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Name: Birotte v. Superior Court
Case #: B213606
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 09/08/2009
Subsequent History: rev. granted 11/10/09 (S176965)

Under Penal Code section 803, subdivision (g)(1), the statute of limitations for specified sex offenses does not commence to run until the suspect’s identity is conclusively established, which requires that the DNA match is evaluated and verified under established laboratory protocols. Penal Code section 803, subdivision (g)(1) (statute of limitations for specified sex offenses) provides that the complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA testing. The appellate court rejected appellant’s interpretation that his identity was conclusively established by DNA testing on the date of the initial notification report from a criminalist that identified him by name as the offender matched to the forensic unknown profile from the victim’s rape kit. Instead, applying rules of statutory construction to section 803, subdivision (g)(1), it agreed with the People’s position that a suspect’s identity is established only after qualified laboratory staff, following established laboratory protocol, completely evaluate and review the data. In addition, the court offered its guidance for future cases that section 803, subdivision (g)(1) appears to require that data be based on a sample obtained from the suspect with a sufficient chain of custody to permit the People to lay a proper foundation for the evidence. This may dictate that a new sample be obtained from the person identified after the hit notification report has been generated.