Amended in Senate March 17, 2014

Senate BillNo. 980


Introduced by Senator Lieu

February 11, 2014


An act to amendbegin delete Sectionend deletebegin insert Sectionsend insert 1405begin insert and 1417.9end insert ofbegin insert, and to add Section 1405.1 to,end insert the Penal Code, relating to DNA testing.

LEGISLATIVE COUNSEL’S DIGEST

SB 980, as amended, Lieu. Prisoners: DNA testing.

begin delete

Existing law allows a person who was convicted of a felony and is currently serving a term of imprisonment to make a motion for the performance of forensic deoxyribonucleic acid (DNA) testing. Existing

end delete
begin insert

(1) Existing law allows an incarcerated person who has been convicted of a felony to make a written motion for the performance of forensic deoxyribonucleic acid (DNA) testing according to a specified procedure.

end insert
begin insert

This bill would, upon appointment or retention of counsel to investigate and file a motion pursuant to these provisions, or at any time after a petition for DNA testing has been filed, authorize a court to order that counsel be provided access to physical evidence for the purpose of examining physical evidence relating to the investigation, arrest, and prosecution of the defendant upon a showing that there is good cause to believe that access to physical evidence is reasonably necessary to the counsel’s effort to investigate whether a motion for DNA testing is appropriate, as specified. By increasing the duties of local governments in providing access to physical evidence, this bill would impose a state-mandated local program.

end insert

begin insert (2)end insertbegin insertend insertbegin insertExistingend insert law requires a court to grant the motion for DNA testing if it determinesbegin insert, among other things,end insert that the requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person’s verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction.

begin insert

This bill would instead require the court to grant the motion if it determines that the DNA testing results would be relevant to the issue of the identity of the perpetrator, and would require the court to presume the requested testing results would be exculpatory. The bill also would make conforming changes regarding the required contents of a petition requesting DNA testing. The bill would authorize a court to order a database search of the Combined DNA Index System to compare a profile obtained from the results of DNA testing conducted pursuant to these provisions to the profiles contained in the databank. The bill would change the accreditation requirements for a laboratory that may be designated by the court to perform the DNA testing pursuant to these provisions if the parties cannot mutually agree on a laboratory, as specified.

end insert
begin insert

(3) Existing law requires the appropriate governmental entity to retain all biological material that is secured in connection with a criminal case for the period of time that any person remains incarcerated in connection with the case. Existing law allows the governmental entity to dispose of biological material before the expiration of this time period if the governmental entity notifies the inmate and his or her counsel, and the notifying entity does not receive, within 90 days of sending the notification, a motion for DNA testing, a request that the material not be destroyed because a motion for DNA testing will be filed within 180 days, or a declaration of innocence that has been filed with the court within 180 days of the judgment of conviction.

end insert
begin insert

This bill would require the governmental entity to retain all biological material that is secured in connection with a criminal case for the period of time that any person remains incarcerated, on probation, or on parole in connection with the case. The bill would allow the governmental entity to dispose of biological material before the expiration of this time if the governmental entity notifies the inmate and his or her counsel, and the notifying entity does not receive, within one year of sending the notification, a motion for DNA testing, a request that the material not be destroyed because a motion for DNA testing will be filed within one year, or a declaration of innocence that has been filed with the court within one year of the judgment of conviction. By increasing the duties of local governmental entities in regard to the retention of biological material, this bill would impose a state-mandated local program.

end insert
begin insert

If evidence has been destroyed in violation of these provisions, and if the appropriate governmental entity receives a request for evidence, the bill would require the agency to submit a statement that a representative from the agency personally searched for the requested evidence and determined that the evidence has been destroyed. This bill would require the statement to be signed under penalty of perjury. By expanding the crime of perjury, this bill would impose a state-mandated local program. The bill would require the court to consider appropriate remedies if it finds that biological evidence has been destroyed.

end insert
begin insert

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.

end insert
begin insert

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

end insert
begin insert

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

end insert

This bill would make a technical, nonsubstantive change to these provisions.

Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 1405 of the Penal Code is amended to
2read:

3

1405.  

(a) A person who was convicted of a felony and is
4currently serving a term of imprisonment may make a written
5motion before the trial court that entered the judgment of conviction
6in his or her case, for performance of forensic deoxyribonucleic
7acid (DNA) testing.

8(b) (1) An indigent convicted person may request appointment
9of counsel to prepare a motion under this section by sending a
10written request to the court. The request shall include the person’s
11statement that he or she was not the perpetrator of the crime and
P4    1that DNA testing is relevant to his or her assertion of innocence.
2The request also shall include the person’s statement as to whether
3he or she previously has had counsel appointed under this section.

4(2) If any of the information required in paragraph (1) is missing
5from the request, the court shall return the request to the convicted
6person and advise him or her that the matter cannot be considered
7without the missing information.

8(3) (A) Upon a finding that the person is indigent, he or she
9has included the information required in paragraph (1), and counsel
10has not previously been appointed pursuant to this subdivision,
11the court shall appoint counsel to investigate and, if appropriate,
12to file a motion for DNA testing under this section and to represent
13the person solely for the purpose of obtaining DNA testing under
14this section.

15(B) Upon a finding that the person is indigent, and counsel
16previously has been appointed pursuant to this subdivision, the
17court may, in its discretion, appoint counsel to investigate and, if
18appropriate, to file a motion for DNA testing under this section
19and to represent the person solely for the purpose of obtaining
20DNA testing under this section.

21(4) This section does not provide for a right to the appointment
22of counsel in a postconviction collateral proceeding, or to set a
23precedent for any such right, in any context other than the
24representation being provided an indigent convicted person for the
25limited purpose of filing and litigating a motion for DNA testing
26pursuant to this section.

begin insert

27(c) Upon appointment of counsel pursuant to subdivision (b),
28or upon retention of counsel in all other cases, to investigate and,
29if appropriate, to file a motion for DNA testing pursuant to this
30section, and upon request of counsel, or at any time after a petition
31has been filed pursuant to this section, a court may order that
32counsel, or counsel’s representatives, be provided access to
33physical evidence for the purpose of examination, including, but
34not limited to, any physical evidence relating to the investigation,
35arrest, and prosecution of the defendant, upon a showing that there
36is good cause to believe that access to physical evidence is
37reasonably necessary to the counsel’s effort to investigate whether
38a motion for DNA testing is appropriate. Upon request of counsel,
39and upon a showing that there is good cause to believe that it is
40reasonably necessary to counsel’s effort to investigate whether a
P5    1motion for DNA testing is appropriate, the court also may order
2all of the following:

end insert
begin insert

3(1) The appropriate governmental entity to locate and provide
4counsel with any documents, notes, logs, or reports relating to
5items of physical evidence collected in connection with the case
6or to otherwise assist the defendant in locating items of biological
7evidence that the governmental entity contends have been lost or
8destroyed.

end insert
begin insert

9(2) The appropriate governmental entity to take reasonable
10measures to locate biological evidence that may be in its custody.

end insert
begin insert

11(3) The appropriate governmental entity to assist counsel in
12locating relevant evidence that may be in the custody of a public
13or private hospital, public or private laboratory, or other facility.

end insert
begin insert

14(4) The production of laboratory documents of analyses
15performed from the time of evidence intake to disposition, in the
16original form provided by the laboratory, as prepared in
17connection with the examination or analyses of any items collected
18as evidence that may contain biological material. This includes,
19but is not limited to, the underlying data and laboratory notes
20prepared in connection with DNA tests, presumptive tests for the
21presence of biological material, serological tests, and analyses of
22trace evidence, if the evidence had been subjected to that testing.
23Any and all items from the requested case file shall be made
24available, including digital files and nonphotocopied
25photograph-quality prints of photographs taken.

end insert
begin delete

32 26(c)

end delete

27begin insert(d)end insert (1) The motionbegin insert for DNA testingend insert shall be verified by the
28convicted person under penalty of perjury and shall do all of the
29following:

30(A) Explain why the identity of the perpetrator was, or should
31have been, a significant issue in the case.

32(B) Explain, in light of all the evidence, how the requested DNA
33testing wouldbegin delete raise a reasonable probability that the convicted
34person’s verdict or sentence would be more favorable if the results
35of DNA testing had been available at the time of convictionend delete
begin insert be
36relevant to the issue of the identity of the perpetratorend insert
.

37(C) Make every reasonable attempt to identify both the evidence
38that should be tested and the specific type of DNA testing sought.

P6    1(D) Reveal the results of any DNA or other biological testing
2that was conducted previously by either the prosecution or defense,
3if known.

4(E) State whether any motion for testing under this section
5previously has been filed and the results of that motion, if known.

6(2) Notice of the motion shall be served on the Attorney General,
7the district attorney in the county of conviction, and, if known, the
8governmental agency or laboratory holding the evidence sought
9to be tested. Responses, if any, shall be filed within 60 days of the
10date on which the Attorney General and the district attorney are
11served with the motion, unless a continuance is granted for good
12cause.

begin delete

15 13(d)

end delete

14begin insert(e)end insert If the court finds evidence was subjected to DNA or other
15forensic testing previously by either the prosecution or defense, it
16shall order the party at whose request the testing was conducted
17to provide all parties and the court with access to the laboratory
18reports, underlying data, and laboratory notes prepared in
19connection with the DNA or other biological evidence testing.

begin delete

21 20(e)

end delete

21begin insert(f)end insert The court, in its discretion, may order a hearing on the
22motion. The motion shall be heard by the judge who conducted
23the trial, or accepted the convicted person’s plea of guilty or nolo
24contendre, unless the presiding judge determines that judge is
25unavailable. Upon request of either party, the court may order, in
26the interest of justice, that the convicted person be present at the
27hearing of the motion.

begin delete

28(f)  The

end delete

29begin insert(g)end insertbegin insertend insertbegin insertBefore the grant of a motion for DNA testing pursuant to
30this section, the defendant is not required to show that a favorable
31test would conclusively establish his or her innocence. Rather, theend insert

32 court shall grant the motion for DNA testing if it determines all
33of the following have been established:

34(1) The evidence to be tested is available and in a condition that
35would permit the DNA testing requested in the motion.

36(2) The evidence to be tested has been subject to a chain of
37custody sufficient to establish it has not been substituted, tampered
38with, replacedbegin insert,end insert or altered in any materialbegin delete aspect.end deletebegin insert aspect, if the chain
39of custody does not establish the integrity of the evidence, the
40testing itself has the potential to establish the integrity of the
P7    1evidence. For purposes of this section, evidence that has been in
2the custody of law enforcement, other government officials, or a
3public or private hospital shall be presumed to satisfy the chain
4of custody requirement of this paragraph, absent specific evidence
5of material tampering, replacement, or alteration. end insert

6(3) The identity of the perpetrator of the crime was, or should
7have been, a significant issue in the case.

8(4) The convicted person has made a prima facie showing that
9the evidence sought to be tested is material to the issue of the
10convicted person’s identity as the perpetrator of, or accomplice
11to, the crime, special circumstance, or enhancement allegation that
12resulted in the conviction or sentence.

begin delete

13(5) The requested DNA testing results would raise a reasonable
14probability that, in light of all the evidence, the convicted person’s
15verdict or sentence would have been more favorable if the results
16of DNA testing had been available at the time of conviction. The
17court in its discretion may consider any evidence whether or not
18it was introduced at trial.

end delete
begin insert

19(5) The requested DNA testing results would be relevant to the
20issue of the identity of the perpetrator. In making this determination
21pursuant to this paragraph, the court shall presume the requested
22testing results will be exculpatory, and shall determine whether
23the requested DNA testing results would be relevant to the issue
24of the identity of the perpetrator. Exculpatory results may be results
25that exclude the convicted person, or results that both exclude the
26convicted person and match another suspect or an offender in the
27Combined DNA Index System (CODIS) as defined in Section
281405.1, or match an unrelated crime or crimes in CODIS. The
29court in its discretion may consider any evidence whether or not
30it was introduced at trial.

end insert

31(6) The evidence sought to be tested meets either of the
32following conditions:

33(A) The evidence was not tested previously.

34(B) The evidence was tested previously, but the requested DNA
35test would provide results that are reasonably more discriminating
36and probative of the identity of the perpetrator or accomplice or
37have a reasonable probability of contradicting prior test results.

38(7) The testing requested employs a method generally accepted
39within the relevant scientific community.

40(8) The motion is not made solely for the purpose of delay.

begin delete

19 P8    1(g)

end delete

2begin insert(h)end insert (1) If the court grants the motion for DNA testing, the court
3order shall identify the specific evidence to be tested and the DNA
4technology to be used.

5(2) The testing shall be conducted by a laboratory mutually
6agreed upon by the district attorney in a noncapital case, or the
7Attorney General in a capital case, and the person filing the motion.
8If the parties cannot agree, the court shall designate the laboratory
9to conduct the testing and shall consider designating a laboratory
10accredited bybegin delete the American Society of Crime Laboratory Directors
11Laboratory Accreditation Board (ASCLD/LAB)end delete
begin insert an accreditation
12body that is a signatory to the International Laboratory
13Accreditation Cooperation (ILAC) Mutual Recognition Agreement
14 (MRA) and offers forensic laboratory accreditation servicesend insert
.

begin insert

15(3) Analysts, technicians, or other agents of the laboratory
16conducting the testing, including local or state governmental
17laboratories, shall communicate directly with and provide
18documentation directly to both parties simultaneously, and shall
19not communicate with one party individually, unless the parties
20agree otherwise.

end insert
begin delete

29 21(h)

end delete

22begin insert(i)end insert The result of any testing ordered under this section shall be
23fully disclosed to the person filing the motion, the district attorney,
24and the Attorney General. If requested by any party, the court shall
25order production of the underlying laboratory data and notes.

begin delete

33 26(i)

end delete

27begin insert(j)end insert (1)  begin deleteThe cost of DNA testing ordered under this section shall
28be borne by the state or the applicant, as the court may order in
29the interests of justice, if it is shown that the applicant is not
30indigent and possesses the ability to pay. end delete
begin insertThe costs of DNA testing,
31litigation costs incurred by appointed counsel for the defendant,
32and fees to appointed counsel for his or her representation of the
33defendant, ordered pursuant to this section, shall be borne by the
34state if it is shown that the applicant is indigent and not able to
35pay. These costs shall not be borne by the county where the motion
36is filed and granted. If the applicant is not indigent, and is able to
37pay, the court may order the applicant to bear the costs. end insert
However,
38the cost of any additional testing to be conducted by the district
39attorney or Attorney General shall not be borne by the convicted
40person.

P9    1(2) In order to pay the state’s share of any testing costs, the
2laboratory designated in subdivision (g) shall present its bill for
3services to the superior court for approval and payment. It is the
4intent of the Legislature to appropriate funds for this purpose in
5the 2000-01 Budget Act.

begin delete

4 6(j)

end delete

7begin insert(k)end insert An order granting or denying a motion for DNA testing
8under this section shall not be appealable, and shall be subject to
9review only through petition for writ of mandate or prohibition
10filed by the person seeking DNA testing, the district attorney, or
11the Attorney General. The petition shall be filed within 20 days
12after the court’s order granting or denying the motion for DNA
13testing. In a noncapital case, the petition for writ of mandate or
14prohibition shall be filed in the court of appeal. In a capital case,
15the petition shall be filed in the California Supreme Court. The
16court of appeal or California Supreme Court shall expedite its
17review of a petition for writ of mandate or prohibition filed under
18this subdivision.

begin delete

15 19(k)

end delete

20begin insert(l)end insert DNA testing ordered by the court pursuant to this section
21shall be done as soon as practicable. However, if the court finds
22that a miscarriage of justice will otherwise occur and that it is
23necessary in the interests of justice to give priority to the DNA
24testing, a DNA laboratory shall be required to give priority to the
25DNA testing ordered pursuant to this section over the laboratory’s
26other pending casework.

27begin delete(end deletebegin deletelend deletebegin delete)end deletebegin deleteDNAend delete

28begin insert(m)end insertbegin insertend insertbegin insertDNAend insert profile information from biological samples taken
29from a convicted person pursuant to a motion for postconviction
30DNA testing is exempt from any law requiring disclosure of
31information to the public.

begin delete

26 32(m)

end delete

33begin insert(n)end insert Notwithstanding any other provision of law, the right to file
34a motion for postconviction DNA testing provided by this section
35is absolute and shall not be waived. This prohibition applies to,
36but is not limited to, a waiver that is given as part of an agreement
37resulting in a plea of guilty or nolo contendre.

begin delete

31 38(n)

end delete

39begin insert(o)end insert The provisions of this section are severable. If any provision
40of this section or its application is held invalid, that invalidity shall
P10   1not affect other provisions or applications that can be given effect
2without the invalid provision or application.

3begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 1405.1 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
4

begin insert1405.1.end insert  

(a) If the court grants a motion for DNA testing
5pursuant to Section 1405, testing is performed, and a DNA profile
6is obtained from the results of DNA testing of biological material
7that excludes the convicted person, the court may, on its own
8motion or by motion of the defendant, order a database search of
9the Combined DNA Index System (CODIS) to compare the profile
10obtained from the results of DNA testing of biological material to
11the profiles contained within the CODIS databank. DNA profiles
12shall meet current national DNA database index system eligibility
13standards and conform to current Federal Bureau of Investigation
14quality assurance standards in order to be eligible for search
15against the state index system.

16(b) For the purposes of this section, profiles contained within
17the CODIS databank includes those profiles contained with the
18Convicted Offender Index, the Forensic Index, the Arrestee Index,
19the Missing or Unidentified Persons Index, and the Missing
20Persons Reference Index.

end insert
21begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 1417.9 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

22

1417.9.  

(a) Notwithstanding any other provision of law and
23subject to subdivision (b), the appropriate governmental entity
24shall retain all biological material that is secured in connection
25with a criminal case for the period of time that any person remains
26incarceratedbegin insert, on probation, or on paroleend insert in connection with that
27case. The governmental entity shall have the discretion to determine
28how the evidence is retained pursuant to this section, provided that
29the evidence is retained in a condition suitable for deoxyribonucleic
30acid (DNA) testing.

31(b) A governmental entity may dispose of biological material
32before the expiration of the period of time described in subdivision
33(a) if all of the conditions set forth below are met:

34(1) The governmental entity notifies all of the following persons
35of the provisions of this section and of the intention of the
36governmental entity to dispose of the material: any person, who
37as a result of a felony conviction in the case is currently serving a
38term of imprisonment and who remains incarceratedbegin insert, on probation,
39or on paroleend insert
in connection with the case, any counsel of record,
P11   1the public defender in the county of conviction, the district attorney
2in the county of conviction, and the Attorney General.

3(2) The notifying entity does not receive, withinbegin delete 90 daysend deletebegin insert one
4yearend insert
of sending the notification, any of the following:

5(A) A motion filed pursuant to Section 1405. However, upon
6filing of that motion, the governmental entity shall retain the
7material only until the time that the court’s denial of the motion
8is final.

9(B) A request under penalty of perjury that the material not be
10destroyed or disposed of because the declarant will filebegin delete within 180
11daysend delete
a motion for DNA testing pursuant to Section 1405begin delete that is
12followed within 180 days by a motion for DNA testing pursuant
13to Section 1405end delete
begin insert within one yearend insert, unless a request for an extension
14is requested by the convicted person and agreed to by the
15governmental entity in possession of the evidence.

16(C) A declaration of innocence under penalty of perjury that
17has been filed with the court withinbegin delete 180 daysend deletebegin insert one yearend insert of the
18judgment of conviction or July 1, 2001, whichever is later.
19However, the court shall permit the destruction of the evidence
20upon a showing that the declaration is false or there is no issue of
21identity that would be affected by additional testing. The convicted
22person may be cross-examined on the declaration at any hearing
23conducted under this section or on an application by or on behalf
24of the convicted person filed pursuant to Section 1405.

25(3) No other provision of law requires that biological evidence
26be preserved or retained.

27(c) Notwithstanding any other provision of law, the right to
28receive notice pursuant to this section is absolute and shall not be
29waived. This prohibition applies to, but is not limited to, a waiver
30that is given as part of an agreement resulting in a plea of guilty
31or nolo contendre.

begin insert

32(d) If evidence has been destroyed in violation of this section
33or otherwise, and if the appropriate governmental entity receives
34a request for evidence under Section 1405, the appropriate
35governmental entity shall submit a statement that a representative
36from the agency personally searched for the requested evidence,
37without relying upon the agency’s internal index or evidence
38location database, and determined that the evidence has been
39destroyed. The statement shall be signed under penalty of perjury
40by the agency’s representative who conducted the search. If the
P12   1court finds that biological evidence was destroyed in violation of
2the provisions of this section, it shall consider appropriate
3remedies.

end insert
4begin insert

begin insertSEC. 4.end insert  

end insert
begin insert

No reimbursement is required by this act pursuant to
5Section 6 of Article XIII B of the California Constitution for certain
6costs that may be incurred by a local agency or school district
7because, in that regard, this act creates a new crime or infraction,
8eliminates a crime or infraction, or changes the penalty for a crime
9or infraction, within the meaning of Section 17556 of the
10Government Code, or changes the definition of a crime within the
11meaning of Section 6 of Article XIII B of the California
12Constitution.

end insert
begin insert

13However, if the Commission on State Mandates determines that
14this act contains other costs mandated by the state, reimbursement
15to local agencies and school districts for those costs shall be made
16pursuant to Part 7 (commencing with Section 17500) of Division
174 of Title 2 of the Government Code.

end insert


O

    98