BILL NUMBER: SB 980 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 4, 2014
AMENDED IN ASSEMBLY JUNE 19, 2014
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. Existing law allows the court to order a
hearing on the motion in the court's discretion.
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 information and documentation
as to the existence and availability of evidence that may be subject
to DNA testing, relating to the investigation, arrest, or
prosecution of the defendant upon a showing that there is good cause
to believe that the information and documentation is reasonably
necessary to the counsel's effort to investigate whether a motion for
DNA testing is appropriate, as specified.
This bill would instead allow the court to order a hearing on the
motion if the court determines the convicted person has met specified
requirements and that the hearing is necessary. This bill would,
upon request of the convicted person or the convicted person's
counsel, allow a court to order the prosecutor to make all reasonable
efforts to obtain, and police agencies and law enforcement
laboratories to make all reasonable efforts to provide, copies of DNA
lab reports, copies of evidence logs, and other specified documents.
(2) Existing law requires notice of a motion for DNA testing to 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 retested. Existing law requires the
response, if any, to 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.
This bill would extend the time for filing a response to 90 days.
The bill would also allow either party to request an additional 60
days to brief certain specified issues.
(2)
(3) 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 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 prohibit a court from deciding whether the requested DNA
testing results, assuming a DNA test result favorable to the
defendant, would ultimately require some form of relief from the
conviction. The bill would authorize a court to order the
relevant governmental entity to conduct a keyboard search of the
state index system or the Combined DNA Index System (CODIS) to
compare a profile obtained from the results of DNA testing conducted
pursuant to these provisions to the profiles contained in the state
index system or the CODIS 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.
If the court grants a motion for DNA testing and a profile of an
unknown contributor is generated, the bill would allow the court to
conduct a hearing to determine if the DNA profile should be uploaded
into the State Index System, and if appropriate, the Federal Index
System, if certain conditions are met, as specified.
The bill would revise the requirements that a laboratory is
required to meet in order to conduct testing pursuant to a motion for
DNA retesting, as specified.
(3)
(4) 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 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
the time that the person remains incarcerated in
connection with the case 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.
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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory 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 ,
pursuant to subdivision (d), 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 in order to prepare a motion under this
section pursuant to subdivision (d) 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 shall explain how the 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 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, or
prosecution of the defendant, upon a showing that there is good cause
to believe that 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.
(c) Upon request of the convicted person or convicted person's
counsel, the court may order the prosecutor to make all reasonable
efforts to obtain, and police agencies and law enforcement
laboratories to make all reasonable efforts to provide, the following
documents that are in their possession or control, if the documents
exist:
(1) Copies of DNA lab reports, with underlying notes, prepared in
connection with the laboratory testing of biological evidence from
the case, including presumptive tests for the presence of biological
material, serological tests, and analyses of trace evidence.
(2) Copies of evidence logs, chain of custody logs and reports,
including, but not limited to, documentation of current location of
biological evidence, and evidence destruction logs and reports.
(3) If the evidence has been lost or destroyed, a custodian of
record shall submit a report to the prosecutor and the convicted
person or convicted person's counsel that sets forth the efforts that
were made in an attempt to locate the evidence. If the last known or
documented location of the evidence prior to its loss or destruction
was in an area controlled by a law enforcement agency, the report
shall include the results of a physical search of the area.
(d) (1) The motion for DNA testing shall be verified by the
convicted person under penalty of perjury and shall do
include all of the following:
(A) A statement that he or she is innocent and not the perpetrator
of the crime.
(A)
(B) Explain why the identity of the perpetrator was, or
should have been, a significant issue in the case.
(C) Make every reasonable attempt to identify both the evidence
that should be tested and the specific type of DNA testing sought.
(B)
(D) Explain, in light of all the evidence, how the
requested DNA testing would 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)
(E) Reveal the results of any DNA or other biological
testing that was conducted previously by either the prosecution or
defense, if known.
(E)
(F) 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
90 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 If
the court determines that the convicted person has met all of
the requirements of subparagraphs (A) to (F), inclusive, of paragraph
(1) of subdivision (d), the court may, as it deems necessary, order
a hearing on the motion. The judge who conducted the trial, or
accepted the convicted person's plea of guilty or nolo contendre,
shall conduct the hearing 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. Either party,
upon request, may request an additional 60 days to brief issues
raised in subdivision (g).
(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.
In determining whether to grant testing,
the court shall not decide whether the requested DNA testing results,
assuming a DNA test result favorable to the convicted person, would
ultimately require some form of relief from the conviction. In
addition, before the granting of a motion for DNA testing pursuant to
this section, the convicted person 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, or 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
aspect .
(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 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.
In determining whether to grant testing, the court shall not decide
whether the requested DNA testing results, assuming a DNA test result
favorable to the defendant, would ultimately require some form of
relief from the 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 that meets
the FBI Director's Quality Assurance Standards and that is
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 a laboratory that
meets the FBI Director's Quality Assurance Standards. Laboratories
accredited by the following entities have been determined to satisfy
this requirement: the American Association for Laboratory
Accreditation (A2LA), the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB), and Forensic
Quality Services (ANSI-ASQ National Accreditation Board FQS) .
(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, and shall not communicate
with, or take direction from, one party individually, unless the
parties agree otherwise.
(3) If the accredited laboratory selected by the parties or
designated by the court to conduct DNA testing is not a National DNA
Index System (NDIS) participating laboratory that takes or retains
ownership of the DNA data for entry into the Combined DNA Index
System (CODIS), the laboratory selected to perform DNA testing shall
not initiate analysis for a specific case until documented approval
has been obtained from an appropriate NDIS participating laboratory's
technical leader of acceptance of ownership of the DNA data from the
selected laboratory that may be entered into or searched in CODIS.
(i) In accordance with the court's order pursuant to
subdivision (h), the laboratory may communicate with either party,
upon request, during the testing process. 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) (h)
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 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 state index system or
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 or the CODIS
databank. A court shall not order a keyboard search of the state
index system or the CODIS databank to make a comparison that would
violate state index system or CODIS rules.
(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. 2. Section 1405.1 is added to the
Penal Code , to read:
1405.1. (a) When the Court grants a motion for DNA testing
pursuant to Section 1405 and a DNA profile of an unknown contributor
is generated, the court may conduct a hearing to determine if the DNA
profile should be uploaded into the State Index System, and if
appropriate, the National Index System. The court may issue an order
directing the upload of the DNA profile into the State Index System,
and if appropriate, the National Index System, only if all of the
following conditions are met:
(1) The source of the DNA profile is attributable to the putative
perpetrator of the crime.
(2) The profile meets all requirements, whether technical or
otherwise, for permanent inclusion into the State Index System, and
if appropriate, the National Index System, as determined by the
Department of Justice, the Federal Bureau of Investigation, federal
law, and California law.
(3) The convicted person or convicted person's counsel provides
written notice to the California Combined DNA Index System (CODIS)
State Administrator at the Department of Justice, the Attorney
General, and the District Attorney 15 court days prior to the hearing
to determine if the DNA profile should be uploaded into the State
Index System, and if appropriate, the National Index System.
(b) A court shall not order an upload of a DNA profile into the
State Index System or the National Index System that violates any
CODIS or state rule, policy, or regulation.
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 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 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.
SEC. 4. If the Commission on State Mandates
determines that this act contains 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.