SB 980, as amended, Lieu. Prisoners: DNA testing.
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. Existingend delete
law requires a court to grant the motion for DNA testing if it determines 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.
This bill would make a technical, nonsubstantive change to these provisions.
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State-mandated local program: begin deleteno end delete.
The people of the State of California do enact as follows:
Section 1405 of the Penal Code is amended to
(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
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.
32 26(c)end delete
27 (1) The motion shall be verified by the
28convicted person under penalty of perjury and shall do all of the
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
begin 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
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,
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
15 13(d)end delete
14 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.
21 20(e)end delete
21 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.
28(f) Theend delete
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, replaced or altered in any material
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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.
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.
31(6) The evidence sought to be tested meets either of the
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.
19 P8 1(g)end delete
2 (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
begin delete the American Society of Crime Laboratory Directors .
11Laboratory Accreditation Board (ASCLD/LAB)end delete
29 21(h)end delete
22 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.
33 26(i)end delete
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
38the cost of any additional testing to be conducted by the district
39attorney or Attorney General shall not be borne by the convicted
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.
4 6(j)end delete
7 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
15 19(k)end delete
20 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.
begin delete(end delete begin deletelend delete begin delete)end delete begin deleteDNAend delete
28 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.
26 32(m)end delete
33 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.
31 38(n)end delete
39 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.
(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
26incarcerated 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 incarcerated 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, within
begin delete 90 daysend delete 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
9(B) A request under penalty of perjury that the material not be
10destroyed or disposed of because the declarant will file
begin delete within 180 a motion for DNA testing pursuant to Section 1405
begin delete that is , unless a request for an
12followed within 180 days by a motion for DNA testing pursuant
13to Section 1405end delete
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 within
begin delete 180 daysend delete 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.