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What is a Post-Conviction Motion for DNA Testing?
Subject to certain exceptions, biological material collected as evidence in a felony criminal investigation must be preserved as long as any person connected with the case is in prison. Penal Code § 1417.9 (this statute took effect in 2001). Retention of DNA evidence, on the other hand, is not required in misdemeanor cases. 88 Ops. Cal. Atty. Gen. 77 (2005).
Some people who believe they were wrongfully convicted may be able to get such evidence tested for DNA. Penal Code § 1405; see also Morrison v. Peterson (9th Cir. 2015) 809 F. 3d 1059 (statutory requirements to obtain DNA testing do not violate due process).
There are two organizations in California who investigate cases of people who believe that they are factually innocent and that DNA can exonerate them. These are: 1) The Northern California Innocence Project, located at Santa Clara Law School, 500 El Camino Real, Santa Clara, CA 95053 (www.law.scu.edu/ncip California Innocence Project); and 2) California Western School of Law, 225 Cedar St., San Diego, CA 92101 (www.californiainnocenceproject.org).
A person may file a motion for appointment of counsel to investigate and, if appropriate, prepare a motion for post-conviction DNA testing. The court must appoint a lawyer if the person (1) states that they are not the person who committed the crime, (2) explains how DNA testing is relevant to the claim of innocence, (3) states that they have not previously been appointed an attorney to prepare a DNA motion, and (4) shows that they do not have funds to hire an attorney. Penal Code § 1405(b); In re Kinnamon (2005) 133 Cal. App. 4th 316, 321, 324, 34 Cal. Rptr. 3d 802.
If the court denies a motion for appointment of counsel, the person may file a direct appeal in the court of appeal, following the same procedures as for appeal from a criminal judgment. See Penal Code § 1237 (allowing appeal from post-judgment order affecting substantial rights). Alternatively, the person may file a petition for writ of habeas corpus challenging the denial of appointment of counsel. Kinnamon, supra, at 321, 324.
To request DNA testing, a person must make a written motion in the trial court where they were convicted. The motion must:
(1) state that the person is innocent and not the perpetrator of the crime; (2) explain why the person’s identity was or should have been a significant issue in the case;
(3) make a reasonable attempt to identify the evidence to be tested and the specific type of DNA testing sought;
(4) explain in light of all the evidence, how the DNA testing would raise a reasonable probability that the verdict or sentence would have been more favorable if the DNA test result had been available at the time of the conviction;
(5) reveal the results of any previous DNA or biological testing that was done by either the prosecution or defense; and
(6) state whether any other motion for testing was filed and the outcome of that motion.
Penal Code § 1405(a), (d); see also Penal Code § 1405 (g) (circumstances in which court must grant DNA testing motion); Richardson v. Superior Court (2008) 43 Cal. 4th 1040, 1049, 77 Cal. Rptr. 3d 226 (to show materiality, person was only required to demonstrate that the DNA testing “would be relevant to, rather than dispositive of, the issue of identity;” person is not required to show a favorable result would conclusively establish innocence); Jointer v. Superior Court (2013) 217 Cal. App. 4th 759, 158 Cal. Rptr. 3d 778 (courts should apply the “reasonable probability” standard liberally to permit post-conviction DNA testing of evidence in questionable cases).
The judge has the discretion to order a hearing on the DNA motion. Penal Code § 1405(f).
If the judge orders DNA testing, the person may have to pay for the costs of the tests; however, if they are indigent, then the state made be ordered to pay the testing costs. Penal Code § 1405(j).
If the court denies a motion for DNA testing, the person can challenge the decision by filing a petition for writ of mandate in the court of appeal within 20 days after the order denying DNA testing. Penal Code § 1405(k); but see In re Antilia (2009) 176 Cal. App. 4th 622, 629-631, 97 Cal. Rptr. 3d 849 (allowing person to proceed where his attorney had promised to seek review but erroneously filed a notice of appeal rather than a timely petition for writ of mandate and person showed diligence in trying to remedy the problem). A decision denying DNA testing is reviewed for abuse of discretion. Richardson v. Superior Court (2008) 43 Cal. 4th 1040, 1047, 77 Cal. Rptr. 3d 226.
A person may challenge the constitutionality of a state’s DNA evidence discovery statute in a § 1983 federal civil rights suit. Skinner v. Switzer (2011) 562 U.S. 521, 131 S. Ct. 1289; 179 L. Ed. 2d 283. However, a person may not use a § 1983 action to challenge a state court’s decision denying a request to obtain DNA testing. Cooper v. Ramos (9th Cir. 2012) 704 F. 3d 772.
This article would not be possible without reference to the excellent treatise, California Prison and Parole Law Handbook, written by The Prison Law Office. We thank them for their hard work on this.
