Penal Code § 1405 lets a person convicted of a felony who is currently serving a term of imprisonment ask the original trial court to order qualifying DNA testing. The statute does not cover every past conviction or a person who has finished serving the sentence. A testing request must satisfy several statutory conditions, and an order for testing does not itself overturn the conviction. (Penal Code § 1405(a), (d), (g))
Identify the evidence and its history
Before preparing a motion, identify the specific biological evidence, where it may be held, whether it still exists, whether it has been tested, and what the test results and chain-of-custody records show. Preserve trial or plea records that explain whether identity was disputed and why the requested test could matter. Penal Code § 1417.9 addresses retention of biological evidence while a person remains imprisoned in connection with a case, subject to statutory conditions and notice provisions; it does not guarantee that a particular sample remains available. (Penal Code § 1417.9; Penal Code § 1405(c), (g))
Section 1405 allows a request for previously untested evidence and, under statutory conditions, a more discriminating or potentially contradictory test of evidence tested before. A request should identify the evidence and proposed test rather than ask a laboratory informally to test whatever may exist. The court must apply the statute’s requirements to the available evidence, prior testing, chain of custody, the significance of identity, the proposed method, and the expected effect on the verdict or sentence. (Penal Code § 1405(c), (d), (g))
The motion and court decision are separate from later relief
The statute calls for a verified motion in the court where the conviction was obtained. It must make the required statements about innocence, the role of identity in the conviction or plea, the specific evidence and testing sought, prior results and motions, and why the result could reasonably lead to a better verdict or sentence. Section 1405 also requires service on the Attorney General, the county District Attorney, and known evidence custodians or laboratories. The prosecutor’s response period and the court’s decision are governed by the statute. An indigent person may request counsel for this limited testing proceeding under the statute’s conditions; appointment is not automatic. (Penal Code § 1405(b), (d), (g))
If the court orders testing, that order decides whether the statutory testing conditions are met; it does not decide that the conviction must be vacated. A favorable result may support a later request for relief, but that step has its own legal standards and record. An order granting or denying the testing motion is not appealable; section 1405(k) permits writ review only, with the petition filed within 20 days after the order. Counsel should assess that deadline promptly. (Penal Code § 1405(g), (k))
To discuss post-conviction evidence and procedure, see the Law Offices of David S. Chesley’s post-conviction relief page or call (800) 755-5174.