(1)Existing law requires that a person arrested without a warrant be taken before a magistrate without unnecessary delay. Existing law also provides certain circumstances under which a person arrested without a warrant may be released from custody before being taken before a magistrate, including, among others, when the arresting officer believes that insufficient grounds exist to make a criminal complaint against the person arrested or when the person is arrested for intoxication only and no further proceedings are desirable.

Existing law requires a person who is arrested and released without being charged to be issued a certificate describing the action as a detention and requires any reference to the action as an arrest to be deleted from the arrest records of the arresting agency and the Department of Justice. Existing law requires the Attorney General to prescribe the form and content of the certificate.

This bill would authorize an arresting officer to release an arrested person from custody without taking him or her before a magistrate if the person is delivered, subsequent to being arrested, to a specified facility for the purpose of mental health evaluation and treatment and no further criminal proceedings are desirable. The bill would require a person arrested and released pursuant to this provision to be issued a certificate describing the action as a detention.

(2)Existing law requires the retention of all exhibits which have been introduced or filed in any criminal action until the final determination of the action or proceedings, and provides for their disposal thereafter. Existing law allows any party to prepare a photographic record of an exhibit before it is disposed of. Existing law requires the clerk of the court to observe the taking of the photographic record and to certify the copy and negative of the photograph as being a true, unaltered, and unretouched print of the photographic record taken in the presence of the clerk.

This bill would allow, in addition to a photographic record, a digital record of the exhibit to be taken in the above manner. The bill would require a duplicate of the photographic or digital record to be delivered to the clerk for certification and would define photographic and duplicate for these purposes.

(3)This bill would declare that it is to take effect immediately as an urgency statute.

(1)Existing law requires that a person arrested without a warrant be taken before a magistrate without unnecessary delay. Existing law also provides certain circumstances under which a person arrested without a warrant may be released from custody before being taken before a magistrate, including, among others, when the arresting officer believes that insufficient grounds exist to make a criminal complaint against the person arrested or when the person is arrested for intoxication only and no further proceedings are desirable.

Existing law requires a person who is arrested and released without being charged to be issued a certificate describing the action as a detention and requires any reference to the action as an arrest to be deleted from the arrest records of the arresting agency and the Department of Justice. Existing law requires the Attorney General to prescribe the form and content of the certificate.

This bill would authorize an arresting officer to release an arrested person from custody without taking him or her before a magistrate if the person is delivered, subsequent to being arrested, to a specified facility for the purpose of mental health evaluation and treatment and no further criminal proceedings are desirable. The bill would require a person arrested and released pursuant to this provision to be issued a certificate describing the action as a detention.

(2)Existing law requires the retention of all exhibits which have been introduced or filed in any criminal action until the final determination of the action or proceedings, and provides for their disposal thereafter. Existing law allows any party to prepare a photographic record of an exhibit before it is disposed of. Existing law requires the clerk of the court to observe the taking of the photographic record and to certify the copy and negative of the photograph as being a true, unaltered, and unretouched print of the photographic record taken in the presence of the clerk.

This bill would allow, in addition to a photographic record, a digital record of the exhibit to be taken in the above manner. The bill would require a duplicate of the photographic or digital record to be delivered to the clerk for certification and would define photographic and duplicate for these purposes.

(3)This bill would declare that it is to take effect immediately as an urgency statute.

(2)Existing law requires the retention of all exhibits which have been introduced or filed in any criminal action until the final determination of the action or proceedings, and provides for their disposal thereafter. Existing law allows any party to prepare a photographic record of an exhibit before it is disposed of. Existing law requires the clerk of the court to observe the taking of the photographic record and to certify the copy and negative of the photograph as being a true, unaltered, and unretouched print of the photographic record taken in the presence of the clerk.

This bill would allow, in addition to a photographic record, a digital record of the exhibit to be taken in the above manner. The bill would require a duplicate of the photographic or digital record to be delivered to the clerk for certification and would define photographic and duplicate for these purposes.

(3)This bill would declare that it is to take effect immediately as an urgency statute.

Existing law requires the retention of all exhibits which have been introduced or filed in any criminal action until the final determination of the action or proceedings, and provides for their disposal thereafter. Existing law allows any party to prepare a photographic record of an exhibit before it is disposed of. Existing law requires the clerk of the court to observe the taking of the photographic record and to certify the copy and negative of the photograph as being a true, unaltered, and unretouched print of the photographic record taken in the presence of the clerk.

This bill would allow, in addition to a photographic record, a digital record of the exhibit to be taken in the above manner. The bill would require a duplicate of the photographic or digital record to be delivered to the clerk for certification and would define photographic and duplicate for these purposes.

This bill would declare that it is to take effect immediately as an urgency statute.

 UNFINISHED BUSINESS  

Bill No: SB 238

Author:

Amended: 9/8/17

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 3/21/17

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

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 36-0, 4/20/17 (Consent)

AYES: Anderson, Atkins, Bates, Berryhill, Bradford, Cannella, De León, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Jackson, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk

NO VOTE RECORDED: Allen, Beall, Hueso, Lara

ASSEMBLY FLOOR: 79-0, 9/11/17 - See last page for vote

SUBJECT:

SOURCE: Los Angeles County District Attorney

DIGEST:

This bill authorizes, in addition to a photographic record, a digital record of an exhibit to be taken, as specified, and retained by the clerk of the court. This bill also authorizes the release of an arrested person who is delivered to a specified facility for the purpose of mental health evaluation and treatment.

Assembly Amendments

take the language that was in SB 237 (Hertzberg) and place it in this bill.

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 shall 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. 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.
3. Provides that the court may, upon application of a party entitled thereto or an agent designated in writing by the owner, order an exhibit delivered to that party at any time 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.
4. Provides that at any time prior to the final determination of the action or proceeding, 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, as recommended by the clerk of the court. If the exhibit is severable, the court shall order the clerk to retain a portion and return the balance to the district attorney. Upon court order, the clerk shall 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. The party to whom the exhibit is being returned must provide the photographic record.
5. Provides that exhibits toxic by their nature that pose a health hazard to humans shall be introduced to the court in the form of a photographic record and written chemical analysis certified by competent authority.
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.
7. Provides for the destruction or disposition of illegal, dangerous, or nuisance property, as specified, following the final determination of the criminal action or proceeding.
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, 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. A certified photographic record of exhibits shall not be deemed inadmissible.
9. States that when an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before the magistrate.
10. Allows a peace officer to release from custody, instead of taking the person before a magistrate, a person arrested without a warrant in the following circumstances:
    1. The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested;
    2. The person arrested was arrested for intoxication only, and no further proceedings are desirable;
    3. The person was arrested only for being under the influence of a controlled substance or drug and the person is delivered to a facility or hospital for treatment and no further proceedings are desirable; or,
    4. The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate.
11. Provides that when the person was only arrested for being under the influence of a drug and the person is delivered to a facility for treatment and no further proceedings are desirable, there shall be a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only. (Penal Code Section 849(c).) Requires the person released pursuant to this provision to be issued a certificate describing the action as a detention.
12. Makes the same provisions for record of release and detention only, when an officer is satisfied that there are insufficient grounds for making a criminal complaint against the person. (Penal Code Section 849(c).) Requires the person released pursuant to this provision to be issued a certificate describing the action as a detention.

This bill:

1. Requires a duplicate of the photographic or digital record to be delivered to the clerk for certification and deletes the requirement that the clerk be provided with a negative of a photograph.
2. Defines "photographic" for these purposes as a photographic image of the exhibit or its equivalent stored in any form.
3. Defines "duplicate" for these purposes as a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
4. Provides that a certified digital record of an exhibit shall not be deemed inadmissible.
5. Authorizes a peace officer to release an arrested person from custody without taking him or her before a judge if the person is delivered, after arrest, to a hospital or urgent care facility for the purpose of mental health evaluation and treatment, and no further criminal proceedings are desirable. Specifies that such an arrest shall not be deemed an arrest, but a detention only.
6. Requires a person arrested and released pursuant to this provision to be issued a certificate describing the action as a detention.

Background

According to the author, "Under existing law, the clerk of the court is required to observe and certify that the copy and negative of the photograph is a true, unaltered and unretouched print of the photographic record before the Superior Court can discard exhibits they are storing.

"Clerks of the court must now follow a procedure that is outdated due to advancements in technology. The bill expands the definition of 'photograph' to include a digital photograph, and removes the requirement of providing a negative of a photograph to the clerk of the court.

"Digital imaging and digital photography address unforeseen limitations of when existing law was enacted and will speed up the process, and allow our courts to be more efficient. This does not eliminate film photography and allows an individual party or prosecutors in other counties to use film photography if that method is preferred."

Also, according to the author, "[This bill] would create more options for compassionate treatment for individuals with mental illness by allowing law enforcement to transport low level offenders suffering from an acute mental health crisis to Urgent Care Centers (UCCs) rather than to jail.

"UCCs are not inpatient facilities but are safe and secure acute care medical facilities that specialize in treating persons with mental illnesses. UCCs provide a location, other than emergency rooms or county jails, where persons suffering from mental health crises can be evaluated, psychiatrically stabilized and have a plan for further action formulated to assist them, whether by returning home, proceeding to a residential treatment location, a hospital, supportive housing, substance use disorder treatment facility.

"Law enforcement may lack the legal authority to transport an individual suffering from an acute mental health crisis to a mental health UCC in lieu of arrest, absent the individual’s consent for treatment. UCCs can serve as an alternative to county jail where persons suffering from mental health crisis can receive the help they need."

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee, this bill has no fiscal impact on courts.

SUPPORT: (Verified 9/12/17)

Los Angeles County District Attorney (source)

California District Attorneys Association

California Public Defender’s Association

Californians for Safety and Justice

Crime Victims United of California

Ella Baker Center for Human Rights

OPPOSITION: (Verified 9/11/17)

None received

ASSEMBLY FLOOR: 79-0, 9/11/17

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

Prepared by:

9/12/17 9:58:52

**** END ****

SENATE THIRD READING

STR Bill Id:SB 238

Author:(Hertzberg)

As Amended Ver:September 8, 2017

2/3 vote. Urgency

SENATE VOTE: 36-0

SUMMARY: Authorizes, in addition to a photographic record, a digital record of an exhibit to be taken, as specified, and retained by the clerk of the court. Authorizes release of an arrested person who is delivered to a specified facility for the purpose of mental health evaluation and treatment. Specifically, this bill:

1. Requires a duplicate of the photographic or digital record to be delivered to the clerk for certification and deletes the requirement that the clerk be provided with a negative of a photograph.
2. Defines "photographic" for these purposes as a photographic image of the exhibit or its equivalent stored in any form.
3. Defines "duplicate" for these purposes as a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
4. Provides that a certified digital record of an exhibit shall not be deemed inadmissible.
5. Authorizes a peace officer to release an arrested person from custody without taking him or her before a judge if the person is delivered, after arrest, to a hospital or urgent care facility for the purpose of mental health evaluation and treatment, and no further criminal proceedings are desirable. Specifies that such an arrest shall not be deemed an arrest, but a detention only.
6. Requires a person arrested and released pursuant to this provision to be issued a certificate describing the action as a detention.

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 shall 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. 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.
3. Provides that the court may, upon application of a party entitled thereto or an agent designated in writing by the owner, order an exhibit delivered to that party at any time 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.
4. Provides that at any time prior to the final determination of the action or proceeding, 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, as recommended by the clerk of the court. If the exhibit is severable, the court shall order the clerk to retain a portion and return the balance to the district attorney. Upon court order, the clerk shall 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. The party to whom the exhibit is being returned must provide the photographic record.
5. Provides that exhibits toxic by their nature that pose a health hazard to humans shall be introduced to the court in the form of a photographic record and written chemical analysis certified by competent authority.
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.
7. Provides for the destruction or disposition of illegal, dangerous, or nuisance property, as specified, following the final determination of the criminal action or proceeding.
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, 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. A certified photographic record of exhibits shall not be deemed inadmissible.
9. States that when an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before the magistrate.
10. Allows a peace officer to release from custody, instead of taking the person before a magistrate, a person arrested without a warrant in the following circumstances:
    1. The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested;
    2. The person arrested was arrested for intoxication only, and no further proceedings are desirable;
    3. The person was arrested only for being under the influence of a controlled substance or drug and the person is delivered to a facility or hospital for treatment and no further proceedings are desirable; or,
    4. The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate.
11. Provides that when the person was only arrested for being under the influence of a drug and the person is delivered to a facility for treatment and no further proceedings are desirable, there shall be a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only. (Penal Code (PEN) Section 849(c).) Requires the person released pursuant to this provision to be issued a certificate describing the action as a detention.
12. Makes the same provisions for record of release and detention only, when an officer is satisfied that there are insufficient grounds for making a criminal complaint against the person. (PEN Section 849(c).) Requires the person released pursuant to this provision to be issued a certificate describing the action as a detention.

FISCAL EFFECT: According to the Assembly Appropriations Committee, no fiscal impact on courts.

COMMENTS: According to the author, "Under existing law, the clerk of the court is required to observe and certify that the copy and negative of the photograph is a true, unaltered and unretouched print of the photographic record before the Superior Court can discard exhibits they are storing.

"Clerks of the court must now follow a procedure that is outdated due to advancements in technology. The bill expands the definition of 'photograph' to include a digital photograph, and removes the requirement of providing a negative of a photograph to the clerk of the court.

"Digital imaging and digital photography address unforeseen limitations of when existing law was enacted and will speed up the process, and allow our courts to be more efficient. This does not eliminate film photography and allows an individual party or prosecutors in other counties to use film photography if that method is preferred."

Also, according to the author, "[This bill] would create more options for compassionate treatment for individuals with mental illness by allowing law enforcement to transport low level offenders suffering from an acute mental health crisis to Urgent Care Centers (UCCs) rather than to jail.

"UCCs are not inpatient facilities but are safe and secure acute care medical facilities that specialize in treating persons with mental illnesses. UCCs provide a location, other than emergency rooms or county jails, where persons suffering from mental health crises can be evaluated, psychiatrically stabilized and have a plan for further action formulated to assist them, whether by returning home, proceeding to a residential treatment location, a hospital, supportive housing, substance use disorder treatment facility.

"Law enforcement may lack the legal authority to transport an individual suffering from an acute mental health crisis to a mental health UCC in lieu of arrest, absent the individual’s consent for treatment. UCCs can serve as an alternative to county jail where persons suffering from mental health crisis can receive the help they need."

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0002097

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

SENATE THIRD READING

STR Bill Id:SB 238

Author:(Hertzberg)

As Introduced Ver:February 6, 2017

2/3 vote. Urgency

SENATE VOTE: 36-0

SUMMARY: Authorizes, in addition to a photographic record, a digital record of an exhibit to be taken, as specified, and retained by the clerk of the court. Specifically, this bill:

1. Requires a duplicate of the photographic or digital record to be delivered to the clerk for certification and deletes the requirement that the clerk be provided with a negative of a photograph.
2. Defines "photographic" for these purposes as a photographic image of the exhibit or its equivalent stored in any form.
3. Defines "duplicate" for these purposes as a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
4. Provides that a certified digital record of an exhibit shall not be deemed inadmissible.

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 shall 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. 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.
3. Provides that the court may, upon application of a party entitled thereto or an agent designated in writing by the owner, order an exhibit delivered to that party at any time 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.
4. Provides that at any time prior to the final determination of the action or proceeding, 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, as recommended by the clerk of the court. If the exhibit is severable, the court shall order the clerk to retain a portion and return the balance to the district attorney. Upon court order, the clerk shall 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. The party to whom the exhibit is being returned must provide the photographic record.
5. Provides that exhibits toxic by their nature that pose a health hazard to humans shall be introduced to the court in the form of a photographic record and written chemical analysis certified by competent authority.
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.
7. Provides for the destruction or disposition of illegal, dangerous, or nuisance property, as specified, following the final determination of the criminal action or proceeding.
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, 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. A certified photographic record of exhibits shall not be deemed inadmissible.

FISCAL EFFECT: According to the Assembly Appropriations Committee, no fiscal impact on courts.

COMMENTS: According to the author, "Under existing law, the clerk of the court is required to observe and certify that the copy and negative of the photograph is a true, unaltered and unretouched print of the photographic record before the Superior Court can discard exhibits they are storing.

"Clerks of the court must now follow a procedure that is outdated due to advancements in technology. The bill expands the definition of 'photograph' to include a digital photograph, and removes the requirement of providing a negative of a photograph to the clerk of the court.

"Digital imaging and digital photography address unforeseen limitations of when existing law was enacted and will speed up the process, and allow our courts to be more efficient. This does not eliminate film photography and allows an individual party or prosecutors in other counties to use film photography if that method is preferred."

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0001096

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

Date of Hearing: June 28, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 238

Author:(Hertzberg) – As Introduced Ver:February 6, 2017

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

SUMMARY:

This bill provides that a “photographic record” of the exhibit (evidence) means a photographic image of the exhibit or its equivalent stored in any form, including digital, and a “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

FISCAL EFFECT:

No fiscal impact on courts.

COMMENTS:

1. Background and Purpose. Under current law, the Superior Court is permitted to destroy exhibits they are storing and any party may obtain a certified photographic record of an exhibit admitted into evidence. A certified record of exhibits is admissible in any post-conviction proceeding or in a new trial. The clerk of the court is required to observe the taking of the photographic record before certifying that the copy and negative of the photograph is a true, unaltered and unretouched print of the photographic record.

Using film photography for every exhibit is time-consuming, and recent technology allows for a more efficient process by creating a digital scan of an exhibit which can be more accurate than a photograph of the same exhibit. SB 238 modernizes this process and makes it more efficient by including the use of a digital record. This will also save the physical space it takes to store the photographs of exhibits and help courts facing storage concerns.

1. Support. According to the Los Angeles County District Attorney’s Office, the sponsor of this bill, digital imaging and digital photography address film photography limitations, speed up the process, and are more efficient.
2. Related Legislation: AB 1128 (Weber) would have clarified that exhibits are to be retained under the custody and control of the court, and, in more serious cases, would have extended the time periods that exhibits must be retained by the court or that an object or material that contains biological material must be retained by the appropriate governmental entity. AB 1128 was held by this Committee on Suspense.

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

Date of Hearing: June 6, 2017

Counsel: Cheryl Anderson

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 238

Author:(Hertzberg) – As Introduced: Ver:February 6, 2017

SUMMARY: Authorizes, in addition to a photographic record, a digital record of an exhibit to be taken, as specified, and retained by the clerk of the court. Specifically, this bill:

1. Requires a duplicate of the photographic or digital record to be delivered to the clerk for certification and deletes the requirement that the clerk be provided with a negative of a photograph.
   
2. Defines “photographic” for these purposes as a photographic image of the exhibit or its equivalent stored in any form.
   
3. Defines “duplicate” for these purposes as a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
   
4. Provides that a certified digital record of an exhibit shall not be deemed inadmissible.

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 shall 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 an exhibit delivered to that party at any time 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 at any time prior to the final determination of the action or proceeding, 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, as recommended by the clerk of the court. If the exhibit is severable, the court shall order the clerk to retain a portion and return the balance to the district attorney. Upon court order, the clerk shall 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. The party to whom the exhibit is being returned must provide the photographic record. (Pen. Code, § 1417.3, subd. (a).)
   
5. Provides that exhibits toxic by their nature that pose a health hazard to humans shall be introduced to the court in the form of a photographic record and written chemical analysis certified by competent authority. (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, dangerous, or nuisance property, as specified, 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, 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. A certified photographic record of exhibits shall not be deemed inadmissible. (Pen. Code, § 1417.7.)
   

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, “Under existing law, the clerk of the court is required to observe and certify that the copy and negative of the photograph is a true, unaltered and unretouched print of the photographic record before the Superior Court can discard exhibits they are storing.
   

“Clerks of the court must now follow a procedure that is outdated due to advancements in technology. The bill expands the definition of ‘photograph’ to include a digital photograph, and removes the requirement of providing a negative of a photograph to the clerk of the court.

“Digital imaging an [sic] digital photography address unforeseen limitations of when existing law was enacted and will speed up the process, and allow our courts to be more efficient. This does not eliminate film photography and allows an individual party or prosecutors in other counties to use film photography if that method is preferred.”

1. Need to Update Existing Law to Allow a Digital Record of Exhibits: Existing law provides a process by which a party may obtain a certified photographic record of an exhibit before a trial court storing the exhibit destroys or otherwise disposes of it. The certified photographic record is admissible as evidence. SB 238 modernizes this process and makes it more efficient by including the use of a digital record. This will also save the physical space it takes to store the photographs of exhibits and help courts facing storage concerns.
   (See http://www.sandiegouniontribune.com/news/courts/sd-me-courthouse-storage-20161221-story.html [as of June 7, 2017].)
   
2. Argument in Support: According to the Los Angeles County District Attorney’s Office, the sponsor of this bill, “Under existing law, the Superior Court is permitted to destroy exhibits they are storing. Penal Code section 1417.7 provides for a procedure by which any party may obtain a certified photographic record of an exhibit admitted into evidence. A certified record of exhibits is admissible in any post-conviction proceeding or in a new trial. The section, enacted in 1985, requires the clerk of the court to observe the taking of the photographic record before certifying that the copy and negative of the photograph is a true, unaltered and unretouched print of the photographic record.
   

“The method described by Section 1417.7 is outdated and new language should be included to reflect changes in technology. The definition of ‘photograph’ should be expanded to include a digital photograph, and the requirement of providing a negative of a photograph to the clerk of the court should be deleted. Similarly, a certified record of exhibits should be more broadly defined to include a digital copy of an exhibit, not solely a photograph of the exhibit. Current technology permits creating a digital scan of an exhibit (either a document or a photograph) that is a much more accurate copy than a photograph of the same exhibit.

“After observing the certification process for hundreds of exhibits by the Los Angeles Superior Court in the last several weeks, it has become clear that speed and efficiency are important. The outdated procedure in Section 1417.7 of photographing every exhibit is time-consuming. Using film photography to accomplish this has many practical limitations. Digital imaging and digital photography address these limitations, speed up the process, and are more efficient.

“SB 238 amends Penal Code section 1417.7 to describe a process for obtaining a certified record of exhibits which reflects changes in technology. The proposal amends the definition of a certified record of exhibits created pursuant to Section 1417.7 to include a digital record as well as a photographic record.

“SB 238 expands the definition of a photographic record to include a digital photographic record; this comports with the definition of ‘photograph’ contained in the Federal Rules of Evidence. ‘A “photograph” means a photographic image or its equivalent stored in any form.’ (Federal Rules of Evidence, Rule 1001(c).) The California Evidence Code does not specifically define “photograph”. This amendment does not eliminate film photography and allows an individual party or prosecutors in other counties to use film photography if that method is preferred.

“SB 238 expands the definition of a digital record to include language from California Evidence Code section 260, which defines ‘duplicate:’

“A ‘duplicate’ is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original.”

(California Evidence Code, § 260.)

“The Federal Rules of Evidence has a similar, but briefer, definition of ‘duplicate:’

“A ‘duplicate’ means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.”

(Federal Rules of Evidence, Rule 1001(e).)

“SB 238 modernizes California law to reflect current technology by authorizing the use of digital photography to create a digital certified record of exhibits. The use of digital photography not only authorizes the use of the most current technology available, but will speed up the process of creating a certified record of exhibits which will save both time and resources by eliminating the current inefficiencies. Digital records also create a more accurate record than a photograph.”

1. Related Legislation: AB 1128 (Weber) clarifies that exhibits are to be retained under the custody and control of the court, and, in more serious cases, extends the time periods that exhibits must be retained by the court or that an object or material that contains biological material must be retained by the appropriate governmental entity. AB 1128 was held in the Assembly Committee on Appropriations.
   
2. Prior Legislation:
   1. AB 1352 (Levine), Chapter 274, Statutes of 2013, revised requirements for the destruction of court records, permitting the earlier destruction of some court records, thereby reducing storage costs.
      
   2. SB 1489 (Harman), 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.
      
   3. AB 1926 (Evans), Chapter 167, Statutes of 2010, allowed trial courts to create, maintain and preserve records in a variety of forms, including electronic.
      
   4. SB 177 (Kopp), Chapter 100, Statutes of 1998, provided that the content of a writing may be proved by otherwise admissible secondary evidence.

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles County District Attorney’s Office (Sponsor)
California District Attorneys Association

California Public Defender’s Association

Crime Victims United of California
Judicial Counsel of California

San Diego County District Attorney

Opposition

None

Analysis Prepared by: Cheryl Anderson / 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.)
   ↑

 CONSENT  

Bill No: SB 238

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 3/21/17

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

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: Los Angeles County District Attorney

DIGEST: This bill updates the provision allowing a photographic record of exhibits to also allow a digital record of exhibits and to define “photographic record” and “duplicate” for these purposes.

ANALYSIS:

Existing law:

1. Provides 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 shall establish a procedure to account for all exhibits properly until final determination of the action or proceedings and the exhibits shall thereafter be distributed or disposed of. (Penal Code § 1417)
2. Provides no orders shall be made for the destruction of an exhibit prior to the final determination of the action or proceeding. The date when a criminal action or proceeding becomes final is:
   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 that order.
   4. In cases where the death penalty is imposed 30 days after the date of execution of sentence or one year after the date of the defendant’s death. (Penal Code § 1417.1)
3. Provides that the court may, on application of the party entitled thereto or an agent designate in writing by the owner, order an exhibit delivered to that party at any time prior to the final determination of the action or proceeding, upon stipulation of the parties or upon notice and motion if both of the following requirements are met:
   1. No prejudice will be suffered by either party.
   2. A full and complete photographic record is made of the exhibits so released by the party to whom the exhibit is being returned. (Penal Code § 1417.2)
4. Provides that at any time prior to the final determination of the action or proceeding, 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, as recommended by the clerk of the court. If the exhibit is severable the court shall order the court to retain a portion to the district attorney and the clerk shall substitute a full and complete photographic record of any exhibit returned. (Penal Code § 1417.3 (a))
5. Provides that exhibits toxic by their nature that pose a health hazard to humans shall be introduced to the court in the form of a photographic record and written chemical analysis certified by competent authority. (Penal Code § 1417.3 (b))
6. Provides that after the final determination of a criminal action or proceeding, the clerk of the court shall dispose of all exhibits introduced or filed in the case and remaining in the clerk’s possession, as specified. (Penal Code § 1417.5)
7. Provides for the destruction of illegal or dangerous property, as specified, upon the final determination of the criminal action or proceed. (Penal Code § 1417.6)
8. Provides that not less than 15 days before any proposed disposition of an exhibit pursuant to law, the court shall notify the district attorney, the attorney of record for each party, and each party who is not represented by counsel of the proposed disposition. Before the disposition, any party, at his or her own expense may cause to be prepared a photographic record of all or part of the exhibit 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 of proceeding. A certified photographic record of exhibits shall not be deemed inadmissible. (Penal Code § 1417.7)

This bill:

1. Provides that the copy of the exhibits can be in a digital format.
2. Provides that for purposes of Penal Code Section 1417.7 a “photographic record” of the exhibit means a photographic image of the exhibit or its equivalent stored in any form and a “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Background

Existing law provides for exhibits from a criminal trial to be photographed and those photographs to be admissible as evidence in any proceedings related to the case. This provision has not been amended since 1998. This bill updates the provision allowing for a photographic record of exhibits to allow for a digital record of the exhibits. This amendment will also save the physical space it takes to store the photographs of exhibits.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 4/17/17)

Los Angeles County District Attorney (source)

California District Attorneys Association

California Public Defender’s Association

Crime Victims United of California

OPPOSITION: (Verified 4/17/17)

None received

Prepared by:

4/19/17 14:15:11

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 238 Hearing Date: March 21, 2017

Subject: Evidence: Disposition of Exhibits: Photographic or Digital Record

HISTORY

Source: Los Angeles County District Attorney’s Office

Prior Legislation: SB 177 (Kopp), Ch. 100, Stats. 1998

Support: California District Attorneys Association; California Public Defender’s Association

Opposition: None known

PURPOSE

The purpose of this bill is to update the provision allowing a photographic record of exhibits to also allow a digital record of exhibits and to define “photographic record” and “duplicate” for these purposes.

Existing law provides 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 shall establish a procedure to account for all exhibits properly until final determination of the action or proceedings and the exhibits shall thereafter be distributed or disposed of. (Penal Code § 1417)

Existing law provides no orders shall be made for the destruction of an exhibit prior to the final determination of the action or proceeding. The date when a criminal action or proceeding becomes final is:

• When no notice of appeal is filed, 30 days after the last day for filing that notice.
• When a notice of appeal is filed, 30 days after the date the clerk of the court receives the remittitur affirming the judgment.
• When an order for a rehearing, a new trial or other proceeding is granted and the ordered proceedings have not been commenced within one year thereafter, one year after the date of that order.
• In cases where the death penalty is imposed 30 days after the date of execution of sentence or one year after the date of the defendant’s death. (Penal Code § 1417.1)

Existing law provides that the court may, on application of the party entitled thereto or an agent designate in writing by the owner, order an exhibit delivered to that party at any time prior to the final determination of the action or proceeding, upon stipulation of the parties or upon notice and motion if both of the following requirements are met:

• No prejudice will be suffered by either party.
• A full and complete photographic record is made of the exhibits so released by the party to whom the exhibit is being returned. (Penal Code § 1417.2)

Existing law provides that at any time prior to the final determination of the action or proceeding, 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, as recommended by the clerk of the court. If the exhibit is severable the court shall order the court to retain a portion to the district attorney and the clerk shall substitute a full and complete photographic record of any exhibit returned. (Penal Code § 1417.3 (a))

Existing law provides that exhibits toxic by their nature that pose a health hazard to humans shall be introduced to the court in the form of a photographic record and written chemical analysis certified by competent authority. (Penal Code § 1417.3 (b))

Existing law provides that after the final determination of a criminal action or proceeding, the clerk of the court shall dispose of all exhibits introduced or filed in the case and remaining in the clerk’s possession as specified. (Penal Code § 1417.5)

Existing law provides for the destruction of illegal or dangerous property as specifies upon the final determination of the criminal action or proceed. (Penal Code § 1417.6)

Existing law provides that not less than 15 days before any proposed disposition of an exhibit pursuant to law, the court shall notify the district attorney, the attorney of record for each party, and each party who is not represented by counsel of the proposed disposition. Before the disposition, any party, at his or her own expense may cause to be prepared a photographic record of all or part of the exhibit by a person who is not a party or attorney of a party. The clerk of the court shall observe the taking of the petrographic record, and upon receipt of a declaration of hate 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 taking 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 of proceeding. A certified photographic record of exhibits shall not be deemed inadmissible. (Penal Code § 1417.7)

This bill provides that the copy of the exhibits can be in a digital format.

This bill provides that for purposes of Penal Code Section 1417.7 a “photographic record” of the exhibit means a photographic image of the exhibit or its equivalent stored in any form and a “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

COMMENTS

1. Need for This Bill

According to the author:

Under existing law, the Superior Court is permitted to destroy exhibits they are storing and provides a process by which any party may obtain a certified photographic record of an exhibit admitted into evidence. A certified record of exhibits is admissible in any post-conviction proceeding or in a new trial. The clerk of the court is required to observe the taking of the photographic record before certifying that the copy and negative of the photograph is a true, unaltered and unretouched print of the photographic record.

Using film photography for every exhibit is time-consuming, and recent technology allows for a more efficient process by creating a digital scan of an exhibit which can be more accurate than a photograph of the same exhibit. Authorizing the use of digital photography updates existing practice to reflect current technology.

The proposal expands the definition of a certified record of exhibits to include a digital record and modernizes the existing process to reflect the technology available.

2. Updating Existing Provision on Exhibits

Existing law provides for exhibits from a criminal trial to be photographed and those photographs to be admissible as evidence in any proceedings related to the case. This provision has not been amended since 1998. As noted in the author’s statement, this bill updates the provision allowing for a photographic record of exhibits to allow for a digital record of the exhibits. This amendment will also save the physical space it takes to store the photographs of exhibits.

-- END –