California Senate Bill SB980 Amended / Bill

 BILL NUMBER: SB 980AMENDED BILL TEXT AMENDED IN SENATE MARCH 17, 2014 INTRODUCED BY Senator Lieu FEBRUARY 11, 2014 An act to amend  Section   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.  Existing law allows a person who was convicted of a felony and is currently serving a term of imprisonment to make a motion for the performance of forensic deoxyribonucleic acid (DNA) testing. Existing   (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.   This bill would, upon appointment or retention of counsel to investigate and file a motion pursuant to these provisions, or at any time after a petition for DNA testing has been filed, authorize a court to order that counsel be provided access to physical evidence for the purpose of examining physical evidence relating to the investigation, arrest, and prosecution of the defendant upon a showing that there is good cause to believe that access to physical evidence is reasonably necessary to the counsel's effort to investigate whether a motion for DNA testing is appropriate, as specified. By increasing the duties of local governments in providing access to physical evidence, this bill would impose a state-mandated local program.   (2)     Existing  law requires a court to grant the motion for DNA testing if it determines  , among other things,  that the 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 instead require the court to grant the motion if it determines that the DNA testing results would be relevant to the issue of the identity of the perpetrator, and would require the court to presume the requested testing results would be exculpatory. The bill also would make conforming changes regarding the required contents of a petition requesting DNA testing. The bill would authorize a court to order a database search of the Combined DNA Index System to compare a profile obtained from the results of DNA testing conducted pursuant to these provisions to the profiles contained in the databank. The bill would change the accreditation requirements for a laboratory that may be designated by the court to perform the DNA testing pursuant to these provisions if the parties cannot mutually agree on a laboratory, as specified.   (3) 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 require the 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, on probation, or on parole in connection with the case. The bill would allow the governmental entity to dispose of biological material before the expiration of this time if the governmental entity notifies the inmate and his or her counsel, and the notifying entity does not receive, within one year 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.   If evidence has been destroyed in violation of these provisions, and if the appropriate governmental entity receives a request for evidence, the bill would require the agency to submit a statement that a representative from the agency personally searched for the requested evidence and determined that the evidence has been destroyed. This bill would require the statement to be signed under penalty of perjury. By expanding the crime of perjury, this bill would impose a state-mandated local program. The bill would require the court to consider appropriate remedies if it finds that biological evidence has been destroyed.   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 with regard to certain mandates no reimbursement is required by this act for a specified reason.   With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.  This bill would make a technical, nonsubstantive change to these provisions. Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program:  no   yes  . THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1405 of the Penal Code is amended to read: 1405. (a) 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 forensic deoxyribonucleic acid (DNA) testing. (b) (1) An indigent convicted person may request appointment of counsel to prepare a motion under this section by sending a written request to the court. The request shall include the person's statement that he or she was not the perpetrator of the crime and that DNA testing is relevant to his or her assertion of innocence. The request also shall include the person's statement as to whether he or she previously has had counsel appointed under this section. (2) If any of the information required in paragraph (1) is missing from the request, the court shall return the request to the convicted person and advise him or her that the matter cannot be considered without the missing information. (3) (A) Upon a finding that the person is indigent, he or she has included the information required in paragraph (1), and counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section and to represent the person solely for the purpose of obtaining DNA testing under this section. (B) Upon a finding that the person is indigent, and counsel previously has been appointed pursuant to this subdivision, the court may, in its discretion, appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section and to represent the person solely for the purpose of obtaining DNA testing under this section. (4) This section does not provide for a right to the appointment of counsel in a postconviction collateral proceeding, or to set a precedent for any such right, in any context other than the representation being provided an indigent convicted person for the limited purpose of filing and litigating a motion for DNA testing pursuant to this section.  (c) Upon appointment of counsel pursuant to subdivision (b), or upon retention of counsel in all other cases, to investigate and, if appropriate, to file a motion for DNA testing pursuant to this section, and upon request of counsel, or at any time after a petition has been filed pursuant to this section, a court may order that counsel, or counsel's representatives, be provided access to physical evidence for the purpose of examination, including, but not limited to, any physical evidence relating to the investigation, arrest, and prosecution of the defendant, upon a showing that there is good cause to believe that access to physical evidence is reasonably necessary to the counsel's effort to investigate whether a motion for DNA testing is appropriate. Upon request of counsel, and upon a showing that there is 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 also may order all of the following:   (1) The appropriate governmental entity to locate and provide counsel with any documents, notes, logs, 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 governmental entity contends have been lost or destroyed.   (2) The appropriate governmental entity to take reasonable measures to locate biological evidence that may be in its custody.   (3) The appropriate governmental entity to assist counsel in locating relevant evidence that may be in the custody of a public or private hospital, public or private laboratory, or other facility.   (4) The production of laboratory documents of analyses performed from the time of evidence intake to disposition, in the original form provided by the laboratory, as prepared in connection with the examination or analyses of any items collected as evidence that may contain biological material. This includes, but is not limited to, the underlying data and laboratory notes prepared in connection with DNA tests, presumptive tests for the presence of biological material, serological tests, and analyses of trace evidence, if the evidence had been subjected to that testing. Any and all items from the requested case file shall be made available, including digital files and nonphotocopied photograph-quality prints of photographs taken.   (c)   (d)  (1) The motion  for DNA testing  shall be verified by the convicted person under penalty of perjury and shall do all of the following: (A) Explain why the identity of the perpetrator 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 convicted person's verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction   be relevant to the issue of the identity of the perpetrator  . (C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought. (D) Reveal the results of any DNA or other biological testing that was conducted previously by either the prosecution or defense, if known. (E) State whether any motion for testing under this section previously has been filed and the results of that motion, if known. (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. Responses, if any, shall 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.  (d)   (e)  If the court finds evidence was subjected to DNA or other forensic testing previously by either the prosecution or defense, it shall order the party at whose request the testing was conducted to provide all parties and the court with access to the laboratory reports, underlying data, and laboratory notes prepared in connection with the DNA or other biological evidence testing.  (e)   (f)  The court, in its discretion, may order a hearing on the motion. The motion shall be heard by the judge who conducted the trial, or accepted the convicted person's plea of guilty or nolo contendre, 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 convicted person be present at the hearing of the motion.  (f) The   (g)     Before the grant of a motion for DNA testing pursuant to this section, the defendant is not required to show that a favorable test would conclusively establish his or her innocence. Rather, 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 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.   aspect, if the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence. For purposes of this section, evidence that has been in the custody of law enforcement, other government officials, or a public or private hospital shall be presumed to satisfy the chain of custody requirement of this paragraph, absent specific evidence of material tampering, replacement, or alteration.  (3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case. (4) The convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the perpetrator of, or accomplice to, the crime, special circumstance, or enhancement allegation that resulted in the conviction or sentence.  (5) The 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. The court in its discretion may consider any evidence whether or not it was introduced at trial.   (5) The requested DNA testing results would be relevant to the issue of the identity of the perpetrator. In making this determination pursuant to this paragraph, the court shall presume the requested testing results will be exculpatory, and shall determine whether the requested DNA testing results would be relevant to the issue of the identity of the perpetrator. Exculpatory results 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) as defined in Section 1405.1, or match an unrelated crime or crimes in CODIS. The court in its discretion may consider any evidence whether or not it was introduced at trial.  (6) The evidence sought to be tested meets either of the following conditions: (A) The evidence was not tested previously. (B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results. (7) The testing requested employs a method generally accepted within the relevant scientific community. (8) The motion is not made solely for the purpose of delay.  (g)   (h)  (1) If the court grants the motion for DNA testing, the court order shall identify the specific evidence to be tested and the DNA technology to be used. (2) 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)   an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Agreement   (MRA) and offers forensic laboratory accreditation services  .  (3) Analysts, technicians, or other agents of the laboratory conducting the testing, including local or state governmental laboratories, shall communicate directly with and provide documentation directly to both parties simultaneously, and shall not communicate with one party individually, unless the parties agree otherwise.   (h)   (i)  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.  (i)   (j)  (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.   The costs of DNA testing, litigation costs incurred by appointed counsel for the defendant, and fees to appointed counsel for his or her representation of the defendant, ordered pursuant to this section, shall be borne by the state if it is shown that the applicant is indigent and not able to pay. These costs shall not be borne by the county where the motion is filed and granted. If the applicant is not indigent, and is able to pay, the court may order the applicant to bear the costs.  However, the cost of any additional testing to be conducted by the district attorney or Attorney General shall not be borne by the convicted person. (2) In order to pay the state's share of any testing costs, the laboratory designated in subdivision (g) 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 in the 2000-01 Budget Act.  (j)   (k)  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. The 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.  (k)   (l)  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.  (   l   )   DNA   (m)     DNA  profile information from biological samples taken from a convicted person pursuant to a motion for postconviction DNA testing is exempt from any law requiring disclosure of information to the public.  (m)   (n)  Notwithstanding any other provision of law, the right to file a motion for postconviction DNA testing provided by this section is absolute and shall not be waived. This prohibition applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendre.  (n)   (o)  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 1405.1 is added to the   Penal Code   , to read:   1405.1. (a) If the court grants a motion for DNA testing pursuant to Section 1405, testing is performed, and a DNA profile is obtained from the results of DNA testing of biological material that excludes the convicted person, the court may, on its own motion or by motion of the defendant, order a database search of the Combined DNA Index System (CODIS) to compare the profile obtained from the results of DNA testing of biological material to the profiles contained within the CODIS databank. DNA profiles shall meet current national DNA database index system eligibility standards and conform to current Federal Bureau of Investigation quality assurance standards in order to be eligible for search against the state index system. (b) For the purposes of this section, profiles contained within the CODIS databank includes those profiles contained with the Convicted Offender Index, the Forensic Index, the Arrestee Index, the Missing or Unidentified Persons Index, and the Missing Persons Reference Index.   SEC. 3.   Section 1417.9 of the  Penal Code   is amended to read:  1417.9. (a) Notwithstanding any other provision of law and subject to subdivision (b), the appropriate governmental entity shall retain all biological material that is secured in connection with a criminal case for the period of time that any person remains incarcerated  , on probation, or on parole  in connection with that case. The governmental entity shall have the discretion to determine how the evidence is retained pursuant to this section, provided that the evidence is retained in a condition suitable for deoxyribonucleic acid (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  , on probation, or on parole  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   one year  of sending the notification, any of the following: (A) A motion filed pursuant to Section 1405. However, upon filing of that motion, the governmental entity shall retain the material only until the time that the court's denial of the motion is final. (B) A request under penalty of perjury that the material not be destroyed or disposed of because the declarant will file  within 180 days  a motion for DNA testing pursuant to Section 1405  that is followed within 180 days by a motion for DNA testing pursuant to Section 1405   within one year  , unless a request for an extension is requested by the convicted person and agreed to by the governmental entity in possession of the evidence. (C) A declaration of innocence under penalty of perjury that has been filed with the court within  180 days   one year  of the judgment of conviction or July 1, 2001, whichever is later. However, the court shall permit the destruction of the evidence upon a showing that the declaration is false or there is no issue of identity that would be affected by additional testing. The convicted person may be cross-examined on the declaration at any hearing conducted under this section or on an application by or on behalf of the convicted person filed pursuant to Section 1405. (3) No other provision of law requires that biological evidence be preserved or retained. (c) Notwithstanding any other provision of law, the right to receive notice pursuant to this section is absolute and shall not be waived. This prohibition applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendre.  (d) If evidence has been destroyed in violation of this section or otherwise, and if the appropriate governmental entity receives a request for evidence under Section 1405, the appropriate governmental entity shall submit a statement that a representative from the agency personally searched for the requested evidence, without relying upon the agency's internal index or evidence location database, and determined that the evidence has been destroyed. The statement shall be signed under penalty of perjury by the agency's representative who conducted the search. If the court finds that biological evidence was destroyed in violation of the provisions of this section, it shall consider appropriate remedies.   SEC. 4.  No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.   However, if the Commission on State Mandates determines that this act contains other 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.