Amended in Assembly August 19, 2014

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

Senate BillNo. 980


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 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.

(3) Existing law requires a court to grant the motion for DNA testing if it determines, among other things, that thebegin insert convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted persons’ identity as the perpetrator of, or accomplice to, the crime that resulted in the conviction and that theend insert 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 thatbegin delete the defendantend deletebegin insert the convicted person is only required to demonstrate that the DNA testing would be relevant to rather than dispositive of, the issue of identity andend insert 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 courtbegin insert, in determining whether the convicted person is entitled to develop potentially exculpatory evidence,end insert from deciding whetherbegin delete the requested DNA testing resultsend delete, assuming a DNA test result favorable to thebegin delete defendantend deletebegin insert convicted personend insert,begin delete would ultimately requireend deletebegin insert he or she is entitled toend insert some form ofbegin insert ultimateend insert reliefbegin delete from the convictionend delete.

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 Federalbegin insert DNAend insert 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.

(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 allow the governmental entity to dispose of biological material before the expiration of 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, withinbegin delete one yearend deletebegin insert 180 daysend insert 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.

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:

P3    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, pursuant to subdivision (d), before the trial court that
P4    1entered the judgment of conviction in his or her case, for
2performance of forensic deoxyribonucleic acid (DNA) testing.

3(b) (1) An indigent convicted person may request appointment
4of counsel in order to prepare a motion pursuant to subdivision (d)
5by sending a written request to the court. The request shall include
6the person’s statement that he or she was not the perpetrator of the
7crime and shall explain how the DNA testing is relevant to his or
8her assertion of innocence. The request also shall include the
9person’s statement as to whether he or she previously has had
10counsel appointed under this section.

11(2) If any of the information required in paragraph (1) is missing
12from the request, the court shall return the request to the convicted
13person and advise him or her that the matter cannot be considered
14without the missing information.

15(3) (A) Upon a finding that the person is indigent, he or she
16has included the information required in paragraph (1), and counsel
17has not previously been appointed pursuant to this subdivision,
18the court shall appoint counsel to investigate and, if appropriate,
19to file a motion for DNA testing under this section and to represent
20the person solely for the purpose of obtaining DNA testing under
21this section.

22(B) Upon a finding that the person is indigent, and counsel
23previously has been appointed pursuant to this subdivision, the
24court may, in its discretion, appoint counsel to investigate and, if
25appropriate, to file a motion for DNA testing under this section
26and to represent the person solely for the purpose of obtaining
27DNA testing under this section.

28(4) This section does not provide for a right to the appointment
29of counsel in a postconviction collateral proceeding, or to set a
30precedent for any such right, in any context other than the
31representation being provided an indigent convicted person for the
32limited purpose of filing and litigating a motion for DNA testing
33pursuant to this section.

34(c) Upon request of the convicted person or convicted person’s
35counsel, the court may order the prosecutor to make all reasonable
36efforts to obtain, and police agencies and law enforcement
37laboratories to make all reasonable efforts to provide, the following
38documents that are in their possession or control, if the documents
39exist:

P5    1(1) Copies of DNA lab reports, with underlying notes, prepared
2in connection with the laboratory testing of biological evidence
3from the case, including presumptive tests for the presence of
4biological material, serological tests, and analyses of trace
5evidence.

6(2) Copies of evidence logs, chain of custody logs and reports,
7including, but not limited to, documentation of current location of
8biological evidence, and evidence destruction logs and reports.

9(3) If the evidence has been lost or destroyed, a custodian of
10record shall submit a report to the prosecutor and the convicted
11person or convicted person’s counsel that sets forth the efforts that
12were made in an attempt to locate the evidence. If the last known
13or documented location of the evidence prior to its loss or
14destruction was in an area controlled by a law enforcement agency,
15the report shall include the results of a physical search ofbegin delete theend deletebegin insert thisend insert
16 area.begin insert If there is a record of confirmation of destruction of the
17evidence, the report shall include a copy of the record of
18confirmation of destruction in lieu of the results of a physical
19search of the area.end insert

20(d) (1) The motion for DNA testing shall be verified by the
21convicted person under penalty of perjury and shall include all of
22the following:

23(A) A statement that he or she is innocent and not the perpetrator
24of the crime.

25(B) Explain why the identity of the perpetrator was, or should
26have been, a significant issue in the case.

27(C) Make every reasonable attempt to identify both the evidence
28that should be tested and the specific type of DNA testing sought.

29(D) Explain, in light of all the evidence, how the requested DNA
30testing would raise a reasonable probability that the convicted
31person’s verdict or sentence would be more favorable if the results
32of DNA testing had been available at the time of conviction.

33(E) Reveal the results of any DNA or other biological testing
34that was conducted previously by either the prosecution or defense,
35if known.

36(F) State whether any motion for testing under this section
37previously has been filed and the results of that motion, if known.

38(2) Notice of the motion shall be served on the Attorney General,
39the district attorney in the county of conviction, and, if known, the
40governmental agency or laboratory holding the evidence sought
P6    1to be tested. Responses, if any, shall be filed within 90 days of the
2date on which the Attorney General and the district attorney are
3served with the motion, unless a continuance is granted for good
4cause.

5(e) If the court finds evidence was subjected to DNA or other
6forensic testing previously by either the prosecution or defense, it
7shall order the party at whose request the testing was conducted
8to provide all parties and the court with access to the laboratory
9reports, underlying data, and laboratory notes prepared in
10connection with the DNA or other biological evidence testing.

11(f) If the court determines that the convicted person has met all
12of the requirements of subparagraphs (A) to (F), inclusive, of
13paragraph (1) of subdivision (d), the court may, as it deems
14necessary, order a hearing on the motion. The judge who conducted
15the trial, or accepted the convicted person’s plea of guilty or nolo
16contendre, shall conduct the hearing unless the presiding judge
17determines that judge is unavailable. Upon request of either party,
18the court may order, in the interest of justice, that the convicted
19person be present at the hearing of the motion. Either party, upon
20request, may request an additional 60 days to brief issues raised
21in subdivision (g).

22(g)  begin deleteIn determining whether to grant testing, the court shall not
23decide whether the requested DNA testing results, assuming a
24DNA test result favorable to the convicted person, would ultimately
25require some form of relief from the conviction. In addition, before
26the granting of a motion for DNA testing pursuant to this section,
27the convicted person is not required to show that a favorable test
28would conclusively establish his or her innocence. Rather, the end delete
begin insertThe end insert
29court shall grant the motion for DNA testing if it determines all
30of the following have been established:

31(1) The evidence to be tested is available and in a condition that
32would permit the DNA testing requested in the motion.

33(2) The evidence to be tested has been subject to a chain of
34custody sufficient to establish it has not been substituted, tampered
35with, replaced, or altered in any material aspect.

36(3) The identity of the perpetrator of the crime was, or should
37have been, a significant issue in the case.

38(4) The convicted person has made a prima facie showing that
39the evidence sought to be tested is material to the issue of the
40convicted person’s identity as the perpetrator of, or accomplice
P7    1to, the crime, special circumstance, or enhancement allegation that
2resulted in the conviction or sentence.begin insert The convicted person is only
3required to demonstrate that the DNA testing he or she seeks would
4be relevant to, rather than dispositive of, the issue of identity. The
5convicted person is not required to show a favorable result would
6conclusively establish his or her innocence.end insert

7(5) The requested DNA testing results would raise a reasonable
8probability that, in light of all the evidence, the convicted person’s
9verdict or sentence would have been more favorable if the results
10of DNA testing had been available at the time of conviction. The
11court in its discretion may consider any evidence whether or not
12it was introduced at trial.begin insert In determining whether the convicted
13person is entitled to develop potentially exculpatory evidence, the
14court shall not decide whether, assuming a DNA test result
15favorable to the convicted person, he or she is entitled to some
16form of ultimate relief.end insert

17(6) The evidence sought to be tested meets either of the
18following conditions:

19(A) The evidence was not tested previously.

20(B) The evidence was tested previously, but the requested DNA
21test would provide results that are reasonably more discriminating
22and probative of the identity of the perpetrator or accomplice or
23have a reasonable probability of contradicting prior test results.

24(7) The testing requested employs a method generally accepted
25within the relevant scientific community.

26(8) The motion is not made solely for the purpose of delay.

27(h) (1) If the court grants the motion for DNA testing, the court
28order shall identify the specific evidence to be tested and the DNA
29technology to be used.

30(2) The testing shall be conducted by a laboratory that meets
31the FBI Director’s Quality Assurance Standards and that is
32mutually agreed upon by the district attorney in a noncapital case,
33or the Attorney General in a capital case, and the person filing the
34motion. If the parties cannot agree, the court shall designate a
35laboratory that meets the FBI Director’s Quality Assurance
36Standards. Laboratories accredited by the following entities have
37been determined to satisfy this requirement: the American
38Association for Laboratory Accreditation (A2LA), the American
39Society of Crime Laboratory Directors/Laboratory Accreditation
P8    1Board (ASCLD/LAB), and Forensic Quality Services (ANSI-ASQ
2National Accreditation Board FQS).

3(3) If the accredited laboratory selected by the parties or
4designated by the court to conduct DNA testing is not a National
5DNA Index System (NDIS) participating laboratory that takes or
6retains ownership of the DNA data for entry into the Combined
7DNA Index System (CODIS), the laboratory selected to perform
8DNA testing shall not initiate analysis for a specific case until
9documented approval has been obtained from an appropriate NDIS
10participating laboratory’s technical leader of acceptance of
11ownership of the DNA data from the selected laboratory that may
12be entered into or searched in CODIS.

13(i) In accordance with the court’s order pursuant to subdivision
14(h), the laboratory may communicate with either party, upon
15request, during the testing process. The result of any testing ordered
16under this section shall be fully disclosed to the person filing the
17motion, the district attorney, and the Attorney General. If requested
18by any party, the court shall order production of the underlying
19laboratory data and notes.

20(j) (1)  The cost of DNA testing ordered under this section shall
21be borne by the state or the applicant, as the court may order in
22the interests of justice, if it is shown that the applicant is not
23indigent and possesses the ability to pay. However, the cost of any
24additional testing to be conducted by the district attorney or
25Attorney General shall not be borne by the convicted person.

26(2) In order to pay the state’s share of any testing costs, the
27laboratory designated in subdivision (h) shall present its bill for
28services to the superior court for approval and payment. It is the
29intent of the Legislature to appropriate funds for this purpose in
30the 2000-01 Budget Act.

31(k) An order granting or denying a motion for DNA testing
32under this section shall not be appealable, and shall be subject to
33review only through petition for writ of mandate or prohibition
34filed by the person seeking DNA testing, the district attorney, or
35the Attorney General. The petition shall be filed within 20 days
36after the court’s order granting or denying the motion for DNA
37testing. In a noncapital case, the petition for writ of mandate or
38prohibition shall be filed in the court of appeal. In a capital case,
39the petition shall be filed in the California Supreme Court. The
40court of appeal or California Supreme Court shall expedite its
P9    1review of a petition for writ of mandate or prohibition filed under
2this subdivision.

3(l) DNA testing ordered by the court pursuant to this section
4shall be done as soon as practicable. However, if the court finds
5that a miscarriage of justice will otherwise occur and that it is
6necessary in the interests of justice to give priority to the DNA
7testing, a DNA laboratory shall be required to give priority to the
8DNA testing ordered pursuant to this section over the laboratory’s
9other pending casework.

10(m) DNA profile information from biological samples taken
11from a convicted person pursuant to a motion for postconviction
12DNA testing is exempt from any law requiring disclosure of
13information to the public.

14(n) Notwithstanding any other provision of law, the right to file
15a motion for postconviction DNA testing provided by this section
16is absolute and shall not be waived. This prohibition applies to,
17but is not limited to, a waiver that is given as part of an agreement
18resulting in a plea of guilty or nolo contendre.

19(o) The provisions of this section are severable. If any provision
20of this section or its application is held invalid, that invalidity shall
21not affect other provisions or applications that can be given effect
22without the invalid provision or application.

23

SEC. 2.  

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

24

1405.1.  

(a) When thebegin delete Courtend deletebegin insert courtend insert grants a motion for DNA
25testing pursuant to Section 1405 and a DNA profile of an unknown
26contributor is generated, the court may conduct a hearing to
27determine if the DNA profile should be uploaded into the State
28Index System, and if appropriate, the Nationalbegin insert DNAend insert Index System.
29The court may issue an order directing the upload of the DNA
30profile into the State Index System, and if appropriate, the National
31begin insert DNAend insert Index System, only if all of the following conditions are met:

32(1) The source of the DNA profile is attributable to the putative
33perpetrator of the crime.

34(2) The profile meets all requirements, whether technical or
35otherwise, for permanent inclusion into the State Index System,
36and if appropriate, the Nationalbegin insert DNAend insert Index System, as determined
37by the Department of Justice, the Federal Bureau of Investigation,
38federal law, and California law.

39(3) The convicted person or convicted person’s counsel provides
40written notice to the California Combined DNA Index System
P10   1(CODIS) State Administrator at the Department of Justice, the
2Attorney General, and the District Attorneybegin delete 15end deletebegin insert 30end insert court days prior
3to the hearing to determine if the DNA profile should be uploaded
4into the State Index System, and if appropriate, the Nationalbegin insert DNAend insert
5 Index System.

6(b) A court shall not order an upload of a DNA profile into the
7State Index System or the Nationalbegin insert DNAend insert Index System that violates
8any CODIS or state rule, policy, or regulation.

9

SEC. 3.  

Section 1417.9 of the Penal Code is amended to read:

10

1417.9.  

(a) Notwithstanding any other provision of law and
11subject to subdivision (b), the appropriate governmental entity
12shall retain all biological material that is secured in connection
13with a criminal case for the period of time that any person remains
14incarcerated in connection with that case. The governmental entity
15shall have the discretion to determine how the evidence is retained
16pursuant to this section, provided that the evidence is retained in
17a condition suitable for deoxyribonucleic acid (DNA) testing.

18(b) A governmental entity may dispose of biological material
19before the expiration of the period of time described in subdivision
20(a) if all of the conditions set forth below are met:

21(1) The governmental entity notifies all of the following persons
22of the provisions of this section and of the intention of the
23governmental entity to dispose of the material: any person, who
24as a result of a felony conviction in the case is currently serving a
25term of imprisonment and who remains incarcerated in connection
26with the case, any counsel of record, the public defender in the
27county of conviction, the district attorney in the county of
28conviction, and the Attorney General.

29(2) The notifying entity does not receive, withinbegin delete one yearend deletebegin insert 180
30daysend insert
of sending the notification, any of the following:

31(A) A motion filed pursuant to Section 1405. However, upon
32filing of that motion, the governmental entity shall retain the
33material only until the time that the court’s denial of the motion
34is final.

35(B) A request under penalty of perjury that the material not be
36destroyed or disposed of because the declarant will file a motion
37for DNA testing pursuant to Section 1405 within one year, unless
38a request for an extension is requested by the convicted person
39and agreed to by the governmental entity in possession of the
40evidence.

P11   1(C) A declaration of innocence under penalty of perjury that
2has been filed with the court within one year of the judgment of
3conviction or July 1, 2001, whichever is later. However, the court
4shall permit the destruction of the evidence upon a showing that
5the declaration is false or there is no issue of identity that would
6be affected by additional testing. The convicted person may be
7cross-examined on the declaration at any hearing conducted under
8this section or on an application by or on behalf of the convicted
9person filed pursuant to Section 1405.

10(3) No other provision of law requires that biological evidence
11be preserved or retained.

12(c) Notwithstanding any other provision of law, the right to
13receive notice pursuant to this section is absolute and shall not be
14waived. This prohibition applies to, but is not limited to, a waiver
15that is given as part of an agreement resulting in a plea of guilty
16or nolo contendre.

17

SEC. 4.  

If the Commission on State Mandates determines that
18this act contains costs mandated by the state, reimbursement to
19local agencies and school districts for those costs shall be made
20pursuant to Part 7 (commencing with Section 17500) of Division
214 of Title 2 of the Government Code.



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