2005 California Penal Code Sections 1404-1405 PROCEEDINGS

PENAL CODE
SECTION 1404-1405

1404.  Neither a departure from the form or mode prescribed by this
Code in respect to any pleading or proceeding, nor an error or
mistake therein, renders it invalid, unless it has actually
prejudiced the defendant, or tended to his prejudice, in respect to a
substantial right.
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) Nothing in this section shall be construed to 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) (1) The motion 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.
   (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) 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) 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 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.
   (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.
   (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) (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).
   (h) 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) (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 (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) 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) 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 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) 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) 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.


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