(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.

(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 extra-judicial extrajudicial process, and that biological evidence is retained for potential testing and retesting. The bill would require that the clerk of the court retain in his or her 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 larger 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 the 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 the any object or material that contains or includes biological material if 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, it 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.

(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 in cases that may be reviewed in a postconviction, judicial, or extra-judicial process, and that biological evidence is retained for potential testing and retesting. The bill would require 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 larger 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 the 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 the biological material if 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, it 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.

Date of Hearing: May 17, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1128

Author:(Weber) – As Amended Ver:April 17, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill clarifies that exhibits are to be retained under the custody and control of the court, and, in more serious cases, extends the time periods that exhibits must be retained by the court or that an object or material that contains biological material must be retained by the appropriate governmental entity. Specifically, this bill:

1. Requires the court to retain custody and control of any exhibit introduced or filed in a criminal action or proceeding. It also prohibits the court from ordering the destruction of an exhibit before one year after the term of imprisonment ends in a case charging a specified violent felony, a specified sex offense, aggravated assault on a child, or any charge that results in a life sentence. Requires these exhibits to be destroyed or disposed of no sooner than 60 days after this time period expires.
2. Provides that at any time before the expiration of specified time periods, if the exhibit poses a security or safety problem, as determined by the court, it must be returned to the party offering it.
3. Provides that if the size of the exhibit presents a storage concern, and the court determines that the evidentiary value of an exhibit can 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 must order the clerk to retain the evidentiary portion of the exhibit and order the return of the balance of the exhibit to the party that offered the exhibit, unless possession of the exhibit is prohibited by law.

FISCAL EFFECT:

The Judicial Council has indicated that some courts will not be able comply with the provisions of this bill unless significant capital improvements and infrastructure are funded (millions of dollars in GF or bond funds) to provide for the necessary storage envisioned in this bill.

COMMENTS:

1. Background. Current law requires that all exhibits which have been introduced or filed in any criminal action or proceeding are retained by the clerk of the court who must establish a procedure to account for the exhibits properly until final determination of the action or proceedings, and the exhibits must thereafter be distributed or disposed of, as provided.

Current law prohibits a court from ordering the destruction of an exhibit prior to the final determination of the action or proceeding. In cases where the death penalty is imposed, 30 days after the date of execution of sentence or one year after the defendant’s death. In other cases, the destruction of evidence can occur much sooner, such 30 days after the last day for filing an appeal, or 30 days after the appeal, etc. Also, current law provides that 60 days after the final determination of a criminal action or proceeding, the clerk of the court must dispose of all exhibits introduced or filed in the case and remaining in the clerk’s possession, as specified.

1. Purpose. The author points indicates the current statutes that governed the retention and destruction of evidence do not adequately serve justice as they favor the destruction of evidence after the first appeal, ignoring the fact that post-appellate scrutiny of convictions may require access to physical evidence to uncover wrongful convictions and to validate others.

AB 1128 also requires, in the most serious cases, the court to retain exhibits for a longer period of time and the appropriate government entity to retain any object or material that contains or includes biological material as long as the person remains incarcerated in connection with the case. The intent of this bill is to help ensure that exhibits and biological evidence remain available for post-conviction proceedings and testing. This, in turn, will help ensure that incarcerated defendants receive the benefit of advancements in forensic science. Advances in technology may allow for the testing of evidence that yields forensic results that could not have been obtained at the time of the conviction.

1. Support. The Northern California Innocence Project, a co-sponsor of this bill points out that nationwide, 349 men and women have been exonerated through DNA testing, but only because e physical evidence was retained in their case.
2. Opposition. The Judicial Council is concerned AB 1128 significantly extends the time period in which courts are required to retain exhibits in cases involving violent felonies, certain sex offenses, aggravated assault involving children, and charges that result in a life sentence, to one year after the term of imprisonment ends. The Judicial Council indicates that many courts lack the capacity for the storage of records as contemplated by this bill.
3. Related Legislation: SB 238 (Hertzberg) allows, in addition to a photographic record, a digital record of the exhibit to be taken and preserved by the court. SB 238 is in the Assembly awaiting referral.
   
4. Prior Legislation: AB 1352 (Levine), Chapter 274, Statutes of 2013, revised requirements for the destruction of court records, permitting the earlier destruction of some court records, thereby reducing storage costs.
   

SB 1489 (Harman) 2012 Chapter 283, Statutes of 2012, authorized a court to order the destruction of exhibits in a death penalty case one year after the death of a defendant while awaiting execution.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Cheryl Anderson

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:(Weber) – As Amended Ver:

SUMMARY:

Clarifies that exhibits are to be retained under the custody and control of the court, and, in more serious cases, extends the time periods that exhibits must be retained by the court or that an object or material that contains biological material must be retained by the appropriate governmental entity. Specifically, this bill:

1. Declares 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.
   
2. Requires the court to retain custody and control of any exhibit introduced or filed in a criminal action or proceeding.
   
3. Prohibits the court from ordering the destruction of an exhibit before one year after the term of imprisonment ends in a case charging a specified violent felony, a specified sex offense, aggravated assault on a child, or any charge that results in a life sentence. Requires these exhibits be destroyed or disposed of no sooner than 60 days after this time period expires.
   
4. Provides that at any time before the expiration of specified time periods, if the exhibit poses a security or safety problem, as determined by the court, it must be returned to the party offering it.
   
5. Authorizes a party to make a digital record instead of a photographic record of an exhibit returned to the party, upon request or because of a security or safety problem, before the expiration of specified time periods.
   
6. Provides that if the size of the exhibit presents a storage concern, and the court determines that the evidentiary value of an exhibit can 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 must order the clerk to retain the evidentiary portion of the exhibit and order the return of the balance of the exhibit to the party that offered the exhibit, unless possession of the exhibit is prohibited by law. Upon court order, the clerk must substitute a full and complete digital or photographic record of any exhibit or part of any exhibit returned under this provision. The party to whom the exhibit is being returned must provide the digital or photographic record, according to specified procedures.
   
7. Authorizes the introduction of a digital record instead of a photographic record where the exhibit is toxic.
   
8. Authorizes 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.
   
9. Requires the appropriate governmental agency to 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 the case, except where specified conditions are met and the case does not charge a specified violent felony, sex offense, aggravated assault on a child or charge that results in a life sentence. The specified conditions include:
   1. The governmental entity shall obtain proof of service of its intent to destroy the material where notice is provided to a defendant who is currently serving a term of imprisonment and remains incarcerated in connection with the case; and,
      
   2. The notifying entity does not receive within one year of sending the notification, a declaration of innocence filed with the court under penalty of perjury.
      

EXISTING LAW:

1. Requires that all exhibits which have been introduced or filed in any criminal action or proceeding shall be retained by the clerk of the court who must establish a procedure to account for the exhibits properly until final determination of the action or proceedings and the exhibits shall thereafter be distributed or disposed of, as provided. (Pen. Code, § 1417.)
   
2. Prohibits a court from ordering the destruction of an exhibit prior to the final determination of the action or proceeding. Defines the date when a criminal action or proceeding becomes final as follows:
   
   1. When no notice of appeal is filed, 30 days after the last day for filing that notice;
      
   2. When a notice of appeal is filed, 30 days after the date the clerk of the court receives the remittitur affirming the judgment;^[1]
      
   3. 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 the order; or,
      
   4. In cases where the death penalty is imposed, 30 days after the date of execution of sentence or one year after the defendant’s death awaiting execution. (Pen. Code, § 1417.1.)
      
3. Provides that the court may, upon application of a party entitled thereto or an agent designated in writing by the owner, order the exhibit delivered to that party prior to the final determination of the action or proceeding, upon stipulation of the parties or upon notice and motion under the following circumstances:
   
   1. Neither party will suffer prejudice; and
      
   2. A full and complete photographic record is made of the released exhibit and provided by the party to whom it is returned. (Pen. Code, § 1417.2.)
      
4. Provides that prior to the final determination of the action or proceedings, 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, storage, or safety problem. The clerk, upon court order, must substitute a full and complete photographic record of any exhibit or part of any exhibit returned to the state, as recommended by the clerk of the court. If the exhibit is severable, the court shall order the clerk to retain portion of the exhibit and return the balance to the district attorney. The party to whom the exhibit is being returned must provide the photographic record. (Pen. Code, § 1417.3, subd. (a).)
   
5. States that where the court finds good cause for introduction of a toxic exhibit, rather than a photographic record or written chemical analysis, the court is not required to store the toxic exhibit. The party who introduced the exhibit is responsible for it. (Pen. Code, § 1417.3, subd. (b).)
   
6. Provides that 60 days after the final determination of a criminal action or proceeding, the clerk of the court must dispose of all exhibits introduced or filed in the case and remaining in the clerk’s possession, as specified. (Pen. Code, § 1417.5, subd. (a).)
   
7. Provides for the destruction or disposition of illegal or dangerous property no sooner than 60 days following the final determination of the criminal action or proceeding. (Pen. Code, § 1417.6, subd. (a).)
8. States that not less than 15 days before any proposed disposition of an exhibit pursuant to law, 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 have a photographic record of all or part of the exhibit prepared by a person who is not a party or attorney of a party. The clerk of the court shall observe the taking of the photographic record and, upon receipt of a declaration of the person making the photographic record that the copy and negative of the photograph delivered to the clerk is a true, unaltered, and unretouched print of the photographic record taken in the presence of the clerk, the clerk shall certify the photographic record as such without charge and retain it unaltered for a period of 60 days following the final determination of the criminal action or proceeding. (Pen. Code, § 1417.7.)
   
9. Provides that notwithstanding any other provision of law, the appropriate governmental entity must 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, unless the following conditions are met:
   
   1. The governmental entity notifies 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 of these provisions and the intent to dispose of the material;
      
   2. The notifying entity does not receive, within 180 days of sending the notification, any of the following:
      
      1. A motion filed for DNA testing, as specified;
         
      2. A request under penalty of perjury that the material not be destroyed or disposed of because within 180 days the declarant will file a motion for DNA testing, unless the convicted person requests an extension and the governmental entity in possession of the evidence agrees; or,
         
      3. A declaration of innocence under penalty of perjury that has been filed with the court within one year of the judgment of conviction or July 1, 2001, whichever is later, as specified; and,
         
   3. No other provision of law requires that biological evidence be preserved or retained. (Pen. Code, § 1417.9.)
      
10. Provides notwithstanding any other provision of law, the right to receive notice regarding the intent to dispose biological material 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 no contest. (Pen. Code, § 1417.9, subd. (b)(3)(C).)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author’s Statement: According to the author, “AB 1128, co-sponsored by the Office of the San Diego County District Attorney and the California Innocence Project, ensures a cornerstone of the criminal justice system is preserved by amending the laws governing the custody and retention of court exhibits and biological material collected in criminal investigations. These statutes no longer adequately serve justice as they favor the destruction of evidence after the first appeal, ignoring the fact that post-appellate scrutiny of convictions requires access to physical evidence in order to uncover potentially wrongful convictions and to validate others. Current law also fails to take into account technological advancements in forensic science. We can now test evidence that yields a forensic result that could not have been obtained at the time of the conviction.

“AB 1128 provides that court exhibits, including those that may contain biological material, are retained exclusively by the courts and, in the most serious cases, retained for the length of incarceration so that evidence remains available for postconviction testing. This requirement will also apply to other governmental agencies that are in possession of evidence that has never been introduced in court, so that it too can be available for postconviction testing.”

1. The Defendant’s Right to an Adequate Record in Postconviction Proceedings: A defendant may appeal from a judgment of conviction suffered in the trial court. In non-capital felony cases, a defendant has 60 calendar days to file the notice of appeal. (Pen. Code, § 1237; Cal. Rules of Court, rules 8.308.) In capital cases, the appeal is automatic. (Cal. Rules of Court, rule 8.600.)
   
   The California Rules of Court specify the items that must be included in the record on appeal. (Cal. Rules of Court, rules 8.320, 8.610.) These items include exhibits admitted in evidence, refused or lodged in the trial court. (Cal. Rules of Court, rules 8.320(e), 8.610(a)(3).)
   
   A defendant is entitled to an adequate record to permit meaningful review on appeal (People v. Howard (1992) 1 Cal.4th 1132, 1165 [impliedly considering state and federal law]; see also id. at p. 1166 [explicitly addressing Eighth and Fourteenth Amendment requirements].) The burden is on the defendant to show that the deficiencies in the record are prejudicial to him or her. (Id. at p. 1165.)
   

In some cases, missing portions of the record can be adequately reconstructed or a settled statement can be prepared which fills in missing portions of the record. For example, in People v. Osband (1996) 13 Cal.4^th 622, lost trial exhibits did not require reversal of the judgment. There the parties were able to reconstruct and restore most of the record and to prepare a settled statement providing a satisfactory substitute for other portions. (Id at pp. 661-664 [reconstruction of 68 exhibits lost by the superior court clerk’s office; 62 could be

reproduced from prosecution negatives, three were not admitted into evidence, and six

more were properly the subject of a settled statement; resulting record was adequate to permit meaningful review]; see also People v. Coley (1997) 52 Cal.App.4th 964, 972-973

[appellate counsel did not seek reconstruction of lost exhibit consisting of the knife for

which appellant was convicted of illegal possession; held that appellant could not

complain of error related to the characteristics of the knife, because appellant had failed

to perfect an appellate record by seeking reconstruction].)

While reconstructing the record or preparing a settled statement of lost or destroyed exhibits may be a viable option in some cases, reversal will nonetheless be required if the defendant shows the missing exhibit is critical to an issue the defense intended to raise on appeal and that an adequate substitute of the exhibit cannot be obtained. (See People v. Galland (2008) 45 Cal.4^th 354, 370.) Moreover, settling the record, even when possible, is a lengthy process. (See Marks v. Superior Court (2002) 27 Cal.4^th 176, 192.)

Besides direct appeal, defendants have a number of other postconviction remedies available to them. These remedies may include a state habeas petition. A habeas petition is directed at determining the lawfulness of prison confinement, conditions of confinement, or actual or potential restraints on personal liberty. Thus the person must be in actual or constructive custody. (Pen. Code, §§ 1473, subd. (a), 1474, subd. (2).) A parolee, for example, is restrained for purposes of a state habeas petition. (In re Strum (1974) 11 Cal.3d 258, 265.) A habeas petition may be based on material false evidence, material false physical evidence, or material new evidence. (Pen. Code, § 1473.) False evidence includes expert opinions that have been repudiated or undermined by new scientific research or technological advances. (Pen. Code, § 1473, subd. (e).) While there are no statutory or other specific time limits for filing a state habeas petition, a court may decline to consider the petition if it finds unreasonable delay. (See In re Sanders (1999) 21 Cal.4^th 697, 703.) In capital cases, there are presumptions regarding the timeliness of a petition. (See In re Clark (1993) 5 Cal.4^th 750, 784.)

A defendant who has exhausted his or her state remedies, and whose case raises an important federal question, may file a petition for writ of certiorari in the United States Supreme Court. (U.S. Sup. Ct. Rule 10.) However, few petitions are granted. (http://www.supremecourt.gov/casehand/casehand.aspx, Guide to Filing In Forma Pauperis Cases, at p. 1.)

A defendant who has exhausted his or her state court remedies may also file a federal habeas corpus petition to challenge the constitutionality of his or her state-court criminal conviction and sentence. A federal petition for writ of habeas corpus under 28 U.S.C. § 2254 is used by a (1) state prisoner (2) being held in state custody (3) to challenge the validity of a state criminal conviction or sentence (4) for the purpose of obtaining release from custody. Again, the custody may be physical or constructive, including for example, parole. (Goldyn v. Hayes (9^th Cir. 2006) 444 F.3d 1062, 1063, fn. 2.) There is a one year limitation on the filing of the petition. (28 USC § 2244, subd. (d).) Though several things can trigger the running of this one-year period, the safest course of action for a defendant is usually to file the petition within one year of the date the California Supreme Court denies or dismisses review of the state court of appeal’s decision or the period for granting review expires. (Ibid.)

The ruling on a federal habeas petition may be appealed to the Ninth Circuit Court of Appeal. (28 USC § 2253.) A defendant may seek further review of a Ninth Circuit decision by filing a writ of certiorari in the United State Supreme Court. (See 28 USC § 1254; U.S. Sup. Ct. Rule 10.)

Need to Revise Law on Retention of Exhibits and Biological Evidence: Current law provides that exhibits shall be retained by the clerk who is to establish a procedure to account for the exhibits until the final determination of the action or proceedings, as defined. No procedure to account for the exhibits is specified. (Pen. Code, § 1417.) This bill requires that exhibits be retained in the custody and control of the court for the time periods specified. As such, this bill will help ensure that trial court exhibits are not inadvertently lost or destroyed.

AB 1128 also requires that, in the most serious cases, the court must retain exhibits for one year after incarceration ends, and that the appropriate government entity must retain any object or material that contains or includes biological material as long as the person remains incarcerated in connection with the case. This will help ensure that exhibits and biological evidence remain available for postconviction proceedings and testing. This, in turn, will help ensure that incarcerated defendants receive the benefit of advancements in forensic science.

AB 1128 also requires that in less serious cases, the governmental entity must nonetheless obtain proof of service that an incarcerated defendant has been notified before disposing of any object or material that contains or includes biological material before the expiration of the specified time periods. This extra step will help ensure that defendants, whose custody locations change, receive this notice and have an opportunity to respond before the evidence is disposed of.

1. Argument in Support: According to the Northern California Innocence Project, a co-sponsor of this bill, “Nationwide, 349 men and women have been exonerated through DNA testing only made possible because the physical evidence was retained in their case. In 2013, NCIP client Johnny Williams was exonerated of sexually assaulting a child because local law enforcement kept the child’s clothing worn during her attack despite the fact that Williams’ appeal was completed. DNA testing showed that biological material found on the victim’s clothes, 10 years after the assault, did not match Williams. Had law enforcement not preserved this physical evidence, Williams would not have been able to prove his innocence. He spent 14 years in prison, wrongfully convicted. Had he not been exonerated through this preserved evidence, he would have spent more years in prison and would have wrongfully been registered as a sex offender for the rest of his life.
   
   “AB 1128 closes a loophole in California’s penal code sections 1417.1 and 1417.9 which allow for the destruction of court exhibits and physical evidence once notice is provided to the interested parties, including the convicted inmate. AB 1128 requires that exhibits and physical evidence retained for at least one year after an inmate’s term of imprisonment in cases charging a violent felony, a specified sex offense, an aggravated assault on a child, or any charge that results in a life sentence.
   
   “Additionally, the current notice requirement is not sufficient or effective. ‘Notice’ often does not reach an inmate as prisoners are often moved throughout the California prison system and regular and reliable correspondence is difficult. In addition, once a defendant’s appeal is finalized, non-capital inmates (those not housed on death row) do not have a right to counsel. Without representation and assistance, most inmates lack the knowledge and skill to properly and effectively object to the destruction even if they are notified.
   

“The current requirements also do not take into account that the destruction of evidence during a person’s incarceration prevents them from taking advantage of developments in forensic science that may ultimately prove their innocence. As was the case with Johnny Williams, technology evolved during the period of his incarceration such that once the evidence was appropriately tested with newly developed DNA testing, he was found to be innocent.

“AB 1128 is a necessary measure to serve the interest of justice and to make sure our state stays abreast of technological advances in forensic science. Improving the notice requirements and extending the length of retention is vital for protecting the innocent and protecting convictions.”

1. Argument in Opposition: According to the Judicial Counsel of California, “The Judicial Council is opposed to AB 1128 due to the significant new burdens placed on the court by extending the required retention periods for certain records. Courts lack the resources to store and manage these records, especially in light of recently enacted unfunded legislative mandates and new requirements placed on courts by initiative measures passed in the November 2016 General Election. Further, many courts simply lack space capacity for the storage of records as contemplated by AB 1128. In those courts, AB 1128 could require the courts to obtain additional space to meet its mandate, however, the bill does not provide any funding to courts to do so.
   
   “With regard to record retention periods, AB 1128 would significantly extend the time period in which courts are required to retain exhibits in cases involving violent felonies, certain sex offenses, aggravated assault involving children, and charges that result in a life sentence, to one year after the term of imprisonment ends….”
   
   “The Judicial Council also has concerns about the changes to the retention periods for biological materials and the significant burdens the changes proposed by AB 1128 would place on the courts….The council is also concerned about the ability of courts to properly store biological evidence for extended periods of time because certain biological evidence may need refrigeration or other temperature control measures in order to preserve it.
   
   “Moreover, the council is concerned that AB 1128 seeks to address a situation that exists only in San Diego County by imposing new burdens on courts throughout the state. The San Diego County Superior Court has been in discussions with various stakeholders, including the San Diego District Attorney, about the inability of the new courthouse to store exhibits as the court has done in the past. To address the storage issue, the San Diego Superior Court is implementing new practices consistent with those followed in the Superior Courts of Orange, San Bernardino, Riverside, and Los Angeles Counties. AB 1128 would require those courts and likely others, which routinely destroy records in accordance with existing law, to change their practices and redirect resources to, among other things, managing, tracking, and allowing access to, records for extended periods of time.
   
   “Finally, the council believes that AB 1128 would undermine the efficiencies gained by the passage of AB 1352 (Levine; Stats. 2013, ch. 274), which updated and revised court records retention provisions. AB 1352 allows courts to efficiently and effectively manage court records and ensure that courts are not burdened by excessive record storage costs in this time of severe budget reductions to court operations – which jeopardize access to justice for all Californians – while still preserving the public’s access to records when necessary. In addition, the council believes that over time AB 1352 will result in substantial savings to courts because historically courts have devoted a vast amount of storage space to maintaining and preserving paper files of court records. A survey in 2007 indicated that court records were stored in 276 locations throughout the state (courthouses and off-site facilities), totaling 1,854,922 linear feet. The total cost associated with records management during the fiscal year 2006-2007 was $21,619,815, which includes storage costs of $1,814,530 and staff costs of $14,908,919.”
   
2. Related Legislation: SB 238 (Hertzberg) would allow, in addition to a photographic record, a digital record of the exhibit to be taken and preserved by the court. SB 238 is pending hearing in the Senate Appropriations Committee.
   
3. Prior Legislation:
   
   1. AB 1352 (Levine) Chapter 274, Statutes of 2013, revised requirements for the destruction of court records, permitting the earlier destruction of some court records, thereby reducing storage costs.
      
   2. SB 1489 (Harman) 2012 Chapter 283, Statutes of 2012, authorized a court to order the destruction of exhibits in a death penalty case one year after the death of a defendant while awaiting execution. Deleted paper exhibits from the definition of a “court record.”
      
   3. AB 1926 (Evans) Chapter 167, Statutes of 2010, allowed trial courts to create, maintain and preserve records in a variety of forms, including electronic.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union

California Attorneys for Criminal Justice

California District Attorneys Association

California Public Defenders Association

Northern California Innocence Project (Co-sponsor)

San Diego County District Attorney (Co-sponsor)

Opposition

Judicial Counsel of California

Analysis Prepared by:

Cheryl Anderson / PUB. S. /

1. Issuance of the remittitur is the final step in a state court appeal. (Cal. Rules of Court, rule 8.272.)
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