Section 1417.9 Of Chapter 13. Disposition Of Evidence In Criminal Cases From California Penal Code >> Title 10. >> Part 2. >> Chapter 13.
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 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 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 180 days 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 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 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 contendere.