BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 909        Hearing Date:    June 23, 2015    
          
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          |Author:    |Quirk                                                |
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          |Version:   |February 26, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JRD                                                  |
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                           Subject:  Sexual Assault Crimes



          HISTORY

          Source:   Unknown

          Prior Legislation:AB 1517 (Skinner) - Chapter 874, Statutes of  
          2014
                         SB 978 (DeSaulnier) - Chapter 136, Statutes of  
          2014
                         AB 322 (Portantino) - vetoed by Governor, 2011-12
                         AB 558 (Portantino) - vetoed by Governor, 2009-10  

                         AB 1017 (Portantino) - vetoed by Governor,  
          2009-10


          Support:  National Association of Social Workers

          Opposition:California State Sheriffs' Association

          Assembly Floor Vote:                 77 - 0


          PURPOSE

          The purpose of this bill is to require: 1) law enforcement  







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          agencies responsible for taking or processing rape kit evidence  
          to annually report to the Department of Justice (DOJ) specified  
          information pertaining to the processing of rape kits; and 2)  
          DOJ to submit a report to the appropriate policy committees of  
          the Legislature summarizing the information DOJ receives, as  
          specified.   

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

          (Penal Code § 680(c)(2).)

          Existing law states the Legislative finding that law enforcement  
          agencies have an obligation to victims of sexual assaults in the  
          proper handling, retention, and timely DNA testing of rape kit  
          evidence or other crime scene evidence and to be responsive to  
          victims concerning the developments of forensic testing and the  
          investigation of their cases.  (Penal Code § 680(b)(4).)

          Existing law specifies that law enforcement should do one of the  
          following for any sexual assault forensic evidence received by  
          the law enforcement agency on or after January 1, 2015:

                 Submit sexual assault forensic evidence to the crime lab  
               within 20 days after it is booked into evidence; or

                 Ensure that a rapid turnaround DNA program is in place  








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               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.  

          (Penal Code § 680(b)(7)(A).)

          Existing law specifies 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 not later than 120 days after  
               initially receiving the 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 later than 30 days after being notified  
               about the presence of DNA.  

          (Penal Code § 680(b)(7)(B).)

          Existing law provides that the above provisions establishing  
          timelines for testing DNA do 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 set forth in those provisions when  
          representative samples of the evidence are processed by the lab  
          in an effort to detect the foreign DNA of the perpetrator.   
          (Penal Code § 680(b)(7)(C).)

          Existing law defines "rapid turnaround DNA program" as 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  








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          to a written agreement between the law enforcement agency, the  
          crime lab, and the medical facility where the sexual assault  
          team is based.  (Penal Code § 680(b)(7)(E).)

          Existing law states if the law enforcement agency elects not to  
          analyze DNA evidence within 6 months prior to the established  
          time limits, a victim of a sexual assault offense as specified,  
          shall be informed, either orally or in writing, of that fact by  
          the law enforcement agency.  (Penal Code § 680(d).)



          Existing law states notwithstanding any other limitation of time  
          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).)


          


          This bill requires a law enforcement agency responsible for  
          taking or processing rape kit evidence to annually report, by  








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          July 1 of each year, the following information to the Department  
          of Justice:

                 The number of rape kits the law enforcement agency  
               collects;



                 The number of rape kits the law enforcement agency  
               collects that are tested; and



                 The number of rape kits the law enforcement agency  
               collects that are not tested and the reason the rape kit  
               was not tested.



          This bill requires, beginning January 1, 2017, and each January  
          1 after that date, DOJ to submit a report to the appropriate  
          policy committees of the Legislature summarizing the information  
          DOJ receives pursuant to the provisions in this bill.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 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. 








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          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity." (  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for This Legislation

          According to the Author:

               Over the last several years, hundreds of thousands of  








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               unanalyzed rape kits have been discovered nationwide.  
               In response, several states have passed legislation  
               that sets timelines for analyzing the kits in a timely  
               manner. Others passed measures to track and report  
               rape kits.  

               An October 2014 California State Auditor report  
               highlighted the pressing need for California to more  
               adequately track and report rape kits and recommended  
               that law enforcement agencies report this information  
               annually.

               Tracking and reporting rape kits is essential to fully  
               understanding why investigators choose to send some  
               kits to be analyzed and not others.  It is essential  
               to understand how large the backlog really is in order  
               to tackle the problem effectively.  

               Law enforcement agencies are not required to track or  
               report the number of rape kits they collect or how  
               many go unanalyzed.  Further, investigators are not  
               required to document their reasons for not submitting  
               a rape kit to be tested.  Due to the lack of tracking  
               and reporting requirements, the total number of  
               unanalyzed kits statewide is unknown.  The unknown  
               number of unanalyzed kits that are sitting in evidence  
               rooms across the state allow perpetrators to walk free  
               and deprive victims of justice.

               AB 909 will require local law enforcement agencies to  
               track and report on the number of rape kits they  
               collect, test and how many go untested. For untested  
               rape kits, law enforcement agencies will be required  
               to document the reason for not submitting the kit to  
               be tested.  Law enforcement agencies will also be  
               required to submit this information to the Department  
               of Justice annually. 

          2.  Effect of Legislation 













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          A recent report by the California State Auditor found that law  
          enforcement agencies rarely document reasons for not analyzing  
          sexual assault evidence kits.  (California State Auditor, Sexual  
          Assault Evidence Kits (Oct. 2014).)  Specifically, the report  
          found that:

               [i]n 45 cases . . . reviewed in which investigators at  
               the three agencies we visited did not request a kit  
               analysis, the investigators rarely documented their  
               decisions. As a result, we often could not determine  
               with certainty why investigators decided that kit  
               analysis was not needed.  Among the 15 cases we  
               reviewed at each of the three locations, we found no  
               examples of this documentation at either the  
               Sacramento Sheriff or the San Diego Police Department,  
               and we found only six documented explanations at the  
               Oakland Police Department.  Investigative supervisors  
               at both the Sacramento Sheriff and the San Diego  
               Police Department indicated that their departments do  
               not require investigators to document a decision not  
               to analyze a sexual assault evidence kit. The  
               lieutenant at the Oakland Police Department's Special  
               Victims Section stated that, during the period covered  
               by our review, the section expected such documentation  
               from its investigators in certain circumstances, but  
               that it was not a formal requirement at that time.   
               (Id. at 23.)

          Upon a more in-depth review of the individual cases, the report  
          found that analysis of the kits would not have been likely to  
          further the investigation of those cases:

               Law enforcement decisions not to request sexual  
               assault evidence kit analysis in the individual cases  
               we reviewed appeared reasonable because kit analysis  
               would be unlikely to further the investigation of  
               those cases. We reviewed specific cases at each agency  
               in which investigators did not request analysis. Our  
               review included 15 cases from each of the three  
               agencies we visited with offenses that occurred from  
               2011 through 2013, for a total of 45 cases. In those  
               cases, we did not identify any negative effects on the  
               investigations as a result of decisions not to request  
               analysis. We based our conclusions on the  








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               circumstances present in the individual cases we  
               reviewed, as documented in the files for the 45 cases  
               and as discussed with the investigative supervisors.  
               (Id. at 21.)

          Even though the individual reasons for not testing the kits were  
          found to be reasonable, the report still stressed the need for  
          more information about why agencies decide to send some kits but  
          not others because tracking this information would allow for  
          internal review and would increase accountability to the public.  
          (Id. at 23-24.)  

          Specifically, the report recommended the Legislature:

               Direct law enforcement agencies to report to Justice  
               annually how many sexual assault evidence kits they collect  
               and the number of kits they analyze each year. The  
               Legislature should also direct law enforcement agencies to  
               report annually to Justice their reasons for not analyzing  
               sexual assault evidence kits. The Legislature should  
               require an annual report from Justice that details this  
               information.  (Id. at 4.)

          This legislation implements this recommendation by requiring a  
          law enforcement agency responsible for taking or processing rape  
          kit evidence to annually report, by July 1 of each year, to the  
          Department of Justice: (1) the number of rape kits the law  
          enforcement agency collects; (2) the number of rape kits the law  
          enforcement agency collects that are tested; and, (3) the number  
          of rape kits the law enforcement agency collects that are not  
          tested and the reason the rape kit was not tested.  This  
          legislation, additionally, requires DOJ to prepare an annual  
          report for the legislature. 

          3.  Previous Legislation 

          AB 558 (Portantino) and AB 1017 (Portantino), of the 2009-10  
          Legislative Session, would have required local law enforcement  
          agencies responsible for taking or collecting rape kit evidence  
          to annually report to the Department of Justice statistical  
          information pertaining to the testing and submission for DNA  
          analysis of rape kits, and would have made the reports subject  
          to inspection under the California Public Records Act.  AB 558  
          and AB 1017 were both vetoed.  The AB 555 veto message stated: 








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               This bill is similar to AB 1017 (2009), which I also  
               vetoed. Unfortunately, while this measure is  
               well-intended, it continues to ignore the precarious  
               fiscal conditions of California's crime laboratories.   
               Indeed, as noted by the California Crime Laboratory  
               Review Task Force in its 2009 report, DNA,  
               fingerprints, and firearms testing have been  
               identified as areas where requests often exceed  
               staffing capabilities.  The Task Force also noted that  
               in order to eliminate the backlog for DNA testing, an  
               additional 282 analysts would have to be funded.   
               Unfortunately, AB 558 will not provide any additional  
               funding or staffing for crime laboratories and will  
               instead divert resources away from testing to sending  
               reports to the Department of Justice.  In this time of  
               fiscal crisis, I cannot condone this shift in  
               priorities.

          4.  Argument in Support

          The National Association of Social Workers, California  
          Chapter, supports AB 909:

               [W]hich will require local law enforcement agencies to  
               track and report on the number of rape kits they  
               collect, how many they test and how many go untested.   
               For untested rape kits, law enforcement agencies will  
               be required to document the reason for not submitting  
               the kit to be tested.  Law enforcement agencies will  
               also be required to submit this information to the DOJ  
               by July 1 of each year.  This measure will also  
               require the DOJ to submit an annual report to the  
               appropriate legislative committees beginning January  
               1, 2017.

               Currently law enforcement agencies are not required to  
               track or report information about the number of rape  
               kits they collect or how many go unanalyzed.  Further,  
               investigators are not required to document their  
               reasons for not submitting a rape kit to be tested.   
               Due to the lack of tracking and reporting  
               requirements, the total number of unanalyzed kits  
               statewide is unknown.  The unknown number of  








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               unanalyzed kits that are sitting in evidence rooms  
               across the state allow perpetrators to walk free and  
               deprive victims of justice.

          5.  Argument in Opposition

          According to the California State Sheriffs' Association, 

               By requiring law enforcement agencies to provide  
               statistics to DOJ, AB 909 will create another unfunded  
               mandate and would place significant cost burdens on  
               these agencies in terms of resources and personnel.   
               Doing so could inadvertently hamper our ability to  
               process these kits.

               Local law enforcement agencies are still dealing with  
               the effects of 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.


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