California Legislature—2015–16 Regular Session

Assembly Bill No. 1848

Introduced by Assembly Member Chiu

February 9, 2016

An act to amend Section 680 of the Penal Code, relating to DNA evidence.

LEGISLATIVE COUNSEL’S DIGEST

AB 1848, as introduced, Chiu. DNA evidence.

Existing law establishes the “Sexual Assault Victims’ DNA Bill of Rights,” which, among other things, encourages a law enforcement agency assigned to investigate specified sexual assault offenses to perform DNA testing of rape kit evidence or other crime scene evidence in a timely manner to assure the longest possible statute of limitations. Existing law also requires a law enforcement agency to inform victims of certain unsolved sexual assault offenses if the law enforcement agency elects not to analyze DNA evidence within certain time limits.

This bill would make technical, nonsubstantive changes to these provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 680 of the Penal Code is amended to
read:

680.  

(a) This section shall be known as and may be cited as
the “Sexual Assault Victims’ DNA Bill of Rights.”

(b) The Legislature finds and declares all of the following:

(1) Deoxyribonucleic acid (DNA) and forensic identification
analysis is a powerful law enforcement tool for identifying and
prosecuting sexual assault offenders.

(2) Existing law requires an adult arrested for or charged with
a felony and a juvenile adjudicated for a felony to submit DNA
samples as a result of that arrest, charge, or adjudication.

(3) Victims of sexual begin delete assaults end delete begin insert assault end insert have a strong interest in
the investigation and prosecution of their cases.

(4) Law enforcement agencies have an obligation to victims of
sexual begin delete assaults end delete begin insert assault end insert 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.

(5) The growth of the Department of Justice’s Cal-DNA
databank and the national databank through the Combined DNA
Index System (CODIS) makes it possible for many sexual assault
perpetrators to be identified after their first offense, provided that
rape kit evidence is analyzed in a timely manner.

(6) Timely DNA analysis of rape kit evidence is a core public
safety issue affecting men, women, and children in the State of
California. It is the intent of the Legislature, in order to further
public safety, to encourage DNA analysis of rape kit evidence
within the time limits imposed by subparagraphs (A) and (B) of
paragraph (1) of subdivision (g) of Section 803.

(7) In order to ensure that sexual assault forensic evidence is
analyzed within the two-year timeframe required by subparagraphs
(A) and (B) of paragraph (1) of subdivision (g) of Section 803 and
to ensure the longest possible statute of limitations for sex offenses,
including sex offenses designated pursuant to those subparagraphs,
the following should occur:

(A) A law enforcement agency in whose jurisdiction a sex
offense specified in Section 261, 261.5, 262, 286, 288a, or 289
occurred, should do one of the following for any sexual assault
forensic evidence received by the law enforcement agency on or
after January 1, 2016:

(i) Submit sexual assault forensic evidence to the crime lab
within 20 days after it is booked into evidence.

(ii) 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.

(B) 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, begin delete 2016. end delete begin insert 2016: end insert

(i) Process sexual assault forensic evidence, create DNA profiles
when able, and upload qualifying DNA profiles into CODIS as
soon as practically possible, but no later than 120 days after initially
receiving the evidence.

(ii) 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.

(C) This subdivision 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 section when representative samples of the
evidence are processed by the lab in an effort to detect the foreign
DNA of the perpetrator.

(D) This section does not require a DNA profile to be uploaded
into CODIS if the DNA profile does not meet federal guidelines
regarding the uploading of DNA profiles into CODIS.

(E) For purposes of this section, 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.

(8) For the purpose of this section, “law enforcement” means
the law enforcement agency with the primary responsibility for
investigating an alleged sexual assault.

(c) (1) Upon the request of a sexual assault victim, the law
enforcement agency investigating a violation of Section 261, 261.5,
262, 286, 288a, or 289 may inform the victim of the status of the
DNA testing of 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 email, if an email
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.

(2) Subject to the commitment of sufficient resources to respond
to requests for information, sexual assault victims have the
following rights:

(A) 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.

(B) 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
Data Bank of case evidence.

(C) 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 Department of Justice Convicted Offender DNA
Data Base, provided that disclosure would not impede or
compromise an ongoing investigation.

(3) This subdivision 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 the Department of Justice provides this information to
law enforcement agencies.

(d) If the law enforcement agency does not analyze DNA
evidence within six months prior to the time limits established by
subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of
Section 803, a victim of a sexual assault offense specified in
Section 261, 261.5, 262, 286, 288a, or 289 shall be informed, either
orally or in writing, of that fact by the law enforcement agency.

(e) 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 as set forth in Section 803, a victim of a violation
of Section 261, 261.5, 262, 286, 288a, or 289 shall be given written
notification by the law enforcement agency of that intention.

(f) Written notification under subdivision (d) or (e) 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 specified in subdivision (g) of Section 803.

(g) A sexual assault victim may designate a sexual assault victim
advocate, or other support person of the victim’s choosing, to act
as a recipient of the above information required to be provided by
this section.

(h)  It is the intent of the Legislature that a law enforcement
agency responsible for providing information under subdivision
(c) do so in a timely manner and, upon request of the victim or the
victim’s designee, advise 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 email address of the person to whom the
information should be provided, and any changes of the name,
address, telephone number, and email address, if an email address
is available.

(i) A defendant or person accused or convicted of a crime against
the victim shall have no standing to object to begin delete any end delete begin insert a end insert failure to
comply with this section. The failure to provide a right or notice
to a sexual assault victim under this section may not be used by a
defendant to seek to have the conviction or sentence set aside.

(j) The sole civil or criminal remedy available to a sexual assault
victim for a law enforcement agency’s failure to fulfill its
responsibilities under this section is standing to file a writ of
mandamus to require compliance with subdivision (d) or (e).