Senate BillNo. 980


Introduced by Senator Lieu

February 11, 2014


An act to amend Section 1405 of the Penal Code, relating to DNA testing.

LEGISLATIVE COUNSEL’S DIGEST

SB 980, as introduced, 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. Existing 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.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

P1    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.

P2    1(b) (1) An indigent convicted person may request appointment
2of counsel to prepare a motion under this section by sending a
3written request to the court. The request shall include the person’s
4statement that he or she was not the perpetrator of the crime and
5that DNA testing is relevant to his or her assertion of innocence.
6The request also shall include the person’s statement as to whether
7he or she previously has had counsel appointed under this section.

8(2) If any of the information required in paragraph (1) is missing
9from the request, the court shall return the request to the convicted
10person and advise him or her that the matter cannot be considered
11without the missing information.

12(3) (A) Upon a finding that the person is indigent, he or she
13has included the information required in paragraph (1), and counsel
14has not previously been appointed pursuant to this subdivision,
15the court shall appoint counsel to investigate and, if appropriate,
16to file a motion for DNA testing under this section and to represent
17the person solely for the purpose of obtaining DNA testing under
18this section.

19(B) Upon a finding that the person is indigent, and counsel
20previously has been appointed pursuant to this subdivision, the
21court may, in its discretion, appoint counsel to investigate and, if
22appropriate, to file a motion for DNA testing under this section
23and to represent the person solely for the purpose of obtaining
24DNA testing under this section.

25(4) begin deleteNothing in this section shall be construed to end deletebegin insertThis section
26does not end insert
provide for a right to the appointment of counsel in a
27postconviction collateral proceeding, or to set a precedent for any
28such right, in any context other than the representation being
29provided an indigent convicted person for the limited purpose of
30filing and litigating a motion for DNA testing pursuant to this
31section.

32(c) (1) The motion shall be verified by the convicted person
33under penalty of perjury and shall do all of the following:

34(A) Explain why the identity of the perpetrator was, or should
35have been, a significant issue in the case.

36(B) Explain, in light of all the evidence, how the requested DNA
37testing would raise a reasonable probability that the convicted
38person’s verdict or sentence would be more favorable if the results
39of DNA testing had been available at the time of conviction.

P3    1(C) Make every reasonable attempt to identify both the evidence
2that should be tested and the specific type of DNA testing sought.

3(D) Reveal the results of any DNA or other biological testing
4that was conducted previously by either the prosecution or defense,
5if known.

6(E) State whether any motion for testing under this section
7previously has been filed and the results of that motion, if known.

8(2) Notice of the motion shall be served on the Attorney General,
9the district attorney in the county of conviction, and, if known, the
10governmental agency or laboratory holding the evidence sought
11to be tested. Responses, if any, shall be filed within 60 days of the
12date on which the Attorney General and the district attorney are
13served with the motion, unless a continuance is granted for good
14cause.

15(d) If the court finds evidence was subjected to DNA or other
16forensic testing previously by either the prosecution or defense, it
17shall order the party at whose request the testing was conducted
18to provide all parties and the court with access to the laboratory
19reports, underlying data, and laboratory notes prepared in
20connection with the DNA or other biological evidence testing.

21(e) 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) The court shall grant the motion for DNA testing if it
29determines all of the following have been established:

30(1) The evidence to be tested is available and in a condition that
31would permit the DNA testing requested in the motion.

32(2) The evidence to be tested has been subject to a chain of
33custody sufficient to establish it has not been substituted, tampered
34with, replaced or altered in any material aspect.

35(3) The identity of the perpetrator of the crime was, or should
36have been, a significant issue in the case.

37(4) The convicted person has made a prima facie showing that
38the evidence sought to be tested is material to the issue of the
39convicted person’s identity as the perpetrator of, or accomplice
P4    1to, the crime, special circumstance, or enhancement allegation that
2resulted in the conviction or sentence.

3(5) The requested DNA testing results would raise a reasonable
4probability that, in light of all the evidence, the convicted person’s
5verdict or sentence would have been more favorable if the results
6of DNA testing had been available at the time of conviction. The
7court in its discretion may consider any evidence whether or not
8it was introduced at trial.

9(6) The evidence sought to be tested meets either of the
10following conditions:

11(A) The evidence was not tested previously.

12(B) The evidence was tested previously, but the requested DNA
13test would provide results that are reasonably more discriminating
14and probative of the identity of the perpetrator or accomplice or
15have a reasonable probability of contradicting prior test results.

16(7) The testing requested employs a method generally accepted
17within the relevant scientific community.

18(8) The motion is not made solely for the purpose of delay.

19(g) (1) If the court grants the motion for DNA testing, the court
20order shall identify the specific evidence to be tested and the DNA
21technology to be used.

22(2) The testing shall be conducted by a laboratory mutually
23agreed upon by the district attorney in a noncapital case, or the
24Attorney General in a capital case, and the person filing the motion.
25If the parties cannot agree, the court shall designate the laboratory
26to conduct the testing and shall consider designating a laboratory
27accredited by the American Society of Crime Laboratory Directors
28Laboratory Accreditation Board (ASCLD/LAB).

29(h) The result of any testing ordered under this section shall be
30fully disclosed to the person filing the motion, the district attorney,
31and the Attorney General. If requested by any party, the court shall
32order production of the underlying laboratory data and notes.

33(i) (1) The cost of DNA testing ordered under this section shall
34be borne by the state or the applicant, as the court may order in
35the interests of justice, if it is shown that the applicant is not
36indigent and possesses the ability to pay. However, the cost of any
37additional testing to be conducted by the district attorney or
38Attorney General shall not be borne by the convicted person.

39(2) In order to pay the state’s share of any testing costs, the
40laboratory designated in subdivision (g) shall present its bill for
P5    1services to the superior court for approval and payment. It is the
2intent of the Legislature to appropriate funds for this purpose in
3the 2000-01 Budget Act.

4(j) An order granting or denying a motion for DNA testing under
5this section shall not be appealable, and shall be subject to review
6only through petition for writ of mandate or prohibition filed by
7the person seeking DNA testing, the district attorney, or the
8Attorney General. The petition shall be filed within 20 days after
9the court’s order granting or denying the motion for DNA testing.
10In a noncapital case, the petition for writ of mandate or prohibition
11shall be filed in the court of appeal. In a capital case, the petition
12shall be filed in the California Supreme Court. The court of appeal
13or California Supreme Court shall expedite its review of a petition
14for writ of mandate or prohibition filed under this subdivision.

15(k) DNA testing ordered by the court pursuant to this section
16shall be done as soon as practicable. However, if the court finds
17that a miscarriage of justice will otherwise occur and that it is
18necessary in the interests of justice to give priority to the DNA
19testing, a DNA laboratory shall be required to give priority to the
20DNA testing ordered pursuant to this section over the laboratory’s
21other pending casework.

22(l) DNA profile information from biological samples taken from
23a convicted person pursuant to a motion for postconviction DNA
24testing is exempt from any law requiring disclosure of information
25to the public.

26(m) Notwithstanding any other provision of law, the right to
27file a motion for postconviction DNA testing provided by this
28section is absolute and shall not be waived. This prohibition applies
29to, but is not limited to, a waiver that is given as part of an
30agreement resulting in a plea of guilty or nolo contendre.

31(n) The provisions of this section are severable. If any provision
32of this section or its application is held invalid, that invalidity shall
33not affect other provisions or applications that can be given effect
34without the invalid provision or application.



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