BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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1517(Skinner) 7
As Amended May 23, 2014
Hearing date: June 17, 2014
Penal Code
MK:sl
DNA EVIDENCE
HISTORY
Source: Alameda County District Attorney
CALCASA
Prior Legislation: AB 322 (Portantino) Vetoed 2011
AB 558 (Portantino) Vetoed 2010
AB 1017 (Portantino) Vetoed 2009
Support: Alameda County Medical Center; Alameda County Board of
Supervisors; Alliance Against Family Violence and
Sexual Assault; California District Attorneys
Association; California Legislative Women's Caucus;
California Communities United Institute; California
Partnerships to End Domestic Violence; California
Police Chiefs Association Inc. (support if amended);
Californians for Safety and Justice; Center Against
Sexual Assault of Southwest Riverside; Community Action
Partnership of Madera County; Community Service
Programs; Community Violence Solutions; Contra Costa
County District Attorney; Empower Yolo; Erotic Service
Providers Union; Glenn County District Attorney's
Office; Kene Me-Wu American Indian DV/SA Program; Kings
Community Action Organization's Rape Crisis Program;
Monarch Services; Monterey County Rape Crisis Center;
Napa Emergency Women's Services; Natasha's Justice
Project; National Association of Social Workers,
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California Chapter; North County Rape Crisis & Child
Protection Center; Peace Over Violence; Planned
Parenthood of California; Project Sanctuary; Project
Sister Family Services; Rape Crisis Intervention and
Prevention; Rape Trauma Services; RISE; Santa Barbara
County District Attorney's Office; Tri-Valley Haven;
Verify; Wild Iris; YWCA Greater Los Angeles; Yolo
County District Attorney; several individuals
Opposition:California State Sheriffs' Association; California
Association of Crime Lab Directors; Taxpayers for
Improving Public Safety
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUE
SHOULD TIMELINES BE SET FOR LAW ENFORCEMENT AGENCIES AND CRIME LABS
TO PERFORM DNA TESTING OF RAPE KIT EVIDENCE?
PURPOSE
The purpose of this bill is to set timelines for law enforcement
agencies and crime labs to perform and process deoxyribonucleic
acid (DNA) testing of rape kit evidence.
Existing law establishes the Sexual Assault Victims' DNA Bill of
Rights which provides victims of sexual assault with 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
Department of Justice (DOJ) Data Bank of case evidence;
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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, provided that disclosure would not impede or
compromise an ongoing investigation. (Penal Code, § 680
(c)(2).)
Existing law states the intent of the Legislature that a law
enforcement agency assigned to investigate specified sexual
assault offenses should perform DNA testing of rape kit evidence
or other crime scene evidence in a timely manner in order to
assure the longest possible statute of limitations. (Penal Code
§ 680 (b).)
Existing law states if the law enforcement agency elects not to
analyze DNA evidence within the established time limits, a
victim of a sexual assault offense as specified, where the
identity of the perpetrator is in issue, shall be informed,
either orally or in writing, of that fact by the law enforcement
agency. (Penal Code, § 680 (d).)
Existing law requires, if the law enforcement agency intends to
destroy or dispose of rape kit evidence or other crime scene
evidence from an unsolved sexual assault case prior to the
expiration of the statute of limitations, a victim of sexual
assault, as specified, be given written notification by the law
enforcement agency of that intention. (Pen. Code § 680 (e).)
Existing law provides that written notification shall be made at
least 60 days prior to the destruction or disposal of the rape
kit evidence or other crime scene evidence from an unsolved
sexual assault case where the election not to analyze the DNA or
the destruction or disposal occurs prior to the expiration of
the statute of limitations. (Penal Code, § 680 (f).)
Existing law states notwithstanding any other limitation of time
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described, 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 requires the defendant to
register as a sex offender; 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).)
Existing law s tates, notwithstanding any other limitation of
time described, prosecution for a specified felony sex offense
shall be commenced within 10 years after the commission of the
offense. (Penal Code § 801.1(b).)
This bill provides that a law enforcement agency assigned to
investigate a sexual assault offense, as specified, should do
one of the following for any sexual assault forensic evidence
received by the law enforcement agency on or after January 1,
2016:
Submit sexual assault forensic evidence to the crime lab
within 10 days after it is booked into evidence; or,
Ensure that a rapid turnaround DNA program, as defined,
is in place to submit forensic evidence collected from the
victim of a sexual assault directly from the medical
facility where the victim is examined to the crime lab
within five days after the evidence is obtained from the
victim.
This bill states that the crime lab should do one of the
following for any sexual assault forensic evidence received by
the crime lab on or after January 1, 2016:
Process sexual assault forensic evidence, create DNA
profiles when able, and upload qualifying DNA profiles into
the Combined DNA Index System (CODIS) as soon as
practically possible, but no later than 60 days after
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initially receiving this evidence; or,
Transmit the sexual assault forensic evidence to another
crime lab as soon as practically possible, but no later
than 30 days after initially receiving the evidence, for
processing of the evidence for the presence of DNA. If a
DNA profile is created, the transmitting crime lab should
upload the profile into CODIS as soon as practically
possible, but no longer than 30 days after being notified
about the presence of DNA.
This bill clarifies that this bill does not require a lab to
test all items of forensic evidence obtained in a sexual assault
forensic evidence examination. A lab is considered to be in
compliance with the guidelines of this bill when representative
samples of the evidence are processed by the lab in an effort to
detect foreign DNA of the perpetrator.
This bill provides that for specified sex offenses, if the law
enforcement agency does not analyze DNA evidence within six
months of the time limits established under current law, the law
enforcement agency shall inform the victim, either orally or in
writing, of that fact.
This bill deletes the requirement under current law that the
identity of the perpetrator must be in issue, for cases
involving a specified sex offense, in order to require a law
enforcement agency to inform the victim that the agency has not
analyzed the DNA evidence.
This bill provides that a "rapid turnaround DNA program" is a
program for the training of sexual assault team personnel in the
selection of representative samples of forensic evidence from
the victim to be the best evidence, based on the medical
evaluation and patient history, the collection and preservation
of that evidence, and the transfer of the evidence directly from
the medical facility to the crime lab, which is adopted pursuant
to a written agreement between the law enforcement agency, the
crime lab, and the medical facility where the sexual assault
team is based.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
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to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
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.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
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capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
California Penal Code 680, the Sexual Assault Victims'
DNA Bill of Rights, identifies DNA as a powerful tool
for identifying and prosecuting sexual assault
offenders. DNA is found on physical evidence, such as
clothing or bedding, and on the victim's or the
suspect's body. DNA is gathered from a victim in a
specialized forensic medical examination. The forensic
evidence is then collected and packaged in what is
commonly referred to as a "rape kit." Once booked into
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evidence by law enforcement, the rape kit can be sent
to a crime lab for processing and DNA analysis. At the
crime lab, a DNA profile can be created if sufficient
DNA from a perpetrator is found, and the perpetrator's
DNA profile can be uploaded into the FBI's national DNA
database, CODIS.
While DNA can help to identify unknown offenders, most
sexual assaults are committed by persons who are known
to the victim. Therefore, identity is not an issue in
most sexual assaults. But testing rape kits in those
cases still has value. Even when an offender is known,
uploading DNA profiles from the suspect can yield
matches to other cases in which the suspect is unknown,
resulting in "cold hits" to connect the suspect with
other unsolved crimes.
A victim who agrees to a forensic examination following
a sexual assault reasonably expects that evidence
collected from the exam will be analyzed. Untested rape
kits mean lost opportunities to develop DNA profiles,
search for matches, and link cold cases. Delays can
also preclude criminal charges from ever being filed
against rapists who are identified long after their
crimes. Current state law provides a ten year-statute
of limitations for most rape cases, but has an
exception -allowing criminal charges to be filed within
one year of the date when the suspect is conclusively
identified- for cases involving DNA evidence as long as
the DNA is analyzed within two years of the crime.
(Pen. Code, Sec. 803 (g)(1)(A)(B).)
In 2003, New York City tested 17,000 rape kits that
were in storage and implemented a policy to test every
rape kit in law enforcement custody. The city's arrest
rate for rape jumped from 40% to 70% (compared to 24%
nationally). Clearing the backlog in the city led to
more than 2,000 DNA matches and over 200 cold case
prosecutions.
Likewise, several cities and counties in California,
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including San Francisco and Los Angeles, have adopted
policies to process all forensic evidence kits that are
collected from rape victims. As a result, numerous
cold cases have been solved. In fact, the testing of
backlogged rape kits in Los Angeles resulted in the
apprehension of a serial killer who had been at large.
The California Department of Justice has implemented a
Rapid DNA Service (RDS) in 46 counties which could be a
model for the entire state. Nurses who perform sexual
assault examinations in those counties receive three
probative body swabs in addition to the materials in
regular rape kits, and send those three swabs directly
to a DOJ lab for expedited processing. DOJ analyzes
the swabs using large-batch automated DNA analysis,
informs local law enforcement agencies of its findings,
and uploads DNA profiles to CODIS when appropriate. In
most cases, this process takes only 15 days.
2. Statute of Limitations for Sex Offenses
There are a number of statutes of limitations that may apply in
a sex offense case depending on the specific facts and offenses.
A criminal complaint may be filed within one year of the date
of a report to law enforcement by any person who, while under
the age of 18, was the victim of rape, sodomy, child
molestation, forcible oral copulation, continuous sexual abuse
of a child, sexual penetration and fleeing the state with the
intent to avoid prosecution for a specified sex offense.
However, the existing statute of limitations must have expired,
the crime must have involved substantial sexual conduct and
there must be independent evidence to corroborate the victim's
allegations. If the victim is 21 years of age or older at the
time of the report, the independent evidence shall clearly and
convincingly corroborate the victim's allegations. (Penal Code
§ 803(f)(1) to (3).) A criminal complaint may also be filed for
the above-mentioned sex offenses any time before the victim's
28th birthday when the offense is alleged to have occurred when
the victim was under the age of 18. Also, if that time period
has elapsed, any prosecution for a felony registerable sex
offense may commence 10 years after the date of commission.
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(Penal Code § 801.1(a) to (b).) DNA evidence in specified sex
offense cases may also toll the statute of limitations. A
criminal complaint may be filed within one year of the time in
which a suspect is conclusively identified by DNA. (Penal Code
§ 803(g)(1).)
3. 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) (failed in
Assembly Public Safety, 2009) and AB 718 (Fuller), (held in
Assembly Appropriations, 2007) both sought to remove the
requirement that 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. Since 2009 backlogs of rape kits throughout the
state have been greatly reduced. For example, the City of Los
Angeles announced in April of 2011 that it had cleared the
backlog of 6,132 cases that were collected through 2008. (Human
Rights Watch, "The City of Los Angeles Eliminates Historical
Rape Kit Backlog" April 29, 2011,
http://www.hrw.org/news/2011/04/29/city-los-angeles-eliminates-hi
storical-rape-kit-backlog) The California Attorney General has
also been recognized by the US Department of Justice for its
Rapid DNA Service Team which has developed a program which helps
eight California counties reduce the time it takes to test DNA
from rape kits
(http://oag.ca.gov/news/press-releases/california-attorney-genera
l%E2%80%99s-office-receive-national-recognition-innovation)
4. New Timelines for Testing DNA Related to a Sexual Assault
This bill provides that in order to assure that forensic
evidence from sexual assaults are analyzed within the two year
timeframe the following should occur:
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For any sexual assault forensic evidence received by the
law enforcement agency on or after January 1 2016:
o Submit sexual assault forensic evidence to a
crime lab within 10 days after it is booked in to
evidence; and,
o Ensure that a rapid turnaround DNA program is
in place to submit forensic evidence collected from
the victim of a sexual assault directly from the
medical facility where the victim is examined to the
crime lab within five days after the evidence is
obtained from the victim.
The crime lab should do one of the following for any
sexual assault forensic evidence received by the crime lab
on or after January 1, 2016.
o Process sexual assault forensic evidence,
create DNA provides when able, and upload qualifying
DNA profiles into CODIS as soon as practically
possible, but no later than 60 days after initially
receiving the evidence; or,
o Transmit the sexual assault forensic evidence
to another crime lab as soon as practically possible,
but not later than 30 days after initially receiving
the evidence, for processing of the evidence for the
presence of DNA. If a DNA profile is created, the
transmitting crime lab should upload the profile into
CODIS as soon as practically possible, but no longer
than 30 days after being notified about the presence
of DNA.
The new time frames in this bill raise a number of questions:
Are the timeframes in this bill realistic?
In some sexual assaults the perpetrator is known. Even
though ideally all DNA from sexual assaults should be
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uploaded to CODIS, should those with a known perpetrator be
given the same priority as those with an unknown
perpetrator?
The rationale for the known perpetrator being uploaded
to CODIS has always been to determine if he or she has
perpetrated other offenses, but since DNA now is taken of
all felons, and that is uploaded to CODIS, is the urgency
for the evidence of the rape kit the same if the known
perpetrator is convicted? And, is this the most
appropriate use of limited lab time and money?
If Los Angeles has eliminated its backlog, and the
Attorney General has helped eight smaller counties with
their backlogs are these time frames necessary?
If other counties are having trouble addressing their
backlog is that something that is more appropriately dealt
with law enforcement and the district attorney working
together with their local crime lab or private labs in that
county?
The new time frames apply to sexual assaults occurring
after January 1, 2016. What does that mean for forensic
evidence that occur at the end of 2015, are they then a
lower priority because the timelines don't apply even if it
means a violent assault by an unknown assailant would
become a lower priority for testing than an assault by a
known assailant?
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5. Support
Alameda County District Attorney Nancy O'Malley contends this
bill will maintain pressure on law enforcement and laboratories
to expedite rape kit processing and reduce or eliminate
backlogs, preserve the statute of limitations, and increase the
potential for cold hits with CODIS.
District Attorney O'Malley states in part:
Untested rape kits mean lost opportunities to develop
DNA profiles, search for matches, link cold cases,
prosecute offenders, and bring resolution to rape
victims and prevent sexual assault crimes by serial sex
offenders?. The only way we are able to utilize the
'floating' statute of limitations beyond the 10 year
statute, is if there is a preliminary examination of
the rape kit within 2 years of the crime. And, even
that time frame is often unmet.
6. Opposition
The California State Sheriffs' Association opposes this bill
stating:
We share the author's intent that sexual assaults are
investigated and perpetrators not go unpunished. That
said, this bill, despite recent amendments, still
creates an expectation that every forensic kit will be
collected, submitted, and tested within specified
timeframes, regardless of any related factors,
including in situations where it has been determined a
crime has not been committed or where the identity of
the perpetrator is known. Circumstances exist under
which the submission of every kit for testing may not
be justified given case details and limited law
enforcement resources.
We appreciate the amendments that attempt to address
the bill's unfunded mandates, but we still believe it
is more appropriate for local priorities and resources,
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as well as case-specific factors, to govern this
process. A jurisdiction may have pending cases that
demand forensic evidence testing resources, and
examining evidence from those cases may be more
time-sensitive than testing a particular kit under
specific time frames, especially in cases in which the
identity of the perpetrator is known.
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