BILL ANALYSIS
AB 383
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Date of Hearing: March 31, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 383 (Lieu) - As Introduced: February 23, 2009
SUMMARY : Extends the limitation on the time period for testing
deoxyribonucleic acid (DNA) in specified sex crimes cases
committed after January 1, 2001, as specified, from two to five
years.
EXISTING LAW :
1)Provides that prosecution for crimes punishable by
imprisonment in the state prison for eight years or more must
be commenced within six years after commission of the offense.
(Penal Code Section 800.)
2)Provides that prosecution for crimes punishable by
imprisonment in the state prison must be commenced within
three years after commission of the offense. (Penal Code
Section 801.)
3)Provides that prosecution for specified offenses punishable by
imprisonment in state prison relating to fraud, breach of
fiduciary duty, theft or embezzlement upon an elder or
dependent adult, or official misconduct must be commenced
within four years after discovery of the commission of the
offense or within four years after the completion of the
offense, whichever is later. [Penal Code Sections 801.5 and
803(c).]
4)Provides that prosecution for specified crimes against elder
or dependent adults, except in theft or embezzlement cases,
may be filed at any time within five years from the date of
occurrence of such offense. (Penal Code Section 801.6.)
5)Provides that a criminal complaint may be filed within one
year after a report to a law enforcement agency that a person
was the victim of a sexual offense while under the age of 18
years. To file such a complaint, the applicable limitation
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period must have expired and the alleged crime must have
involved substantial sexual conduct corroborated by evidence,
as specified. [Penal Code Section 803 (g)(1) and (h)(1).]
6)Provides 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 the sex offense
registration statute; and,
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. [Penal Code Section
803(g)(1)(A)(B).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill will
help make sure that rape kits get processed and analyzed by
extending the time-length from two years to five years. The
use of DNA in sex crimes is the most conclusive proof of
identity giving law enforcement the ability to solve crimes,
convict the guilty and exonerate the wrongfully accused.
Therefore, AB 383 is helping to solve the substantial backlog
of unanalyzed DNA samples and biological evidence that is
currently posing a tremendous risk to California's criminal
justice system."
2)Penal Code Section 803(g) and AB 1742 : AB 1742 (Correa),
Chapter 235, Statutes of 2000, created an exception to the
six-year statute of limitations for sex offenses where the
identity of the offender is established through DNA testing.
The stated purpose for allowing an exception to the statute of
limitations was to prosecute sexual assault cases. The author
of AB 1742 states, "In 1998, the Legislature enacted the DNA
and Forensic Identification Data Base and Data Bank Act. The
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purpose of the legislation was to help law enforcement
agencies promptly detect and prosecute individuals responsible
for sex offenses and other violent crimes, as well as exclude
suspects who are being investigated for such crimes. There
exist a number of problems with the collection and analysis of
biological material from persons compelled to provide samples
pursuant to the Act. According to recently published reports
and conversations with Department of Justice (DOJ), there is
an approximate two-year backlog of samples in its possession
that remain to be tested. The DOJ laboratory currently lacks
the capability to analyze all of the samples being submitted
by law enforcement. To complicate matters further, many state
prisons and local detention facilities are unable to collect
the required samples based on a shortage of collection kits or
personnel. Lastly, local crime laboratories are now
collecting evidence subject to DNA analysis but are unable to
conduct testing due to a lack of funding or trained staff.
"This bill is necessary to ensure that cases solved through the
use of genetic profiling are not barred by the current
six-year statute of limitations while the State of California
is in the process of modernizing its crime laboratories. By
creating a limited exception in the most serious sexual
assault cases where the only means of identifying the
perpetrator is through forensic DNA technology, it will enable
law enforcement to take full advantage of this powerful new
tool. AB 1742 will ensure that we solve the most heinous of
crimes while maintaining the balance between vigorous
enforcement and the traditional policy reasons underlying the
statute of limitations."
Because of the backlog of samples in sex offense cases where DNA
was the only evidence as to the identity of the perpetrator,
the Legislature was willing to create a "limited exception" to
the general six-year statute of limitation in sex offense
cases. The offenses added under this bill are offenses in
which DNA is likely never to be a factor in identifying a
suspect. Hence, it makes little sense to draft such a broad
provision. AB 1742 specified certain sex offenses because
there is often DNA evidence; so often, it made sense to at
least have a chance to test samples stored at DOJ in hundreds
of sex offense cases.
3)Statutes of Limitations under Current Law : The statute of
limitations requires commencement of a prosecution within a
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certain period of time after the commission of a crime. A
prosecution is initiated by filing an indictment or
information, filing a complaint, certifying a case to superior
court, or issuing an arrest or bench warrant. (Penal Code
Section 804.) If prosecution is not commenced within the
applicable period of limitation, it is a complete defense to
the charge. The statute of limitations is jurisdictional and
may be raised as a defense at any time, before or after
judgment. (People v. Morris (1988) 46 Cal.3d 1, 13.) The
defense may only be waived under limited circumstances. [See:
Cowan v. Superior Court (1996) 14 Cal.4th 367.]
The amount of time a prosecuting agency may charge an alleged
defendant varies based on the crime. A misdemeanor offense
must be charged within one year of the crime. Felonies
generally require prosecution within three years, although
there are exceptions. (Penal Code Section 801.) Offenses
that may be sentenced to more than eight years in prison must
be charged within six years. (Penal Code Section 800.)
Felony offenses that would require a defendant to register as
a sex offender have a 10-year statute of limitation and may
also be controlled by the age of the victim. If the relevant
felony sex offense occurred when the victim was under the age
of 18, prosecution may be delayed until the victim reaches the
age of 28. (Penal Code Section 801.1.) Therefore, if the
victim was age 10 at the time of the offense, the prosecutor
would have 18 years to file charges. Specified felony fraud
or embezzlement charges may be commenced four years after the
date of offense or may be tolled until discovery of the crime.
(Penal Code Section 801.5.)
Very serious offenses, such as murder or an offense for which an
offender could receive a life or death sentence, do not have a
statute of limitation. (Penal Code Section 799.) The
author's statement points out a cold murder case solved by the
discovery of DNA evidence. Murder has no statute of
limitation under current law. Under Penal Code Section
803(g)(1)(B), a DNA sample collected for an offense committed
before 2001, must be tested no later than January 2004. If
the offense is committed after 2001, the sample must be tested
within two years. The first time frame has come and gone,
leaving only the two-year rule as a restriction on when a DNA
sample must be tested. This bill extends that time frame from
two years to five years.
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4)Argument in Support :
a) According to the Los Angeles County Sheriff's
Department , "One of the biggest problems facing the
criminal justice system today is the substantial backlog of
unanalyzed DNA samples and biological evidence from crime
scenes, especially in sexual assault cases. Too often,
crime scene samples wait unanalyzed in law enforcement or
crime lab storage facilities. Timely analysis of these
samples and placement into DNA database can avert tragic
results. Currently, there are over 10,000 sexual assault
rape kits awaiting DNA processing in Los Angeles County
alone. AB 383 will ensure that all rape kits are processed
and all biological evidence, collected in connection with
the offense, is analyzed for DNA type and entered into the
Combined DNA Index System (CODIS). The processing of all
rape kits, in order to obtain DNA fingerprints, provides
the most conclusive proof of identity, giving law
enforcement the ability to solve crimes, convict the guilty
and exonerate the wrongfully accused.
"A recent Los Angeles City Auditor report found there are
thousands of rape kits awaiting DNA processing in LAPD
evidence lockers. At the Los Angeles County Sheriff's
Department, we have nearly 5,000 rape kits awaiting DNA
processing in our evidence lockers. In addition to being
an invaluable tool to solve crimes and convict the guilty,
the testing of all rape kits is equally invaluable in
exonerating the innocent. According to the National
Innocence Project, there have been over 50 cases in which a
defendant was convicted of a sexual assault and only later
to have their convictions overturned when DNA evidence
showed that the individual convicted was innocent of the
sexual assault. AB 383 extends from two years to five
years the time period in which law enforcement agencies
have to analyze biological evidence collected in sexual
assault cases for DNA and enter the information in CODIS."
b) According to the Los Angeles County District Attorney's
Office : "One of the biggest problems facing the criminal
justice system today is the substantial backlog of
unanalyzed DNA samples and biological evidence from crime
scenes, especially in sexual assault cases. Too often,
crime scene samples wait unanalyzed in police or crime lab
storage facilities. Timely analysis of these samples and
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placement into DNA databases can avert tragic results.
Currently there are over 10,000 sexual assault rape kits
awaiting DNA processing in Los Angeles County alone. A
recent Los Angeles City Auditor report found there are
thousands of rape kits awaiting DNA processing in LAPD
evidence lockers. The Los Angeles County Sheriff indicates
they have nearly 5,000 rape kits awaiting DNA processing in
their evidence lockers.
"AB 383 will ensure that all rape kits are processed and all
biological evidence collected in connection with the
offense is analyzed for DNA type and entered into the
Combined DNA Index System (CODIS). AB 383 extends from two
years to five years the time in which law enforcement
agencies have to analyze biological evidence collected in
sexual assault cases for DNA type and to enter the
information into CODIS. The processing of all rape kits in
order to obtain DNA fingerprints provides the most
conclusive proof of identity giving law enforcement the
ability to solve crimes, convict the guilty and exonerate
the wrongfully accused.
"Modern forensic technology affords law enforcement
crime-fighting opportunities never presented before. DNA
collection and analysis gives the criminal justice field a
powerful tool for convicting the guilty and exonerating the
innocent. Only one-tenth of a single percent of DNA (about
3 million bases) differs from one person to the next.
Scientists can use these variable regions to generate a DNA
profile of an individual, using samples from blood, bone,
hair, and other body tissues and products. In criminal
cases, this generally involves obtaining samples from
crime-scene evidence and a suspect, extracting the DNA, and
analyzing it for the presence of a set of specific DNA
regions (markers).
"DNA analysis is a powerful tool because each person's DNA is
unique (with the exception of identical twins). Therefore,
DNA evidence collected from a crime scene can implicate or
eliminate a suspect, similar to the use of fingerprints. It
also can analyze unidentified remains through comparisons
with DNA from relatives. Additionally, when evidence from
one crime scene is compared with evidence from another
using CODIS, those crime scenes can be linked to the same
perpetrator locally, statewide, and nationally. DNA is
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also a powerful tool because when biological evidence from
crime scenes is collected and stored properly, forensically
valuable DNA can be found on evidence that may be decades
old. Therefore, old cases that were previously thought
unsolvable may contain valuable DNA evidence capable of
identifying the perpetrator.
"California's DNA Data Bank Program is generating
investigative leads at an unprecedented rate, ranging from
150 to 250 "cold hits" per month. Sexual assault crimes
tend to feature DNA-based identification evidence, making
them prime candidates for DNA database cold hits possibly
years down the road.
"In addition to being an invaluable tool to solve crimes and
convict the guilty the testing of all rape kits is equally
invaluable in exonerating the innocent. According to the
National Innocence Project, there have been over 50 cases
in which a defendant was convicted of a sexual assault only
later to have their convictions overturned when DNA
evidence showed that the individual convicted was innocent
of the sexual assault. If there is one rape kit sitting on
a shelf, there is a victim without justice.
5)Prior Legislation : AB 718 (Fuller), of the 2007-08 Legislative
Session, would have deleted the time frame in which DNA
evidence must be tested after it is collected in order to
preserve the statute of limitations in sex offense cases, as
specified. AB 718 was held on the Assembly Appropriations'
Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California District Attorneys Association
California State Sheriffs' Association
Los Angeles County Sheriff's Department
Los Angeles County District Attorney's Office
Opposition
None received
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Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744