BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 322| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 AB 322 Page 2 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 CONTINUED AB 322 Page 3 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 CONTINUED AB 322 Page 4 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 CONTINUED AB 322 Page 5 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 CONTINUED AB 322 Page 6 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 9/7/11) 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 Yolo 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' CONTINUED AB 322 Page 7 Association states, "We recognize and share your intent to 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 9/7/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED