BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 980 (Lieu) - Prisoners: DNA testing.
          
          Amended: May 7, 2014            Policy Vote: Public Safety 5-2
          Urgency: No                     Mandate: Yes
          Hearing Date: May 23, 2014      Consultant: Jolie Onodera
          
          SUSPENSE FILE. AS AMENDED.


          Bill Summary: SB 980 would make numerous changes to provisions  
          of law pertaining to post-conviction DNA testing, including but  
          not limited to, reducing the standard of review for granting a  
          post-conviction motion for DNA testing, extending the retention  
          period for biological evidence beyond the term of incarceration,  
          and clarifying the role of a governmental agency to assist in  
          the location of DNA evidence upon order of the court.

          Fiscal Impact (as approved on May 23, 2014): 
              Unknown, potentially significant costs (General Fund)  
              annually to the Department of Justice (DOJ) for increased  
              storage costs due to the extended evidential retention  
              period required under this measure. 
              Unknown, ongoing potentially major state-reimbursable local  
              costs (General Fund) for mandated activities including  
              evidence storage to retain biological evidence for an  
              extended period of time. 
              Ongoing potentially major non-reimbursable local costs  
              (Local) for assistance in locating biological evidence upon  
              discretionary order of the court.
              Potentially significant future savings due to reduced state  
              incarceration costs (General Fund) to the extent inmates are  
              released from prison as a result of the additional DNA  
              testing. The release of five inmates who would have  
              otherwise served an additional 10 years in prison would  
              result in cumulative savings of over $1.5 million. Savings  
              would be offset in part by restitution paid by the state of  
              $100 per day for wrongful incarceration. Any savings could  
              potentially be offset or exceeded should the DNA testing  
              result in the positive identification and conviction of  
              another individual for the crime. 
          *Trial Court Trust Fund









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          Background: SB 1342 (Burton) Chapter 821/2000, established a  
          defendant's right to post-conviction discovery and a procedure  
          for authorizing courts to evaluate whether a defendant should be  
          granted post-conviction testing of DNA. Pursuant to Penal Code §  
          1405, 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 DNA testing under specified  
          circumstances. 

          This bill seeks to provide greater access to available evidence  
          for defendants requesting DNA testing, and establish clear  
          guidelines for law enforcement, prosecutors, and courts to  
          follow when determining whether to grant such motions.

          Proposed Law: This bill would make the following revisions to  
          provisions of law regarding post-conviction DNA testing:
                 Revises the standard for granting a motion for DNA  
               testing from the threshold that the testing  would raise a  
               reasonable probability  that the convicted person's verdict  
               or sentence would be more favorable if the results of the  
               DNA testing had been available at the time of the  
               conviction, to instead require the convicted person to  
               explain, in light of all the evidence, how the requested  
               DNA testing  would be relevant  to the issue of the identity  
               of the perpetrator.
                 Provides that before a grant of a motion for DNA  
               testing, the defendant is not required to show that a  
               favorable test would conclusively establish his or her  
               innocence. 
                 Provides that upon appointment or retention of counsel  
               to investigate and, if appropriate, to file a motion for  
               DNA testing, a court may order the appropriate governmental  
               agency to locate and provide counsel with any documents 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  
               entity contends have been lost or destroyed; take  
               reasonable measures to locate biological evidence that may  
               be in its custody; assist counsel in locating relevant  
               evidence that may be in the custody of a public or private  
               hospital, laboratory, or other facility.
                  Revises the chain of custody standard to provide that  
               evidence that has been in the custody of law enforcement,  








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               other governmental officials, or a public or private  
               hospital shall be presumed to satisfy the chain of custody  
               requirement, absent specific evidence of material  
               tampering, replacement, or alteration.
                 Provides that the court shall presume the requested DNA  
               testing results will be exculpatory, which 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), or  
               match an unrelated crime or crimes in CODIS.
                 Requires analysts, technicians, or other agents of the  
               laboratory conducting the testing, including local or state  
               governmental laboratories, to communicate directly with and  
               provide documentation directly to both parties  
               simultaneously, and shall not communicate with one party  
               individually, unless the parties agree otherwise.
                 Provides that if the court grants a motion for DNA  
               testing, testing is performed, and a DNA profile is  
               obtained of biological material that excludes the convicted  
               person, the court or defendant may order a database search  
               of CODIS to compare the profile obtained from testing to  
               the CODIS databank.
                 Requires governmental entities to retain biological  
               material for an extended period of time past incarceration,  
               to include while the person is on probation or parole.
                 Provides that governmental agencies must wait one year,  
               instead of 90 days, after sending notification of intention  
               to dispose of biological material, to receive a response  
               from the individual requesting the material not be  
               destroyed or disposed of, or a motion for DNA testing is  
               filed.
                 Authorizes the court to consider appropriate remedies if  
               the court finds that any biological evidence was destroyed  
               in violation of these provisions of law.

          Prior Legislation: SB 1342 (Burton) Chapter 821/2000 requires  
          the court to grant a motion for the performance of DNA testing  
          under specified conditions for any person convicted of a felony  
          currently serving a term of imprisonment, and requires the  
          appropriate governmental entity to preserve any biological  
          material secured in a criminal case, as specified.

          Staff Comments: By reducing the standard of review for  
          post-conviction DNA testing and extending the mandated retention  








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          period for biological evidence, the provisions of this bill  
          could result in very major costs to both state and local  
          agencies. 

          While the number of new claims for post-conviction DNA that will  
          be brought forward due to the provisions of this bill cannot be  
          known with certainty, and will be dependent on the actions of  
          attorneys and defendants, and the subsequent decisions made by  
          judges, it is estimated the potential increase in motions for  
          testing could be substantial based on the significantly reduced  
          standard of review that, "DNA testing would be relevant to the  
          issue of the identity of the perpetrator."

          The DOJ has indicated very major costs based on an estimate of  
          over 40,000 new claims for post-conviction DNA testing. While  
          the number of new claims, as stated above, cannot be known with  
          certainty, assuming even 10 percent of the projected estimate,  
          or 4,000 new claims, would result in new costs of $200 million  
          annually (General Fund) for attorney fees alone using the low  
          range of attorney fees in these cases that range from $50,000 to  
          $1 million per case. The DOJ has also indicated major costs for  
          additional staffing, DNA testing, and potential IT enhancements.

          This bill specifies that upon a showing of 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 may order agencies to locate and provide counsel with  
          relevant information, assist the defendant in locating relevant  
          evidence, as specified, and take reasonable measures to locate  
          biological evidence that may be in its custody. Due to the  
          projected increase in motions filed for DNA testing, the  
          associated workload on governmental entities is also likewise  
          projected to increase significantly. Ongoing costs to local law  
          enforcement agencies, which could be substantial, are not  
          estimated to require reimbursement as state-mandated activities,  
          as assistance would be imposed only upon order of the court.

          This bill extends the mandated retention period for biological  
          evidence beyond the period of a defendant's incarceration to  
          include the period of probation or parole (generally, three  
          years). Additionally, defendants would be provided with an  
          additional nine months (from 90 days to one year) to respond to  
          a notification of disposal of evidence, as well as six  
          additional months (from 180 days to one year) within which to  








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          file a motion for DNA testing or make a declaration of  
          innocence. In total, governmental agencies could be required to  
          retain biological evidence for an additional 51 months under the  
          provisions of this measure. Crime lab directors have indicated  
          that while DNA storage for two to three years is not necessarily  
          significant, to the extent the extended retention period results  
          in a storage period that would exceed 10 years, costs could  
          significantly increase. In addition, to the extent the extended  
          period of retention necessitates additional storage area/space  
          and equipment (i.e., freezers), ongoing costs to DOJ and local  
          agencies (likely state-reimbursable), would potentially be very  
          major.

          To the extent additional motions for DNA testing are filed and  
          granted under the provisions of this bill, potentially  
          significant future cost savings through reduced state  
          incarceration costs (General Fund) could be realized to the  
          extent inmates are released from prison. The release of five  
          inmates who would have otherwise served an additional 10 years  
          in prison would result in cumulative savings of over $1.5  
          million. In some cases, savings would be offset in part by  
          restitution paid by the state of $100 per day for wrongful  
          incarceration. Staff does note that any savings could  
          potentially be offset or exceeded should the DNA testing result  
          in the positive identification and conviction of another  
          individual for the crime. 

          Recommended Amendments: To reduce costs, the author may wish to  
          consider raising the standard of review to be considered by the  
          courts for granting motions for DNA testing, and/or reducing the  
          extended length of time agencies are mandated to retain DNA  
          evidence.

          Committee amendments do the following:
                 Revert the standard of review for post-conviction DNA  
               testing back to existing law.
                 Delete the extended DNA storage requirements for  
               defendants during the period of probation.
                 Make other technical changes.