BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 322|
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                                 THIRD READING


          Bill No:  AB 322
          Author:   Portantino (D), et al.
          Amended:  8/30/11 in Senate
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 7/5/11
          AYES:  Hancock, Anderson, Calderon, Harman, Liu, Price, 
            Steinberg

           SENATE APPROPRIATIONS COMMITTEE  :  9-0, 8/25/11
          AYES:  Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley, 
            Price, Runner, Steinberg
           
          ASSEMBLY FLOOR  :  61-13, 6/1/11 - See last page for vote


           SUBJECT  :    Forensic evidence:  rape kits:  pilot project

           SOURCE  :     Author


           DIGEST :    This bill creates a pilot project, commencing 
          July 1, 2012, in 10 counties to have the Department of 
          Justice test all rape kits collected after the start date 
          of the pilot project in those counties to determine if such 
          testing increases their arrest rates in rape cases.  The 
          provisions of this bill sunset on January 1, 2016.

           ANALYSIS  :    Existing law states that upon 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 
                                                           CONTINUED





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          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))

          Existing law provides that subject to the commitment of 
          sufficient resources to respond to requests for 
          information, sexual assault victims have the following 
          rights (Penal Code Section 680(c)(2)(A) to (C)):  

           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.

           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, provided that disclosure would not impede or 
            compromise an ongoing investigation.  

          Existing law 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 DOJ provides this 
          information to law enforcement agencies.  (Penal Code 
          Section 680(c)(3))

          Existing law provides 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 







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          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))

          Existing law 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))

          Existing law provides 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.
             
           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 
            Section 803(g)(1)(A)(B))

          Existing 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 







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          corroborated by evidence, as specified.  (Penal Code 
          Section 803(g)(1) and (h)(1))

          This bill provides that DOJ shall establish a pilot project 
          in 10 California counties to open and test all rape kits in 
          those counties.

          This bill provides that the 10 counties chosen for 
          inclusion are counties with an arrest rate of less than 12 
          percent for the crime of forcible rape as reported to the 
          Office of the Attorney General (AG) for the reporting 
          periods of 2007-09.

          This bill provides that the following counties shall be 
          included for the pilot project:  Alpine, Amador, Colusa, El 
          Dorado, Napa, Nevada, Plumas, Shasta, Tehama, and Tuolumne.

          This bill provides that DOJ shall, in cooperation with each 
          pilot project county, establish a process regarding the 
          collection, storage and testing of raped kits collected in 
          the pilot project county.  It is the intent of the 
          Legislature that all rape kits that are collected in the 
          county after a date established by DOJ, shall be sent to a 
          forensic laboratory of the department for analysis and 
          testing.  DOJ shall test every rape kit collected by a 
          pilot project county during the period of the pilot 
          project.

          This bill provides that the purpose of this pilot project 
          is to determine whether counties with the lowest arrest 
          rates in California for the crime of forcible rape can 
          bring justice to victims by increasing their arrest rates 
          by having all rape kits that are collected in the county, 
          during the period of the pilot project, tested for evidence 
          of crime.

          This bill provides the effectiveness of the pilot project 
          shall be measured by examining county statistics submitted 
          to the AG pursuant to existing law that requires the 
          reporting of the number of forcible rapes committed in that 
          county and the number of arrests for forcible rape 
          committed in that county.

          This bill provides that the pilot project shall be 







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          inoperative on the earlier date of either July 1, 2015, or 
          the date when all rape kits collected in the counties 
          participating in the pilot project during the period of 
          July1, 2012, to December 31, 2014, inclusive, are counted.  
          The DOJ shall test all rape kits collected by a pilot 
          project county during the pilot project.  

          The provisions of the bill sunset on January 1, 2016.

          This bill contains legislative findings and declarations.

           Prior Legislation

           AB 558 (Portantino), 2009-10 Session, passed the Senate 
          (33-0) on
          August 11, 2010, but was vetoed by Governor Schwarzenegger.

          AB 1017 (Portantino), 2009-10 Session, passed the Senate 
          (34-0) on September 2, 2009, but was vetoed by Governor 
          Schwarzenegger.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  Yes

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

             Major Provisions                2011-12     2012-13    
             2013-14               Fund  

            Pilot project rape            $155 to $310 annually to 
            DOJ                 Special*
            kit testing          through June 2015

            New convictions               Unknown; potentially 
            significant         General
                                state incarceration costs of $50 
            per
                                year per felony conviction

            * DNA Identification Fund

           NOTE:  The DOJ has indicated that they are doing this 







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                 already and this pilot project is not going to cost 
                 them extra money.
           
           SUPPORT  :   (Verified  9/1/11)

          American Federation of State, County and Municipal 
          Employees
          Californians Aware
          City of West Hollywood
          Crime Victims United of California
          Hollywood NOW
          Junior League of California State Public Affairs Committee
          Junior League of Los Angeles
          Los Angeles County Democratic Party

           OPPOSITION  :    (Verified  9/1/11)

          Alameda County Sheriff's Office
          California Association of Crime Lab Directors
          California Law Enforcement Association of Records 
          Supervisors, Inc.
          California Peace Officers' Association
          California State Sheriffs' Association
          Department of Finance
          Kern County Sheriff's Office
          Mono County Sheriff's Office
          Nevada County Board of Supervisors
          Santa Barbara County Sheriff's Office

           ARGUMENTS IN SUPPORT  :    The American Federation of State, 
          County and Municipal Employees states, "Currently, 
          California has an arrest rate of only 23.6% of reported 
          rapes.  New York City has a remarkably higher arrest rate 
          of 70% because they test every rape kit that is collected.  
          By California law, when a rape kit is taken, each local law 
          enforcement agency must fill out an Office of Criminal 
          Justice Planning form 923.  In many cases, rape kits are 
          conducted, but instead of being sent to the laboratory, 
          they are kept in evidence lockers indefinitely.  The 
          failure to test rape kits in California directly explains 
          why our arrest rate on rape cases is so low."

           ARGUMENTS IN OPPOSITION  :    The California State Sheriffs' 
          Association states, "We recognize and share your intent to 







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          ensure that rape kits are analyzed and processed in order 
          to identify and convict offenders of these heinous crimes.  
          However, doing so by requiring law enforcement agencies to 
          provide statistics to DOJ would place significant cost 
          burdens on these agencies in terms of resources and 
          personnel and consequently, and would inadvertently hamper 
          our ability to process these kits.  The focus should be on 
          building the capacity and resources for processing these 
          kits rather than using very limited resources to fulfill 
          reporting requirements."

           ASSEMBLY FLOOR  :  61-13, 6/1/11
          AYES:  Alejo, Allen, Ammiano, Atkins, Beall, Block, 
            Blumenfield, Bonilla, Bradford, Brownley, Buchanan, 
            Butler, Charles Calderon, Campos, Carter, Cedillo, 
            Chesbro, Conway, Davis, Dickinson, Eng, Feuer, Fletcher, 
            Fong, Fuentes, Furutani, Galgiani, Gatto, Gordon, Hagman, 
            Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, 
            Hueso, Huffman, Jones, Lara, Bonnie Lowenthal, Ma, 
            Mendoza, Miller, Mitchell, Monning, Nielsen, Norby, Pan, 
            Perea, Portantino, Skinner, Smyth, Solorio, Swanson, 
            Torres, Wagner, Wieckowski, Williams, Yamada, John A. 
            Pérez
          NOES:  Achadjian, Bill Berryhill, Donnelly, Beth Gaines, 
            Grove, Knight, Logue, Mansoor, Morrell, Nestande, Olsen, 
            Silva, Valadao
          NO VOTE RECORDED:  Cook, Garrick, Gorell, Halderman, 
            Jeffries, V. Manuel Pérez

          RJG:mw  9/1/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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