Amended in Assembly March 15, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1848

Introduced by Assembly Member Chiu

February 9, 2016

An act to begin delete amend Section 680 of end delete begin insert add Section 680.1 to end insert the Penal Code, relating to DNA evidence.

LEGISLATIVE COUNSEL’S DIGEST

AB 1848, as amended, 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.

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This bill would require law enforcement agencies to report information regarding rape kit evidence to the department through a database established by the department. The bill would require that information to include, among other things, the number of kits collected, the number of kits from which one or more biological evidence samples were submitted to a DNA laboratory for analysis, and the number of kits from which a probative DNA profile was generated. The bill would additionally require a public DNA laboratory, or a law enforcement agency contracting with a private laboratory, to provide a reason for not testing a sample every 120 days the sample is untested. By imposing additional duties on local law enforcement, this bill would create a state-mandated local program.

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This bill would require the department to file a report to the Legislature on a quarterly basis summarizing the information in its database. The bill would prohibit law enforcement agencies or laboratories from being compelled to provide any contents of the database in a civil or criminal case, except as required by a law enforcement agency’s duty to produce exculpatory evidence to a defendant in a criminal case.

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Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

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This bill would make legislative findings to that effect.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

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

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begin insert SECTION 1. end insert   

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begin insert Section 680.1 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

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begin insert 680.1. end insert   

(a) The Legislature finds and declares the following:

(1) There is a significant public interest in knowing what
percentage of rape kit biological samples are analyzed for the
perpetrator’s DNA profile, as well as why any untested rape kit
samples are not analyzed. Currently, there is no mandatory
statewide tracking mechanism in place to collect and report these
metrics. It is the intent of the Legislature in enacting this section,
pursuant to recommendations by the California State Auditor to
the Joint Legislative Audit Committee, to correct that.

(2) In 2015, the Department of Justice created the Sexual Assault
Forensic Evidence Tracking (SAFE-T) database to track the status
of all sexual assault evidence kits collected in the state based on
voluntary data input from law enforcement agencies. It is the intent
of the Legislature by enacting this section to require participation
in that database.

(b) On a schedule set forth by the Department of Justice, each
law enforcement agency that has investigated a case involving the
collection of sexual assault kit evidence during the relevant period
of time, as determined by the department, shall report to the
department, through the SAFE-T database, the data required by
the department in its communications to law enforcement. The
data shall include, but are not limited to, the following:

(1) The number of kits collected during the period.

(2) The number of kits from which one or more biological
evidence samples were submitted to a DNA laboratory for analysis.

(3) The number of kits from which a probative DNA profile was
generated.

(4) The reason or reasons for not submitting evidence from a
given rape kit to a DNA laboratory for processing.

(c) After 120 days following submission of rape kit biological
evidence for processing, if a public DNA laboratory has not
conducted DNA testing, that laboratory shall provide the reasons
for the status in the appropriate SAFE-T data field. If the
investigating law enforcement agency has contracted with a private
laboratory to conduct DNA testing on rape kit evidence, the
submitting law enforcement agency shall provide the 120-day
update in SAFE-T. The process described in this subdivision shall
take place every 120 days until DNA testing occurs.

(d) The SAFE-T database shall not contain any identifying
information about a victim or a suspect, shall not contain any DNA
profiles, and shall not contain any information that would impair
a pending criminal investigation.

(e) On a quarterly basis, the Department of Justice shall file a
report to the Legislature in compliance with Section 9795 of the
Government Code summarizing data entered into the SAFE-T
database during that year. The report shall not reference individual
victims, suspects, investigations, or prosecutions. The report shall
be made public by the department.

(f) Except as provided in subdivision (e), in order to protect the
confidentiality of the SAFE-T database information, SAFE-T
database contents shall be confidential and a participating law
enforcement agency or laboratory shall not be compelled in a
criminal or civil proceeding, except as required by a law
enforcement agency’s duty to produce exculpatory evidence to a
criminal defendant, to provide any SAFE-T database contents to
any person or party seeking those records or information.

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begin insert SEC. 2. end insert   

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The Legislature finds and declares that Section 1 of
this act, which adds Section 680.1 to the Penal Code, imposes a
limitation on the public’s right of access to the meetings of public
bodies or the writings of public officials and agencies within the
meaning of Section 3 of Article I of the California Constitution.
Pursuant to that constitutional provision, the Legislature makes
the following findings to demonstrate the interest protected by this
limitation and the need for protecting that interest:

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In order to protect the privacy of victims of crime, it is necessary
to keep the information in the SAFE-T database confidential.

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begin insert SEC. 3. end insert   

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If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

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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 assault have a strong interest in the
investigation and prosecution of their cases.

(4) Law enforcement agencies have an obligation to victims of
sexual assault 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, 2016:

(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 a 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).

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