BILL NUMBER: SB 1342 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 27, 2000
AMENDED IN ASSEMBLY JUNE 13, 2000
AMENDED IN SENATE APRIL 25, 2000
AMENDED IN SENATE MARCH 30, 2000
AMENDED IN SENATE FEBRUARY 10, 2000
INTRODUCED BY Senator Burton
(Principal coauthor: Assembly Members Baugh and Villaraigosa)
(Coauthors: Senators Alarcon, Alpert, Figueroa, Johnson, Lewis,
McPherson, Murray, Polanco, Solis, Speier, and Vasconcellos)
(Coauthors: Assembly Members Ackerman, Alquist, Bock, Campbell,
Cardenas, Cardoza, Cox, Dutra, Keeley, Knox, Kuehl, Leach, Longville,
Mazzoni, Migden, and Washington)
JANUARY 10, 2000
An act to add 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,
for the performance of forensic DNA testing on evidence that is
relevant to the charges that resulted in the conviction or
sentence but was not subject to DNA 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 the defendant verify under penalty of
perjury that the information in the motion is true and correct and
that notice of the motion be served upon the Attorney General and the
district attorney in the county of conviction. If the defendant
presents a prima facie case that identity was a significant issue
resulting in his or her conviction or sentence , the court
would be required to order a hearing on the motion and to grant the
motion upon specified findings. Additionally, the bill would require
that for the purpose of paying the state's share of testing costs,
the laboratory that conducts the DNA tests would be required to
present its bill for approval to the superior court and upon
approval, present the bill to the Treasurer for payment from the
State Treasury.
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. The defendant shall verify under penalty of perjury
that the information contained in the motion is true and correct to
the best of his or her knowledge.
(b) The court shall order a hearing on the motion if the defendant
presents a prima facie case that identity was a significant issue
that resulted in his or her conviction. A notice of the hearing
shall be served upon the Attorney General and the district attorney
in the county of conviction or sentence 30 days prior to
the hearing. The motion shall be heard by the judge who conducted
the trial unless the presiding judge determines that judge is
unavailable. The court shall grant the motion if the court finds all
of 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) Upon request of the defendant, the court may order, in the
interest of justice, that the defendant be present at the hearing of
the motion.
(d) 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. If the prosecuting attorney
objects either to the specific items sought to be tested or the
specific type of testing being requested by the defendant, the court
shall conduct a hearing to determine what items are to be tested and
what specific DNA tests shall be conducted.
(e) If there is an issue as to the condition of a questionable
sample, the court shall conduct a hearing to determine the
consequences of typing a questionable sample. Any additional testing
requested by the district attorney or Attorney General shall not be
borne by the defendant.
(f) The court may at any time appoint counsel for an indigent
applicant under this section.
(g) 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.
(h) 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 or Attorney General . If requested by
either party, the court shall order production of the underlying data
and notes.
(i) 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. In order to pay the state's
share of any testing costs, the laboratory designated in
subdivision (e) pursuant to subdivision (g)
shall present its bill for services for approval to the superior
court. If, after 30 days, the superior court has taken no action on
the bill, the bill shall be deemed approved. Upon approval, the
laboratory shall present the bill directly to the Treasurer for
payment out of the State Treasury.
(j) Evidence samples containing biological material are exempt
from any law requiring disclosure of information to the public or the
return of biological specimens.
(k) 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
the conditions set forth below 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) or the defendant fails
to file with the court a declaration of innocence under penalty of
perjury.
(3) No other provision of law requires that biological evidence 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.