Amended in Senate May 7, 2014

Amended in Senate March 17, 2014

Senate Bill No. 980

Introduced by Senator Lieu

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(Coauthor: Senator Leno)

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February 11, 2014

An act to amend Sections 1405 and 1417.9 of, and to add Section 1405.1 to, the Penal Code, relating to DNA testing.

LEGISLATIVE COUNSEL’S DIGEST

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

(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.

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.

(2) Existing law requires a court to grant the motion for DNA testing if it determines, among other things, 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 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.

(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.

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.

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.

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.

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

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.

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

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

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

SECTION 1.  

Section 1405 of the Penal Code is amended to
read:

1405.  

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

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

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

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

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

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

(c) Upon appointment of counsel pursuant to subdivision (b),
or upon retention of counsel in all other cases, to investigate and,
if appropriate, to file a motion for DNA testing pursuant to this
section, and upon request of counsel, or at any time after a petition
has been filed pursuant to this section, a court may order that
counsel, or counsel’s representatives, be provided access to
physical evidence for the purpose of examination, including, but
not limited to, any 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. Upon request of counsel,
and upon a showing that there is good cause to believe that it is
reasonably necessary to counsel’s effort to investigate whether a
motion for DNA testing is appropriate, the court also may order
all of the following:

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

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

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

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

(d) (1) The motion for DNA testing shall be verified by the
convicted person under penalty of perjury and shall do all of the
following:

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

(B) Explain, in light of all the evidence, how the requested DNA
testing would be relevant to the issue of the identity of the
perpetrator.

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

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

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

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

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

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

(g) Before the begin delete grant end delete begin insert granting end insert of a motion for DNA testing
pursuant to this section, the defendant is not required to show that
a favorable test would conclusively establish his or her innocence.
Rather, the court shall grant the motion for DNA testing if it
determines all of the following have been established:

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

(2) The evidence to be tested has been subject to a chain of
custody sufficient to establish it has not been substituted, tampered
with, replaced, or altered in any material aspect, if the chain of
custody does not establish the integrity of the evidence, the testing
itself has the potential to establish the integrity of the evidence.
For purposes of this section, evidence that has been in the custody
of law enforcement, other government officials, or a public or
private hospital shall be presumed to satisfy the chain of custody
requirement of this paragraph, absent specific evidence of material
tampering, replacement, or alteration.

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

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

(5) The requested DNA testing results would be relevant to the
issue of the identity of the perpetrator. In making this determination
pursuant to this paragraph, the court shall presume the requested
testing results will be exculpatory, and shall determine whether
the requested DNA testing results would be relevant to the issue
of the identity of the perpetrator. Exculpatory results may be results
that exclude the convicted person, or results that both exclude the
convicted person and match another suspect or an offender in the
Combined DNA Index System (CODIS) as defined in Section
1405.1, or match an unrelated crime or crimes in CODIS. The
court in its discretion may consider any evidence whether or not
it was introduced at trial.

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

(A) The evidence was not tested previously.

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

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

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

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

(2) The testing shall be conducted by a laboratory mutually
agreed upon by the district attorney in a noncapital case, or the
Attorney General in a capital case, and the person filing the motion.
If the parties cannot agree, the court shall designate the laboratory
to conduct the testing and shall consider designating a laboratory
accredited by an accreditation body that is a signatory to the
International Laboratory Accreditation Cooperation (ILAC) Mutual
Recognition Agreement (MRA) and offers forensic laboratory
accreditation services.

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

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

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

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

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

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

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

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

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

SEC. 2.  

Section 1405.1 is added to the Penal Code, to read:

1405.1.  

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

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

SEC. 3.  

Section 1417.9 of the Penal Code is amended to read:

1417.9.  

(a) Notwithstanding any other provision of law and
subject to subdivision (b), the appropriate governmental entity
shall 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 that
case. The governmental entity shall have the discretion to determine
how the evidence is retained pursuant to this section, provided that
the evidence is retained in a condition suitable for deoxyribonucleic
acid (DNA) testing.

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

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

(2) The notifying entity does not receive, within one year of
sending the notification, any of the following:

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

(B) A request under penalty of perjury that the material not be
destroyed or disposed of because the declarant will file a motion
for DNA testing pursuant to Section 1405 within one year, unless
a request for an extension is requested by the convicted person
and agreed to by the governmental entity in possession of the
evidence.

(C) A declaration of innocence under penalty of perjury that
has been filed with the court within one year of the judgment of
conviction or July 1, 2001, whichever is later. However, the court
shall permit the destruction of the evidence upon a showing that
the declaration is false or there is no issue of identity that would
be affected by additional testing. The convicted person may be
cross-examined on the declaration at any hearing conducted under
this section or on an application by or on behalf of the convicted
person filed pursuant to Section 1405.

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

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

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

SEC. 4.  

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

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