BILL NUMBER: SB 1342	AMENDED
	BILL TEXT

	AMENDED IN SENATE   MARCH 30, 2000
	AMENDED IN SENATE   FEBRUARY 10, 2000

INTRODUCED BY   Senator Burton
   (Principal coauthor:  Assembly  Member  
Members Baugh and  Villaraigosa)
   (Coauthors:  Senators Alarcon, Alpert, Figueroa, Johnson, Lewis,
Murray, Polanco,  Solis,  Speier, and Vasconcellos)
   (Coauthors:  Assembly Members Ackerman, Alquist,  Baugh,
 Bock, Campbell, Cardenas, Cardoza, Cox, Dutra, Keeley,
Knox, Kuehl, Leach, Longville, Mazzoni, Migden, and Washington)

                        JANUARY 10, 2000

   An act to add  Section 1405   Sections 1405
and 1417.9  to the Penal Code, relating to forensic testing.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1342, as amended, Burton.  Forensic testing:  post conviction.
   Existing law authorizes the defendant in a criminal case to file a
motion for a new trial upon specified grounds including, but not
limited to, the discovery of new evidence that is material to the
defendant, and which could not, with reasonable diligence, have been
discovered and produced at the trial.
   This bill would grant to a defendant who was convicted in a
criminal case, the right to file a motion after entry of judgment of
conviction for the performance of forensic DNA testing on evidence
that is relevant to the charges that resulted in the conviction but
was not subject to testing, upon specified conditions, if the
evidence or the technology for testing that evidence was not
available to the defendant at the time of trial. The bill would
require that  reasonable  notice of the motion be
served upon the Attorney General  and the district attorney in
the county of conviction.  The court would be required to allow the
testing upon specified findings.
   The bill would also require, except as otherwise specified, the
appropriate governmental entity to preserve any biological material
secured in connection with a criminal case for the period of time
that any person remains incarcerated in connection with that case
 .  By increasing the duties of local officials 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, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
   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 is added to the Penal Code, to read:
   1405.  (a) A defendant who was convicted in a criminal case, may
make a  written  motion before the trial court that entered
the judgment of conviction in his or her case for performance of
forensic DNA testing on evidence that is relevant to the charges that
resulted in his or her conviction or sentence, but which was not
tested because either the evidence or the technology for the forensic
testing of the evidence was not available to the defendant at the
time of trial.   Reasonable   A  notice of
the motion shall be served upon the Attorney General  and the
district attorney in the county of conviction 30 days prior to the
hearing.  The motion shall be heard by the judge who conducted the
trial unless that judge is unavailable  .
   (b)  If   The court shall allow the testing
if  the defendant presents a prima facie case that identity was
a significant issue  at the trial  that resulted in
his or her conviction,  the court shall allow the testing
under reasonable conditions designed to protect the people's
interests in the integrity of the evidence and the testing process
upon a determination of both of the   the court finds
the  following:
   (1) The result of the testing has the scientific potential to
produce new, noncumulative evidence that is material and relevant to
the defendant's assertion of innocence.
   (2) The testing requested employs a method generally accepted
within the relevant scientific community.   
   (3) The evidence to be tested is available and in a condition that
would permit the DNA testing that is requested in the motion.
   (4) 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.
   (c) If known to the defendant, or his or her counsel, the motion
shall identify the evidence subject to the testing and the specific
type of testing that is requested.
   (d) The court may at any time appoint counsel for an indigent
applicant under this section.
   (e) If, after the hearing, the court grants the motion for DNA
testing, 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.
   (f) The result of any testing ordered under this section shall be
fully disclosed to both the person filing the motion and to the
district attorney. If requested by either party, the court shall
order production of the underlying data and notes.
   (g) 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 means to pay.
   (h) Evidence samples containing biological material are exempt
from any law requiring disclosure of information to the public or the
return of biological specimens.
   (i) 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 1417.9 is added to the Penal Code, to read:
   1417.9.  (a) Notwithstanding any other provision of law and
subject to subdivision (b), the appropriate governmental entity shall
preserve any biological material secured in connection with a
criminal case for the period of time that any person remains
incarcerated in connection with that case.
   (b) A governmental entity may destroy biological material before
the expiration of the period of time described in subdivision (a) if
all of the following conditions are met:
   (1) The governmental entity notifies all of the following persons
of the intention of the governmental entity to destroy the material;
and the provisions of this section:  any person who remains
incarcerated 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) No person makes an application under Section 1405 within 180
days of receiving notice under paragraph (1).
   (3) No other provision of law requires that biological notice be
preserved.
  SEC. 3.   Notwithstanding Section 17610 of the Government
Code, 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.  If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.