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AB-1128 Criminal cases: exhibits: retention.(2017-2018)

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Date Published: 04/17/2017 09:00 PM
AB1128:v97#DOCUMENT

Amended  IN  Assembly  April 17, 2017
Amended  IN  Assembly  March 22, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1128


Introduced by Assembly Member Weber

February 17, 2017


An act to amend Sections 1417, 1417.1, 1417.2, 1417.3, 1417.5, 1417.6, 1417.7, and 1417.9 of the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


AB 1128, as amended, Weber. Criminal cases: exhibits: retention.
(1) Existing law requires the clerk of the court to retain all exhibits introduced or filed in a criminal action or proceeding, except as specified, until final determination of the actions or proceedings. Existing law authorizes the court, if requested by a party, to order an exhibit delivered to that party if no prejudice will be suffered by either party, a full and complete photographic record is made of the exhibits, and release of the exhibit is not prohibited by law. Existing law requires the court to return an exhibit to the party offering it when the exhibit poses a security, storage, or safety problem, as specified.
This bill would declare the intent of the Legislature to ensure that exhibits are preserved by the court in cases that may be reviewed in a postconviction, judicial, or extrajudicial process, and that biological evidence is retained for potential testing and retesting. The bill would require the court to retain in its custody and control any exhibit introduced or filed in a criminal action or proceeding, as specified. The bill would authorize a party to whom an exhibit is released, either upon request, or for security, storage, or safety reasons, to make a digital record instead of a photographic record of the exhibit.
(2) Existing law prohibits a court from ordering the destruction of an exhibit before the final determination of an action or proceeding, as specified. Existing law requires the clerk of the court to dispose of all exhibits, as specified, 60 days after that final determination. Existing law requires the court to notify specified parties, not less than 15 days before any proposed disposition of an exhibit, of the proposed disposition, and authorizes the party to prepare a photographic record of the exhibit at his or her own expense.
This bill would prohibit a court from ordering the destruction of an exhibit before the expiration of a specified time period. In a case charging a violent felony, a specified sex offense, an aggravated assault on a child, or any charge that results in a life sentence, the bill would prohibit the court from ordering the destruction of an exhibit before one year after the term of imprisonment ends. The bill would require the clerk of the court to dispose of all exhibits, as specified, 60 days after the expiration of a specified time period. The bill would authorize a party to make a digital record instead of a photographic record of any exhibit when the court notifies specified parties of an order to destroy the exhibit. To the extent that a governmental entity may be required to retain certain evidence for a greater period of time under related provisions, the bill would impose a state-mandated local program.
(3) Existing law requires the appropriate governmental entity to retain all biological material that is secured in connection with a criminal case for the period of time that any person remains incarcerated in connection with that case, except as specified. Existing law authorizes the governmental entity to dispose of the biological material while a person remains incarcerated if the entity notifies specified persons of its intention to dispose of the material and does not receive a response, as specified, within 180 days of sending the notification.
This bill would require the governmental entity, when notifying a person who is serving a term of imprisonment and who remains incarcerated of the intention to dispose of any object or material that contains or includes biological material while the person remains incarcerated, to obtain proof of service of that notice. The bill would authorize the governmental entity to dispose of any object or material that contains or includes biological material that entity it does not receive a response, as specified, within one year of sending the notification. Because the bill would require the governmental entity to obtain proof of service of notice under these provisions, the bill would impose a state-mandated local program.
(4) The bill would make conforming changes.
(5) 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 1417 of the Penal Code is amended to read:

1417.
 (a) It is the intent of the Legislature to ensure that exhibits are preserved by the court in cases that may be reviewed in a postconviction, judicial, or extrajudicial process, and that biological evidence is retained for potential testing and retesting.
(b) All exhibits which have been introduced or filed in any criminal action or proceeding shall be retained in the custody and control of the court under the conditions and for the time set forth in this chapter. The clerk of the court shall establish a procedure to store and account for the exhibits properly, subject to Sections 1417.2, 1417.3, and 1417.9.

SEC. 2.

 Section 1417.1 of the Penal Code is amended to read:

1417.1.
 Except as otherwise provided, an order shall not be made for the destruction of an exhibit before the expiration of the applicable time set forth as follows:
(a) Except as provided in subdivision (d), and when no notice of appeal is filed, 30 days after the last day for filing that notice.
(b) Except as provided in subdivision (d), and when a notice of appeal is filed, 30 days after the date the clerk of the court receives the remittitur affirming the judgment.
(c) Except as provided in subdivision (d), and when an order for a rehearing, a new trial, or other proceeding is granted and the ordered proceedings have not been commenced within one year thereafter, one year after the date of that order.
(d) In a case charging a violent felony pursuant to subdivision (c) of Section 667.5, a sex offense described in Section 261, 262, 269, 286, 288, or 289, an aggravated assault on a child in violation of Section 273ab, or any charge that results in a life sentence, including, but not limited to, cases sentenced pursuant to Section 667.61, 667.71, or 1170.12, one year after the term of imprisonment ends.
(e) (1) In cases where the death penalty is imposed, 30 days after the date of execution of sentence.
(2) In cases where the death penalty is imposed and the defendant dies while awaiting execution, one year after the date of the defendant’s death.

SEC. 3.

 Section 1417.2 of the Penal Code is amended to read:

1417.2.
 Notwithstanding Section 1417.5, the court may, on application of the party entitled thereto or an agent designated in writing by the owner, order an exhibit delivered to that party at any time before the expiration of the time set forth in Section 1417.1, upon stipulation of the parties or upon notice and motion if all of the following requirements are met:
(a) No prejudice will be suffered by either party.
(b) A full and complete digital or photographic record is made of the exhibits by the party to whom the exhibit is being returned, according to the procedures set forth in subdivision (b) of Section 1417.7.
(c) Release of the exhibit is not prohibited by Section 1417.6.

SEC. 4.

 Section 1417.3 of the Penal Code is amended to read:

1417.3.
 (a) At any time before the expiration of the time set forth in Section 1417.1, exhibits offered by the state or defendant shall be returned to the party offering them by order of the court when an exhibit poses a security or safety problem, as determined by the court. The clerk, upon court order, shall substitute a full and complete digital or photographic record of any exhibit or part of any exhibit returned under this subdivision. The party to whom the exhibit is being returned shall provide the digital or photographic record, according to the procedures set forth in subdivision (b) of Section 1417.7.
(b) If the size of the exhibit presents a storage concern, and the court determines that the evidentiary value of an exhibit can by its nature be preserved by a digital or photographic record, or is severable so that only a portion need be retained to preserve its evidentiary value, the court shall order the clerk to retain the evidentiary portion of the exhibit and shall order the return of the balance of the exhibit to the party that offered the exhibit. The clerk, upon court order, shall substitute a full and complete digital or photographic record of any exhibit or part of any exhibit returned under this section. subdivision. The party to whom the exhibit is being returned shall provide the digital or photographic record, according to the procedures set forth in subdivision (b) of Section 1417.7.
(c) Exhibits toxic by their nature that pose a health hazard to humans shall be introduced to the court in the form of a digital or photographic record and a written chemical analysis certified by competent authority. Where the court finds that good cause exists to depart from this procedure, toxic exhibits may be brought into the courtroom and introduced. However, following introduction of the exhibit, the person or persons previously in possession of the exhibit shall take responsibility for it and the court shall not be required to store the exhibit.

SEC. 5.

 Section 1417.5 of the Penal Code is amended to read:

1417.5.
 Except as provided in Section 1417.6, 60 days after the expiration of the time set forth in Section 1417.1, the clerk of the court shall dispose of all exhibits introduced or filed in the case and remaining in the court’s possession, as follows:
(a) If the name and address of the person from whom the exhibit was taken is contained in the court record, the clerk shall notify the person that he or she may make application to the court for release of the exhibits within 15 days of receipt of the notification.
(b) The court shall order the release of exhibits free of charge, without prejudice to the state, upon application, to the following:
(1) First, the person from whom the exhibits were taken into custody, provided that the person was in lawful possession of the exhibits.
(2) Second, a person establishing title to, or a right to possession of, the exhibits.
(c) If the party entitled to an exhibit fails to apply for the return of the exhibit prior to the date for disposition under this section, the following procedures shall apply:
(1) Exhibits of stolen or embezzled property other than money shall be disposed of pursuant to court order as provided in Section 1417.6.
(2) Exhibits of property other than property which is stolen or embezzled or property which consists of money or currency shall, except as otherwise provided in this paragraph and in paragraph (3), be transferred to the appropriate county agency for sale to the public in the same manner provided by Article 7 (commencing with Section 25500) of Chapter 5 of Part 2 of Division 2 of Title 3 of the Government Code for the sale of surplus personal property. If the county determines that any property is needed for a public use, the property may be retained by the county and need not be sold.
(3) Exhibits of property, other than money, currency, or stolen or embezzled property, that are determined by the court to have no value at public sale shall be destroyed or otherwise disposed of pursuant to court order.
(4) Exhibits of money or currency shall be disposed of pursuant to Section 1420.

SEC. 6.

 Section 1417.6 of the Penal Code is amended to read:

1417.6.
 (a) The provisions of Section 1417.5 shall not apply to any dangerous or deadly weapons, narcotic or poisonous drugs, explosives, or any property of any kind or character whatsoever the possession of which is prohibited by law and that was used by a defendant in the commission of the crime of which the defendant was convicted, or with which the defendant was armed or that the defendant had upon his or her person at the time of the defendant’s arrest.
Any of this property introduced or filed as an exhibit shall be, by order of the trial court, destroyed or otherwise disposed of under the conditions provided in the order no sooner than 60 days after the expiration of the time set forth in Section 1417.1.
(b) (1) Every person who knowingly has in his or her possession any tool or device that is seized and of a type used in the commission of a violation of Section 10801, 10802, or 10803 of the Vehicle Code, shall be subject to having the tool or device intended for the above purpose deemed a nuisance as provided in paragraph (2).
(2) An evidentiary hearing shall be held only upon conviction of the defendant for a violation of Section 10801, 10802, or 10803 of the Vehicle Code and after 15 days’ notice is given to the defendant of the state’s intent to declare as a nuisance any property that is described in paragraph (1). All relevant evidence shall be admissible at the hearing and the state shall prove by a preponderance of the evidence that the property seized is of a type used in facilitating the commission of the crime of which the defendant was convicted.
(3) If a person purports to be the lawful owner of any tool or device the state seeks to be declared a nuisance, the person shall show proof by a preponderance of the evidence at the hearing pursuant to paragraph (2), that he or she owns the tool or device, and the illegal use of the tool or device was without his or her knowledge or consent.
(4) Following a determination that the property shall be declared a nuisance, the property shall be disposed of as provided in paragraph (2) or (3) of subdivision (c) of Section 1417.5.

SEC. 7.

 Section 1417.7 of the Penal Code is amended to read:

1417.7.
 (a) Not less than 15 days before any proposed disposition of an exhibit pursuant to Section 1417.3, 1417.5, or 1417.6, the court shall notify the district attorney (or other prosecuting attorney), the attorney of record for each party, and each party who is not represented by counsel of the proposed disposition. Before the disposition, any party, at his or her own expense, may cause to be prepared a digital or photographic record of all or part of the exhibit by a person who is not a party or attorney of a party.
(b) The clerk of the court shall observe the taking of the digital or photographic record and, upon receipt of a declaration of the person making the record that the copy delivered to the clerk is a true, unaltered, and unretouched copy of the digital or photographic record taken in the presence of the clerk, the clerk shall certify the record as such without charge and retain it unaltered for a period of 60 days after the expiration of the time set forth in Section 1417.1. A certified digital or photographic record of exhibits shall not be deemed inadmissible pursuant to Section 1521 or 1522 of the Evidence Code.

SEC. 8.

 Section 1417.9 of the Penal Code is amended to read:

1417.9.
 (a) Notwithstanding any other law and subject to subdivisions (b) and (c), the appropriate governmental entity shall retain any object or material that contains or includes biological material that is secured in connection with a criminal case for the period of time that any person remains incarcerated in connection with that case. The governmental entity shall have the discretion to determine how the evidence is retained pursuant to this section, provided that the evidence is retained in a condition suitable for deoxyribonucleic acid (DNA) testing.
(b) Except in cases that charge a crime set forth in subdivision (d) of Section 1417.1, a governmental entity may dispose of any object or material that contains or includes biological material before the expiration of the period of time described in subdivision (a) if all of the conditions set forth below are met:
(1) The governmental entity notifies all of the following persons of the provisions of this section and of the intention of the governmental entity to dispose of the material: any person, who as a result of a felony conviction in the case is currently serving a term of imprisonment and who remains incarcerated in connection with the case, any counsel of record, the public defender in the county of conviction, the district attorney in the county of conviction, and the Attorney General. The governmental entity shall obtain proof of service of the notice if provided to any individual who is currently serving a term of imprisonment and remains incarcerated in connection with the case.
(2) The notifying entity does not receive, within one year of sending the notification, any of the following:
(A) A motion filed pursuant to Section 1405. However, upon filing of that motion, the governmental entity shall retain the material only until the time that the court’s denial of the motion is final.
(B) A request under penalty of perjury that the material not be destroyed or disposed of because the declarant will file a motion for DNA testing pursuant to Section 1405 within one year, unless a request for an extension is requested by the convicted person and agreed to by the governmental entity in possession of the evidence.
(C) A declaration of innocence filed with the court under penalty of perjury. However, the court shall permit the destruction of the evidence upon a showing that the declaration is false or there is no issue of identity that would be affected by additional testing. The convicted person may be cross-examined on the declaration at any hearing conducted under this section or on an application by or on behalf of the convicted person filed pursuant to Section 1405.
(3) No other law requires that biological evidence be preserved or retained.
(c) Notwithstanding any other law, the right to receive notice pursuant to 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.

SEC. 9.

 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.