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AB-760 Prisoners: friction ridge impressions.(2021-2022)

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Date Published: 02/16/2021 09:00 PM
AB760:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 760


Introduced by Assembly Member Lackey

February 16, 2021


An act to add Section 1406 to the Penal Code, relating to prisoners.


LEGISLATIVE COUNSEL'S DIGEST


AB 760, as introduced, Lackey. Prisoners: friction ridge impressions.
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. Existing law allows the court to order a hearing on the motion if the court determines the convicted person has met specified requirements and that the hearing is necessary. Existing law allows a court, upon request of the convicted person or the convicted person’s counsel, to order the prosecutor to make all reasonable efforts to obtain, and police agencies and law enforcement laboratories to make all reasonable efforts to provide, copies of DNA lab reports, copies of evidence logs, and other specified documents. Existing law requires a court to grant the motion for DNA testing if it determines 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 allow a person who was convicted of a felony and is currently serving a term of imprisonment to make a motion for performance of friction ridge processing and examination to develop, search, and compare friction ridge impressions. The bill would allow the court to order a hearing on the motion if the court determines the convicted person has met specified requirements and that the hearing is necessary. The bill would allow a court, upon request of the convicted person or the convicted person’s counsel, to order the prosecutor to make all reasonable efforts to obtain, and police agencies and law enforcement laboratories to make all reasonable efforts to provide, copies of friction ridge examination reports, copies of evidence logs, and other specified documents. The bill would require a court to grant a motion for friction ridge processing, examination, or database searching if it determines that the requested friction ridge processing, examination, and database searching would raise a reasonable probability that, in light of all of the evidence, the convicted person’s verdict or sentence would have been more favorable if the results of the friction ridge processing, examination, and database searching had been available at the time of conviction. By increasing the duties of local governmental entities in regard to orders to complete friction ridge processing, this bill would impose a state-mandated local program.
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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1406 is added to the Penal Code, to read:

1406.
 (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 their case, for performance of friction ridge processing and examination to develop, search, and compare friction ridge impressions.
(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 indigent convicted person’s statement that they were not the perpetrator of the crime and shall explain how the friction ridge processing and examination is relevant to their assertion of innocence. The request shall also include the indigent convicted person’s statement as to whether the indigent convicted person 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 them that the matter cannot be considered without the missing information.
(3) (A) Upon a finding that the convicted person is indigent, that the convicted person included the information required in paragraph (1), and that 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 friction ridge processing, examination, and database searching under this section and to represent the indigent convicted person solely for the purpose of obtaining friction ridge processing, examination, and database searching under this section.
(B) Upon a finding that the convicted person is indigent, and that 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 friction ridge processing, examination, and database searching under this section and to represent the indigent convicted person solely for the purpose of obtaining friction ridge processing, examination, and database searching 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 friction ridge processing, examination, and database searching 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 exist:
(1) Copies of friction ridge examination reports, with underlying documentation, prepared in connection with the processing, examination, and database searching of evidence from the case.
(2) Copies of evidence logs, chain of custody logs and reports, including, but not limited to, documentation of current location of 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 friction ridge processing, examination, and database searching shall be verified by the convicted person under penalty of perjury and shall include all of the following:
(A) A statement that they are 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 processed, examined, and searched and the specific type of friction ridge examination or database search sought.
(D) Explain, in light of all the evidence, how the requested friction ridge processing, examination, and database searching would raise a reasonable probability that the convicted person’s verdict or sentence would be more favorable if the results of friction ridge processing, examination, and database searching had been available at the time of conviction.
(E) Reveal the results of any friction ridge processing, examination, and database searching that was conducted previously by either the prosecution or defense, if known.
(F) State whether any motion for friction ridge processing, examination, and database searching 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 forensic service provider holding the evidence sought to be processed, examined, or searched. Responses, if any, shall be filed within 90 days of the date when 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 friction ridge processing, examination, database searching, or other forensic testing previously by either the prosecution or defense, it shall order the party at whose request the friction ridge processing, examination, database searching, or testing was conducted to provide all parties and the court with access to the laboratory reports, underlying data, laboratory notes, and documentation prepared in connection with the friction ridge processing, examination, database searching, or other evidence testing.
(f) If the court determines that the convicted person has met all of the requirements of subparagraphs (A) through (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 subdivision (g).
(g) The court shall grant the motion for friction ridge processing and examination to develop, search, and compare friction ridge impressions if it determines all of the following have been established:
(1) The evidence to be processed, examined, or searched is available and in a condition that would permit the friction ridge processing, examination, and searching requested in the motion.
(2) The evidence to be processed, examined, or searched 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 processed, examined, and searched 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 friction ridge processing, examination, and search they seek 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 their innocence.
(5) The requested friction ridge processing, examination, and search 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 friction ridge processing, examination, and search 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 friction ridge processing, examination, and search result favorable to the convicted person, they are entitled to some form of ultimate relief.
(6) The evidence sought to be processed, examined, and searched meets either of the following conditions:
(A) The evidence was not processed, examined, or searched previously.
(B) The evidence was processed, examined, or searched previously, but the requested friction ridge processing, examination, or search 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 processing, examination, or searching 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 friction ridge processing, examination, and database searching, the court order should identify the specific evidence to be processed, examined, or searched and the technology or method that may be used. The technology or method may allow for the chemical enhancement of friction ridge impressions.
(2) (A) The processing, examination, and database searching shall be conducted by an accredited forensic service provider 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 forensic service provider accredited by an accrediting body which is recognized by the International Laboratory Accreditation Cooperation (ILAC) as an ILAC MRA Signatory and has programs in Forensic Testing (ISO/IEC 17025) and Inspection (ISO/IEC 17020). The following entities have been determined to satisfy this requirement in the United States:
(i) American Association for Laboratory Accreditation (A2LA).
(ii) ANSI National Accreditation Board (ANAB).
(B) If possible, the analyst performing the friction ridge processing, examination, and database searching should be certified by a recognized accrediting body.
(3) If the accredited forensic service provider selected by the parties or designated by the court to conduct friction ridge processing, examination, and database searching does not participate in cross-jurisdictional Automated Fingerprint Identification System (AFIS) searches, the forensic service provider selected to perform friction ridge database searching shall not initiate searching for a specific case until documented approval has been obtained from an appropriate AFIS participating agency of acceptance of friction ridge data from the selected forensic service provider that may be entered into or searched in AFIS.
(i) In accordance with the court’s order pursuant to subdivision (h), the forensic service provider may communicate with either party, upon request, during the friction ridge processing, examination, and database searching process. The result of any friction ridge processing, examination, and searching 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 documentation.
(j) (1) The cost of friction ridge processing, examination, and database searching 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 processing, examination, and database searching 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 processing, examination, and searching costs, the forensic service provider or agency designated in subdivision (h) shall present its bill for services to the superior court for approval and payment, subject to appropriation for this purpose by the Legislature in the annual Budget Act.
(k) An order granting or denying a motion for friction ridge processing, examination, and database searching 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 convicted person seeking friction ridge processing, examination, and searching, 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 friction ridge processing, examination, and database searching. 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.
(l) Friction ridge processing, examination, and database searching ordered by the court pursuant to this section shall be done as soon as practicable. 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 friction ridge processing, examination, and database searching, a forensic service provider shall be required to give priority to the friction ridge processing, examination, and database searching ordered pursuant to this section over the forensic service provider’s other pending casework.
(m) Notwithstanding any other law, the right to file a motion for postconviction friction ridge processing, examination, and database searching 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.
(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.
(o) For purposes of this section, the term “friction ridge” and “friction ridge impression” includes, but is not limited to, the skin and impressions thereof of fingers, palms, and soles.
(p)  For purposes of this section, friction ridge examination applies to latent prints that are retained in the following forms:
(1) Latent print lift.
(2) High-resolution photograph of the latent print.

SEC. 2.

 If the Commission on State Mandates determines that this act contains 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.