Requirement that defendant show a reasonable probability of a more favorable result to obtain order for postconviction DNA testing (Pen. Code, § 1405) does not deny due process. In 1973 Morrison was convicted of the first degree murder of a police officer. His state appeals and habeas petitions were denied. In 2006 and 2010, he sought DNA testing under section 1405, which provides a postconviction procedure for defendants seeking exonerating DNA testing and requires a showing that the testing would raise a “reasonable probability” of a more favorable verdict. His requests were denied. He sought federal relief following the 2010 denial, challenging the requirements of the statute. The district court dismissed the action for failure to state a claim. Morrison appealed. Held: Affirmed. Because California law provides a right to be released from custody when there is no legal cause for imprisonment, Morrison has a liberty interest in demonstrating his innocence based on new evidence. However, a defendant convicted after a fair trial does not have the same liberty interests as a free person and state courts have more flexibility in deciding what procedures are required in the context of postconviction relief. (See District Attorney’s Office for Third Judicial District v. Osborne (2009) 557 U.S. 52.) In Osborne, the U.S. Supreme Court rejected a challenge to Alaska’s procedures for postconviction relief based on DNA evidence. Here, the Ninth Circuit concluded that the “reasonable probability” standard of section 1405, subdivision (f)(5) (which courts are required to liberally apply to permit testing) is less restrictive than the requirements of the Alaska statute approved in Osborne. As a result, California’s procedure for convicted persons to obtain DNA testing under section 1405 does not violate due process.

The chain of custody requirement of Section 1405 does not violate due process. Section 1405, subdivision (f)(2) requires the court to find that the evidence to be tested has been subject to a chain of custody sufficient to find it has not been tampered with or substituted in any material aspect. Morrison claimed that it is unfair to place this burden on him, as the evidence is in the custody of the government and not subject to discovery. But Morrison’s claim was not denied based on chain of custody grounds. Further, prosecutors are required to retain biological evidence connected to a criminal case, which could arguably establish a prima facie showing of lack of tampering. (See Pen. Code, § 1417.9, subd. (a).)