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AB-2988 Criminal procedure: disposition of evidence.(2017-2018)

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Date Published: 08/17/2018 09:31 PM
AB2988:v96#DOCUMENT

Amended  IN  Senate  August 17, 2018
Amended  IN  Senate  June 28, 2018
Amended  IN  Assembly  May 25, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2988


Introduced by Assembly Member Weber

February 16, 2018


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


LEGISLATIVE COUNSEL'S DIGEST


AB 2988, as amended, Weber. Criminal procedure: disposition of evidence.
Existing law requires the appropriate governmental entity to retain any biological material that is secured in connection with a criminal case in a condition suitable for DNA testing for the duration of time that any person is incarcerated in connection with that criminal case. Existing law, however, authorizes the governmental entity possessing that material to dispose of it earlier if certain conditions are met, including that the incarcerated person is sent notice of the intent to destroy the evidence and does not object, as specified.
This bill would require the governmental entity to preserve any object or material that contains or includes that biological material. The bill would also require the notice of intent to destroy to be sent to the incarcerated person at the location where the person is currently incarcerated.
By imposing new evidence preservation requirements, this bill would create 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.

(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, except as otherwise specified, that the clerk of the court retain in his or her 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)The bill would make conforming changes.

(4)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 and thereafter distribute or dispose of the exhibits as provided in this chapter.

(c)Notwithstanding subdivisions (a) and (b), the court in any county in which the court, the prosecution, and the defense have agreed to an alternative custodian for the retention, management, and preservation of exhibits required in subdivision (d) of Section 1417.1, who is in possession of such exhibits as of January 1, 2018, or who thereafter enters into a written agreement for the retention and preservation of such exhibits in a manner suitable for potential review and testing in a postconviction, judicial, or extrajudicial process, is exempt from the requirement that the court retain custody of such exhibits. An alternative custodian is subject to all of the same requirements of this chapter as it would be if the exhibits were in custody of the court. This subdivision does not eliminate the need for court orders where required by this chapter or any other law.

SEC. 2.Section 1417.1 of the Penal Code is amended to read:
1417.1.

Except as otherwise provided in this chapter, an order shall not be made for the destruction of an exhibit before the expiration of the applicable time 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 photographic or digital 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 of the court shall substitute a full and complete photographic or digital 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 photographic or digital 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 parties agree that the evidentiary value of an exhibit can by its nature be preserved by a photographic or digital record, or is severable so that only a portion need be retained to preserve its evidentiary value, the court may order the clerk to retain the evidentiary portion of the exhibit and return the balance of the exhibit to the party that offered it. The clerk shall substitute a full and complete photographic or digital 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 photographic or digital 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 photographic or digital 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 if the possession of it is prohibited by law and it 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 photographic or digital 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 photographic or digital record and, upon receipt of a declaration of the person making the photographic or digital record that the duplicate delivered to the clerk is a true, unaltered, and unretouched duplicate of the photographic or digital record taken in the presence of the clerk, the clerk shall certify the photographic or digital record as such without charge and retain it unaltered for a period of 60 days following the expiration of the time set forth in Section 1417.1.

(c)A certified photographic or digital record of exhibits shall not be deemed inadmissible pursuant to Section 1521 or 1522 of the Evidence Code.

(d)For purposes of this section, the following definitions shall apply:

(1)“Digital record” means an image, audio recording, video recording, or document that accurately reproduces the exhibit or captures the evidentiary portion of the exhibit and is created, generated, sent, communicated, received, or stored by electrical, digital, magnetic, wireless, optical, electromagnetic, or similar means.

(2)“Duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

(3)“Photographic record” means a photographic image of the exhibit or its equivalent stored in any form.

(e)For purposes of this chapter, the court may elect the method to receive and store any digital record of any exhibit or partial exhibit returned under this section, whether electronically, through electronic data transfer into an electronic repository, including, but not limited to, network servers or cloud storage that meets the requirements of Section 12168.7 of the Government Code, or physically on electronic media storage devices, including, but not limited to, external hard drives, solid state drives, magnetic tapes, and USB storage devices.

SEC. 8.SECTION 1.

 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 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:
(A) 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. This notification shall be sent to the current location where the person is incarcerated.
(B) Any counsel of record.
(C) The public defender in the county of conviction.
(D) The district attorney in the county of conviction.
(E) The Attorney General.
(2) The notifying entity does not receive, within 180 days 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.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.