Bill Text: CA SB271 | 2011-2012 | Regular Session | Amended
Bill Title: Evidence: rape kits: expedited processing.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-31 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB271 Detail]
Download: California-2011-SB271-Amended.html
BILL NUMBER: SB 271 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 23, 2011
INTRODUCED BY Senator Wyland
FEBRUARY 14, 2011
An act to amend Section 13823.7 of the Penal Code,
relating to An act to amend Section 76104.6 of the
Government Code, and to add Section 680.5 to the Penal Code, relating
to evidence.
LEGISLATIVE COUNSEL'S DIGEST
SB 271, as amended, Wyland. Evidence: rape kit.
kits: expedited processing.
Existing law, the DNA Fingerprint, Unresolved Crime and Innocence
Protection Act, an initiative measure approved by the voters in the
November 2, 2004, statewide general election, creates in the State
Treasury the state's DNA Identification Fund, and makes revenue from
the fund, upon appropriation by the Legislature, available to the
Attorney General solely to support DNA testing and to offset the
impacts of increased testing. That act also provides for an increase
in criminal penalties, revenues from which are allocated to state and
local government to fund the expansion of DNA collection as required
by the act. Of the funds attributable to that increase in penalties,
existing law allocates 70% of the funds to the state within the
first 2 years following the approval of the act; 50% of the funds to
the state in the 3rd year; and thereafter, 25% of the funds to the
state, with the remaining funds allocated to local governments.
Existing law provides that any funds remaining in a county's share of
the increase may be used for specified purposes, including
expenditures made in connection with the processing, analysis,
tracking, and storage of DNA crime scene samples from cases in which
DNA evidence would be useful in identifying or prosecuting suspects,
including the procurement of equipment and software for the
processing, analysis, tracking, and storage of DNA crime scene
samples.
This bill would specifically provide that a county's remaining
share of funds attributable to the increase in penalties as required
by the act may be used by a local sheriff, police department,
district attorney, or other law enforcement agency for expenditures
and administrative costs made or incurred for utilizing a laboratory,
other than the Department of Justice Laboratory, as specified, to
expedite the analysis and processing of rape kits and uploading rape
kit information to the CAL-DNA Databank and the Federal Bureau of
Investigation Combined DNA Index System.
The DNA Fingerprint, Unresolved Crime and Innocence Protection Act
specifies that its provisions may be amended by the Legislature if
the amendment furthers the act and is consistent with the purpose of
the act to enhance the use of DNA identification evidence for the
purpose of accurate and expeditious crime solving and for exonerating
the innocent.
This bill would also include a legislative finding that the bill
furthers, and is consistent with, the purpose of that act, as
specified.
Existing law, the Sexual Assault Victims' DNA Bill of Rights,
establishes specified rights for sexual assault victims and requires
notification to sexual assault victims prior to the destruction or
disposal of rape kit evidence under certain circumstances.
This bill would, among other things, require law enforcement
agencies that obtain rape kits in connection with the investigation
of a criminal case to submit those rape kits to a laboratory,
approved and designated by the Department of Justice, within 10
business days of receipt. The bill would require any laboratory that
receives a rape kit from a law enforcement agency, as specified, to
complete analysis of that rape kit within 6 months of receipt if
sufficient staffing and resources are available. The bill would
require that the results of all rape kits submitted for analysis
pursuant to these provisions be uploaded, pursuant to rules and
procedures established by the department, to the CAL-DNA Databank and
the Federal Bureau of Investigation Combined DNA Index System. The
bill would require any state or local law enforcement agency, on or
before March 1, 2012, to provide written notice to the Department of
Justice stating the number of rape kits that have not yet been
previously submitted for analysis. Because this bill would impose
additional duties on local law enforcement agencies, it would impose
a state-mandated local program. The bill would require the department
to report to the Legislature and make publicly available on its
Internet Web site the number of unprocessed rape kits collected
statewide prior to the operative date of this act and information
related to the reduction of any backlog.
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.
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.
Existing law provides a protocol for the examination and treatment
of victims of sexual assault or attempted sexual assault, including
child molestation, and the collection and preservation of evidence
therefrom, including the collection of physical evidence of assault,
the collection of other medical specimens, and procedures for the
preservation and disposition of physical evidence.
This bill would make technical, nonsubstantive changes to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 76104.6 of the
Government Code is amended to read:
76104.6. (a) (1) Except as otherwise provided in this section,
for the purpose of implementing the DNA Fingerprint, Unsolved Crime
and Innocence Protection Act (Proposition 69), as approved by the
voters at the November 2, 2004, statewide general election, there
shall be levied an additional penalty of one dollar for every ten
dollars ($10), or part of ten dollars ($10), in each county upon
every fine, penalty, or forfeiture imposed and collected by the
courts for all criminal offenses, including all offenses involving a
violation of the Vehicle Code or a local ordinance adopted pursuant
to the Vehicle Code.
(2) The penalty imposed by this section shall be collected
together with and in the same manner as the amounts established by
Section 1464 of the Penal Code. The moneys shall be taken from fines
and forfeitures deposited with the county treasurer prior to any
division pursuant to Section 1463 of the Penal Code. The board of
supervisors shall establish in the county treasury a DNA
Identification Fund into which shall be deposited the moneys
collected pursuant to this section. The moneys of the fund shall be
allocated pursuant to subdivision (b).
(3) The additional penalty does not apply to the following:
(A) A restitution fine.
(B) A penalty authorized by Section 1464 of the Penal Code or this
chapter.
(C) A parking offense subject to Article 3 (commencing with
Section 40200) of Chapter 1 of Division 17 of the Vehicle Code.
(D) The state surcharge authorized by Section 1465.7 of the Penal
Code.
(b) (1) The fund moneys described in subdivision (a), together
with any interest earned thereon, shall be held by the county
treasurer separate from any funds subject to transfer or division
pursuant to Section 1463 of the Penal Code. Deposits to the fund may
continue through and including the 20th year after the initial
calendar year in which the surcharge is collected, or longer if and
as necessary to make payments upon any lease or leaseback arrangement
utilized to finance any of the projects specified herein.
(2) On the last day of each calendar quarter of the year specified
in this subdivision, the county treasurer shall transfer fund moneys
in the county's DNA Identification Fund to the Controller for credit
to the state's DNA Identification Fund, which is hereby established
in the State Treasury, as follows:
(A) In the first two calendar years following the effective date
of this section, 70 percent of the amounts collected, including
interest earned thereon.
(B) In the third calendar year following the effective date of
this section, 50 percent of the amounts collected, including interest
earned thereon.
(C) In the fourth calendar year following the effective date of
this section and in each calendar year thereafter, 25 percent of the
amounts collected, including interest earned thereon.
(3) Funds remaining in the county's DNA Identification Fund shall
be used only to reimburse local for the
following purposes:
(A) To reimburse a local sheriff
or other law enforcement agencies agency
to collect DNA specimens, samples, and print impressions
pursuant to this chapter; and for expenditures and
administrative costs made or incurred to comply with the requirements
of paragraph (5) of subdivision (b) of Section 298 of the Penal Code
including the procurement of equipment and software integral to
confirming that a person qualifies for entry into the Department of
Justice DNA and Forensic Identification Database and Data Bank
local Program; and to .
(B) To reimburse a local sheriff, police department, district
attorney, or other law enforcement agency for expenditures and
administrative costs made or incurred for utilizing a laboratory,
other than the Department of Justice Laboratory, pursuant to Section
680.5 of the Penal Code to expedite the analysis of rape kits and
upload rape kit information to the CAL-DNA Data Bank and the Federal
Bureau of Investigation Combined DNA Index System in order to proceed
with a pending criminal action or investigation.
(C) To reimburse a local sheriff,
police department , district attorney , and
or regional state crime laboratories
laboratory for expenditures and administrative
costs made or incurred in connection with the processing, analysis,
tracking, and storage of DNA crime scene samples from cases in which
DNA evidence would be useful in identifying or prosecuting suspects,
including the procurement of equipment and software for the
processing, analysis, tracking, and storage of DNA crime scene
samples from unsolved cases.
(4) The state's DNA Identification Fund shall be administered by
the Department of Justice. Funds in the state's DNA Identification
Fund, upon appropriation by the Legislature, shall be used by the
Attorney General only to support DNA testing in the state and to
offset the impacts of increased testing and shall be allocated as
follows:
(A) Of the amount transferred pursuant to subparagraph (A) of
paragraph (2) of subdivision (b), 90 percent to the Department of
Justice DNA Laboratory, first, to comply with the requirements of
Section 298.3 of the Penal Code and, second, for expenditures and
administrative costs made or incurred in connection with the
processing, analysis, tracking, and storage of DNA specimens and
samples including the procurement of equipment and software for the
processing, analysis, tracking, and storage of DNA samples and
specimens obtained pursuant to the DNA and Forensic Identification
Database and Data Bank Act of 1998, as amended by Chapter 6
(commencing with Section 295) of Title 9 of Part 1 of the Penal Code,
and 10 percent to the Department of Justice Information Bureau
Criminal History Unit for expenditures and administrative costs that
have been approved by the Chief of the Department of Justice Bureau
of Forensic Services made or incurred to update equipment and
software to facilitate compliance with the requirements of
subdivision (e) of Section 299.5 of the Penal Code.
(B) Of the amount transferred pursuant to subparagraph (B) of
paragraph (2) of subdivision (b) , funds shall be
allocated by the Department of Justice DNA Laboratory, first, to
comply with the requirements of Section 298.3 of the Penal Code and,
second, for expenditures and administrative costs made or incurred in
connection with the processing, analysis, tracking, and storage of
DNA specimens and samples including the procurement of equipment and
software for the processing, analysis, tracking, and storage of DNA
samples and specimens obtained pursuant to the DNA and Forensic
Identification Database and Data Bank Act of 1998, as amended.
(C) Of the amount transferred pursuant to subparagraph (C) of
paragraph (2) of subdivision (b) , funds shall be
allocated by the Department of Justice to the DNA Laboratory to
comply with the requirements of Section 298.3 of the Penal Code and
for expenditures and administrative costs made or incurred in
connection with the processing, analysis, tracking, and storage of
DNA specimens and samples including the procurement of equipment and
software for the processing, analysis, tracking, and storage of DNA
samples and specimens obtained pursuant to the DNA and Forensic
Identification Database and Data Bank Act of 1998, as amended.
(c) On or before April 1 in the year following adoption of this
section, and annually thereafter, the board of supervisors of each
county shall submit a report to the Legislature and the Department of
Justice. The report shall include the total amount of fines
collected and allocated pursuant to this section, and the amounts
expended by the county for each program authorized pursuant to
paragraph (3) of subdivision (b). The Department of Justice shall
make the reports publicly available on the department's Internet Web
site.
(d) All requirements imposed on the Department of Justice pursuant
to the DNA Fingerprint, Unsolved Crime and Innocence Protection Act
are contingent upon the availability of funding and are limited by
revenue, on a fiscal year basis, received by the Department of
Justice pursuant to this section and any additional appropriation
approved by the Legislature for purposes related to implementing this
act.
(e) Upon approval of the DNA Fingerprint, Unsolved Crime and
Innocence Protection Act, the Legislature shall lend the Department
of Justice General Fund in the amount of seven
million dollars ($7,000,000) for purposes of implementing the act.
The loan shall be repaid with interest calculated at the rate earned
by the Pooled Money Investment Account at the time the loan is made.
Principal and interest on the loan shall be repaid in full no later
than four years from the date the loan was made and shall be repaid
from revenue generated pursuant to this section.
(f) Notwithstanding any other provision of law, the Controller may
use the state's DNA Identification Fund, created pursuant to
paragraph (2) of subdivision (b), for loans to the General Fund as
provided in Sections 16310 and 16381. Any such loan shall be repaid
from the General Fund with interest computed at 110 percent of the
Pooled Money Investment Account rate, with the interest commencing to
accrue on the date the loan is made from the fund. This subdivision
does not authorize any transfer that will interfere with the carrying
out of the object for which the state's DNA Identification Fund was
created.
SEC. 2. Section 680.5 is added to the
Penal Code , to read:
680.5. (a) (1) Any law enforcement agency that receives a rape
kit obtained in connection with the investigation of a criminal case
on or after the operative date of this section shall submit that rape
kit within 10 business days of receipt to a laboratory approved and
designated by the Department of Justice. Any law enforcement agency
that receives a rape kit obtained in connection with the
investigation of a criminal case up to 30 days prior to the effective
date of this act shall submit that rape kit within 10 business days
of the operative date of this section to a laboratory approved and
designated by the department.
(2) Any laboratory that receives a rape kit from a law enforcement
agency pursuant to paragraph (1) shall complete analysis of that
rape kit within six months of receipt if sufficient staffing and
resources are available.
(3) The results of all rape kits submitted for analysis and
analyzed pursuant to paragraphs (1) and (2) shall be uploaded,
pursuant to rules and procedures established by the department, to
the CAL-DNA Databank and the Federal Bureau of Investigation Combined
DNA Index System (CODIS).
(b) (1) On or before March 1, 2012, each state or local law
enforcement agency shall provide written notice to the Department of
Justice, in a form and manner prescribed by the department, stating
the number of rape kits related to a criminal investigation in the
custody of the law enforcement agency that have not been previously
submitted to a laboratory for analysis.
(2) On or before August 31, 2012, all law enforcement agencies
shall make arrangements with one or more laboratories approved and
designated by the Department of Justice to ensure that all rape kits
that were collected prior to the effective date of this act and that
are the subject of a criminal investigation are analyzed, and the
results entered into the CAL-DNA Databank and CODIS.
(3) On or before June 1, 2012, the Department of Justice shall
report to the Legislature and make publicly available on its Internet
Web site the number of unprocessed rape kits collected statewide
prior to the operative date of this section and the most up to date
information on the reduction of any backlog. The report shall be
submitted in compliance with Section 9795 of the Government Code.
(c) The failure of a law enforcement agency to submit a rape kit
collected on or after the operative date of this section pursuant to
subdivision (a) shall in no way alter the authority of the law
enforcement agency to submit the rape kit, the authority of a
laboratory to accept and analyze the rape kit, or the authority of
the appropriate entity to maintain or upload the results into the
CAL-DNA Databank and CODIS.
(d) All rape kit evidence submitted for analysis pursuant to this
section shall be accompanied by the following signed certification:
"This evidence is being submitted by (name of investigating law
enforcement agency) in connection with a prior or current criminal
investigation."
(e) Evidence derived from the analysis of any rape kit is not made
inadmissible in court by the fact that it was not processed and
analyzed within the timeframes required by this section.
(f) (1) If the Department of Justice receives written confirmation
from the investigating law enforcement agency or the department
otherwise determines that a record that has been uploaded into the
CAL-DNA Databank and CODIS was not connected to a criminal
investigation, the record shall be expunged from the CAL-DNA Databank
and the proper procedures followed to expunge the information from
CODIS. The department shall prescribe rules and procedures to ensure
that written confirmation is sent to the submitting law enforcement
agency verifying the expungement.
(2) The failure to expunge a record or strictly comply with the
provisions of paragraph (1) shall not be grounds for challenging the
validity of a CAL-DNA Databank or CODIS match or other CAL-DNA
Databank or CODIS information, and evidence based upon or derived
from the CAL-DNA Databank or CODIS may not be excluded by a court for
these reasons.
(g) The department shall establish rules and regulations for the
operation of this section.
(h) For purposes of this section, "laboratory" means any local
sheriff, police, district attorney, or regional state crime
laboratory or other laboratory that meets state and federal
requirements, including the Federal Bureau of Investigation Quality
Assurance Standards, and that is accredited by an organization
approved by the National DNA Index System Procedures Board for the
processing and analysis of forensic identification samples and
testimony related to that analysis.
SEC. 3. The Legislature finds and declares that
this bill furthers, and is consistent with, the purpose of the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act to enhance
the use of DNA identification evidence for the purpose of accurate
and expeditious crime solving and for exonerating the innocent by
accelerating the testing of DNA samples that cannot be handled in an
expeditious manner without the use of an outside laboratory.
SEC. 4. 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.
SECTION 1. Section 13823.7 of the Penal Code is
amended to read:
13823.7. The protocol adopted pursuant to Section 13823.5 for the
examination and treatment of victims of sexual assault or attempted
sexual assault, including child molestation, and the collection and
preservation of evidence therefrom shall include provisions for all
of the following:
(a) Notification of injuries and a report of suspected child
sexual abuse to law enforcement authorities.
(b) Obtaining consent for the examination, treatment of injuries,
collection of evidence, and photographing of injuries.
(c) Taking a patient history of sexual assault and other relevant
medical history.
(d) Performance of the physical examination for evidence of sexual
assault.
(e) Collection of physical evidence of assault.
(f) Collection of other medical specimens.
(g) Procedures for the preservation and disposition of physical
evidence.
