BILL NUMBER: SB 980 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 27, 2014
AMENDED IN SENATE MAY 7, 2014
AMENDED IN SENATE MARCH 17, 2014
INTRODUCED BY Senator Lieu
(Coauthor: Senator Leno)
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
information and documentation as to the existence and
availability of evidence that may be subject to DNA testing,
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 the information
and documentation 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
state that the defendant is not required to show that a
favorable test result would conclusively establish his or her
innocence before the court may grant a motion for DNA testing .
The bill would authorize a court to order a database
the relevant governmental entity to conduct a keyboard
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
information and documentation as to the existence and availability of
evidence that may be subject to DNA testing , 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
the information and documentation 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 is accessible to the
governmental entity 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 raise a reasonable probability that
the convicted person's verdict or sentence would be more favorable if
the results of DNA testing had been available at the time of
conviction .
(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 granting 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.
(5) 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. 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 , or take direction
from, 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) 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. 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.
(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 the
relevant governmental agency to conduct a keyboard 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 solely 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.