Metropolitan News-Enterprise


Wednesday, September 9, 2009


Page 3


C.A. Clarifies Time in Which to Prosecute Based on DNA Results


By STEVEN M. ELLIS, Staff Writer


The extended one-year statute of limitations on crimes solved by DNA evidence begins to run when most of the work necessary to present the evidence at trial has been completed, not when the evidence first identifies a suspect, this district’s Court of Appeal held yesterday.

Recognizing the possible elimination of any limitations period for such crimes, Div. Seven ruled that any match must be evaluated and verified by trained criminalists following established laboratory protocols before a suspect’s identity is “conclusively established,” triggering Penal Code Sec. 803(g)(1)’s limitations period.

Lorenzo Birotte sought to dismiss charges of rape, forcible oral copulation and forcible sodomy related to the August 1995 abduction of a woman from a telephone booth in Los Angeles County after a DNA test conducted on Dec. 14, 2004 tied him to the crime.

Birotte, whose DNA was collected and compared to a sample from the 1995 incident after he was convicted of rape and sexual battery in another case, argued that a complaint filed in late December 2005 was untimely under Sec. 803(g)(1).

Exception to Statute

The statute of limitations for the crimes charged is ordinarily 10 years, but Sec. 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.

The prosecution argued that Birotte’s identity was not conclusively established until Dec. 30, 2004, after both the casework unit and the Combined DNA Index System unit of the California Department of Justice’s crime lab had completed their investigation and reports, including technical and administrative reviews, even though the Los Angeles Police Department’s laboratory had been notified of Birotte’s identity earlier.

Los Angeles Superior Court Judge Drew E. Edwards disagreed, but nonetheless denied the motion. He found the statute of limitations began to run on Dec. 27, 2004, the date the Department of Justice sent its notification to the LAPD identifying Birotte as a suspect. He also determined that Birotte’s identity was not conclusively established until the technical and administrative reviews were completed on that date.

Trial Court Upheld

Birotte argued on appeal that his identity as the perpetrator of the 1995 attack was conclusively established by DNA testing on Dec. 14, 2004, but Presiding Justice Dennis M. Perluss wrote that Edwards was correct based on the language of the statute and its legislative history.

“[A]lthough as a practical matter it may eliminate any limitations period for crimes to which Sec. 803(g)(1) applies, a reasonable interpretation of the statutory language, viewed in context, suggests the additional one-year limitations period does not commence until a biological sample has been obtained with a sufficient chain of custody for the DNA profile developed from it to be admissible in evidence, that DNA profile has been matched to a DNA profile developed from crime scene evidence and statistical analyses have been completed that establish with sufficient certainty the suspect is the source of the evidentiary profile.”

Justice Frank Y. Jackson joined Perluss in his opinion, but Justice Laurie D. Zelon joined only in holding that Birotte’s petition for a writ of mandate should be denied.

Zelon agreed that the statute of limitations was not triggered until the Department of Justice lab completed its review of the case in accordance with its own protocols, but argued that the prosecution had not asserted that any later statutory date should be established and that the record before the court required no further conclusions.

She explained:

“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.”

The case is Birotte v. Superior Court (People), B213606.


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