Birotte

[EDITORS' NOTE: TEXT NOT CERTIFIED FOR PUBLICATION APPEARS WITH GRAY BACKGROUND BELOW.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 561 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 562 OPINION Lorenzo Birotte was charged with rape, forcible oral copulation and forcible sodomy more than 10 years after the crimes were committed and more than one year after a report first identified him by name as a suspect based on deoxyribonucleic acid (DNA) testing. The statute of limitations for the crimes charged is ordinarily 10 years. (Pen. Code, § 801.1 , subd. (b).) 1 However, section 803, subdivision (g)(1) (section 803(g)(1)), permits a criminal complaint to be filed "within one year of the date on which the identity of the suspect is conclusively established by DNA testing" if certain conditions are met. When is a suspect's identity "conclusively established by DNA testing" within the meaning of section 803(g)(1)? Based on the language of the statute itself, as well as the legislative history of…

I join in holding that the petition should be denied. The statute of limitations in this case was not triggered until the Department of Justice lab completed its review of the case in accordance with its own protocols. However, the People have not asserted that any later statutory date should be established, and the record before this court requires no further conclusions. The additional guidance offered by the majority reaches conclusions concerning legislative intent and statutory interpretation with which I cannot concur, because I believe the mechanism it establishes creates serious obstacles to meaningful implementation of the statute of limitations. I respectfully dissent from that portion of the opinion. The Statute Does Not Require Admissible Evidence to Trigger the Statutory Period The majority interprets the term "conclusively established" on its face to require "more than raw data or tentative or preliminary conclusions," a conclusion with which I agree. (Maj. opn., ante , p. 572.) However, I cannot share the further conclusion that compliance with established scientific protocols is insufficient to meet the statutory requirements. That additional interpretation is…

Steve Cooley, District Attorney, Lael Rubin, Head Deputy District Attorney, Phyllis C. Asayama and Tracey Lopez, Deputy District Attorneys, for Real Party in Interest.

Lorenzo Birotte was charged with rape, forcible oral copulation and forcible sodomy more than 10 years after the crimes were committed and more than one year after a report first identified him by name as a suspect based on deoxyribonucleic acid (DNA) testing. The statute of limitations for the crimes charged is ordinarily 10 years. (Pen. Code, § 801.1, subd. (b).) [1] However, section 803, subdivision (g)(1) (section 803(g)(1)), permits a criminal complaint to be filed "within one year of the date on which the identity of the suspect is conclusively established by DNA testing" if certain conditions are met.

(1) When is a suspect's identity "conclusively established by DNA testing" within the meaning of section 803(g)(1)? Based on the language of the statute itself, as well as the legislative history of Assembly Bill No. 1742 (1999-2000 Reg. Sess.), which added section 803(g)(1) to the Penal Code, the additional one-year limitations period does not begin at least until qualified laboratory…