BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 558 (Portantino)                                         
          As Amended April 5, 2010 
          Hearing date:  June 15, 2010
          Penal Code
          AA:mc

                                    SEXUAL ASSAULT:

                                  RAPE KIT EVIDENCE  


                                       HISTORY

          Source:  Author

          Prior Legislation: AB 1017 (Portantino) - 2009, vetoed

          Support: Crime Victims Action Alliance; City of West Hollywood

          Opposition:California State Sheriffs' Association; California  
          Law Enforcement Association of Records Supervisors

          Assembly Floor Vote:  Ayes  72 - Noes  0


                                         KEY ISSUE
           
          SHOULD LAW ENFORCEMENT AGENCIES THAT TAKE OR PROCESS RAPE KIT  
          EVIDENCE BE REQUIRED TO REPORT CERTAIN INFORMATION CONCERNING THE  
          TESTING AND DESTRUCTION OF RAPE KITS TO THE DEPARTMENT OF JUSTICE,  
          AS SPECIFIED?






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                                                        AB 558 (Portantino)
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                                       PURPOSE

          The purpose of this bill is to require law enforcement agencies  
          that take or process rape kit evidence to report specified  
          information concerning the testing and destruction of that  
          evidence to the Department of Justice. 

           Current law  sets forth the "Sexual Assault Victims' DNA Bill of  
          Rights," which enumerates in statute certain provisions  
          pertaining to victim notification of certain information  
          relating to their case, as specified.  (Penal Code  680.)
            
           Current law  provides that notwithstanding any other limitation  
          of time, 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:

                 The crime is one that is described in the sex offense  
               registration statute; and,
                 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,  
               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   
               803(g)(1)(A)(B).)

           Current law  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  803 (g)(1) and (h)(1).)

           This bill  would require each local law enforcement agency  
          responsible for taking or processing rape kit evidence to  
          collect the following information for rape kits collected on or  




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                                                        AB 558 (Portantino)
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          after January 1, 2011:


             (1)  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.

             (2)  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.

             (3)  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.

             (4)  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.

             (5)  The total number of untested rape kits in its possession  
               as of January 1 of the reporting year.

             (6)  The total number of rape kits destroyed during the  
               preceding calendar year.





           This bill  would require each local law enforcement agency  
          responsible for taking or processing rape kit evidence to  
          report, by July 1 of each year, the information collected  




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                                                        AB 558 (Portantino)
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          pursuant to this section during the preceding year to the  
          Department of Justice (DOJ).  The initial report to the  
          department pursuant to this subdivision would be required to be  
          made by July 1, 2012.



           This bill  would provide that the reports received by DOJ would  
          be subject to inspection under the California Public Records  
          Act.



           The provisions of this bill  would be operative until July 1,  
          2016, and sunset on January 1, 2017.
                                          

              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  




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               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, California's prisons remain severely  
               overcrowded, and inmates in the California prison  
               system continue to languish without constitutionally  






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               adequate medical and mental health care.<1>

          The court stayed implementation of its January 12, 2010, ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not aggravate the prison overcrowding crisis  
          described above.


                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               In 2008, 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 restore accountability  
               in the processing of rape kit evidence.  
                
               AB 558 will require all law enforcement agencies to  
               report to the DOJ their statistics on the numbers of  
               rape kits that they collect and test and the numbers  
               of these tests that are stranger rapes or where the  
               identity of the assailant is contested.  This bill  
               will require that only those kits that are collected  
               ---------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).



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                                                        AB 558 (Portantino)
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               after the effective date of the measure are to be  
               categorized and reported.  
                
               Most local governments currently use the Department  
               of Justice criminal lab to test their rape kits.   
               Although not ultimately adopted, last year the LAO  
               and several of the 2009 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.  While not all rape  
               kits need to be tested, passage of AB 558 will  
               provide accountability for those kits that do need  
               to be tested.  This will allow California to track  
               the testing of rape kits by our local law  
               enforcement agencies and ensure justice for the  
               victims of a horrible crime.     
                
               Rape kits are evidence of crime.  In order to remain  
               admissible in a criminal trial, such evidence must  
               be logged as it comes in and tracked and maintained  
               so that the law enforcement "chain of custody" is  
               established.  To fail to do so, will cause the  
               evidence to be inadmissible in a court of law.   
               There is no "backlog" reporting in AB 558 in that  
               law enforcement will only categorize and report on  
               kits that come in after the effective date of the  
               bill.  The costs of AB 558 will be minor because  
               local law enforcement has to log and track evidence  
               anyway.  They can collect the information when the  
               kits are logged in as evidence and report on the  
               totals when required to the DOJ.
                
               This measure is the same bill as AB 1017 of last  
               year which was supported by the California Coalition  
               against Sexual Assault, Crime Victims United and  
               numerous other organizations.  It received  
               bi-partisan support and there were no, "NO" votes.  
             
          2.  What This Bill Would Do; Previous Legislation Vetoed




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                                                        AB 558 (Portantino)
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           This bill would require local law enforcement agencies  
          responsible for rape kit evidence to collect specified aggregate  
          information about rape kits, detailed above, and to report that  
          information to the Department of Justice, as specified.

          As noted by the author, this bill is very similar to his AB  
          1017, passed by this Committee unanimously and the Legislature  
          last year but vetoed by Governor Schwarzenegger.  The veto  
          message stated in part:  

               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  
               cost 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.















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          3.  Background: Processing of Rape Kits

           In the fall of 2008, then-Los Angeles City Controller Laura  
          Chick issued a report citing a significant backlog of rape kits  
          that had not been DNA tested.  As explained in an October 21,  
          2008, article in the Los Angeles Times:



               Los Angeles police officials have allowed the deadline  
               for prosecuting as many as 200 potential sexual  
               assault cases to pass without testing DNA evidence  
               that might have resulted in a suspect's  
               identification, according to a city audit released  
               today.





               The 200 cases were part of an overall backlog of 7,000  
               sexual assault test kits that have not been examined  
               by the LAPD.  Each kit contains a potential genetic  
               road map to the perpetrator of a crime. . . .


                 


               According to the city audit, there are 217 rape kits  
               that have sat on the shelves in LAPD property rooms  
               that are beyond the 10-year statute in which to  
               prosecute the crimes. . . .


                


               Auditors also found that the LAPD was failing to  




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               comply with a state law that requires sexual assault  
               victims to be notified by the police if their rape  
               kits are not tested within a two-year period.  If  
               authorities had made those notifications, the statute  
               of limitations would have been extended.<2>

          A news article from March of 2009 further described the  
          situation in Los Angeles:

               Since the controversy erupted, LAPD detectives have  
               counted a total of 9,911 sexual-assault cases in the  
               freezers.  Of those, 4,718 were previously tested and  
               5,193 were not tested.  Of the untested cases, 403  
               were "stranger rapes," in which DNA testing could have  
               netted a solid suspect by now; 1,184 were "cleared by  
               arrest," making DNA tests unnecessary; and 1,796 were  
               rejected by D.A. Cooley, usually because of a  
               hard-to-prosecute "he said, she said" situation or  
               because the 



               victim refused to cooperate.  Now, with 200 rape cases  
               left for so long that they are too old to prosecute,  
               and an unknown number of crimes lurking in the other  
               long-frozen rape kits, it seems doubtful L.A. will  
               ever match the science-based crime-fighting of New  











               ----------------------
          <2>   200 sex assault cases pass prosecution deadline before  
          LAPD tested DNA kits (Los Angeles Times, Oct. 21, 2008).






















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               York City.<3>

          4.   Opposition
           
          The California State Sheriffs' Association and the California  
          Law Enforcement Association of Records Supervisors oppose this  
          bill, submitting it "will have significant fiscal impacts on  
          local law enforcement agencies. . . .

               We recognize and share (the author's) 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. . . .

               . . .  Due to the fiscal and workload implications of  
               this bill, we must respectfully oppose AB 558.

          DO THE WORKLOAD AND FISCAL IMPACTS OF THIS BILL OUTWEIGH ITS  
          INTENDED GOALS OF THIS BILL?


                                  *************** 




          ---------------------------
          <3>   DNA Deep Freeze (LA Weekly, March 18, 2009).  ("New York  
          stood out as a big metropolitan area that's doing it right.  The  
          Los Angeles Police Department stood out too - as what critics  
          see as a DNA disaster zone.  L.A. is so many years behind New  
          York's Office of the Medical Examiner in testing long-stored DNA  
          from sexual-assault cases that the LAPD would need millions of  
          dollars - and a top-level initiative from Chief William Bratton  
          - to ever hope to catch up. . . .  In stark contrast to L.A.,  
          New York tests all its DNA evidence, including that recovered  
          from burglary scenes, and performs "touch DNA" tests - analyzing  
          such minuscule traces that they can match the sweat left in  
          fingerprints.")