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.

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.

(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.

(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)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 if that entity 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.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2988

Author:(Weber)

As Amended Ver:August 17, 2018

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Requires the appropriate governmental entity to retain any object of material that contains or includes biological material that is collected in connection with a criminal case, as specified.

The Senate amendments:

1. Specify that the appropriate governmental entity shall retain any object or material that contains or includes biological material – as opposed to just the biological material itself – that is secured in connection with a criminal case for the period of time that any person remains incarcerated in connection with that case.
2. Specify that notification of the intention of the governmental entity to dispose of such material shall be sent to the current location where the person is incarcerated.
3. Specify that a declaration of innocence submitted in response to notification of the intention of the governmental entity to dispose of such material need not be filed with the court within one year of the judgment of conviction.
4. Make other technical, non-substantive changes.

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.
2. Prohibits a court from ordering the destruction of an exhibit prior to the final determination of the action or proceeding.
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 certain circumstances:
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.
5. 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.
6. 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.
7. 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.
8. 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 certain conditions are met:
9. 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.

AS PASSED BY THE ASSEMBLY, this bill:

1. Required the court to retain custody and control of any exhibit introduced or filed in a criminal action or proceeding.
2. Required the court to establish a procedure to store and account for the exhibits, and properly distribute or dispose of them.
3. Exempted courts which have previously entered into an agreement with the prosecution and the defense for an alternative custodian to retain, manage, and preserve the court exhibits from having to retain custody and control of the exhibits, and allows courts to enter into agreements for an alternative custodian moving forward.
4. Specified that an alternative custodian is subject to the same requirements as the court.
5. Specified that these provisions do not eliminate the need for court orders where required by law.
6. Prohibited 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.
7. Provided 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.
8. Authorized 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.
9. Provided 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 may 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.
10. Authorized the introduction of a digital record instead of a photographic record where the exhibit is toxic.
11. Authorized 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.
12. Authorized the court to elect the method to receive and store any digital record of any exhibit or partial exhibit whether electronically, through electronic transfer onto network servers or cloud storage that meets specified requirements, or physically on electronic media storage devices.

FISCAL EFFECT: According to Senate Appropriations Committee, unknown, potentially-significant costs in the aggregate for the appropriate governmental entities to retain all objects and material that contain or include biological material that is secured in connection with a criminal case for the specified period of time. Local costs to comply with this measure would be subject to reimbursement by the state, the extent of which would be determined by the Commission on State Mandates.

COMMENTS: According to the author, ''AB 2988, 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, substantiating the need for lengthier preservation.

''AB 2988 provides that court exhibits, including those that may contain biological material, are retained exclusively in the control of the courts and, in the most serious cases, retained by the court, or alternative custodian, for the length of incarceration so that evidence remains available for post-conviction 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 post-conviction testing.''

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0004495

 THIRD READING  

Bill No: AB 2988

Author:

Amended: 8/17/18 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/26/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Wiener

NO VOTE RECORDED: Nielsen

ASSEMBLY FLOOR: 78-0, 5/30/18 - See last page for vote

SUBJECT:

SOURCE: California Innocence Coalition

San Diego County District Attorney

DIGEST:

This bill extends the time period that exhibits must be retained by the court, custodian, or appropriate governmental entity in certain specified cases.

ANALYSIS:

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:
3. When no notice of appeal is filed, 30 days after the last day for filing that notice;
4. When a notice of appeal is filed, 30 days after the date the clerk of the court receives the remittitur affirming the judgment;
5. 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,
6. 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.)
7. 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:
8. Neither party will suffer prejudice; and
9. 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.)
10. 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).)
11. 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).)
12. 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).)
13. 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).)
14. 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.)
15. 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:
16. 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; and
17. 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;
18. 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; or,
19. No other provision of law requires that biological evidence be preserved or retained. (Pen. Code, § 1417.9.)
20. 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).)

This bill provides that when a governmental entity intends to dispose of biological material and the person is currently serving a term of imprisonment the notification shall be sent to the current location where the person is incarcerated, any counsel of record, the public defender, the district attorney and the Attorney General.

Background

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.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

Unknown, potentially-significant costs in the aggregate for the appropriate governmental entities to retain all objects and material that contain or include biological material that is secured in connection with a criminal case for the specified period of time. Local costs to comply with this measure would be subject to reimbursement by the state, the extent of which would be determined by the Commission on State Mandates.

SUPPORT: (Verified 8/16/18)

California Innocence Coalition (co-source)

San Diego County District Attorney (co-source)

American Civil Liberties Union of California

American Civil Liberties Union of San Diego and Imperial Counties

California District Attorneys Association

California Public Defenders Association

County of San Diego Department of the Public Defender

Los Angeles County District Attorney

OPPOSITION: (Verified 8/16/18)

None received

ASSEMBLY FLOOR: 78-0, 5/30/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

Prepared by:

8/20/18 19:33:31

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2988 (Weber) - Criminal procedure: disposition of evidence

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 16, 2018

Bill Summary:

AB 2988 would prohibit the court from ordering the destruction of exhibits before the expiration of specified periods of time.

Fiscal Impact:

Unknown, potentially-significant costs in the aggregate for the appropriate governmental entities to retain all objects and material that contain or include biological material that is secured in connection with a criminal case for the specified period of time. Local costs to comply with this measure would be subject to reimbursement by the state, the extent of which would be determined by the Commission on State Mandates.

Committee Amendments:

Strike the court exhibit retention provisions.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2988 (Weber) - Criminal procedure: disposition of evidence

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2988 would prohibit the court from ordering the destruction of exhibits before the expiration of specified periods of time.

Fiscal Impact:

Judicial Council estimates major ongoing costs of between $2.5 million and $5 million annually for additional physical storage costs and $1.7 million to $3.5 million annually in staffing costs associated with this measure. (General Fund*)

*Trial Court Trust Fund

Background:

Currently, court clerks must retain all exhibits that have been introduced or filed in any criminal action or proceeding. The clerk must establish a procedure to account for the exhibits properly, as specified, until final determination of the action or proceedings. Thereafter, the court may distribute or dispose of the exhibits consistent with provisions of law related to the disposition of evidence in criminal cases. Generally, the court clerk must dispose of evidence in specified ways sixty days after the final determination of a criminal action or proceeding. There are exceptions, however, to this general duty with respect to evidence that is dangerous or deadly weapons, narcotic or poisonous drugs, explosives, or something the possession of which is prohibited by law. Additionally, there is a requirement that, generally, the appropriate governmental entity must retain all biological material that is secured in connection with a criminal case for the duration of time that a person remains incarcerated in connection with that case. That said, the governmental entity required to retain the material may determine how the evidence is retained, provided it is in a condition suitable for DNA testing.

Proposed Law:

This bill would prohibit the court from ordering the destruction of an exhibit before the expiration of a specified period of time. Specifically, AB 2988 would prohibit, generally, the court from making an order to destroy an exhibit until one year after the term of imprisonment ends in cases charging a violent felony, as described, one of a list of specified sex offenses, aggravated assault of a child, as described, or any charge that would result in a life sentence. This bill, however, would require exhibits offered by the state or defendant be returned by court order to the party offering them when an exhibit poses a security or safety problem, as determined by the court, before one year after the end of incarceration. Additionally, the court may retain a full photographic or digital record of an exhibit if the size of the exhibit presents a storage concern and the parties agree that its evidentiary value can be preserved by a photographic or digital record.

Related Legislation:

AB 1128 (Weber, 2017) would have made similar changes proposed by this bill. AB 1128 was held on the Suspense File of the Assembly Committee on Appropriations.

SB 238 (Hertzberg, Ch. 566, Stats. 2017) allowed a digital record of the exhibit to be taken and preserved by the court in addition to a photographic record.

AB 1352 (Levine, Ch. 274, Stats. 2013) revised requirements for the destruction of court records, permitting the earlier destruction of some court records, thereby reducing storage costs.

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

AB 1926 (Evans, Ch. 167, Stats. 2010) allowed trial courts to create, maintain, and preserve records in a variety of forms, including electronically.

Staff Comments: This measure, generally, would prohibit courts from destroying or disposing of evidence related to cases in which the defendant was convicted of specified felony offenses. Specifically, AB 2988 would allow the court to order the destruction of the evidence only one year after imprisonment ends. It is unclear how courts would determine when a person who is incarcerated in a type of case affected by this bill is released from custody or incarceration has otherwise ceased (e.g., because of the person’s death while in custody), as the courts do not receive notification of when such an occurrence takes place. Consequently, AB 2988 would result in additional costs to the courts (e.g., by retained evidence occupying limited storage space for periods longer than statutorily required, necessitating an increase of capacity and/or court staff expending resources to determine if a person is still incarcerated in connection to a case for which the evidence is retained), because they are unaware of the incarceration end dates.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 2988 Hearing Date: June 26, 2018

Subject: Criminal Procedure: Disposition of Evidence

HISTORY

Source: California Innocence Coalition

San Diego County District Attorney

Prior Legislation: SB 238 (Hertzberg), Ch. 566, Stats. 2017

AB 1128 (Weber), 2017, held in Assembly Appropriations Comm.

AB 1352 (Levine) Ch. 274, Stats. 2013

SB 1489 (Harman), Ch. 283, Stats. 2012

AB 1926 (Evans), Ch.167, Stats. 2010

Support: American Civil Liberties Union of California; American Civil Liberties Union of San Diego and Imperial Counties; California District Attorneys Association; California Public Defenders Association; County of San Diego Department of the Public Defender; Los Angeles County District Attorney

Opposition: None known

Assembly Floor Vote: 78 - 0

PURPOSE

The purpose of this bill is to extend the time period that exhibits must be retained by the court, custodian, or appropriate governmental entity in certain specified cases.

Existing law 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.)

Existing law 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;
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.)

Existing law 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.)

Existing law 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).)

Existing law 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).)

Existing 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. (Pen. Code, § 1417.5, subd. (a).)

Existing law 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).)

Existing law 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.)

Existing law 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; and
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;
   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; or,
   4. No other provision of law requires that biological evidence be preserved or retained. (Pen. Code, § 1417.9.)

Existing law 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).)

This bill clarifies that all exhibits 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 timeframes set forth in the bill as specified.

This bill states that 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, 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.

This bill clarifies that an alternative custodian is subject to all of the same requirements that would apply if the exhibits were in custody of the court and states that this bill’s provisions do not eliminate the need for court orders where required by law.

This bill prohibits the court from ordering the destruction of an exhibit sooner than 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 and requires that these exhibits be destroyed or disposed of no sooner than 60 days after this time period expires.

This bill provides that at any time before the expiration of the applicable timeframes, 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 and requires the clerk of the court to substitute a full and complete photographic or digital record of any exhibit or part of any exhibit returned as a security or safety problem. The party to whom the exhibit is being returned shall provide the photographic or digital record, according to the procedures specified.

This bill specifies 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 a portion need to 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.

This bill authorizes a digital record may be made wherever the law already allows a photographic record.

This bill states that the court may elect the method to receive and store any digital record of any exhibit or partial exhibit returned under the provisions of this bill, whether electronically, through electronic transfer onto network servers or cloud storage that meets specified requirements for the storing and recording of documents in electronic media, or physically on electronic media storage devices including, but not limited to, external hard drives, solid state drives, magnetic tapes, and USB storage devices.

This bill prohibits a governmental entity from disposing of any object or material that contains or includes biological material in cases charging a specified violent felony, a specified sex offense, aggravated assault on a child, or any charge that results in a life sentence.

This bill states 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.

This bill makes other conforming changes.

COMMENTS

1. Need for This Bill

According to the author of this bill:

[This bill] allows defendants, who may have been wrongfully convicted, to prove their innocence by prohibiting the courts from destroying certain court exhibits, including those that may contain biological material, by requiring specific court exhibits be retained exclusively by the courts and, in the most serious cases, retained for the length of incarceration so that the evidence will remain available for post-conviction testing. Technological advances in DNA have proven critical in the exonerations of several wrongfully convicted defendants. Recently, there have been several instances where advanced DNA testing of biological material, post-conviction, have turned out to be the vital element needed to overturn a life sentence. AB 2988 will ensure that such exhibits will still be available for testing, years after a conviction, literally providing a lifeline to the innocent who remain incarcerated.

2. 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.)

3. 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.

This bill 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.

In less serious cases, this bill requires the governmental entity to 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.

4. Planned Amendments

The author plans to amend the bill to define the term “digital record” and clarify the bill’s provisions related to the storage of these records.

5. Argument in Support

According to the San Diego County District Attorney, a co-sponsor of this bill:

AB 2988 further mitigates the costs associated with long term storage of critical evidence in the smaller subset of serious cases by providing greater efficiencies in the storage of exhibits in all cases; likely resulting in net zero storage costs. Specifically, in cases where the evidentiary value of an exhibit may be retained by digital or photographic representations, the representations may be retained in lieu of the original. The method of digital transfer and storage is at the courts’ discretion, whether it be done through the courts’ networks or on external hard or thumb drives. The bill also allows for exhibits to be severed so that only the portion having an actual evidentiary value need to be retained.

Our office knows firsthand that conviction review is heavily dependent on exhibit and evidence preservation. We have a Conviction Review Unit that relies on evidence preservation. Recently, we had a case where evidence found in our courthouse basement proved invaluable; it exonerated an innocent man. Fortunately, the court had retained the evidence despite current law, which would have allowed its earlier destruction.

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ASSEMBLY THIRD READING

ATR Bill Id:

Author:(Weber)

As Introduced Ver:

Majority vote

SUMMARY: Clarifies that exhibits are to be retained under the custody and control of the court or by an agreed-upon custodian and in serious cases extends the time period that exhibits must be retained by the court, custodian, or 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.
2. Requires the court to establish a procedure to store and account for the exhibits, and properly distribute or dispose of them.
3. Exempts courts which have previously entered into an agreement with the prosecution and the defense for an alternative custodian to retain, manage, and preserve the court exhibits from having to retain custody and control of the exhibits, and allows courts to enter into agreements for an alternative custodian moving forward.
4. Specifies that an alternative custodian is subject to the same requirements as the court.
5. Specifies that these provisions do not eliminate the need for court orders where required by law.
6. 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.
7. 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.
8. 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.
9. 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 may 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.
10. Authorizes the introduction of a digital record instead of a photographic record where the exhibit is toxic.
11. 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.
12. Authorizes the court to elect the method to receive and store any digital record of any exhibit or partial exhibit whether electronically, through electronic transfer onto network servers or cloud storage that meets specified requirements, or physically on electronic media storage devices.

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.
2. Prohibits a court from ordering the destruction of an exhibit prior to the final determination of the action or proceeding.
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 certain circumstances:
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.
5. 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.
6. 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.
7. 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.
8. 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 certain conditions are met:
9. 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.

FISCAL EFFECT: According to the Assembly Appropriations Committee, significant ongoing GF costs in the millions of dollars annually for courts to procure additional physical and digital storage space, hold evidence for longer periods, and acquire new equipment to comply with imaging evidentiary standards.

COMMENTS: According to the author, ''AB 2988, 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, substantiating the need for lengthier preservation.

''AB 2988 provides that court exhibits, including those that may contain biological material, are retained exclusively in the control of the courts and, in the most serious cases, retained by the court, or alternative custodian, for the length of incarceration so that evidence remains available for post-conviction 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 post-conviction testing.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0003237

Date of Hearing: May 2, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2988

Author:(Weber) – As Introduced Ver:February 16, 2018

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

SUMMARY:

This bill expands provisions requiring court exhibits to be retained under the custody and control of the court or by an agreed-upon custodian and, in serious cases, extends the time that exhibits must be retained by the court, custodian, or 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.
   
2. Recasts provisions requiring the court to establish a procedure to store and account for the exhibits and to properly distribute or dispose of them.
   
3. Exempts courts which have previously entered into an agreement with the prosecution and the defense for an alternative custodian to retain, manage, and preserve the court exhibits from having to retain custody and control of the exhibits, and allows courts to enter into agreements for an alternative custodian moving forward.
   
4. Specifies that an alternative custodian is subject to the same requirements as the court.
   
5. 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 expires.
   
6. 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.
   
7. Provides that if the size of the exhibit presents a storage concern the court can preserve it by a digital or photographic record.
8. 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 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.

FISCAL EFFECT:

Significant ongoing GF costs in the millions of dollars annually for courts to procure additional physical and digital storage space, hold evidence for longer periods, and acquire new equipment to comply with imaging evidentiary standards.

COMMENTS:

Background and purpose. Current law provides that exhibits must be retained by the clerk who must establish a procedure to account for the exhibits until the final determination of the action or proceedings, as defined. However, no procedure to account for the exhibits is specified. This bill would require that exhibits be retained in the custody and control of the court for the times specified. This bill will thereby help ensure that trial court exhibits are not inadvertently lost or destroyed. According to the author:

AB 2988, 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, substantiating the need for lengthier preservation.

AB 2988 provides that court exhibits, including those that may contain biological material, are retained exclusively in the control of the courts and, in the most serious cases, retained by the court, or alternative custodian, for the length of incarceration so that evidence remains available for post-conviction 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 post-conviction testing.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2988

Author:(Weber) – As Introduced Ver:February 16, 2018

SUMMARY:

Clarifies that exhibits are to be retained under the custody and control of the court or by an agreed-upon custodian and in serious cases extends the time period that exhibits must be retained by the court, custodian, or 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. Requires the court to establish a procedure to store and account for the exhibits, and properly distribute or dispose of them.
   
4. Exempts courts which have previously entered into an agreement with the prosecution and the defense for an alternative custodian to retain, manage, and preserve the court exhibits from having to retain custody and control of the exhibits, and allows courts to enter into agreements for an alternative custodian moving forward.
   
5. Specifies that an alternative custodian is subject to the same requirements as the court.
   
6. Specifies that these provisions do not eliminate the need for court orders where required by law.
   
7. 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.
   
8. 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.
   
9. 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.
   
10. 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.
    
11. Authorizes the introduction of a digital record instead of a photographic record where the exhibit is toxic.
    
12. 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.
    
13. 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; and
      
   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;
         
      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; or,
         
      4. 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 2988, 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, substantiating the need for lengthier preservation.
   
   “AB 2988 provides that court exhibits, including those that may contain biological material, are retained exclusively in the control of the courts and, in the most serious cases, retained by the court, or alternative custodian, for the length of incarceration so that evidence remains available for post-conviction 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 post-conviction testing.”
   
2. The Defendant’s Right to an Adequate Record in Post-conviction 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.4th 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 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.4th 354, 370.) Moreover, settling the record, even when possible, is a lengthy process. (See Marks v. Superior Court (2002) 27 Cal.4th 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.)
   
3. 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 would require 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 2988 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 2988 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.
   
4. San Diego Courthouse: A recent news article from the San Diego Union Tribune highlights the need for this bill. (<http://www.sandiegouniontribune.com/news/courts/sd-me-courthouse-storage-20161221-story.html>.) According to the Union Tribune, San Diego’s new $555 million dollar, 22-story courthouse does not have sufficient space to store evidence presented in criminal cases. (Id.) As a result of the storage limitations, a recommendation has been submitted that the court no longer store any exhibit containing biological material, including blood or other bodily fluids that could be tested for DNA. (Id.) This has caused alarm amongst the District Attorney’s Office, local defense attorneys’ associations, the Public Defender’s Office. (Id.)
   
   This bill would clarify that courts need to maintain evidence from criminal cases. Retention of evidence has proven to be critical for groups such as the California Innocence Project, who have worked to exonerate dozens of wrongfully convicted individuals. (https://californiainnocenceproject.org/freed-clients/.)
   
5. Argument in Support: According to the California District Attorneys Association: “On behalf of the California District Attorneys Association (CDAA), we are pleased to support your Assembly Bill 2988, which provides that courts must retain court exhibits until one year after the term of imprisonment in cases that may be reviewed in a postconviction, judicial, or extrajudicial process, and that biological evidence is retained for potential testing and retesting.
   
   “It is beneficial to have evidence available in these types of cases so prosecutors can investigate these cases with as much information as possible.”
   
6. Prior Legislation:
   
   1. AB 1128 (Weber), of the 2017-2018 Legislative Session, would have made similar changes proposed by this bill, but did not contemplate an alternative custodian agreement. AB 1128 was held in the Assembly Appropriations Committee suspense file.
      
   2. SB 238 (Hertzberg), Chapter 566, Statutes of 2017, allowed a digital record of the exhibit to be taken and preserved by the court in addition to a photographic record.
      
   3. 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.
      
   4. 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.”
      
   5. 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

The American Civil Liberties Union
California District Attorney

California Public Defenders Association

Opposition

None

Analysis Prepared by:

Matthew Fleming / PUB. S. / (916) 319-3744

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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