BILL ANALYSIS �
AB 1682
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Date of Hearing: April 24, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1682 (Portantino) - As Amended: April 9, 2012
As Proposed to be Amended in Committee
SUMMARY : Extends the tolling of the statute of limitations from
two years to five years from the date of the offense for the
analyzing of specified biological evidence.
EXISTING LAW :
1)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 deoxyribonucleic acid
(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).]
2)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.)
3)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.)
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4)States notwithstanding any other limitation of time prescribed
in this chapter, prosecution for a violation of production of
child pornography shall commence within 10 years of the date
of production of the pornographic material. (Penal Code
Section 801.2)
5)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).]
6)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.)
7)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
period must have expired and the alleged crime must have
involved substantial sexual conduct corroborated by evidence,
as specified. �Penal Code Section 803 (f)(1) and (h)(1).]
8)Provides that notwithstanding any other limitation of time
described in this chapter, prosecution for a specified felony
sex offense that is alleged to have been committed when the
victim was under the age of 18 years may be commenced any time
prior to the victim's 28th birthday. �Penal Code Section
801.1(a).]
9)Provides that notwithstanding any other limitation of time
described in this chapter, if existing law does not apply,
prosecution for a felony registerable sex offense shall be
commenced within 10 years after commission of the offense.
�Penal Code Section 801.1(b).]
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "Current statute
of limitations for the crime of rape is tied to the testing of
rape kits. As the science of testing evidence for DNA has
improved the need to test all rape kits has increased
dramatically. Unfortunately, not all rape kits are being
tested.
"When the huge backlog of unopened rape kits was discovered in
Los Angeles in 2008 it was found that over 400 of these kits
had been in evidence lockers longer than the ten year statute
of limitations. These kits could not be used as evidence of
crime. The crime of rape is heinous and has psychological and
physical damage that lasts much longer than ten years. The
passage of time should not preclude the prosecution for this
crime.
"After a rape, evidence from rape kits is held in law
enforcement evidence lockers where many languish, often times
past the statute of limitations for prosecuting the crime.
While the number of unopened or untested kits throughout the
State has been subject to debate, it is clear that local
resources are not adequate to process rape kits for evidence
unless there is a determined commitment to do so. 'Not
testing rape kits after a woman has submitted herself to the
invasive process of collecting a rape kit, betrays the
victim's faith in the criminal justice system, Portantino
said.'"
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
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
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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
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
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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.
4)Public Policy Reasoning Behind Statutes of Limitation :
Criminal statutes of limitations are laws that limit the time
during which a prosecution can be commenced. These statutes
have been in operation for over 350 years and are deeply
rooted in the American legal system. There are several
rationales underlying statutes of limitations. First, they
ensure that prosecutions are based upon reasonably fresh
evidence - the idea being that over time memories fade,
witnesses die or leave the area, and physical evidence becomes
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more difficult to obtain, identify or preserve. In short, the
possibility of erroneous conviction is minimized when
prosecution is prompt. Second, statutes of limitations
encourage law enforcement officials to investigate suspected
criminal activity in a timely fashion. In addition, it is
thought that the statute of limitations may reduce the
possibility of blackmail based on threats to disclose
information to prosecutors or law enforcement officials.
Another rationale is that as time goes by, the likelihood
increases that an offender has reformed, making punishment
less necessary. In addition, society's retributive impulse
may lessen over time, making punishment less desirable.
Finally, there is the thought that statutes of limitations
provide an overall sense of security and stability to human
affairs. �Lauren Kerns, "Incorporating Tolling Provisions
into Sex Crimes Statute of Limitations", 13 Temple Policy and
Civil Rights Law Review, 325, 327; internal citation omitted.]
In 1984, the California Law Revision Commission published a
series of recommendations to revise the statute of
limitations. The impetus for reform derived from numerous
changes made to the statute by the Legislature. There were 11
legislative enactments amending the felony statute of
limitations in 14 years. The Commission commented, "This
simple scheme has been made complex by numerous modifications
. . . the result of this development is that the California
law is complex and filled with inconsistencies."
5)Statute of Limitations under Current Law for Sex Offenses :
Sex offenses have various statutes of limitations depending on
the specific facts and certain offenses. A criminal complaint
may be filed within one year of the date of a report to law
enforcement by any person who, while under the age of 18, was
the victim of rape, sodomy, child molestation, forcible oral
copulation, continuous sexual abuse of a child, sexual
penetration and fleeing the state with the intent to avoid
prosecution for a specified sex offense. However, the
existing statute of limitations must have expired, the crime
must have involved substantial sexual conduct and there must
be independent evidence to corroborate the victim's
allegations. If the victim is 21 years of age or older at the
time of the report, the independent evidence shall clearly and
convincingly corroborate the victim's allegations. �Penal
Code Section 803(f)(1) to (3).]
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A criminal complaint may also be filed for the above-mentioned
sex offenses any time before the victim's 28th birthday when
the offense is alleged to have occurred when the victim was
under the age of 18. Also, if that time period has elapsed,
any prosecution for a felony registerable sex offense may
commence 10 years after the date of commission. �Penal Code
Section 801.1(a) to (b).]
DNA evidence in specified sex offense cases may also toll the
statute of limitations. A criminal complaint may be filed
within one year of the time in which a suspect is conclusively
identified by DNA. �Penal Code Section 803(g)(1).]
6)Prior Legislation : AB 383 (Lieu), of the 2009-2010
Legislative Session, extended 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. AB 383 failed passage in
Senate Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
California Communities United Institute
California Police Chiefs Association
California State Sheriffs' Association
Crime Victims United
Junior Leagues of California
Opposition
California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
AB 1682
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