(a) A person who was convicted of a felony and is currently
serving a term of imprisonment may make a written motion, pursuant to
subdivision (d), 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 in order to prepare a motion pursuant to subdivision (d) 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 shall explain how the 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 request of the convicted person or convicted person's
counsel, the court may order the prosecutor to make all reasonable
efforts to obtain, and police agencies and law enforcement
laboratories to make all reasonable efforts to provide, the following
documents that are in their possession or control, if the documents
(1) Copies of DNA lab reports, with underlying notes, prepared in
connection with the laboratory testing of biological evidence from
the case, including presumptive tests for the presence of biological
material, serological tests, and analyses of trace evidence.
(2) Copies of evidence logs, chain of custody logs and reports,
including, but not limited to, documentation of current location of
biological evidence, and evidence destruction logs and reports.
(3) If the evidence has been lost or destroyed, a custodian of
record shall submit a report to the prosecutor and the convicted
person or convicted person's counsel that sets forth the efforts that
were made in an attempt to locate the evidence. If the last known or
documented location of the evidence prior to its loss or destruction
was in an area controlled by a law enforcement agency, the report
shall include the results of a physical search of this area. If there
is a record of confirmation of destruction of the evidence, the
report shall include a copy of the record of confirmation of
destruction in lieu of the results of a physical search of the area.
(d) (1) The motion for DNA testing shall be verified by the
convicted person under penalty of perjury and shall include all of
(A) A statement that he or she is innocent and not the perpetrator
of the crime.
(B) Explain why the identity of the perpetrator was, or should
have been, a significant issue in the case.
(C) Make every reasonable attempt to identify both the evidence
that should be tested and the specific type of DNA testing sought.
(D) 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.
(E) Reveal the results of any DNA or other biological testing that
was conducted previously by either the prosecution or defense, if
(F) 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 90 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.
(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.
(f) If the court determines that the convicted person has met all
of the requirements of subparagraphs (A) to (F), inclusive, of
paragraph (1) of subdivision (d), the court may, as it deems
necessary, order a hearing on the motion. The judge who conducted the
trial, or accepted the convicted person's plea of guilty or nolo
contendere, shall conduct the hearing 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. Either party, upon
request, may request an additional 60 days to brief issues raised in
(g) 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.
(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. The convicted person is only
required to demonstrate that the DNA testing he or she seeks would be
relevant to, rather than dispositive of, the issue of identity. The
convicted person is not required to show a favorable result would
conclusively establish his or her innocence.
(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. In determining whether the convicted person
is entitled to develop potentially exculpatory evidence, the court
shall not decide whether, assuming a DNA test result favorable to the
convicted person, he or she is entitled to some form of ultimate
(6) The evidence sought to be tested meets either of the following
(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.
(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 that meets the
FBI Director's Quality Assurance Standards and that is 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 a laboratory
that meets the FBI Director's Quality Assurance Standards.
Laboratories accredited by the following entities have been
determined to satisfy this requirement: the American Association for
Laboratory Accreditation (A2LA), the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB), and
Forensic Quality Services (ANSI-ASQ National Accreditation Board
(3) If the accredited laboratory selected by the parties or
designated by the court to conduct DNA testing is not a National DNA
Index System (NDIS) participating laboratory that takes or retains
ownership of the DNA data for entry into the Combined DNA Index
System (CODIS), the laboratory selected to perform DNA testing shall
not initiate analysis for a specific case until documented approval
has been obtained from an appropriate NDIS participating laboratory's
technical leader of acceptance of ownership of the DNA data from the
selected laboratory that may be entered into or searched in CODIS.
(i) In accordance with the court's order pursuant to subdivision
(h), the laboratory may communicate with either party, upon request,
during the testing process. 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.
(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. 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 (h) 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.
(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
(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.
(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
(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 contendere.
(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.
(a) When the court grants a motion for DNA testing pursuant
to Section 1405 and a DNA profile of an unknown contributor is
generated, the court may conduct a hearing to determine if the DNA
profile should be uploaded into the State Index System, and if
appropriate, the National DNA Index System. The court may issue an
order directing the upload of the DNA profile into the State Index
System, and if appropriate, the National DNA Index System, only if
all of the following conditions are met:
(1) The source of the DNA profile is attributable to the putative
perpetrator of the crime.
(2) The profile meets all requirements, whether technical or
otherwise, for permanent inclusion into the State Index System, and
if appropriate, the National DNA Index System, as determined by the
Department of Justice, the Federal Bureau of Investigation, federal
law, and California law.
(3) The convicted person or convicted person's counsel provides
written notice to the California Combined DNA Index System (CODIS)
State Administrator at the Department of Justice, the Attorney
General, and the district attorney 30 court days prior to the hearing
to determine if the DNA profile should be uploaded into the State
Index System, and if appropriate, the National DNA Index System.
(b) A court shall not order an upload of a DNA profile into the
State Index System or the National DNA Index System that violates any
CODIS or state rule, policy, or regulation.