BILL NUMBER: SB 813 INTRODUCED
BILL TEXT
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 embezzelment 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 (g) (f) 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)
(f) 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) (f) 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)
(f) 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. (a) 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.
(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.
This
(c) This 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:
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)
801.1. Notwithstanding any other limitation of time
described in this chapter, if subdivision (a)
(b) of Section 799 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.
(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.
(g)
(f) (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.
(h)
(g) 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.
(i)
(h) 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.
(j)
(i) 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.
(k)
(j) 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.