filing-fee petition, or declaration of candidacy in his or her possession that is entitled to be filed under this code. code is guilty of a misdemeanor.
SEC. 6.Section 18203 of the Elections Code is amended to read:18203.Any A person who files or submits for filing a nomination paper, in-lieu-filing-fee petition, or declaration of candidacy knowing that it or any part of it has been made falsely is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or by both that fine and imprisonment.
SEC. 7.Section 18204 of the Elections Code is amended to read:18204.Any A person who willfully suppresses all or any part of a nomination paper, in-lieu-filing-fee petition, or declaration of candidacy either before or after filing is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or by both that fine and imprisonment.
SEC. 8.Section 18600 of the Elections Code is amended to read:18600.Every A person is guilty of a misdemeanor who:
(a)Circulating, as principal or agent, or having charge or control of the circulation of, or obtaining signatures to, any state or local initiative, referendum, recall, or political party qualification petition, intentionally misrepresents or intentionally makes any false statement concerning the contents, purport, or effect of the petition to any person who signs, or who desires to sign, or who is requested to sign, or who makes inquiries with reference to it, or to whom it is presented for his or her signature.
(b)Willfully and knowingly circulates, publishes, or exhibits any false statement or misrepresentation concerning the contents, purport, or effect of any state or local initiative, referendum, recall, or political party qualification petition for the purpose of obtaining any signature to, or persuading or influencing any person to sign, that petition.
(c)Circulating, as principal or agent, or having charge or control of the circulation of, or obtaining signatures to, any state or local initiative, or political party qualification petition intentionally makes any false statement in response to any inquiry by any voter as to whether he or she is a paid signature gatherer or a volunteer.
SEC. 9.Section 18601 of the Elections Code is amended to read:18601.Any (a)A person working for the proponent or proponents of an initiative or referendum measure, recall petition, or political party qualification petition who refuses to allow a prospective signer to read the measure or petition is guilty of a misdemeanor.
An
(b)An arrest or conviction pursuant to this section shall not invalidate or otherwise affect the validity of any signature obtained by the person arrested or convicted.
SEC. 10.Section 18603 of the Elections Code is amended to read:18603.Every A person who offers or gives money or other valuable consideration to another in exchange for his or her signature on a state, county, municipal, or district initiative, referendum, recall, or political party qualification petition is guilty of a misdemeanor.
SEC. 11.Section 18604 of the Elections Code is amended to read:18604.Upon conviction of a violation of any provision of this article, Article 2 (commencing with Section 18610), Article 3 (commencing with Section 18620), Article 5 (commencing with Section 18640), Article 6 (commencing with Section 18650), or Article 7 (commencing with Section 18660), the court may order as a condition of probation that the convicted person be prohibited from receiving money or other valuable consideration for gathering signatures on an initiative, referendum, recall, or political party qualification petition.
SEC. 12.Section 18610 of the Elections Code is amended to read:18610.Every A person who solicits any a circulator to affix to any a false or forged signature, or to cause or permit a false or forged signature to be affixed, to an initiative, referendum, recall, or political party qualification petition any false or forged signature, or to cause or permit a false or forged signature to be affixed, is guilty of a misdemeanor.
SEC. 13.Section 18611 of the Elections Code is amended to read:18611.Every A person who circulates or causes to be circulated an initiative, referendum, recall, or political party qualification petition knowing it to contain false, forged, or fictitious names is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment, who circulates or causes to be circulated any initiative, referendum, recall, or political party qualification petition, knowing it to contain false, forged, or fictitious names. imprisonment.
SEC. 14.Section 18612 of the Elections Code is amended to read:18612.Every A person is guilty of a misdemeanor who knowingly signs his or her own name more than once to any an initiative, referendum, recall, or political party qualification petition, or signs his or her name to that petition knowing himself or herself at the time of signing that he or she is not to be qualified to sign it. it, is guilty of a misdemeanor.
SEC. 15.Section 18613 of the Elections Code is amended to read:18613.Every A person who subscribes to any an initiative, referendum, recall, or political party qualification petition a fictitious name, or who subscribes thereto to the petition the name of another, or who causes another to subscribe such a name to that petition, is guilty of a felony and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.
SEC. 16.Section 18614 of the Elections Code is amended to read:18614.Every A person who files in the office of the elections official or other officer designated by law to receive the filing, an initiative, referendum, recall, or political party qualification petition to which is attached, appended, or subscribed any signature that the person filing the petition or measure knows to be false or fraudulent, or not the genuine signature of the person whose name it purports to be, is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment, who files in the office of the elections official or other officer designated by law to receive the filing, any initiative, referendum, recall, or political party qualification petition to which is attached, appended, or subscribed any signature which the person filing the petition or measure knows to be false or fraudulent or not the genuine signature of the person whose name it purports to be. imprisonment.
SEC. 17.Section 18620 of the Elections Code is amended to read:18620.Every A person who seeks, solicits, bargains for, or obtains any money, thing of value, or advantage of or from any person, firm, or corporation for the purpose or represented purpose of fraudulently inducing, persuading, or seeking the proponent or proponents of any an initiative or referendum measure, recall petition, or political party qualification petition to (a) abandon the measure or petition, (b) fail, neglect, or refuse to file in the office of the elections official or other officer designated by law, within the time required by law, the initiative or referendum measure, recall petition, or political party qualification petition after securing the number of signatures required to qualify the measure or petition, (c) stop the circulation of the initiative or referendum measure, recall petition, or political party qualification petition, or (d) perform any act that will prevent or aid in preventing the initiative or referendum measure, recall petition, or political party qualification petition from qualifying as an initiative or referendum measure, or the recall petition from resulting in a recall election, or political party qualification petition from qualifying a party is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 18.Section 18621 of the Elections Code is amended to read:18621.Any A proponent of an initiative or referendum measure, recall petition, or political party qualification petition who seeks, solicits, bargains for, or obtains any money or thing of value of or from any person, firm, or corporation for the purpose of abandoning the same or stopping the circulation of petitions concerning the same, or failing or neglecting or refusing to file the measure or petition in the office of the elections official or other officer designated by law within the time required by law after obtaining the number of signatures required under the law to qualify the measure or petition, or withdrawing an initiative petition after filing it with the appropriate elections official, or performing any act that will prevent or aid in preventing the initiative, referendum, recall, or political party proposed from qualifying as an initiative or referendum measure, resulting in a recall election, or qualifying as a political party by a political party qualification petition is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 19.Section 18622 of the Elections Code is amended to read:18622.Every A person who offers to buy or does buy from a circulator any referendum, initiative, recall, or political party qualification petition on which one or more persons have affixed their signatures is guilty of a misdemeanor punishable by imprisonment in the county jail for not more than not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000), or both. by both that fine and imprisonment. This section is not intended to does not prohibit compensation of a circulator, a proponent of the petition, or his or her agent, from compensating a circulator for his or her services, by a proponent of the petition or his or her agent. services.
SEC. 20.Section 18630 of the Elections Code is amended to read:18630.Every A person who threatens to commit an assault or battery on a person circulating a referendum, initiative, recall, or political party qualification petition, or on a relative of a person circulating a referendum, initiative, recall, or political party qualification petition, or to inflict damage on the property of the circulator or the relative, relative with the intent to dissuade the circulator from circulating the petition or in retribution for the circulation, is guilty of a misdemeanor.
SEC. 21.Section 18631 of the Elections Code is amended to read:18631.Every A person who forcibly or by stealth takes from the possession of a circulator any an initiative, referendum, recall, or political party qualification petition on which one or more persons have affixed their signatures is guilty of a misdemeanor.
SEC. 22.Section 18640 of the Elections Code is amended to read:18640.Any A person working for the proponent or proponents of an initiative or referendum measure, or a recall or political party qualification petition, who solicits signatures to qualify the measure or petition and, accepts any payment therefor, and who fails to surrender the measure or petition to the proponents thereof of the measure or petition for filing is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 23.Section 18650 of the Elections Code is amended to read:18650.No one A person shall not knowingly or willfully permit the list of signatures on an initiative, referendum, recall, or political party qualification petition to be used for any purpose other than qualification of the initiative or referendum measure or recall question for the ballot or political party, except as provided in Section 6253.5 of the Government Code. Violation of this section is a misdemeanor.
SEC. 24.Section 18660 of the Elections Code is amended to read:18660.Every A person who makes a false affidavit concerning an initiative, referendum, recall, or political party qualification petition, or the signatures appended to the petition, is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment, who makes any false affidavit concerning any initiative, referendum, recall, or political party qualification petition or the signatures appended thereto. imprisonment.
SEC. 25.Section 18661 of the Elections Code is amended to read:18661.Every A public official or employee who knowingly makes a false return, certification, or affidavit concerning an initiative, referendum, recall, or political party qualification petition, or the signatures appended to the petition, is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment, who knowingly makes any false return, certification or affidavit concerning any initiative, referendum, recall, or political party qualification petition or the signatures appended thereto. imprisonment.
SEC. 26.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
Political party qualification petition means a petition circulated to qualify a political party in accordance with Division 5 (commencing with Section 5000).
SEC. 2.Section 5100 of the Elections Code is amended to read:5100.A party is qualified to participate in a primary election under any of the following conditions:
(a)(1)At the last preceding gubernatorial primary election, the sum of the votes cast for all of the candidates for an office voted on throughout the state who disclosed a preference for that party on the ballot was at least 2 percent of the entire vote of the state for that office.
(2)Notwithstanding paragraph (1), a party may inform the Secretary of State that it declines to have the votes cast for any candidate who has disclosed that party as his or her party preference on the ballot counted toward the 2-percent qualification threshold. If the party wishes to have votes for any candidate not counted in support of its qualification under paragraph (1), the party shall notify the secretary in writing of that candidates name by the seventh day prior to the gubernatorial primary election.
(b)On or before the 135th day before a primary election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their declared political preference transmitted to him or her by the county elections officials, that voters equal in number to at least 0.33 percent of the total number of voters registered on the 154th day before the primary election have declared their preference for that party.
(c)On or before the 135th day before a primary election, there is filed with the Secretary of State a political party qualification petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that they represent the voters signing the petition support qualification of a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that primary election. This petition shall be circulated, signed, signed and verified, and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point boldface type, which caption shall be the name of the proposed party followed by the words Petition to participate in the primary election.
SEC. 3.Section 5151 of the Elections Code is amended to read:5151.A party is qualified to participate in a presidential general election under any of the following conditions:
(a)The party qualified to participate and participated in the presidential primary election preceding the presidential general election pursuant to Section 5100.
(b)(1)At the last preceding gubernatorial primary election, the sum of the votes cast for all of the candidates for an office voted on throughout the state who disclosed a preference for that party on the ballot was at least 2 percent of the entire vote of the state for that office.
(2)Notwithstanding paragraph (1), a party may inform the Secretary of State that it declines to have the votes cast for any candidate who has disclosed that party as his or her party preference on the ballot counted toward the 2-percent qualification threshold. If the party wishes to have votes for any candidate not counted in support of its qualification under paragraph (1), the party shall notify the secretary in writing of that candidates name by the seventh day prior to the gubernatorial primary election.
(c)If on or before the 102nd day before a presidential general election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their declared political preference transmitted to him or her by the county elections officials, that voters equal in number to at least 0.33 percent of the total number of voters registered on the 123rd day before the presidential general election have declared their preference for that party.
(d)On or before the 135th day before a presidential general election, there is filed with the Secretary of State a political party qualification petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that they represent the voters signing the petition support qualification of a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that presidential general election. This petition shall be circulated, signed, and verified, and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point boldface type, which caption shall be the name of the proposed party followed by the words Petition to participate in the presidential general election.
SEC. 4.Section 18201 of the Elections Code is amended to read:18201.Any person who falsely makes or fraudulently defaces or destroys all or any part of a nomination paper, paper or an in-lieu-filing-fee petition, is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years or by both that fine and imprisonment.
SEC. 5.Section 18202 of the Elections Code is amended to read:18202.Every person acting on behalf of a candidate is guilty of a misdemeanor who deliberately fails to file at the proper time and in the proper place any nomination paper paper, in-lieu-filing-fee petition, or declaration of candidacy in his or her possession that is entitled to be filed under this code.
SEC. 6.Section 18203 of the Elections Code is amended to read:18203.Any person who files or submits for filing a nomination paper paper, in-lieu-filing-fee petition, or declaration of candidacy knowing that it or any part of it has been made falsely is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years or by both that fine and imprisonment.
SEC. 7.Section 18204 of the Elections Code is amended to read:18204.Any person who willfully suppresses all or any part of a nomination paper paper, in-lieu-filing-fee petition, or declaration of candidacy either before or after filing is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years or by both that fine and imprisonment.
SEC. 8.Section 18600 of the Elections Code is amended to read:18600.Every person is guilty of a misdemeanor who:
(a)Circulating, as principal or agent, or having charge or control of the circulation of, or obtaining signatures to, any state or local initiative, referendum referendum, recall, or recall political party qualification petition, intentionally misrepresents or intentionally makes any false statement concerning the contents, purport or effect of the petition to any person who signs, or who desires to sign, or who is requested to sign, or who makes inquiries with reference to it, or to whom it is presented for his or her signature.
(b)Willfully and knowingly circulates, publishes, or exhibits any false statement or misrepresentation concerning the contents, purport or effect of any state or local initiative, referendum, recall, or recall political party qualification petition for the purpose of obtaining any signature to, or persuading or influencing any person to sign, that petition.
(c)Circulating, as principal or agent, or having charge or control of the circulation of, or obtaining signatures to, any state or local initiative, or political party qualification petition intentionally makes any false statement in response to any inquiry by any voter as to whether he or she is a paid signature gatherer or a volunteer.
SEC. 9.Section 18601 of the Elections Code is amended to read:18601.Any person working for the proponent or proponents of an initiative or referendum measure measure, recall petition, or recall political party qualification petition who refuses to allow a prospective signer to read the measure or petition is guilty of a misdemeanor.
An arrest or conviction pursuant to this section shall not invalidate or otherwise affect the validity of any signature obtained by the person arrested or convicted.
SEC. 10.Section 18603 of the Elections Code is amended to read:18603.Every person who offers or gives money or other valuable consideration to another in exchange for his or her signature on a state, county, municipal, or district initiative, referendum, recall, or recall political party qualification petition is guilty of a misdemeanor.
SEC. 11.Section 18604 of the Elections Code is amended to read:18604.Upon conviction of a violation of any provision of this article, Article 2 (commencing with Section 18610), Article 3 (commencing with Section 18620), Article 5 (commencing with Section 18640), Article 6 (commencing with Section 18650), or Article 7 (commencing with Section 18660), the court may order as a condition of probation that the convicted person be prohibited from receiving money or other valuable consideration for gathering signatures on an initiative, referendum, recall, or recall political party qualification petition.
SEC. 12.Section 18610 of the Elections Code is amended to read:18610.Every person who solicits any circulator to affix to any initiative, referendum, recall, or recall political party qualification petition any false or forged signature, or to cause or permit a false or forged signature to be affixed, is guilty of a misdemeanor.
SEC. 13.Section 18611 of the Elections Code is amended to read:18611.Every person is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment, who circulates or causes to be circulated any initiative, referendum, recall, or recall political party qualification petition, knowing it to contain false, forged, or fictitious names.
SEC. 14.Section 18612 of the Elections Code is amended to read:18612.Every person is guilty of a misdemeanor who knowingly signs his or her own name more than once to any initiative, referendum, recall, or recall political party qualification petition, or signs his or her name to that petition knowing himself or herself at the time of signing not to be qualified to sign it.
SEC. 15.Section 18613 of the Elections Code is amended to read:18613.Every person who subscribes to any initiative, referendum, recall, or recall political party qualification petition a fictitious name, or who subscribes thereto the name of another, or who causes another to subscribe such a name to that petition, is guilty of a felony and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.
SEC. 16.Section 18614 of the Elections Code is amended to read:18614.Every person is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment, who files in the office of the elections official or other officer designated by law to receive the filing, any initiative, referendum, recall, or recall political party qualification petition to which is attached, appended appended, or subscribed any signature which the person filing the petition or measure knows to be false or fraudulent or not the genuine signature of the person whose name it purports to be.
SEC. 17.Section 18620 of the Elections Code is amended to read:18620.Every person who seeks, solicits, bargains for, or obtains any money, thing of value, or advantage of or from any person, firm, or corporation for the purpose or represented purpose of fraudulently inducing, persuading, or seeking the proponent or proponents of any initiative or referendum measure measure, recall petition, or recall political party qualification petition to (a) abandon the measure or petition, (b) fail, neglect, or refuse to file in the office of the elections official or other officer designated by law, within the time required by law, the initiative or referendum measure measure, recall petition, or recall political party qualification petition after securing the number of signatures required to qualify the measure or petition, (c) stop the circulation of the initiative or referendum measure or measure, recall petition, or political party qualification petition, or (d) perform any act that will prevent or aid in preventing the initiative or referendum measure measure, recall petition, or recall political party qualification petition from qualifying as an initiative or referendum measure, or the recall petition from resulting in a recall election, or political party qualification petition from qualifying a party is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 18.Section 18621 of the Elections Code is amended to read:18621.Any proponent of an initiative or referendum measure or recall measure, recall petition, or political party qualification petition who seeks, solicits, bargains for, or obtains any money or thing of value of or from any person, firm, or corporation for the purpose of abandoning the same or stopping the circulation of petitions concerning the same, or failing or neglecting or refusing to file the measure or petition in the office of the elections official or other officer designated by law within the time required by law after obtaining the number of signatures required under the law to qualify the measure or petition, or withdrawing an initiative petition after filing it with the appropriate elections official, or performing any act that will prevent or aid in preventing the initiative, referendum, or recall, or political party proposed from qualifying as an initiative or referendum measure, or resulting in a recall election, or qualifying as a political party by a political party qualification petition is punishable by a fine not exceeding five thousand dollars ($5,000) or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 19.Section 18622 of the Elections Code is amended to read:18622.Every person who offers to buy or does buy from a circulator any referendum, initiative, recall, or recall political party qualification petition on which one or more persons have affixed their signatures is guilty of a misdemeanor punishable by imprisonment in the county jail for not more than one year, or by a fine not exceeding one thousand dollars ($1,000), or both. This section is not intended to prohibit compensation of a circulator, for his or her services, by a proponent of the petition or his or her agent.
SEC. 20.Section 18630 of the Elections Code is amended to read:18630.Every person who threatens to commit an assault or battery on a person circulating a referendum, initiative, recall, or recall political party qualification petition or on a relative of a person circulating a referendum, initiative, recall, or recall political party qualification petition or to inflict damage on the property of the circulator or the relative, with the intent to dissuade the circulator from circulating the petition or in retribution for the circulation, is guilty of a misdemeanor.
SEC. 21.Section 18631 of the Elections Code is amended to read:18631.Every person who forcibly or by stealth takes from the possession of a circulator any initiative, referendum, recall, or recall political party qualification petition on which one or more persons have affixed their signatures is guilty of a misdemeanor.
SEC. 22.Section 18640 of the Elections Code is amended to read:18640.Any person working for the proponent or proponents of an initiative or referendum measure measure, or a recall petition or political party qualification petition, who solicits signatures to qualify the measure or petition and accepts any payment therefor and who fails to surrender the measure or petition to the proponents thereof for filing is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment.
SEC. 23.Section 18650 of the Elections Code is amended to read:18650.No one shall knowingly or willfully permit the list of signatures on an initiative, referendum, recall, or recall political party qualification petition to be used for any purpose other than qualification of the initiative or referendum measure or recall question for the ballot, ballot or political party, except as provided in Section 6253.5 of the Government Code. Violation of this section is a misdemeanor.
SEC. 24.Section 18660 of the Elections Code is amended to read:18660.Every person is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment, who makes any false affidavit concerning any initiative, referendum, recall, or recall political party qualification petition or the signatures appended thereto.
SEC. 25.Section 18661 of the Elections Code is amended to read:18661.Every public official or employee is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, or by both that fine and imprisonment, who knowingly makes any false return, certification or affidavit concerning any initiative, referendum, recall, or recall political party qualification petition or the signatures appended thereto.
SEC. 26.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SECTION 1.Section 777.1 of the Insurance Code is amended to read:777.1.No insurer shall participate in a plan to offer or effect insurance or annuities in this state as an inducement to the purchase or rental by the public of property, real or personal or mixed, or services, without a separate charge to the insured for that insurance, nor shall a agent, broker, or solicitor arrange the sale of that insurance. This article does not apply to insurance written in connection with subscriptions to newspapers of general circulation; nor does it apply to insurance issued to credit unions or to members of credit unions in connection with the purchase of shares in the credit union; nor does it apply to insurance offered as a guarantee of the performance of goods, that is designed to protect the purchasers or users of such goods; nor does it apply to private passenger automobile insurance issued in connection with the sale or lease of a new vehicle and paid for by the vehicle manufacturer, provided the purchaser is advised prior to finalizing the purchase of the vehicle of the annual cost of the insurance included in connection with the sale or lease; nor does it apply to any title insurance or life or disability insurance written in connection with an indebtedness that is intended to pay the balance of the indebtedness in the event of the death or disability of the person insured; nor does it apply to any of the provisions of Part 5 (commencing at Section 12140), Division 2 of this code; nor does it apply to insurance provided incidentally to the sale of services if the cost of the insurance to the seller of the services does not exceed the sum of one dollar ($1) per annum for each purchaser of those services.
No insurer shall participate in any a plan to offer or effect any kind or kinds of insurance or annuities in this state as an inducement to the purchase or rental by the public of any property, real or personal or mixed, or services, without any a separate charge to the insured for such that insurance, nor shall any a agent, broker, or solicitor arrange the sale of any such that insurance. The provisions of this This article shall not be applicable does not apply to insurance written in connection with subscriptions to newspapers of general circulation; nor shall does it apply to insurance issued to credit unions or to members of credit unions in connection with the purchase of shares in such a the credit union; nor shall does it apply to insurance offered as a guarantee of the performance of goods, which insurance that is designed to protect the purchasers or users of such goods; nor does it apply to private passenger automobile insurance issued in connection with the sale or lease of a new vehicle and paid for by the vehicle manufacturer, provided the purchaser is advised prior to finalizing the purchase of the vehicle of the annual cost of the insurance included in connection with the sale or lease; nor shall it be applicable does it apply to any title insurance or life or disability insurance written in connection with an indebtedness, the purpose of which insurance is indebtedness that is intended to pay the balance of the indebtedness in the event of the death or disability of the person insured; nor shall it be applicable does it apply to any of the provisions of Part 5 (commencing at Section 12140), Division 2 of this code; nor shall it be applicable does it apply to insurance provided incidentally to the sale of services if the cost of the insurance to the seller of the services does not exceed the sum of one dollar ($1) per annum for each purchaser of those services.
SECTION 1.Section 11623.5 of the Insurance Code is amended to read:11623.5.(a)Groups of insurers not under common ownership or management may form a limited assignment distribution arrangement. Each arrangement shall have one servicing carrier that writes assigned risk business on behalf of the members of the arrangement in return for consideration from the other participating carriers for not writing the business.
(b)An insurer may not act as a servicing carrier except with the continuing approval of the commissioner.
(c)Each servicing carrier shall have a surplus of at least ten million dollars ($10,000,000).
(d)Upon the approval of the commissioner of a servicing carrier under this section, the plan shall make all assignments that otherwise would be made to a participant to the servicing carrier for that participant.
(e)The commissioner shall impose a filing fee for the filing necessary to obtain approval pursuant to this section. The fee shall be limited to that amount sufficient to defray the costs of the department in connection with considering the application.
(a)Groups of insurers not under common ownership or management may form a limited assignment distribution arrangement. Each arrangement shall have one servicing carrier that writes assigned risk business on behalf of the members of the arrangement in return for consideration from the other participating carriers for not writing the business.
(b)No An insurer may not act as a servicing carrier except with the continuing approval of the commissioner.
(c)Each servicing carrier shall have a surplus of at least ten million dollars ($10,000,000).
(d)Upon the approval of the commissioner of a servicing carrier under this section, the plan shall make all assignments that otherwise would be made to a participant to the servicing carrier for that participant.
(e)The commissioner shall impose a filing fee for the filing necessary to obtain approval pursuant to this section, which section. The fee shall be limited to that amount sufficient to defray the costs of the department in connection with considering the application.
|
Date
|
Status
|
|---|---|
| Sep 10, 2015 | Read third time. Passed. Ordered to the Assembly. |
| Jun 30, 2015 | Withdrawn from committee. |
| Jul 1, 2015 | Re-referred to Com. on PUB. S. |
| Jul 16, 2015 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (July 14). |
| Jul 16, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Aug 17, 2015 | In committee: Referred to APPR. suspense file. |
| Aug 27, 2015 | From committee: Amend, and do pass as amended. (Ayes 6. Noes 0.) (August 27). |
| Aug 31, 2015 | Read second time and amended. Ordered to third reading. |
| Sep 4, 2015 | Read third time and amended. Ordered to second reading. |
| Sep 8, 2015 | Read second time. Ordered to third reading. |
| Sep 10, 2015 | In Assembly. Concurrence in Senate amendments pending. |
| Sep 10, 2015 | Motion to reconsider made by Senator Hancock. |
| Jun 30, 2015 | Re-referred to Com. on RLS. |
| Sep 10, 2015 | Read third time. Passed. Ordered to the Assembly. (Ayes 38. Noes 0. Page 2706.). |
| Sep 10, 2015 | Read third time. Passed. Ordered to the Assembly. (Ayes 40. Noes 0. Page 2710.). |
| Sep 10, 2015 | Reconsideration granted. |
| Sep 10, 2015 | Reconsideration granted. (Ayes 40. Noes 0. Page 2710.) |
| Sep 11, 2015 | Senate amendments concurred in. To Engrossing and Enrolling. |
| Sep 11, 2015 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 1. Page 3154.). |
| Sep 11, 2015 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 1.). |
| Sep 23, 2015 | Enrolled and presented to the Governor at 4 p.m. |
| Oct 4, 2015 | Approved by the Governor. |
| Oct 4, 2015 | Chaptered by Secretary of State - Chapter 487, Statutes of 2015. |
| Apr 30, 2015 | Read second time and amended. |
| Mar 1, 2015 | From printer. May be heard in committee March 31. |
| Mar 2, 2015 | Read first time. |
| Mar 26, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on INS. Read second time and amended. |
| Mar 26, 2015 | Referred to Com. on INS. |
| Apr 6, 2015 | Re-referred to Com. on INS. |
| Apr 15, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on INS. Read second time and amended. |
| Apr 16, 2015 | Re-referred to Com. on INS. |
| Apr 20, 2015 | Re-referred to Com. on RLS. pursuant to Assembly Rule 96. |
| Apr 22, 2015 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Apr 23, 2015 | From committee: Be re-referred to Com. on E. & R. Re-referred. (Ayes 10. Noes 0.) (April 23). Re-referred to Com. on E. & R. |
| Apr 29, 2015 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (April 29). |
| Feb 27, 2015 | Introduced. To print. |
| May 4, 2015 | Re-referred to Com. on APPR. |
| May 13, 2015 | From committee: Do pass. To Consent Calendar. (Ayes 17. Noes 0.) (May 13). |
| May 14, 2015 | Read second time. Ordered to Consent Calendar. |
| May 22, 2015 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 22, 2015 | Read third time. Passed. Ordered to the Senate. |
| May 22, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 74. Noes 0. Page 1560.) |
| Jun 4, 2015 | Referred to Com. on E. & C.A. |
| Jun 16, 2015 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 5. Noes 0.) (June 16). Re-referred to Com. on APPR. |
| Jun 25, 2015 | In committee: Hearing postponed by committee. |
| Jun 29, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2015 | AB 1492 GATTO Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Sep 10, 2015 | Assembly 3rd Reading AB1492 Gatto By Hancock | Senate Floor |
Passed |
|
| Sep 10, 2015 | Assembly 3rd Reading AB1492 Gatto By Hancock Reconsider | Senate Floor |
Passed |
|
| Sep 10, 2015 | Assembly 3rd Reading AB1492 Gatto By Hancock | Senate Floor |
Passed |
|
| Aug 27, 2015 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 17, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 14, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| Jun 16, 2015 | Do pass, but first be re-referred to the Committee on [Appropriations] with the recommendation: To Consent Calendar | Senate Standing Committee on Elections and Constitutional Amendments |
Passed |
|
| May 22, 2015 | AB 1492 LOW Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| May 13, 2015 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 29, 2015 | Do pass as amended, and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Elections and Redistricting |
Passed |
|
| Apr 23, 2015 | Be re-referred to the Committee on [Elections and Redistricting] | Assembly Standing Committee on Rules |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California State Sheriffs' Association | ** Against | Sep 10, 2015 |
| Crime Victims United | ** Support | Sep 10, 2015 |
| Legal Services for Prisoners with Children | ** Against | Sep 10, 2015 |
AB 1492
Page 6
CONCURRENCE IN SENATE AMENDMENTS
AB 1492
(Gatto)
As Amended September 4, 2015
Majority vote
ASSEMBLY: |
74-0 |
(May 22, 2015) |
SENATE: |
40-0 |
(September 10, 2015) |
Original Committee Reference: E. & R.
SUMMARY: Provides contingency language that deoxyribonucleic acid (DNA) samples taken pursuant to arrest shall not be sent to the Department of Justice (DOJ) for analysis, unless there is a finding of probable cause that the offense has been committed. Simplifies the process to remove a DNA sample from the DNA database. Contingency language does not take effect unless the California Supreme Court finds that existing law on the taking of DNA samples is unconstitutional.
The Senate amendments delete the Assembly version of this bill, and instead:
Require DNA samples to be taken when a person is arrested for or charged with any serious or violent felony, or felony which requires registration as a sex offender. This only becomes operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015, S223698.
Require that DNA samples obtained during an arrest on a felony not be sent to DOJ for analysis until after a finding of probable cause, operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015, S223698.
Specify that a finding of probable cause is established by any of the following:
A felony arrest warrant signed by a judicial officer;
A grand jury indictment; or
A determination by a judicial officer that probable cause exists to believe the person has committed the offense for which he or she was arrested.
Specify that a DNA sample taken pursuant to a felony arrest shall be destroyed after six months, if the law enforcement agency has not received notice to forward the sample to DOJ following a determination of probable cause, operative if People v. Buza, supra, is upheld.
Establish procedure for a person's DNA sample and searchable database profile to be removed if the case is dismissed, or the accused is acquitted, or otherwise exonerated, and the person has no past qualifying offense, without the requirement of an application from the person, operative if People v. Buza, supra, is upheld. The removal process applies to the following situations:
The charge(s) which serve as the basis for including the DNA sample in the database have been dismissed;
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 DOJ upon disposition of the case;
The person has been found factually innocent of the underlying offense, in which case the court shall forward its order to the DOJ upon disposition of the case; and
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 DOJ upon disposition of the case.
Following arrest, and after a 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 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 specified, the prosecuting attorney shall immediately, or as soon as practicably possible, submit a letter to DOJ indicating that an accusatory pleading has not been filed.
EXISTING LAW:
Requires the following persons 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.
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 where a court has found that they have committed any felony offense;
Any adult person who is arrested for or charged with a felony offense; and
Any person, including any juvenile, who is required to register as a sex offender or arson offender 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.
Allows the collection and analysis of specimens, samples, or print impressions as a condition of a plea for a non-qualifying offense.
Requires submission of specimens, samples, and print impressions as soon as administratively practicable by qualified persons and 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:
Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender;
Any person who is designated a mentally ordered offender; and
Any person found to be a sexually violent predator.
Specifies that the court shall inquire and verify, prior to final disposition or sentencing in the case, that the specimens, samples, and print impressions have been obtained and that this fact is included in the abstract of judgment or dispositional order in the case of a juvenile.
Provides that 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 to provide samples.
Provides that The DOJ, through its DNA Laboratory, is responsible for the management and administration of the state's DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state's participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide.
Provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the DNA Act (Act) only for identification purposes.
Provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:
Forensic casework and forensic unknowns;
Known and evidentiary specimens and samples from crime scenes or criminal investigations;
Missing or unidentified persons;
Persons required to provide specimens, samples, and print impressions
Legally obtained samples; and
Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control.
States that all DNA and forensic identification profiles and other identification information retained by DOJ pursuant to the Act are exempt from any law requiring disclosure of information to the public and are confidential except as otherwise provided in the Act.
Provides that, except to the defense counsel, upon court order, of a defendant whose DNA and other forensic identification information were developed pursuant to the Act, DOJ and local public DNA laboratories shall not otherwise be compelled in a criminal or civil proceeding to provide any DNA profile or forensic identification database or data bank information or its computer database program software or structures to any person or party seeking such records or information whether by subpoena, discovery, or other procedural device or inquiry.
Punishes as an alternate misdemeanor/felony any person who knowingly uses an offender specimen, sample, or DNA profile collected pursuant to the Act for other than criminal identification or exclusion purposes, or for other than the identification of missing persons, or who knowingly discloses DNA or other forensic identification information developed as specified to an unauthorized individual or agency, for other than criminal identification or exclusion purposes, or for the identification of missing persons, by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison for 16 months, or two or three years.
Specifies that it is not a violation of the above provision for the DOJ DNA Laboratory, or an organization retained as a DOJ agent, or a local public laboratory to use anonymous records or criminal history information obtained pursuant to the Act for training, research, statistical analysis of populations, quality assurance, or quality control.
Provides that the Act does not prohibit DOJ, in its sole discretion, from the sharing or disseminating of population database or data bank information, DNA profile or forensic identification database or data bank information, analytical data and results generated for forensic identification database and data bank purposes, or protocol and forensic DNA analysis methods and quality assurance or quality control procedures with any third party that DOJ deems necessary to assist the department's crime laboratory with statistical analyses of population databases, or the analyses of forensic protocol, research methods, or quality control procedures, or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons.
Specifies the Director of Corrections, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected send them promptly to the DOJ.
Requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information.
Specifies that 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 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.
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; or
The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed; or,
The person has been found factually innocent of the underlying offense pursuant to Welfare and Institutions Code Sections 851.8 or 781.5; or,
The defendant has been found not guilty or the defendant has been acquitted of the underlying offense.
Requires the person requesting the data bank entry to be expunged 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 DOJ, 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 non-appealable order and shall not be reviewed by petition for writ.
Requires DOJ 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:
The written request for expungement pursuant to this section;
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.
Proof of written notice to the prosecuting attorney and the DOJ that expungement has been requested.
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 DOJ of the expungement request, and that the court has not received an objection from the DOJ or the prosecuting attorney.
States that the DOJ shall destroy not any specimen or sample collected from the person and any searchable DNA database profile pertaining to the person, if 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 Penal Code Section 296(a), or as a condition of a plea.
The DOJ 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.
States that a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, samples, or print impressions required, including reduction to a misdemeanor, or dismissal following conviction.
AS PASSED BY THE ASSEMBLY, this bill provided that a person who is found guilty of fraud related to the circulating or filing of an in-lieu-filing-fee petition or political party qualification petition is subject to the same penalties as a person found guilty of other forms of petition fraud.
FISCAL EFFECT: According to the Senate Appropriations Committee:
One-time and ongoing significant costs of $310,000 (General Fund), for the DOJ to enhance the DNA database system and perform the ongoing activities required in the bill.
Potentially significant state reimbursable costs (General Fund), potentially in excess of hundreds of thousands of dollars annually, for the specific handling of the DNA samples collected, including storing the samples for up to six months and/or destroying samples that have not been forwarded to the DOJ within six months following arrest.
Potential increase in court workload (General Fund*) for judicial determinations of probable cause and subsequent notification to agencies that otherwise would not occur under existing law.
*Trial Court Trust Fund
COMMENTS: According to the author, "AB 1492 will ensure that California has a back-up DNA collection process in place, while the California Supreme Court considers People v. Buza. DNA collection from felony arrestees was halted during the months between the lower court’s decision and the California Supreme Court granting review of the Buza decision and AB 1492 seeks to ensure that there is a system for DNA collection from felony arrestees in place should the California Supreme Court uphold the lower court's decision. AB 1492 would provide for DNA collection of those charged with a serious felony (rather than every felony, as is currently being decided in the Buza case), thus furthering the voters' intent in passing Proposition 69 [2004] and creating parity between California's DNA collection laws and those upheld by the US [United States] Supreme Court. It strikes a careful balance by enhancing law enforcement's ability to fully utilize the tools necessary to solve crimes, while ensuring for the protection of Californians’ constitutional rights. DNA testing is crucial to our ability to solve crimes, and AB 1492 strives to make sure that best practices are implemented, the constitution is respected, the innocent are exonerated, and the guilty are brought to justice."
This bill was substantially amended in the Senate and the Assembly approved provisions of this bill were deleted. This bill as amended in the Senate is inconsistent with Assembly actions. The language in this bill is substantially similar to AB 84 (Gatto) of the current legislative session, which was held in the Assembly Appropriations Committee
Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0002370
AB 1492
Page 5
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 1492
Amended: 9/4/15 in Senate
PRIOR SENATE VOTE NOT RELEVANT
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/14/15
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza
NO VOTE RECORDED: Nielsen
ASSEMBLY FLOOR: Not relevant
SUBJECT: Forensic testing: DNA samples
DIGEST: This bill allows for DNA collection of a person convicted of a felony if the ruling of People v Buza is upheld by the California Supreme Court.
Senate Floor Amendments of 9/4/15 remove the limitation of DNA collection to serious or violent felonies and clarify who shall notify the Department of Justice (DOJ) when a case does not move forward.
Existing law:
Requires the following persons 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:
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 where a court has found that they have committed any felony offense. (Penal Code § 296 (a)(1).)
Any adult person who is arrested for or charged with a felony offense. (Penal Code § 296 (a)(2)(C).)
Requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. (Penal Code § 298(b)(6).)
Specifies that 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 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:
Following arrest, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense 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; or ,
The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed; or,
The person has been found factually innocent of the underlying offense; or,
The defendant has been found not guilty or the defendant has been acquitted of the underlying offense. (Penal Code § 299 (b).)
Requires the person requesting the data bank entry to be expunged 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 DOJ, 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 non-appealable order and shall not be reviewed by petition for writ. (Penal Code, § 299 (c)(1).)
Requires DOJ 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 specified information. (Penal Code, § 299 (c)(2).):
States that DOJ shall destroy not any specimen or sample collected from the person and any searchable DNA database profile pertaining to the person, if DOJ 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 requiring a DNA sample, or as a condition of a plea. (Penal Code, § 299 (d).)
Provides that DOJ 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. (Penal Code, § 299 (d).)
States that a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, samples, or print impressions required, including reduction to a misdemeanor(Penal Code § 17.), or dismissal following conviction. (Penal Code §§ 1203.4, 1203.4a.) (Penal Code § 299(f).)
This bill:
Requires that DNA samples obtained during an arrest for a sex offense or a felony not be sent to DOJ for analysis until after a finding of probable cause, as specified, operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015.
Establishes a procedure for a person’s DNA sample and searchable database profile to be expunged if the case is dismissed, or the accused is acquitted, or otherwise exonerated, and the person has no past qualifying offense, without the requirement of an application from the person, operative if the California
Supreme Court upholds the case of People v. Buza, review granted February 18, 2015, S223698. If Buza is upheld, any of the following apply:
Law enforcement has not received notice that a court has found probable cause for a qualifying offense. 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 by to adjudication by a trier of fact, in which case the district attorney shall submit a letter to DOJ as soon as these conditions have been met.
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 DOJ upon disposition of the case.
The person has been found factually innocent of the underlying offense, in which case the court shall forward its order to DOJ upon disposition of the case.
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 DOJ upon disposition of the case.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee:
One-time and ongoing significant costs of $310,000 (General Fund), for the DOJ to enhance the DNA database system and perform the ongoing activities required in this bill.
Potentially significant state reimbursable costs (General Fund), potentially in excess of hundreds of thousands of dollars annually, for the specific handling of the DNA samples collected, including storing the samples for up to six months and/or destroying samples that have not been forwarded to DOJ within six months following arrest.
Potential increase in court workload (General Fund*) for judicial determinations of probable cause and subsequent notification to agencies that otherwise would not occur under existing law.
*Trial Court Trust Fund
Crime Victims United
California State Sheriffs’ Association
Legal Services for Prisoners with Children
ASSEMBLY FLOOR: 74-0, 5/22/15
AYES: Achadjian, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Alejo, Jones, O'Donnell, Olsen, Waldron, Weber
Prepared by: Mary Kennedy / PUB. S. /
9/9/15 9:19:37
**** END ****
AB 1492
Page 5
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 1492
Amended: 8/31/15 in Senate
PRIOR SENATE VOTE NOT RELEVANT
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/14/15
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza
NO VOTE RECORDED: Nielsen
ASSEMBLY FLOOR: Not relevant
SUBJECT: Forensic testing: DNA samples
DIGEST: This bill allows for DNA collection of a person convicted of a serious or violent felony if the ruling of People v Buza is upheld by the California Supreme Court.
Existing law:
Requires the following persons 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:
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 where a court has found that they have committed any felony offense. (Penal Code § 296 (a)(1).)
Any adult person who is arrested for or charged with a felony offense. (Penal Code § 296 (a)(2)(C).)
Requires the DNA Laboratory of the Department of Justice (DOJ) to establish procedures for entering data bank and database information. (Penal Code § 298(b)(6).)
Specifies that 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 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:
Following arrest, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense 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; or ,
The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed; or,
The person has been found factually innocent of the underlying offense; or,
The defendant has been found not guilty or the defendant has been acquitted of the underlying offense. (Penal Code § 299 (b).)
Requires the person requesting the data bank entry to be expunged 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 non-appealable order and shall not be reviewed by petition for writ. (Penal Code, § 299 (c)(1).)
Requires DOJ 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 specified information. (Penal Code, § 299 (c)(2).):
States that DOJ shall destroy not any specimen or sample collected from the person and any searchable DNA database profile pertaining to the person, if DOJ 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 requiring a DNA sample, or as a condition of a plea. (Penal Code, § 299 (d).)
Provides that DOJ 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. (Penal Code, § 299 (d).)
States that a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, samples, or print impressions required, including reduction to a misdemeanor(Penal Code § 17.), or dismissal following conviction. (Penal Code §§ 1203.4, 1203.4a.) (Penal Code § 299(f).)
This bill:
Requires that DNA samples obtained during an arrest for a sex offense or a serious or violent felony not be sent to DOJ for analysis until after a finding of probable cause, as specified, operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015.
Establishes a procedure for a person’s DNA sample and searchable database profile to be expunged if the case is dismissed, or the accused is acquitted, or otherwise exonerated, and the person has no past qualifying offense, without the requirement of an application from the person, operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015, S223698. If Buza is upheld, any of the following apply:
Law enforcement has not received notice that a court has found probable cause for a qualifying offense. 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 by to adjudication by a trier of fact, in which case the district attorney shall submit a letter to DOJ as soon as these conditions have been met.
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 DOJ upon disposition of the case.
The person has been found factually innocent of the underlying offense, in which case the court shall forward its order to DOJ upon disposition of the case.
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.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee:
One-time and ongoing significant costs of $310,000 (General Fund), for the DOJ to enhance the DNA database system and perform the ongoing activities required in this bill.
Potentially significant state reimbursable costs (General Fund), potentially in excess of hundreds of thousands of dollars annually, for the specific handling of the DNA samples collected, including storing the samples for up to six months and/or destroying samples that have not been forwarded to DOJ within six months following arrest.
Potential increase in court workload (General Fund*) for judicial determinations of probable cause and subsequent notification to agencies that otherwise would not occur under existing law.
*Trial Court Trust Fund
Crime Victims United
OPPOSITION: (Verified 8/28/15)
California State Sheriffs’ Association
Legal Services for Prisoners with Children
Prepared by: Mary Kennedy / PUB. S. /
8/31/15 9:05:44
**** END ****
AB 1492 (Gatto) Page 2 of 2
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1492 (Gatto) - Forensic testing: DNA samples
|
|
Version: July 16, 2015 |
Policy Vote: PUB. S. 7 - 0 |
Urgency: No |
Mandate: No |
Hearing Date: August 27, 2015 |
Consultant: Jolie Onodera |
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on August 27, 2015
Bill Summary:
AB 1492 would enact the following provisions of law contingent upon the California Supreme Court upholding the decision in People v. Buza (2014), as specified:
Limits DNA collection of persons arrested or charged with a felony to those persons arrested or charged with a serious or violent felony, or an offense requiring sex offender registration, as specified.
Requires that DNA samples obtained during an arrest on a felony not be sent to the Department of Justice (DOJ) for analysis, for up to six months, unless a finding of probable cause has occurred, as specified. Requires an agency to destroy any samples for which an agency has not received notice to forward to DOJ within six months of arrest.
Establishes a procedure for a person’s DNA sample and searchable database profile to be expunged if the case is dismissed, or the accused is acquitted, or otherwise exonerated, and the person has no past qualifying offense.
Fiscal Impact:
One-time and ongoing significant costs of $310,000 (General Fund), for the DOJ to enhance the DNA database system and perform the ongoing activities required in the bill.
Potentially significant state reimbursable costs (General Fund), potentially in excess of hundreds of thousands of dollars annually, for the specific handling of the DNA samples collected, including storing the samples for up to six months and/or destroying samples that have not been forwarded to the DOJ within six months following arrest.
Potential increase in court workload (General Fund*) for judicial determinations of probable cause and subsequent notification to agencies that otherwise would not occur under existing law.
*Trial Court Trust Fund
Author Amendments:
Delete the provision allowing a law enforcement agency to use any publicly available database, excluding a law enforcement database that is not linked to the Combined DNA Index System (CODIS), for certain cases.
Specify that a DNA sample is to be forwarded to the DOJ only after one of the following has occurred, which shall be deemed a finding of probable cause, whichever occurs first:
A felony arrest warrant has been signed by a judicial officer pursuant to Section 813 or 817.
A grand jury indictment has been found and issued pursuant to Sections 939.8, 940, or 944.
A judicial officer has determined that probable cause exists to believe the person has committed the offense for which he or she was arrested at the time the defendant has been arraigned.
Make other technical changes.
-- END --
AB 1492 (Gatto) Page 3 of 3
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1492 (Gatto) - Forensic testing: DNA samples
|
|
Version: July 16, 2015 |
Policy Vote: E. & C.A. 5 - 0, PUB. S. 7 - 0 |
Urgency: No |
Mandate: No |
Hearing Date: August 17, 2015 |
Consultant: Jolie Onodera |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 1492 would enact the following provisions of law contingent upon the California Supreme Court upholding the decision in People v. Buza (2014), as specified:
Limits DNA collection of persons arrested or charged with a felony to those persons arrested or charged with a serious or violent felony, or an offense requiring sex offender registration, as specified.
Requires that DNA samples obtained during an arrest on a felony not be sent to the Department of Justice (DOJ) for analysis, for up to six months, until notification of a judicial determination of probable cause. Requires an agency to destroy any samples not provided such notification within six months of arrest.
Establishes a procedure for a person’s DNA sample and searchable database profile to be expunged if the case is dismissed, or the accused is acquitted, or otherwise exonerated, and the person has no past qualifying offense.
Allows a law enforcement agency to use any publicly available database, excluding a law enforcement database that is not linked to the Combined DNA Index System (CODIS), for certain cases.
Fiscal Impact:
One-time and ongoing significant costs of $310,000 (General Fund), for the DOJ to enhance the DNA database system and perform the ongoing activities required in the bill.
Potentially significant state reimbursable costs (General Fund), potentially in excess of hundreds of thousands of dollars annually, for the specific handling of the DNA samples collected, including storing the samples for up to six months and/or destroying samples that have not been forwarded to the DOJ within six months following arrest.
Potential increase in court workload (General Fund*) for judicial determinations of probable cause and subsequent notification to agencies that otherwise would not occur under existing law.
*Trial Court Trust Fund
Background:
In 2004, the voters passed Proposition 69, expanding the state’s DNA collection and testing program to allow for the collection of DNA samples from every individual arrested for a felony. The provisions of Proposition 69 went into effect in 2009, but shortly thereafter were challenged in court as unconstitutional.
People v. Buza (2014), is currently pending before the California Supreme Court, review granted February 18, 2015, S223698. The legality of California’s DNA collection from felony arrestees was at issue in Buza, and the court found the California DNA scheme unconstitutional. The court held that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestee’s expectation of privacy and is therefore invalid under the California Constitution. Specifically, the court stated:
“. . . the fact that DNA is collected and analyzed immediately after arrest means that some of the arrestees subjected to collection will never be charged, much less convicted, of any crime — and, therefore, that the governmental interest in DNA collection is inapplicable while the privacy interest is effectively that of an ordinary citizen. The absence of automatic expungement procedures increases the privacy intrusion because DNA profiles and samples are likely to remain available to the government for some period of time after the justification for their collection has disappeared, potentially indefinitely. And the fact that familial DNA searches are not prohibited means that the act would permit intrusion into the privacy interests of arrestees’ biological relatives if the DOJ were to alter its current policy of not using arrestees’ DNA for such searches.”
As the case is under review by the California Supreme Court, its findings have no authority or value as precedent. As a result, Proposition 69 continues to have the effect of law in California, and DNA samples continue to be collected, stored, and tested as specified under the provisions of Proposition 69. It is unclear when the Supreme Court will issue a decision in the case.
Proposed Law:
This bill would limit the collection of DNA samples to individuals arrested for a sex registerable offense or a serious or violent felony, and prohibits the DNA sample from being sent to DOJ for analysis until after a judicial determination of probable cause, operative if the California Supreme Court upholds the case of People v. Buza, as specified. Additionally, this bill:
Establishes a procedure for a person’s DNA sample and searchable database profile to be expunged if the case is dismissed, or the accused is acquitted, or otherwise exonerated, and the person has no past qualifying offense, without the requirement of an application from the person.
Requires the DOJ to destroy any specimen or sample collected from a person described above and any searchable DNA database profile pertaining to the person, subject to specified exceptions.
Allows a law enforcement agency to use any publicly available database, excluding any non-CODIS law enforcement databases, as specified.
Related Legislation:
AB 84 (Gatto) 2015 was substantially similar to this bill but broader in scope in that it would have also required DNA samples from individuals arrested for specified misdemeanor offenses. This bill was held on the Suspense File of the Assembly Committee on Appropriations.
AB 390 (Cooper) 2015 would have required DNA collection of individuals who committed crimes that were formerly wobblers but are currently misdemeanors after the passage of Proposition 47 (2014). This bill failed passage in the Senate Committee on Public Safety.
Staff Comments:
The DOJ has indicated the provisions of this bill will result in one-time and ongoing costs of about $310,000 to both enhance the current DNA database system and perform the ongoing activities in the bill. The DOJ has indicated it would be a 12-month project, beginning on January 1, 2016, and has commented that the implementation date would need to be changed to 12 months from the date of project approval or the date of appropriation, whichever is later.
The DOJ has also indicated a potential increase in workload to the extent the reduction in DNA sample collection, and the destruction of specimens along with the expungement of the database profile without the requirement of an application to do so results in increased litigation. Any additional resource needs to investigate and litigate these cases or any anticipated appeals would be dependent on the volume of cases, which is unknown at this time.
The provisions of this bill potentially impose a higher level of service on local agencies with regard to the retention and destruction of DNA samples collected. Under Proposition 69, the DNA specimens, samples, and print impressions collected are to be forwarded immediately to the DOJ. By requiring an agency to retain DNA samples until notification of a judicial determination of probable cause is received, DNA samples could require storage for up to six months under the provisions of this bill. Additionally, to the extent notification is not received within six months of an arrest, the agency is required to destroy the DNA sample. As a result, to the extent this bill imposes a higher level of service on local agencies, any increased costs for storage and destruction could be subject to reimbursement from the state should local agencies file a claim for reimbursement from the Commission on State Mandates. The magnitude of these costs would vary by agency and would be dependent on numerous factors including but not limited to the number of DNA samples requiring storage, the method and duration of storage required, and the method and number of samples requiring destruction.
-- END --
AB 1492 (Gatto ) Page 10 of 10
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1492 Hearing Date: July 14, 2015
Author: |
Gatto |
||
Version: |
June 29, 2015 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
MK |
||
Subject: Forensic Testing: DNA Samples
HISTORY
Source: Author
Prior Legislation: Proposition 69 November 2, 2004
SB 883 (Margett) not heard Assembly Public Safety 2004
SB 284 (Brulte) - failed Senate Public Safety 2003
SB 1242 (Brulte) - Chapter 632, Stats. 2002
AB 2105 (La Suer) - Chapter 160, Stats. 2002
AB 673 (Migden) - Chapter 906, Stats. 2001
AB 2814 (Machado) - Chapter 823, Stats. 2000
AB 557 (Nakano) - not heard in Senate Public Safety 1999-2000
SB 654 (Schiff) - Chapter 475, Stats. 1999
AB 1332 (Murray) - Chapter 696, Stats. 1998
Support: Crime Victims United
Opposition: California State Sheriffs’ Association
Assembly Floor Vote: No longer relevant
PURPOSE
The purpose of this bill is to allow for DNA collection of a person convicted of a serious felony if the ruling of People v Buza is upheld by the California Supreme Court and to allow law enforcement access to publicly available data bases.
Existing law requires the following persons 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:
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 where a court has found that they have committed any felony offense. (Penal Code § 296 (a)(1).)
Any adult person who is arrested for or charged with a felony offense. (Penal Code § 296 (a)(2)(C).)
Any person, including any juvenile, who is required to register as a sex offender or arson offender 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. (Penal Code, § 296 (a)(3).)
Existing law provides that the term “felony” includes an attempt to commit the offense. (Penal Code, §296 (a)(4).)
Existing law allows the collection and analysis of specimens, samples, or print impressions as a condition of a plea for a non-qualifying offense. (Penal Code §296 (a)(5).)
Existing law requires submission of specimens, samples, and print impressions as soon as administratively practicable by qualified persons and 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:
Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender.
Any person who is designated a mentally ordered offender.
Any person found to be a sexually violent predator. (Penal Code, §296 (c)(3).)
Existing law specifies that the court shall inquire and verify, prior to final disposition or sentencing in the case, that the specimens, samples, and print impressions have been obtained and that this fact is included in the abstract of judgment or dispositional order in the case of a juvenile. (Penal Code §296 (f).)
Existing law provides that 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 to provide samples. (Penal Code §296(f).)
Existing law provides that The Department of Justice(DOJ), through its DNA Laboratory, is responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Penal Code, § 295 (g).)
Existing law provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes. (Penal Code § 295.1 (a) & (b).)
Existing law specifies that the Director of Corrections, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected send them promptly to the Department of Justice.(Penal Code § 298.)
Existing law requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. (Penal Code § 298(b)(6).)
Existing law specifies that 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 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:
Following arrest, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense 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; or ,
The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed; or,
The person has been found factually innocent of the underlying offense; or,
The defendant has been found not guilty or the defendant has been acquitted of the underlying offense. (Penal Code § 299 (b).)
Existing law requires the person requesting the data bank entry to be expunged 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 non-appealable order and shall not be reviewed by petition for writ. (Penal Code, § 299 (c)(1).)
Existing law requires DOJ 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:
The written request for expungement pursuant to this section.
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.
Proof of written notice to the prosecuting attorney and the Department of Justice that expungement has been requested.
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 . (Penal Code, § 299 (c)(2).):
Existing law states that the Department of Justice shall destroy not any specimen or sample collected from the person and any searchable DNA database profile pertaining to the person, if 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 requiring a DNA sample, or as a condition of a plea. (Penal Code, § 299 (d).)
Existing law provides that 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. (Penal Code, § 299 (d).)
Existing law states that a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, samples, or print impressions required, including reduction to a misdemeanor(Penal Code § 17.), or dismissal following conviction. ( Penal Code §§ 1203.4, 1203.4a.) (Penal Code § 299(f).)
This bill requires that DNA samples obtained during an arrest for a sex offense or a serious or violent felony not be sent to Department of Justice for analysis until after a judicial determination of probable cause, operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015.
This bill establishes a procedure for a person’s DNA sample and searchable database profile to be expunged if the case is dismissed, or the accused is acquitted, or otherwise exonerated, and the person has no past qualifying offense, without the requirement of an application from the person, operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015, S223698. If Buza is upheld, any of the following apply:
Law enforcement has not received notice that a court has found probable cause for a qualifying offense. 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 by to adjudication by a trier of fact, in which case the district attorney shall submit a letter to the Department of Justice as soon as these conditions have been met.
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.
The person has been found factually innocent of the underlying offense, in which case the court shall forward its order to the Department of Justice upon disposition of the case.
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.
This bill allows a law enforcement agency to use any publicly available database, excluding any non CODIS law enforcement databases, if (1) the case involves a homicide or a sexual assault involving force; (2) the case is unsolved and all investigative leads have been exhausted; (3) the law enforcement agency must review non-forensic information in order to identify additional evidence bearing on relatedness.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight 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 February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 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).
While significant gains have been made in reducing the prison population, the state now 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 The Bill
According to the author:
In 2004, California voters passed Proposition 69, expanding the State’s DNA collection and testing program to allow for the collection of DNA samples from every person arrested for a felony. Proposition 69 went into effect in 2009, but shortly thereafter, its constitutionality was challenged in court. In December of 2014, California’s Appellate Court struck down the state’s criminal-DNA-testing program contained in Proposition 69. In People v. Buza, the court found several aspects of California's DNA-testing practices to be unconstitutional, dealing a huge setback to law enforcement’s ability to solve crimes. The Attorney General has appealed the Buza decision, but during the period between the Appeals Court decision and the CA Supreme Court’s decision to hear the case, the Department of Justice was forced to halt the collection of DNA from felony arrestees, thus hindering law enforcement’s ability to solve crimes. DNA collection of felony arrestees has resumed since March of 2015, when the Buza decision was depublished while the CA Supreme Court considers the case, so AB 1492 seeks to provide a back-up system, that is consistent with what the US Supreme Court found constitutional in the Maryland v. King case, in case the CA Supreme Court upholds the lower court’s decision.
AB 1492 would provide for DNA
collection of those charged with a serious felony (rather than every
felony, as is currently being decided in the Buza
case), would require a
probable cause determination (rather than immediately upon arrest),
and would set up a framework for automatic expungement of those
samples collected from individuals who are ultimately not charged,
found not-guilty or otherwise exonerated, thus furthering the voters’
intent in passing Proposition 69 and creating parity between
California’s DNA collection laws and those upheld by the US Supreme
Court. It strikes a careful balance by enhancing law enforcement’s
ability to fully utilize the tools necessary to solve crimes, while
ensuring for the protection of Californians’ constitutional rights.
DNA testing is crucial to our ability to solve crimes, and AB 1492
strives to make sure that best practices are implemented, the
constitution is respected, the innocent are exonerated, and the
guilty are brought to justice.
2. People v. Buza
Presently pending before the California Supreme Court is People v. Buza, review granted February 18, 2015, S223698. At issue in Buza was the legality of California’s DNA collection from arrestees on felony offenses. (Proposition 69 (2004).) The Buza court found the California DNA scheme unconstitutional. In finding Proposition 69 invalid, the Appellate Court focused on the fact that the California Supreme Court has found that article I, section 13, of the California Constitution imposes a “more exacting standard” than the equivalent language found in the Fourth Amendment of the U.S. Constitution. People v. Ruggles (1985) 39 Cal.3d 1, 11-12, People v. Brisendine (1975) 13 Cal.3d 528, 545. The court in Buza held that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestee’s expectation of privacy and is invalid under the California Constitution. The language of article I, section 13, of the California Constitution mirrors the language contained in the Fourth Amendment of the U.S. Constitution regarding the right to be free from unreasonable search and seizure.
The court in Buza stated, “. . . the fact that DNA is collected and analyzed immediately after arrest means that some of the arrestees subjected to collection will never be charged, much less convicted, of any crime—and, therefore, that the governmental interest in DNA collection is inapplicable while the privacy interest is effectively that of an ordinary citizen. The absence of automatic expungement procedures increases the privacy intrusion because DNA profiles and samples are likely to remain available to the government for some period of time after the justification for their collection has disappeared, potentially indefinitely. And the fact that familial DNA searches are not prohibited means that the act would permit intrusion into the privacy interests of arrestees’ biological relatives if the DOJ were to alter its current policy of not using arrestees’ DNA for such searches.”
The Buza case is under review by the California Supreme Court. Because the case is under review it has no authority, or value as precedent. As such, Proposition 69 continues to be the law in California. DNA samples continue to be taken, stored, and tested as in the manner laid out by Proposition 69. It is unclear when the Supreme Court will issue a decision in the Buza case. The case is currently being briefed. The Supreme Court has wide latitude in setting the briefing schedule and establishing a date for argument.
“In California, the burdened group includes not only those ultimately acquitted of criminal conduct but also those never even charged. The percentage of arrestees potentially affected in the latter way is not small: Statistics published by the DOJ indicate that in 2012, 62 percent of felony arrestees who were not ultimately convicted—almost 20 percent of total felony arrestees—were never even charged with a crime.” People v. Buza (2014) 231 Cal.app.4th 1446,187 (citing Crime in California, California DOJ (2012) at 49.)
3. California DNA Database
The profile derived from the DNA sample is uploaded into the state's DNA databank, which is part of the national Combined DNA Index System (CODIS), and can be accessed by local, state and federal law enforcement agencies and officials. When a DNA profile is uploaded, it is compared to profiles contained in the Convicted Offender and Arrestee Indices; if there is a "hit," the laboratory conducts procedures to confirm the match and, if confirmed, obtains the identity of the suspect. The uploaded profile is also compared to crime scene profiles contained in the Forensic Index; again, if there is a hit, the match is confirmed by the laboratory. CODIS also performs weekly searches of the entire system. In CODIS, the profile does not include the name of the person from whom the DNA was collected or any case-related information, but only a specimen identification number, an identifier for the agency that provided the sample, and the name of the personnel associated with the analysis. CODIS is a massive computer system which connects federal, state, and local DNA databanks. CODIS is also the name of the related computer software program. CODIS's national component is the National DNA Index System (NDIS), the receptacle for all DNA profiles submitted by federal, state, and local forensic laboratories. DNA profiles typically originate at the Local DNA Index System (LDIS), then migrate to the State DNA Index System (SDIS), containing forensic profiles analyzed by local and state laboratories, and then to NDIS.
4. Proposition 69
Proposition 69 was passed by the voters in 2004. That proposition expanded the categories of people required to provide DNA samples for law enforcement identification analysis to include any adult person arrested or charged with any felony offense. The language of the proposition included a Section V related to amendments to the proposition which states:
The provisions of this measure may be amended by a statute that is passed by each house of the Legislature and signed by the Governor. All amendments to this measure shall be to further the measure and shall be consistent with is purposes to enhance the use of DNA identification evidence for the purpose of accurate and expeditious crime solving and exonerating the innocent.
5. Alternative if Buza is Upheld
This bill would provide that if the Buza case is upheld by the California Supreme Court then the existing statutes related to the DNA Databank would be changed in the following ways:
Instead of all felonies DNA would only be taken from a person arrested or charged with:
Any sex offense for which registration is required.
ii. Murder or voluntary manslaughter or any attempt to commit murder of voluntary manslaughter.
iii. Any serious of violent felony
Instead of the sample being submitted to the DOJ at arrest the sample will be submitted after a judicial determination for probable cause has occurred.
Instead of requiring the arrested person to request his or her DNA be removed from the data bank after a case was dismissed, found factually innocent or was found not guilty the district attorney shall forward its order to DOJ in the case of a dismissal and the court shall forward it order in the case of factual innocence or a not guilty verdict to the DOJ for removal and destruction of the DNA sample in accordance with the law.
It is unusual for the legislature to try to guess how a court will rule in a particular case. Is it appropriate in this case?
The California State Sheriffs’ Association opposes this bill stating:
In Buza, the appellate court, utilizing California constitutional standards and not a 4th Amendment analysis, precludes submission of a DNA sample to the Department of Justice (DOJ) DNA databank absent a judicial determination of probable cause. The holding further speaks to the need to alter the process whereby DNA samples of arrestees who are acquitted or not ultimately charged are removed from the databank. However, the court’s analysis does not speak to the distinction between collecting DNA from all felony arrestees and only those arrested for serious crimes. In fact, the court points out this difference between Maryland law and California law as part of the reason why it utilizes the California constitutional standard regarding privacy in lieu of the 4th Amendment standard used by the United States Supreme Court in Maryland v. King 569 U.S. ___ (2013), 133 S. Ct. 1958.
We understand and appreciate the author’s goal of protecting the government’s ability to collect DNA from certain persons arrested for felony crimes. That said, we cannot abide this significant change that will result in fewer DNA samples being entered into the DNA databank. We are happy to continue working with you and your office regarding this issue, but for the above-mentioned reasons, CSSA must respectfully oppose AB 1492 at this time.
6. Access to Publicly Available Databases
This bill provides that a law enforcement agency may use a publicly available database, excluding a law enforcement database that is not linked to the Combined DNA Index System (CODIS), if the case being investigated involves a homicide or sexual assault involving force and the case is unsolved and all investigative leads have been exhausted, in which case law enforcement agency shall review nonforensic information in order to identify additional evidence bearing on relatedness.
A publicly available database could be something like ancestry.com. According to the ancestry.com website anyone can get their DNA tested to find out their family ancestry for about $79. The intent appears to be to use these types of searches to look for leads; however it would seem unlikely that a person submitting DNA to a website like this would intend to have a relative, near or distant, subject to questioning by law enforcement even in a case where they are later excluded. Such a thing happened when a New Orleans filmmaker was questioned about an Idaho murder after his father submitted his DNA to the ancestry.com and the crime scene suggested a familial match—within 3 or 4 generations of the father. The filmmaker was cleared but not after facing questioning by the police and a month of waiting to hear the results of the DNA test. (Mustian, J “New Orleans Filmmaker Cleared in Cold-Case Murder; False Positive Highlights Limits of Familial DNA Searching” The New Orleans Advocate March 12, 2015. http://www.theneworleansadvocate.com/news/11707192-123/new-orleans-filmmaker-cleared-in)
Should the law explicitly allow the search of publicly available databases without a warrant?
7. Author’s Amendments
The author intends to take the following clarifying/technical amendments in Committee.
Page 4 lines 9-18 will be amended as follows:
It
is the intent of the Legislature to
allow that
when buccal swab
samples to be
are
taken for DNA analysis as a condition of a plea or reduction or
dismissal of charges, provided
that all uses of
the DNA sample have
been shall
first be disclosed
to the defendant in writing, that consent has
been shall be
obtained in writing, and
that the defendant has
shall
signed
sign
a written agreement allowing his or her buccal swap sample or blood
sample to be taken for DNA analysis, and
that the
defendant shall have an opportunity to consult with counsel prior to
signing the agreement.
It is the intent of the Legislature that buccal swab samples taken as
a condition of a plea or reduction or dismissal of charges to be done
on the basis of individualized consideration.
Page 18 lines 8-17 (since the expungement will be automatic):
(d) Upon
order from the court,
the
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.
8. Other Legislation
AB 390 (Cooper) which is also scheduled to be heard today requires DNA collection of people who commit the crimes that used to be wobblers but are now misdemeanors after the passage of Proposition 4.
This bill was a gut and amend in the Senate on June 29, 2015. AB 84 (Gatto) which was almost identical to this bill was held in Assembly Appropriations on May 28th of this year.
-- END –
AB 1492 (Low) Page 4 of 4
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: AB 1492 Hearing Date: 6/16/15
Author: |
Low |
||
Version: |
4/30/15 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
Darren Chesin |
||
Subject: Elections: in-lieu-filing-fee and political party qualification petitions: penal provisions
DIGEST
This bill provides that a person who is found guilty of fraud related to the circulating or filing of an in-lieu-filing-fee petition or political party qualification petition is subject to the same penalties as a person found guilty of other forms of petition fraud.
ANALYSIS
Existing law:
Makes it a crime, subject to various penalties, to engage in specified misconduct in connection with nomination documents, including all of the following:
Defacing or destroying nomination papers, as specified;
Knowingly filing false nomination documents, as specified;
Willfully suppressing nomination documents, as specified; and,
Failing to file nomination documents on behalf of a candidate at the proper time and place, as specified.
Makes it a crime, subject to various penalties, to engage in specified misconduct in connection with initiative, referendum, and/or recall petitions, including all of the following:
Knowingly circulating a petition containing false, forged, or fictitious names, as specified;
Knowingly filing false or fraudulent signatures on a petition with the elections official, as specified;
Subscribing false or fictitious signatures to a petition, or causing others to do so, as specified;
Intentionally misrepresenting the contents or effect of a petition while circulating that petition, as specified;
Willfully and knowingly circulating false statements concerning a petition for the purpose of obtaining a signature on that petition, as specified;
Intentionally making any false statement in response to an inquiry by a voter, while circulating an initiative petition, about whether the person is a paid signature gatherer or a volunteer, as specified;
Refusing to allow a prospective signer to read a petition or measure while working for the proponents of the measure, as specified;
Offering or giving money or other valuable consideration in exchange for a signature on a petition, as specified;
Soliciting or causing false or forged signatures to be affixed on a petition, as specified;
Knowingly signing a petition more than once, or signing a petition while knowing that the person is not qualified to sign that petition, as specified;
Paying or offering things of value to the proponents of a petition to prevent that measure from qualifying or appearing on the ballot, as specified;
While the proponent of a measure, receiving money or things of value in exchange for preventing that measure from qualifying or appearing on the ballot, as specified;
Buying a petition containing one or more signatures from a circulator, as specified;
Threatening to commit assault or battery on a person circulating a petition, or a relative of such a person, as specified;
Forcibly taking a petition containing one or more signatures from a circulator, as specified;
While working for the proponents of a measure by soliciting signatures on a petition, failing to surrender the measure or petition to the proponents, as specified;
Knowingly or willfully permitting the list of signatures on a petition to be used for a purpose other than qualification of the measure for the ballot, as specified;
Making any false affidavit concerning a petition or the signatures appended thereto, as specified; and,
As a public official or employee, knowingly making any false return, certification, or affidavit concerning a petition or the signatures appended thereto.
Allows a court, upon conviction of a violation of specified provisions of law that prohibit certain conduct with respect to initiative, referendum, and recall petitions, to order as a condition of probation that the convicted person be prohibited from receiving money or other valuable consideration for gathering signatures on an initiative, referendum, or recall petition.
Provides that a candidate who is running for an office for which there is a filing fee may submit a petition containing signatures of registered voters in lieu of paying the filing fee.
Provides, among other methods of qualification, that a political party is qualified to participate in a primary election or presidential general election if a petition for that party’s qualification is filed with the Secretary of State and is signed by a number of voters equaling at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, as specified.
This bill:
Defines “political party qualification petition,” for the purposes of this bill, as a petition circulated to qualify a political party, as specified.
Provides that laws prohibiting specified misconduct in connection with the circulation and filing of nomination papers and declarations of candidacy also apply to the circulation and filing of in-lieu-filing-fee petitions, subject to the same penalties that are applicable to violations related to nomination papers and declarations of candidacy.
Provides that laws prohibiting specified misconduct in connection with the circulation and filing of initiative, referendum, and recall petitions also apply to the circulation and filing of political party qualification petitions, subject to the same penalties that are applicable to violations related to initiative, referendum, and recall petitions.
Makes technical and corresponding changes.
BACKGROUND
Petitions and Nomination Papers. As detailed above, existing law contains a number of prohibitions against misconduct in connection with the circulation and filing of nomination papers, declarations of candidacy, and initiative, referendum, and recall petitions. Those laws, however, do not explicitly apply to other related petitions --specifically political party qualification petitions and in-lieu-filing-fee petitions.
This bill would broaden those laws prohibiting misconduct in connection with the circulation and filing of election documents such that the laws that currently prohibit misconduct in connection with nomination documents also apply to in-lieu-filing-fee petitions, and so that laws that prohibit misconduct in connection with initiative, referendum, and recall petitions also apply to political party qualification petitions.
COMMENTS
According to the Author: This bill creates the same penalties that apply to people who are found guilty of committing fraud involving “in-lieu-filing fee petitions” and “political party qualification petitions,” as the people who are found guilty of committing fraud on other forms of petitions.
Currently, the Secretary of State does the investigations into people who commit fraud involving nomination papers, declarations of candidacy, initiatives, referenda, and recall petitions and the only two petitions that are not specifically included in the statute are in-lieu filing fee petitions and political party petitions. By including the two additional petitions this would provide clarity by allowing the state to punish people whom commit fraud involving in-lieu filing fee petitions and political party petitions
RELATED/PRIOR LEGISLATION
This bill is substantially similar to SB 1043 (Torres of 2014). SB 1043 was approved by the Senate on a 36-0 vote, and was approved by this committee on a 6-0 vote, but was never brought up for a vote on the Assembly Floor.
PRIOR ACTION
Assembly Floor: |
74 - 0 |
Assembly Appropriations Committee: |
17 - 0 |
Assembly Elections and Redistricting Committee: |
7 - 0 |
POSITIONS
Sponsor: Author
Support: None received
Oppose: None received
-- END --
AB 1492
Page 1
Date of Hearing: May 13, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB 1492
(Low) – As Amended April 30, 2015
Policy Committee: |
Rules |
Vote: |
10 - 0 |
|
Elections and Redistricting |
|
7 - 0 |
|
|
|
|
Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill provides that a person found guilty of fraud, within the context of circulating or filing an in-lieu-filing fee petition or a political party qualification petition, is subject to the same penalties as a person found guilty of other means of petition fraud.
FISCAL EFFECT:
Nonreimbursable costs to local governments for enforcement, offset to some extent by fine revenues. (Consistent with current law governing petition fraud, violations are generally punishable by a fine not exceeding $5,000 and/or by imprisonment for 16 months, two or three years. It is expected that any convictions generally would not result in imprisonment.)
COMMENTS:
Purpose. According to the author, " Currently, the Secretary of State does the investigations into people who commit fraud involving nomination papers, declarations of candidacy, initiatives, referenda, and recall petitions and the only two petitions that are not specifically included in the statute are in-lieu filing fee petitions and political party petitions. By including the two additional petitions this would provide clarity by allowing the state to punish people whom commit fraud involving in-lieu filing fee petitions and political party petitions."
Background. Candidates for state and federal offices, when filing their declarations of candidacy with the SOS, are required to pay a filing fee, which varies based on the specific state or federal office. In lieu of paying the fee, candidates may submit a petition containing signatures of registered voters, with the number of required signature again depending on the specific office.
Prior Legislation. This bill is substantially similar to SB 1043 (Torres) of 2014, which was never brought up for a vote on the Assembly Floor.
Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081
AB 1492
Page 4
Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 1492
(Low) – As Amended April 15, 2015
SUBJECT: Elections: in-lieu-filing-fee and political party qualification petitions: penal provisions.
SUMMARY: Provides that a person who is found guilty of fraud related to the circulating or filing of an in-lieu-filing-fee petition or political party qualification petition is subject to the same penalties as a person found guilty of other forms of petition fraud. Specifically, this bill:
Defines “political party qualification petition,” for the purposes of this bill, as a petition circulated to qualify a political party, as specified.
Provides that laws prohibiting specified misconduct in connection with the circulation and filing of nomination papers and declarations of candidacy also apply to the circulation and filing of in-lieu-filing-fee petitions, subject to the same penalties that are applicable to violations related to nomination papers and declarations of candidacy.
Provides that laws prohibiting specified misconduct in connection with the circulation and filing of initiative, referendum, and recall petitions also apply to the circulation and filing of political party qualification petitions, subject to the same penalties that are applicable to violations related to initiative, referendum, and recall petitions.
Makes technical and corresponding changes.
EXISTING LAW:
Makes it a crime, subject to various penalties, to engage in specified misconduct in connection with nomination documents, including all of the following:
Defacing or destroying nomination papers, as specified;
Knowingly filing false nomination documents, as specified;
Willfully suppressing nomination documents, as specified; and,
Failing to file nomination documents on behalf of a candidate at the proper time and place, as specified.
Makes it a crime, subject to various penalties, to engage in specified misconduct in connection with initiative, referendum, and/or recall petitions, including all of the following:
Knowingly circulating a petition containing false, forged, or fictitious names, as specified;
Knowingly filing false or fraudulent signatures on a petition with the elections official, as specified;
Subscribing false or fictitious signatures to a petition, or causing others to do so, as specified;
Intentionally misrepresenting the contents or effect of a petition while circulating that petition, as specified;
Willfully and knowingly circulating false statements concerning a petition for the purpose of obtaining a signature on that petition, as specified;
Intentionally making any false statement in response to an inquiry by a voter, while circulating an initiative petition, about whether the person is a paid signature gatherer or a volunteer, as specified;
Refusing to allow a prospective signer to read a petition or measure while working for the proponents of the measure, as specified;
Offering or giving money or other valuable consideration in exchange for a signature on a petition, as specified;
Soliciting or causing false or forged signatures to be affixed on a petition, as specified;
Knowingly signing a petition more than once, or signing a petition while knowing that the person is not qualified to sign that petition, as specified;
Paying or offering things of value to the proponents of a petition to prevent that measure from qualifying or appearing on the ballot, as specified;
While the proponent of a measure, receiving money or things of value in exchange for preventing that measure from qualifying or appearing on the ballot, as specified;
Buying a petition containing one or more signatures from a circulator, as specified;
Threatening to commit assault or battery on a person circulating a petition, or a relative of such a person, as specified;
Forcibly taking a petition containing one or more signatures from a circulator, as specified;
While working for the proponents of a measure by soliciting signatures on a petition, failing to surrender the measure or petition to the proponents, as specified;
Knowingly or willfully permitting the list of signatures on a petition to be used for a purpose other than qualification of the measure for the ballot, as specified;
Making any false affidavit concerning a petition or the signatures appended thereto, as specified; and,
As a public official or employee, knowingly making any false return, certification, or affidavit concerning a petition or the signatures appended thereto.
Allows a court, upon conviction of a violation of specified provisions of law that prohibit certain conduct with respect to initiative, referendum, and recall petitions, to order as a condition of probation that the convicted person be prohibited from receiving money or other valuable consideration for gathering signatures on an initiative, referendum, or recall petition.
Provides that a candidate who is running for an office for which there is a filing fee may submit a petition containing signatures of registered voters in lieu of paying the filing fee.
Provides, among other methods of qualification, that a political party is qualified to participate in a primary election or presidential general election if a petition for that party’s qualification is filed with the Secretary of State and is signed by a number of voters equaling at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, as specified.
FISCAL EFFECT: Unknown. State-mandated local program; contains a crimes and infractions disclaimer.
COMMENTS:
Purpose of the Bill: According to the author:
This bill creates the same penalties that apply to people who are found guilty of committing fraud involving “in-lieu-filing fee petitions” and “political party qualification petitions”, as the people who are found guilty of committing fraud on other forms of petitions.
Currently, the Secretary of State does the investigations into people who commit fraud involving nomination papers, declarations of candidacy, initiatives, referenda, and recall petitions and the only two petitions that are not specifically included in the statute are in-lieu filing fee petitions and political party petitions. By including the two additional petitions this would provide clarity by allowing the state to punish people whom commit fraud involving in-lieu filing fee petitions and political party petitions.
Petitions and Nomination Papers: As detailed above, existing law contains a number of prohibitions against misconduct in connection with the circulation and filing of nomination papers, declarations of candidacy, and initiative, referendum, and recall petitions. Those laws, however, do not explicitly apply to other related petitions—specifically political party qualification petitions and in-lieu-filing-fee petitions. This bill would broaden those laws prohibiting misconduct in connection with the circulation and filing of election documents such that the laws that currently prohibit misconduct in connection with nomination documents also apply to in-lieu-filing-fee petitions, and so that laws that prohibit misconduct in connection with initiative, referendum, and recall petitions also apply to political party qualification petitions.
Technical Amendment: Due to a drafting error, this bill needs a technical amendment to restore language that was inadvertently deleted by the current version of the bill. To correct that drafting error, committee staff recommends the following technical amendment:
On page 9, line 16, after the second “or” insert:
withdrawing an initiative petition after filing it with the appropriate elections official, orPrevious Legislation: This bill is substantially similar to SB 1043 (Torres) of 2014. SB 1043 was approved by the Senate on a 36-0 vote, and was approved by this committee on a 6-0 vote, but was never brought up for a vote on the Assembly Floor.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file.
Opposition
None on file.
Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094
Discussed in Hearing
2MIN
Assembly Floor
7MIN
Senate Floor
2MIN
Senate Floor
1MIN
Senate Standing Committee on Appropriations
Bill Co-Author(s):
