BILL ANALYSIS
AB 558
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Date of Hearing: January 12, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 558 (Portantino) - As Amended: October 26, 2009
SUMMARY : Requires that, by July 1 of each year, each local law
enforcement agency responsible for taking or processing rape kit
evidence shall report various information related to the
collection and testing of rape kits. Specifically, this bill :
1)Requires each local law enforcement agency responsible for
taking or processing rape kit evidence shall report, by July 1
of each year, the following information to the Department of
Justice (DOJ):
a) The total number of rape kits received during the
preceding calendar year and, of that total, the number of
rape kits for which the identity of the assailant is
unknown and the number of rape kits for which the identity
of the assailant is contested.
b) The total number of rape kits tested during the
preceding calendar year and, of that total, the number of
rape kits for which the identity of the assailant is
unknown and the number of rape kits for which the identity
of the assailant is contested.
c) The total number of rape kits that law enforcement has
requested be tested and, of that total, the number of rape
kits for which the identity of the assailant is unknown and
the number of rape kits for which the identity of the
assailant is contested.
d) The number of rape kits that law enforcement has
requested be tested that remain untested and, of that
number, the number of rape kits for which the identity of
the assailant is unknown and the number of rape kits for
which the identity of the assailant is contested.
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e) The total number of untested rape kits in its possession
as of January 1 of the reporting year.
f) The total number of rape kits destroyed during the
preceding calendar year. The initial report to the DOJ
pursuant to this bill shall be made by July 1, 2012.
2)States the reports received pursuant to bill are subject to
inspection under the California Public Records Act, as
specified.
3)Provides that this bill will remain operative only until July
1, 2016 and shall sunset on January 1, 2017, unless later
enacted.
EXISTING LAW :
1)States that upon the request of a sexual assault victim the
law enforcement agency investigating a violation of specified
violent sex offenses, may inform the victim of the status of
the DNA testing of the rape kit evidence or other crime scene
evidence from the victim's case. The law enforcement agency
may, at its discretion, require that the victim's request be
in writing. The law enforcement agency may respond to the
victim's request with either an oral or written communication,
or by electronic mail, if an electronic mail address is
available. Nothing in this subdivision requires that the law
enforcement agency communicate with the victim or the victim's
designee regarding the status of DNA testing absent a specific
request from the victim or the victim's designee. [Penal Code
Section 680(c)(1).]
2)Provides that subject to the commitment of sufficient
resources to respond to requests for information, sexual
assault victims have the following rights: the right to be
informed whether or not a DNA profile of the assailant was
obtained from the testing of the rape kit evidence or other
crime scene evidence from their case; the right to be informed
whether or not the DNA profile of the assailant developed from
the rape kit evidence or other crime scene evidence has been
entered into the DOJ Data Bank of case evidence; and, the
right to be informed whether or not there is a match between
the DNA profile of the assailant developed from the rape kit
evidence or other crime scene evidence and a DNA profile
contained in the DOJ Convicted Offender DNA Data Base,
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provided that disclosure would not impede or compromise an
ongoing investigation. [Penal Code Section 680(c)(2)(A) to
(C).]
3)States this law is intended to encourage law enforcement
agencies to notify victims of information which is in their
possession. It is not intended to affect the manner of or
frequency with which the DOJ provides this information to law
enforcement agencies. [Penal Code Section 680(c)(3).]
4)Mandates that if the law enforcement agency elects not to
analyze DNA evidence within the time limits established by
provisions of law related to the statute of limitations, a
victim of a sexual assault offense, as specified, where the
identity of the perpetrator is in issue, must be informed,
either orally or in writing, of that fact by the law
enforcement agency. [Penal Code Section 680(d).]
5)States legislative intent that a law enforcement agency
responsible for providing information, as specified, does so
in a timely manner and, upon request of the victim or the
victim's designee, advises the victim or the victim's designee
of any significant changes in the information of which the law
enforcement agency is aware. In order to be entitled to
receive notice under this section, the victim or the victim's
designee shall keep appropriate authorities informed of the
name, address, telephone number, and electronic mail address
of the person to whom the information should be provided, and
any changes of the name, address, telephone number, and
electronic mail address, if an electronic mailing address is
available. [Penal Code Section 680(h).]
6)Provides notwithstanding any other limitation of time
described in this chapter, a criminal complaint may be filed
within one year of the date on which the identity of the
suspect is conclusively established by DNA testing if both of
the following conditions are met:
a) The crime is one that is described in the sex offense
registration statute; and,
b) The offense was committed prior to January 1, 2001 and
biological evidence collected in connection with the
offense is analyzed for DNA type no later than January 1,
2004; or the offense was committed on or after January 1,
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2001 and biological evidence collected in connection with
the offense is analyzed for DNA type no later than two
years from the date of the offense. [Penal Code Section
803(g)(1)(A)(B).]
1)Provides that a criminal complaint may be filed within one
year after a report to a law enforcement agency that a person
was the victim of a sexual offense while under the age of 18
years. To file such a complaint, the applicable limitation
period must have expired and the alleged crime must have
involved substantial sexual conduct corroborated by evidence,
as specified. [Penal Code Section 803 (g)(1) and (h)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Last year it
was discovered that the City and County of Los Angeles had
over 10,000 unopened rape kits in their evidence lockers. Of
these, the City of Los Angeles alone had 403 unopened rape
kits that were the result of stranger rapes. It is na?ve to
believe that the Los Angeles area is the only community in the
state that is not testing its rape kits. AB 558 will require
all law enforcement agencies to report to the California
Department of Justice their statistics on the numbers of rape
kits that they collect and test and the numbers of these kits
that are stranger rapes or where the identity of the assailant
is contested. Because the first report is not due until July
1, 2012, local law enforcement will be able to tabulate rape
kits as they are collected, keeping related costs at a
minimum. Legislative fiscal committees have estimated that
these costs will not meet levels requiring reimbursement as a
local mandate.
"Most local governments currently use the Department of Justice
criminal lab to test their rape kits. Although not ultimately
adopted, the Legislative Analysts Office and several of the
recent budget bills proposed requiring the DOJ crime lab to
start billing local government for services such as testing
rape kits. Such a practice would create a tremendous financial
disincentive to test rape kits. Enacting AB 558 will allow us
to track the testing of rape kits by our local law enforcement
agencies. While not all rape kits need to tested, the report
to the DOJ will identify kits that are collected as the result
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of stranger rapes and identity contested rapes. These are the
kits that should almost always be tested. It is my intent
that the mandated report to DOJ only includes the kits that
are collected after the effective date of the legislation. By
reporting kits that are collected after enactment of AB 558,
the cost to local law enforcement agencies will be minimal.
Law enforcement can categorize kits as they are collected as
part of their normal evidence collection procedures. It is
not my intent that local law enforcement be required to go to
their evidence lockers and count kits collected prior to
January 1, 2011."
2)Timeframe for Testing DNA : Existing law requires DNA
collected in sex assault cases to be tested in a certain
period of time in order to preserve the statute of limitations
for the crime. When an offense is committed before January 1,
2001 but tested by January 1, 2004 or if the offense is
committed after January 1, 2001 and tested within two years of
collection, the statute of limitation remains stayed and a
prosecution must commence within one year of conclusively
identifying a suspect. AB 383 (Lieu), pending hearing by
Senate Public Safety Committee, and AB 718 (Fuller), of the
2007-08 Legislative Session both sought to remove the
requirement a sample be tested in a specific period of time as
the DNA backlog was so significant DOJ and local law
enforcement are not able to test in time to preserve the
statute of limitations. According to the Los Angeles County
Sheriff's Department, "One of the biggest problems facing the
criminal justice system today is the substantial backlog of
unanalyzed DNA samples and biological evidence from crime
scenes, especially in sexual assault cases. Too often, crime
scene samples wait unanalyzed in law enforcement or crime lab
storage facilities. Timely analysis of these samples and
placement into DNA database can avert tragic results.
Currently, there are over 10,000 sexual assault rape kits
awaiting DNA processing in Los Angeles County alone. A recent
Los Angeles City Auditor report found there are thousands of
rape kits awaiting DNA processing in LAPD evidence lockers.
At the Los Angeles County Sheriff's Department, we have nearly
5,000 rape kits awaiting DNA processing in our evidence
lockers."
3)Veto Message of AB 1017 (Portantino) : AB 1017 was identical
to this bill and vetoed. In his veto message, Governor
Schwarzenegger stated,
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"This measure would require law enforcement agencies to annually
report to the Department of Justice (DOJ) information
pertaining to the total number of rape kits received and
tested during the preceding calendar year, the total number of
untested kits in its possession as of January 1 of the
reporting year, and the number of rape kits that law
enforcement has requested to be tested that remain untested.
I strongly support efforts to ensure that rape kits are analyzed
and processed in a timely manner in order to identify and
prosecute sex offenders. However, requiring law enforcement
agencies to provide backlog statistics to the DOJ would place
significant cost burdens on these agencies and would divert
scarce resources away from processing these kits. In
addition, this measure does not require the DOJ to do anything
with the reports received. Assuming that the DOJ would have
to administer, collect, and manage these records, this could
impose additional costs pressures on the DOJ. Since this
measure would create additional state costs that cannot be
accommodated in a time of fiscal crisis, I am returning this
bill without my signature."
4)Arguments in Opposition : According to the California State
Sheriffs' Association , "AB 558 would require law enforcement
agencies to annually report to the Department of Justice (DOJ)
information pertaining to the total number of rape kits
received and tested during the preceding calendar year, the
total number of untested rape kits in its possession as of
January 1 of the reporting year, and the number of rape kits
that law enforcement has requested be tested that remain
untested. We recognize and share your intent to ensure that
rape kits are analyzed and processed in a timely manner in
order to identify and convict offenders of these heinous
crimes. However, doing so by requiring law enforcement
agencies to provide backlog statistics to DOJ would place
significant cost burdens on these agencies in terms of
resources and personnel and consequently, would inadvertently
hamper our ability to process these kits. It is for these
reasons the Governor vetoed AB 1017, a similar version of this
bill last month on these grounds. Local law enforcement
agencies are grappling with significant budget cuts over the
last several years while trying to maintain critical services.
Adding an additional reporting requirement would divert
limited resources away from providing current services. The
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additional costs associated with this new reporting
requirement would be detrimental to the provision of critical
services we currently provide."
5)Related Legislation :
a) AB 1017 (Portantino) was, in its final version,
identical to this bill and vetoed.
b) AB 383 (Lieu) extends the limitation on the time period
for testing DNA in specified sex crimes cases committed
after January 1, 2001, as specified, from two to five
years. AB 383 is pending hearing by the Senate Committee
on Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California State Sheriffs' Association
California Law Enforcement Association of Records Supervisors
(CLEAR)
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744