Senate Bill No. 813

Introduced by Senator Leyva

(Principal coauthor: Senator Pavley)

(Principal coauthors: Assembly Members Burke, Gipson, and Williams)

(Coauthors: Assembly Members Chávez and Lackey)

January 4, 2016

An act to amend Sections 680, 799, 801.1, and 803 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 813, as introduced, Leyva. Sex offenses: statute of limitations.

Existing law generally requires that the prosecution of a felony sex offense be commenced within 10 years after the commission of the offense. Under existing law, prosecution for the crimes of rape, sodomy, lewd or lascivious acts, continuous sexual abuse of a child, oral copulation, and sexual penetration, if committed against a victim who was under 18 years of age, may be commenced at any time prior to the victim’s 40th birthday. Existing law allows prosecution of an offense punishable by death or by imprisonment for life or for life without the possibility of parole, or for the embezzlement of public money, to be commenced at any time.

This bill would allow the prosecution of rape, sodomy, lewd or lascivious acts, continuous sexual abuse of a child, oral copulation, and sexual penetration, as specified, to be commenced at any time. The bill would apply to these crimes committed after January 1, 2017, and to crimes for which the statute of limitations that was in effect prior to January 1, 2017, has not run as of January 1, 2017.

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

(4) 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.

(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 begin delete (g) end delete begin insert (f) end insert 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 begin delete (g) end delete begin insert (f) end insert 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 begin delete (g) end delete begin insert (f) end insert
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 begin delete (g) end delete begin insert (f) end insert 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 any 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).

SEC. 2.  

Section 799 of the Penal Code is amended to read:

799.  

begin insert (a) end insert begin insert   end insert Prosecution for an offense punishable by death or by
imprisonment in the state prison for life or for life without the
possibility of parole, or for the embezzlement of public money,
may be commenced at any time.

begin insert

(b) Prosecution for a felony offense described in Section 261,
286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by
Chapter 293 of the Statutes of 1991 relating to penetration by an
unknown object, may be commenced at any time. This subdivision
applies to crimes that were committed on or after January 1, 2017,
and to crimes for which the statute of limitations that was in effect
prior to January 1, 2017, has not run as of January 1, 2017.

end insert begin delete

This

end delete

begin insert (c) end insert begin insert   end insert begin insert This end insert section shall apply in any case in which the defendant
was a minor at the time of the commission of the offense and the
prosecuting attorney could have petitioned the court for a fitness
hearing pursuant to Section 707 of the Welfare and Institutions
Code.

SEC. 3.  

Section 801.1 of the Penal Code is amended to read:

begin delete

801.1.  

(a) (1) Notwithstanding any other limitation of time
described in this chapter, prosecution for a felony offense described
in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5,
as enacted by Chapter 293 of the Statutes of 1991 relating to
penetration by an unknown object, that is alleged to have been
committed when the victim was under 18 years of age, may be
commenced any time prior to the victim’s 40th birthday.

(2) Paragraph (1) shall only apply to crimes that were committed
on or after January 1, 2015, or for which the statute of limitations
that was in effect prior to January 1, 2015, has not run as of January
1, 2015.

(b) 

end delete

begin insert

begin insert 801.1. end insert   

end insert

Notwithstanding any other limitation of time described
in this chapter, if subdivision begin delete (a) end delete begin insert (b) of Section 799 end insert does not apply,
prosecution for a felony offense described in subdivision (c) of
Section 290 shall be commenced within 10 years after commission
of the offense.

SEC. 4.  

Section 803 of the Penal Code is amended to read:

803.  

(a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.

(b) No time during which prosecution of the same person for
the same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.

(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in
this subdivision. This subdivision applies to an offense punishable
by imprisonment in the state prison or imprisonment pursuant to
subdivision (h) of Section 1170, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the
crimes of theft or embezzlement upon an elder or dependent adult,
or the basis of which is misconduct in office by a public officer,
employee, or appointee, including, but not limited to, the following
offenses:

(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of, or asking, receiving, or agreeing to
receive, a bribe, by a public official or a public employee,
including, but not limited to, a violation of Section 68, 86, or 93.

(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.

(3) A violation of Section 25540, of any type, or Section 25541
of the Corporations Code.

(4) A violation of Section 1090 or 27443 of the Government
Code.

(5) Felony welfare fraud or Medi-Cal fraud in violation of
Section 11483 or 14107 of the Welfare and Institutions Code.

(6) Felony insurance fraud in violation of Section 548 or 550
of this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.

(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.

(8) A violation of Section 22430 of the Business and Professions
Code.

(9) A violation of Section 103800 of the Health and Safety
Code.

(10) A violation of Section 529a.

(11) A violation of subdivision (d) or (e) of Section 368.

(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which
the defendant is not within the state shall be a part of those
limitations.

(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could
have reasonably been discovered, with regard to offenses under
Division 7 (commencing with Section 13000) of the Water Code,
under Chapter 6.5 (commencing with Section 25100) of, Chapter
6.7 (commencing with Section 25280) of, or Chapter 6.8
(commencing with Section 25300) of, Division 20 of, or Part 4
(commencing with Section 41500) of Division 26 of, the Health
and Safety Code, or under Section 386, or offenses under Chapter
5 (commencing with Section 2000) of Division 2 of, Chapter 9
(commencing with Section 4000) of Division 2 of, Section 6126
of, Chapter 10 (commencing with Section 7301) of Division 3 of,
or Chapter 19.5 (commencing with Section 22440) of Division 8
of, the Business and Professions Code.

begin delete

(f) (1) Notwithstanding any other limitation of time described
in this chapter, a criminal complaint may be filed within one year
of the date of a report to a California law enforcement agency by
a person of any age alleging that he or she, while under 18 years
of age, was the victim of a crime described in Section 261, 286,
288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter
293 of the Statutes of 1991 relating to penetration by an unknown
object.

(2) This subdivision applies only if all of the following occur:

(A) The limitation period specified in Section 800, 801, or 801.1,
whichever is later, has expired.

(B) The crime involved substantial sexual conduct, as described
in subdivision (b) of Section 1203.066, excluding masturbation
that is not mutual.

(C) There is independent evidence that corroborates the victim’s
allegation. If the victim was 21 years of age or older at the time
of the report, the independent evidence shall clearly and
convincingly corroborate the victim’s allegation.

(3) No evidence may be used to corroborate the victim’s
allegation that otherwise would be inadmissible during trial.
Independent evidence does not include the opinions of mental
health professionals.

(4) (A) In a criminal investigation involving any of the crimes
listed in paragraph (1) committed against a child, when the
applicable limitations period has not expired, that period shall be
tolled from the time a party initiates litigation challenging a grand
jury subpoena until the end of the litigation, including any
associated writ or appellate proceeding, or until the final disclosure
of evidence to the investigating or prosecuting agency, if that
disclosure is ordered pursuant to the subpoena after the litigation.

(B) Nothing in this subdivision affects the definition or
applicability of any evidentiary privilege.

(C) This subdivision shall not apply if a court finds that the
grand jury subpoena was issued or caused to be issued in bad faith.

end delete begin delete

(g)

end delete

begin insert (f) end insert  (1) Notwithstanding any other limitation of time described
in this chapter, 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:

(A) The crime is one that is described in subdivision (c) of
Section 290.

(B) 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.

(2) For purposes of this section, “DNA” means deoxyribonucleic
acid.

begin delete

(h)

end delete

begin insert (g) end insert  For any crime, the proof of which depends substantially
upon evidence that was seized under a warrant, but which is
unavailable to the prosecuting authority under the procedures
described in People v. Superior Court (Laff) (2001) 25 Cal.4th
703, People v. Superior Court (Bauman & Rose) (1995) 37
Cal.App.4th 1757, or subdivision (c) of Section 1524, relating to
claims of evidentiary privilege or attorney work product, the
limitation of time prescribed in this chapter shall be tolled from
the time of the seizure until final disclosure of the evidence to the
prosecuting authority. Nothing in this section otherwise affects
the definition or applicability of any evidentiary privilege or
attorney work product.

begin delete

(i)

end delete

begin insert (h) end insert  Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date on which a hidden recording is discovered related to a
violation of paragraph (2) or (3) of subdivision (j) of Section 647.

begin delete

(j)

end delete

begin insert (i) end insert  Notwithstanding any other limitation of time described in
this chapter, if a person flees the scene of an accident that caused
death or permanent, serious injury, as defined in subdivision (d)
of Section 20001 of the Vehicle Code, a criminal complaint brought
pursuant to paragraph (2) of subdivision (b) of Section 20001 of
the Vehicle Code may be filed within the applicable time period
described in Section 801 or 802 or one year after the person is
initially identified by law enforcement as a suspect in the
commission of the offense, whichever is later, but in no case later
than six years after the commission of the offense.

begin delete

(k)

end delete

begin insert (j) end insert  A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense involving the
offering or giving of a bribe to a public official or public employee,
including, but not limited to, a violation of Section 67, 67.5, 85,
92, or 165, or Section 35230 or 72530 of the Education Code.

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CORRECTIONS:

Digest Text--Page 1.

Text--Page 6.

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