BILL NUMBER: SB 1342 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 14, 2000
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.
This bill would grant to a defendant who was convicted of a felony
and currently serving a term of imprisonment, the right to make a
written motion under specified conditions for the performance of
forensic DNA testing. The bill would require that the motion include
an explanation of why the applicant's identity was or should have
been a significant issue in the case, how the requested DNA testing
would raise a reasonable probability that the verdict or sentence
would have been more favorable if the DNA testing had been available
at the trial resulting in the judgment of conviction, and a
reasonable attempt to identify the evidence to be tested and the type
of DNA testing sought. The motion would also have to include the
results of any previous DNA tests and the court would be required to
order the party in possession of those results to provide access to
the reports, data and notes prepared in connection with the DNA tests
to all parties. The bill would also provide that the cost of DNA
testing ordered under this act would be borne by either the state or
by the applicant if, in the interests of justice the applicant is not
indigent and possesses the ability to pay.
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 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.
1405. (a) A defendant 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 forensic DNA testing.
(1) The motion shall be verified under penalty of perjury and
shall do all of the following:
(A) Explain why the identity of the applicant was, or should have
been, a significant issue in the case.
(B) Explain in light of all the evidence, how the requested DNA
testing would raise a reasonable probability that the defendant's
verdict or sentence would be more favorable if the results of DNA
testing had been available at the trial resulting in the judgment of
conviction.
(C) Make every reasonable attempt to identify both the evidence
that should be tested and the specific type of DNA testing sought.
(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.
(3) Reply briefs, if any, shall be filed within 60 days.
(4) If any DNA or other biological evidence testing was conducted
previously by either the prosecution or defense, the results of that
testing shall be revealed in the motion for testing, if known. If
evidence was subjected to DNA or other forensic testing previously by
either the prosecution or defense, the court shall order the
prosecution or defense to provide all parties and the court with
access to the laboratory reports, underlying data, and laboratory
notes prepared in connection with the DNA testing.
(b) The court, in its discretion, may order a hearing on the
motion. The motion shall be heard by the judge who conducted the
trial 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 defendant be present at the hearing
of the motion.
(c) The court may at any time appoint counsel for an indigent
applicant under this section.
(d) 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 that is 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.
(3) The defendant has made a prima facie showing that the evidence
sought to be tested is material to the issue of the defendant's
identity as the perpetrator of, or accomplice to, the crime, special
circumstance, or enhancement allegation that resulted in the
conviction or sentence.
(4) There is a reasonable probability that the requested DNA
testing, if it produces exculpatory results, will constitute new,
noncumulative evidence that, in light of all the evidence, could
establish the defendant's nonidentity as the perpetrator or
accomplice.
(5) The evidence was never previously subjected to DNA testing, or
was not subjected to the testing that is now requested that can
resolve an issue not resolved by previous testing.
(6) The testing requested employs a method generally accepted
within the relevant scientific community.
(e) If 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 and shall consider designating a laboratory accredited by
the American Society of Crime Laboratory Directors Laboratory
Accreditation Board (ASCLD/LAB).
(f) 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.
(g) (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 defendant.
(2) In order to pay the state's share of any testing costs, the
laboratory designated in subdivision (e) 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.
(h) 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. Any such 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.
(i) 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.
(j) DNA profile information from biological samples taken from a
defendant pursuant to a motion for postconviction DNA testing is
exempt from any law requiring disclosure of information to the
public.
(k) DNA means deaxyribonucleric acid.
(l) 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
retain 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. The governmental entity shall make the
determination of whether a piece of evidence contains biological
material. The evidence shall be retained in a condition suitable for
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 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 90 days of
sending the notification, any of the following:
(A) An application filed pursuant to Section 1405.
(B) A request under penalty of perjury that the material not be
destroyed or disposed of because the declarant will file within 180
days an application for DNA testing pursuant to Section 1405.
(C) A declaration of innocence under penalty of perjury that has
been filed with the court.
(3) No other provision of law requires that biological evidence be
preserved or retained.
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.