1417. 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, subject to Sections 1417.2 and 1417.3 until final
determination of the action or proceedings and the exhibits shall
thereafter be distributed or disposed of as provided in this chapter.
1417.1. No order shall be made for the destruction of an exhibit
prior to the final determination of the action or proceeding. For the
purposes of this chapter, the date when a criminal action or
proceeding becomes final is as follows:
(a) When no notice of appeal is filed, 30 days after the last day
for filing that notice.
(b) When a notice of appeal is filed, 30 days after the date the
clerk of the court receives the remittitur affirming the judgment.
(c) When an order for a rehearing, a new trial, or other
proceeding is granted and the ordered proceedings have not been
commenced within one year thereafter, one year after the date of that
order.
(d) In cases where the death penalty is imposed, 30 days after the
date of execution of sentence.
1417.2. Notwithstanding Section 1417.5, the court may, on
application of the party entitled thereto or an agent designated in
writing by the owner, order an exhibit delivered to that party at any
time 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:
(a) No prejudice will be suffered by either party.
(b) A full and complete photographic record is made of the
exhibits so released.
The party to whom the exhibit is being returned shall provide the
photographic record. This section shall not apply to any material,
the release of which is prohibited by Section 1417.6.
1417.3. (a) 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 an exhibit by its nature is
severable the court shall order the clerk to retain a portion of the
exhibit not exceeding three pounds by weight or one cubic foot by
volume and shall order the return of the balance of the exhibit to
the district attorney. The clerk, upon court order, shall substitute
a full and complete photographic record of any exhibit or part of any
exhibit returned to the state under this section. The party to whom
the exhibit is being returned shall provide the photographic record.
(b) 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 a written chemical analysis certified by competent
authority. Where the court finds that good cause exists to depart
from this procedure, toxic exhibits may be brought into the courtroom
and introduced. However, following introduction of the exhibit, the
person or persons previously in possession of the exhibit shall take
responsibility for it and the court shall not be required to store
the exhibit.
1417.5. Except as provided in Section 1417.6, 60 days 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 follows:
(a) If the name and address of the person from whom the exhibit
was taken is contained in the court record, the clerk shall notify
the person that he or she may make application to the court for
release of the exhibits within 15 days of receipt of the
notification.
(b) The court shall order the release of exhibits free of charge,
without prejudice to the state, upon application, to the following:
(1) First, the person from whom the exhibits were taken into
custody, provided that the person was in lawful possession of the
exhibits.
(2) Second, a person establishing title to, or a right to
possession of, the exhibits.
(c) If the party entitled to an exhibit fails to apply for the
return of the exhibit prior to the date for disposition under this
section, the following procedures shall apply:
(1) Exhibits of stolen or embezzled property other than money
shall be disposed of pursuant to court order as provided in Section
1417.6.
(2) Exhibits of property other than property which is stolen or
embezzled or property which consists of money or currency shall,
except as otherwise provided in this paragraph and in paragraph (3),
be transferred to the appropriate county agency for sale to the
public in the same manner provided by Article 7 (commencing with
Section 25500) of Chapter 5 of Part 2 of Division 2 of Title 3 of the
Government Code for the sale of surplus personal property. If the
county determines that any property is needed for a public use, the
property may be retained by the county and need not be sold.
(3) Exhibits of property, other than money, currency, or stolen or
embezzled property, that are determined by the court to have no
value at public sale shall be destroyed or otherwise disposed of
pursuant to court order.
(4) Exhibits of money or currency shall be disposed of pursuant to
Section 1420.
1417.6. (a) The provisions of Section 1417.5 shall not apply to any
dangerous or deadly weapons, narcotic or poisonous drugs,
explosives, or any property of any kind or character whatsoever the
possession of which is prohibited by law and that was used by a
defendant in the commission of the crime of which the defendant was
convicted, or with which the defendant was armed or that the
defendant had upon his or her person at the time of the defendant's
arrest.
Any of this property introduced or filed as an exhibit shall be,
by order of the trial court, destroyed or otherwise disposed of under
the conditions provided in the order no sooner than 60 days
following the final determination of the criminal action or
proceeding.
(b) (1) Every person who knowingly has in his or her possession
any tool or device that is seized and of a type used in the
commission of a violation of Section 10801, 10802, or 10803 of the
Vehicle Code, shall be subject to having the tool or device intended
for the above purpose deemed a nuisance as provided in paragraph (2).
(2) An evidentiary hearing shall be held only upon conviction of
the defendant for a violation of Section 10801, 10802, or 10803 of
the Vehicle Code and after 15 days' notice is given to the defendant
of the state's intent to declare as a nuisance any property that is
described in paragraph (1). All relevant evidence shall be admissible
at the hearing and the state shall prove by a preponderance of the
evidence that the property seized is of a type used in facilitating
the commission of the crime of which the defendant was convicted.
(3) If a person purports to be the lawful owner of any tool or
device the state seeks to be declared a nuisance, the person shall
show proof by a preponderance of the evidence at the hearing pursuant
to paragraph (2), that he or she owns the tool or device, and the
illegal use of the tool or device was without his or her knowledge or
consent.
(4) Following a determination that the property shall be declared
a nuisance, the property shall be disposed of as provided in
paragraph (2) or (3) of subdivision (c) of Section 1417.5.
1417.7. Not less than 15 days before any proposed disposition of an
exhibit pursuant to Section 1417.3, 1417.5, or 1417.6, the court
shall notify the district attorney (or other prosecuting attorney),
the attorney of record for each party, and each party who is not
represented by counsel of the proposed disposition. Before the
disposition, any party, at his or her own expense, may cause to be
prepared a photographic 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 or proceeding. A certified photographic record
of exhibits shall not be deemed inadmissible pursuant to Section
1521 or 1522 of the Evidence Code.
1417.8. (a) Notwithstanding any other provision of this chapter,
the court shall direct that any photograph of any minor that has been
found by the court to be harmful matter, as defined in Section 313,
and introduced or filed as an exhibit in any criminal proceeding
specified in subdivision (b) be handled as follows:
(1) Prior to the final determination of the action or proceeding,
the photograph shall be available only to the parties or to a person
named in a court order to receive the photograph.
(2) After the final determination of the action or proceeding, the
photograph shall be preserved with the permanent record maintained
by the clerk of the court. The photograph may be disposed of or
destroyed after preservation through any appropriate photographic or
electronic medium. If the photograph is disposed of, it shall be
rendered unidentifiable before the disposal. No person shall have
access to the photograph unless that person has been named in a court
order to receive the photograph. Any copy, negative, reprint, or
other duplication of the photograph in the possession of the state, a
state agency, the defendant, or an agent of the defendant, shall be
delivered to the clerk of the court for disposal whether or not the
defendant was convicted of the offense.
(b) The procedure provided by subdivision (a) shall apply to
actions listed under subdivision (c) of Section 290, and to acts
under the following provisions:
(1) Section 261.5.
(2) Section 272.
(3) Chapter 7.5 (commencing with Section 311) of Title 9 of Part
1.
(4) Chapter 7.6 (commencing with Section 313) of Title 9 of Part
1.
(c) For the purposes of this section, "photograph" means any
photographic image contained in a digital format or on any chemical,
mechanical, magnetic, or electronic medium.
1417.9. (a) Notwithstanding any other provision of law and subject
to subdivision (b), the appropriate governmental entity shall 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. The governmental entity shall have the
discretion to determine how the evidence is retained pursuant to this
section, provided that the evidence is retained in a condition
suitable for deoxyribonucleic acid (DNA) testing.
(b) A governmental entity may dispose of biological material
before the expiration of the period of time described in subdivision
(a) if all of the conditions set forth below are met:
(1) The governmental entity notifies all of the following persons
of the provisions of this section and of the intention of the
governmental entity to dispose of the material: any person, who as a
result of a felony conviction in the case is currently serving a term
of imprisonment and who remains incarcerated in connection with the
case, any counsel of record, the public defender in the county of
conviction, the district attorney in the county of conviction, and
the Attorney General.
(2) The notifying entity does not receive, within 90 days of
sending the notification, any of the following:
(A) A motion filed pursuant to Section 1405. However, upon filing
of that motion, the governmental entity shall retain the material
only until the time that the court's denial of the motion is final.
(B) A request under penalty of perjury that the material not be
destroyed or disposed of because the declarant will file within 180
days a motion for DNA testing pursuant to Section 1405 that is
followed within 180 days by a motion for DNA testing pursuant to
Section 1405, unless a request for an extension is requested by the
convicted person and agreed to by the governmental entity in
possession of the evidence.
(C) A declaration of innocence under penalty of perjury that has
been filed with the court within 180 days of the judgment of
conviction or July 1, 2001, whichever is later. However, the court
shall permit the destruction of the evidence upon a showing that the
declaration is false or there is no issue of identity that would be
affected by additional testing. The convicted person may be
cross-examined on the declaration at any hearing conducted under this
section or on an application by or on behalf of the convicted person
filed pursuant to Section 1405.
(3) No other provision of law requires that biological evidence be
preserved or retained.
(c) Notwithstanding any other provision of law, the right to
receive notice pursuant to this section is absolute and shall not be
waived. This prohibition applies to, but is not limited to, a waiver
that is given as part of an agreement resulting in a plea of guilty
or nolo contendre.
1417. 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, subject to Sections 1417.2 and 1417.3 until final
determination of the action or proceedings and the exhibits shall
thereafter be distributed or disposed of as provided in this chapter.
1417.1. No order shall be made for the destruction of an exhibit
prior to the final determination of the action or proceeding. For the
purposes of this chapter, the date when a criminal action or
proceeding becomes final is as follows:
(a) When no notice of appeal is filed, 30 days after the last day
for filing that notice.
(b) When a notice of appeal is filed, 30 days after the date the
clerk of the court receives the remittitur affirming the judgment.
(c) When an order for a rehearing, a new trial, or other
proceeding is granted and the ordered proceedings have not been
commenced within one year thereafter, one year after the date of that
order.
(d) In cases where the death penalty is imposed, 30 days after the
date of execution of sentence.
1417.2. Notwithstanding Section 1417.5, the court may, on
application of the party entitled thereto or an agent designated in
writing by the owner, order an exhibit delivered to that party at any
time 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:
(a) No prejudice will be suffered by either party.
(b) A full and complete photographic record is made of the
exhibits so released.
The party to whom the exhibit is being returned shall provide the
photographic record. This section shall not apply to any material,
the release of which is prohibited by Section 1417.6.
1417.3. (a) 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 an exhibit by its nature is
severable the court shall order the clerk to retain a portion of the
exhibit not exceeding three pounds by weight or one cubic foot by
volume and shall order the return of the balance of the exhibit to
the district attorney. The clerk, upon court order, shall substitute
a full and complete photographic record of any exhibit or part of any
exhibit returned to the state under this section. The party to whom
the exhibit is being returned shall provide the photographic record.
(b) 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 a written chemical analysis certified by competent
authority. Where the court finds that good cause exists to depart
from this procedure, toxic exhibits may be brought into the courtroom
and introduced. However, following introduction of the exhibit, the
person or persons previously in possession of the exhibit shall take
responsibility for it and the court shall not be required to store
the exhibit.
1417.5. Except as provided in Section 1417.6, 60 days 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 follows:
(a) If the name and address of the person from whom the exhibit
was taken is contained in the court record, the clerk shall notify
the person that he or she may make application to the court for
release of the exhibits within 15 days of receipt of the
notification.
(b) The court shall order the release of exhibits free of charge,
without prejudice to the state, upon application, to the following:
(1) First, the person from whom the exhibits were taken into
custody, provided that the person was in lawful possession of the
exhibits.
(2) Second, a person establishing title to, or a right to
possession of, the exhibits.
(c) If the party entitled to an exhibit fails to apply for the
return of the exhibit prior to the date for disposition under this
section, the following procedures shall apply:
(1) Exhibits of stolen or embezzled property other than money
shall be disposed of pursuant to court order as provided in Section
1417.6.
(2) Exhibits of property other than property which is stolen or
embezzled or property which consists of money or currency shall,
except as otherwise provided in this paragraph and in paragraph (3),
be transferred to the appropriate county agency for sale to the
public in the same manner provided by Article 7 (commencing with
Section 25500) of Chapter 5 of Part 2 of Division 2 of Title 3 of the
Government Code for the sale of surplus personal property. If the
county determines that any property is needed for a public use, the
property may be retained by the county and need not be sold.
(3) Exhibits of property, other than money, currency, or stolen or
embezzled property, that are determined by the court to have no
value at public sale shall be destroyed or otherwise disposed of
pursuant to court order.
(4) Exhibits of money or currency shall be disposed of pursuant to
Section 1420.
1417.6. (a) The provisions of Section 1417.5 shall not apply to any
dangerous or deadly weapons, narcotic or poisonous drugs,
explosives, or any property of any kind or character whatsoever the
possession of which is prohibited by law and that was used by a
defendant in the commission of the crime of which the defendant was
convicted, or with which the defendant was armed or that the
defendant had upon his or her person at the time of the defendant's
arrest.
Any of this property introduced or filed as an exhibit shall be,
by order of the trial court, destroyed or otherwise disposed of under
the conditions provided in the order no sooner than 60 days
following the final determination of the criminal action or
proceeding.
(b) (1) Every person who knowingly has in his or her possession
any tool or device that is seized and of a type used in the
commission of a violation of Section 10801, 10802, or 10803 of the
Vehicle Code, shall be subject to having the tool or device intended
for the above purpose deemed a nuisance as provided in paragraph (2).
(2) An evidentiary hearing shall be held only upon conviction of
the defendant for a violation of Section 10801, 10802, or 10803 of
the Vehicle Code and after 15 days' notice is given to the defendant
of the state's intent to declare as a nuisance any property that is
described in paragraph (1). All relevant evidence shall be admissible
at the hearing and the state shall prove by a preponderance of the
evidence that the property seized is of a type used in facilitating
the commission of the crime of which the defendant was convicted.
(3) If a person purports to be the lawful owner of any tool or
device the state seeks to be declared a nuisance, the person shall
show proof by a preponderance of the evidence at the hearing pursuant
to paragraph (2), that he or she owns the tool or device, and the
illegal use of the tool or device was without his or her knowledge or
consent.
(4) Following a determination that the property shall be declared
a nuisance, the property shall be disposed of as provided in
paragraph (2) or (3) of subdivision (c) of Section 1417.5.
1417.7. Not less than 15 days before any proposed disposition of an
exhibit pursuant to Section 1417.3, 1417.5, or 1417.6, the court
shall notify the district attorney (or other prosecuting attorney),
the attorney of record for each party, and each party who is not
represented by counsel of the proposed disposition. Before the
disposition, any party, at his or her own expense, may cause to be
prepared a photographic 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 or proceeding. A certified photographic record
of exhibits shall not be deemed inadmissible pursuant to Section
1521 or 1522 of the Evidence Code.
1417.8. (a) Notwithstanding any other provision of this chapter,
the court shall direct that any photograph of any minor that has been
found by the court to be harmful matter, as defined in Section 313,
and introduced or filed as an exhibit in any criminal proceeding
specified in subdivision (b) be handled as follows:
(1) Prior to the final determination of the action or proceeding,
the photograph shall be available only to the parties or to a person
named in a court order to receive the photograph.
(2) After the final determination of the action or proceeding, the
photograph shall be preserved with the permanent record maintained
by the clerk of the court. The photograph may be disposed of or
destroyed after preservation through any appropriate photographic or
electronic medium. If the photograph is disposed of, it shall be
rendered unidentifiable before the disposal. No person shall have
access to the photograph unless that person has been named in a court
order to receive the photograph. Any copy, negative, reprint, or
other duplication of the photograph in the possession of the state, a
state agency, the defendant, or an agent of the defendant, shall be
delivered to the clerk of the court for disposal whether or not the
defendant was convicted of the offense.
(b) The procedure provided by subdivision (a) shall apply to
actions listed under subdivision (c) of Section 290, and to acts
under the following provisions:
(1) Section 261.5.
(2) Section 272.
(3) Chapter 7.5 (commencing with Section 311) of Title 9 of Part
1.
(4) Chapter 7.6 (commencing with Section 313) of Title 9 of Part
1.
(c) For the purposes of this section, "photograph" means any
photographic image contained in a digital format or on any chemical,
mechanical, magnetic, or electronic medium.
1417.9. (a) Notwithstanding any other provision of law and subject
to subdivision (b), the appropriate governmental entity shall 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. The governmental entity shall have the
discretion to determine how the evidence is retained pursuant to this
section, provided that the evidence is retained in a condition
suitable for deoxyribonucleic acid (DNA) testing.
(b) A governmental entity may dispose of biological material
before the expiration of the period of time described in subdivision
(a) if all of the conditions set forth below are met:
(1) The governmental entity notifies all of the following persons
of the provisions of this section and of the intention of the
governmental entity to dispose of the material: any person, who as a
result of a felony conviction in the case is currently serving a term
of imprisonment and who remains incarcerated in connection with the
case, any counsel of record, the public defender in the county of
conviction, the district attorney in the county of conviction, and
the Attorney General.
(2) The notifying entity does not receive, within 90 days of
sending the notification, any of the following:
(A) A motion filed pursuant to Section 1405. However, upon filing
of that motion, the governmental entity shall retain the material
only until the time that the court's denial of the motion is final.
(B) A request under penalty of perjury that the material not be
destroyed or disposed of because the declarant will file within 180
days a motion for DNA testing pursuant to Section 1405 that is
followed within 180 days by a motion for DNA testing pursuant to
Section 1405, unless a request for an extension is requested by the
convicted person and agreed to by the governmental entity in
possession of the evidence.
(C) A declaration of innocence under penalty of perjury that has
been filed with the court within 180 days of the judgment of
conviction or July 1, 2001, whichever is later. However, the court
shall permit the destruction of the evidence upon a showing that the
declaration is false or there is no issue of identity that would be
affected by additional testing. The convicted person may be
cross-examined on the declaration at any hearing conducted under this
section or on an application by or on behalf of the convicted person
filed pursuant to Section 1405.
(3) No other provision of law requires that biological evidence be
preserved or retained.
(c) Notwithstanding any other provision of law, the right to
receive notice pursuant to this section is absolute and shall not be
waived. This prohibition applies to, but is not limited to, a waiver
that is given as part of an agreement resulting in a plea of guilty
or nolo contendre.
1417. 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, subject to Sections 1417.2 and 1417.3 until final
determination of the action or proceedings and the exhibits shall
thereafter be distributed or disposed of as provided in this chapter.
1417.1. No order shall be made for the destruction of an exhibit
prior to the final determination of the action or proceeding. For the
purposes of this chapter, the date when a criminal action or
proceeding becomes final is as follows:
(a) When no notice of appeal is filed, 30 days after the last day
for filing that notice.
(b) When a notice of appeal is filed, 30 days after the date the
clerk of the court receives the remittitur affirming the judgment.
(c) When an order for a rehearing, a new trial, or other
proceeding is granted and the ordered proceedings have not been
commenced within one year thereafter, one year after the date of that
order.
(d) In cases where the death penalty is imposed, 30 days after the
date of execution of sentence.
1417.2. Notwithstanding Section 1417.5, the court may, on
application of the party entitled thereto or an agent designated in
writing by the owner, order an exhibit delivered to that party at any
time 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:
(a) No prejudice will be suffered by either party.
(b) A full and complete photographic record is made of the
exhibits so released.
The party to whom the exhibit is being returned shall provide the
photographic record. This section shall not apply to any material,
the release of which is prohibited by Section 1417.6.
1417.3. (a) 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 an exhibit by its nature is
severable the court shall order the clerk to retain a portion of the
exhibit not exceeding three pounds by weight or one cubic foot by
volume and shall order the return of the balance of the exhibit to
the district attorney. The clerk, upon court order, shall substitute
a full and complete photographic record of any exhibit or part of any
exhibit returned to the state under this section. The party to whom
the exhibit is being returned shall provide the photographic record.
(b) 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 a written chemical analysis certified by competent
authority. Where the court finds that good cause exists to depart
from this procedure, toxic exhibits may be brought into the courtroom
and introduced. However, following introduction of the exhibit, the
person or persons previously in possession of the exhibit shall take
responsibility for it and the court shall not be required to store
the exhibit.
1417.5. Except as provided in Section 1417.6, 60 days 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 follows:
(a) If the name and address of the person from whom the exhibit
was taken is contained in the court record, the clerk shall notify
the person that he or she may make application to the court for
release of the exhibits within 15 days of receipt of the
notification.
(b) The court shall order the release of exhibits free of charge,
without prejudice to the state, upon application, to the following:
(1) First, the person from whom the exhibits were taken into
custody, provided that the person was in lawful possession of the
exhibits.
(2) Second, a person establishing title to, or a right to
possession of, the exhibits.
(c) If the party entitled to an exhibit fails to apply for the
return of the exhibit prior to the date for disposition under this
section, the following procedures shall apply:
(1) Exhibits of stolen or embezzled property other than money
shall be disposed of pursuant to court order as provided in Section
1417.6.
(2) Exhibits of property other than property which is stolen or
embezzled or property which consists of money or currency shall,
except as otherwise provided in this paragraph and in paragraph (3),
be transferred to the appropriate county agency for sale to the
public in the same manner provided by Article 7 (commencing with
Section 25500) of Chapter 5 of Part 2 of Division 2 of Title 3 of the
Government Code for the sale of surplus personal property. If the
county determines that any property is needed for a public use, the
property may be retained by the county and need not be sold.
(3) Exhibits of property, other than money, currency, or stolen or
embezzled property, that are determined by the court to have no
value at public sale shall be destroyed or otherwise disposed of
pursuant to court order.
(4) Exhibits of money or currency shall be disposed of pursuant to
Section 1420.
1417.6. (a) The provisions of Section 1417.5 shall not apply to any
dangerous or deadly weapons, narcotic or poisonous drugs,
explosives, or any property of any kind or character whatsoever the
possession of which is prohibited by law and that was used by a
defendant in the commission of the crime of which the defendant was
convicted, or with which the defendant was armed or that the
defendant had upon his or her person at the time of the defendant's
arrest.
Any of this property introduced or filed as an exhibit shall be,
by order of the trial court, destroyed or otherwise disposed of under
the conditions provided in the order no sooner than 60 days
following the final determination of the criminal action or
proceeding.
(b) (1) Every person who knowingly has in his or her possession
any tool or device that is seized and of a type used in the
commission of a violation of Section 10801, 10802, or 10803 of the
Vehicle Code, shall be subject to having the tool or device intended
for the above purpose deemed a nuisance as provided in paragraph (2).
(2) An evidentiary hearing shall be held only upon conviction of
the defendant for a violation of Section 10801, 10802, or 10803 of
the Vehicle Code and after 15 days' notice is given to the defendant
of the state's intent to declare as a nuisance any property that is
described in paragraph (1). All relevant evidence shall be admissible
at the hearing and the state shall prove by a preponderance of the
evidence that the property seized is of a type used in facilitating
the commission of the crime of which the defendant was convicted.
(3) If a person purports to be the lawful owner of any tool or
device the state seeks to be declared a nuisance, the person shall
show proof by a preponderance of the evidence at the hearing pursuant
to paragraph (2), that he or she owns the tool or device, and the
illegal use of the tool or device was without his or her knowledge or
consent.
(4) Following a determination that the property shall be declared
a nuisance, the property shall be disposed of as provided in
paragraph (2) or (3) of subdivision (c) of Section 1417.5.
1417.7. Not less than 15 days before any proposed disposition of an
exhibit pursuant to Section 1417.3, 1417.5, or 1417.6, the court
shall notify the district attorney (or other prosecuting attorney),
the attorney of record for each party, and each party who is not
represented by counsel of the proposed disposition. Before the
disposition, any party, at his or her own expense, may cause to be
prepared a photographic 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 or proceeding. A certified photographic record
of exhibits shall not be deemed inadmissible pursuant to Section
1521 or 1522 of the Evidence Code.
1417.8. (a) Notwithstanding any other provision of this chapter,
the court shall direct that any photograph of any minor that has been
found by the court to be harmful matter, as defined in Section 313,
and introduced or filed as an exhibit in any criminal proceeding
specified in subdivision (b) be handled as follows:
(1) Prior to the final determination of the action or proceeding,
the photograph shall be available only to the parties or to a person
named in a court order to receive the photograph.
(2) After the final determination of the action or proceeding, the
photograph shall be preserved with the permanent record maintained
by the clerk of the court. The photograph may be disposed of or
destroyed after preservation through any appropriate photographic or
electronic medium. If the photograph is disposed of, it shall be
rendered unidentifiable before the disposal. No person shall have
access to the photograph unless that person has been named in a court
order to receive the photograph. Any copy, negative, reprint, or
other duplication of the photograph in the possession of the state, a
state agency, the defendant, or an agent of the defendant, shall be
delivered to the clerk of the court for disposal whether or not the
defendant was convicted of the offense.
(b) The procedure provided by subdivision (a) shall apply to
actions listed under subdivision (c) of Section 290, and to acts
under the following provisions:
(1) Section 261.5.
(2) Section 272.
(3) Chapter 7.5 (commencing with Section 311) of Title 9 of Part
1.
(4) Chapter 7.6 (commencing with Section 313) of Title 9 of Part
1.
(c) For the purposes of this section, "photograph" means any
photographic image contained in a digital format or on any chemical,
mechanical, magnetic, or electronic medium.
1417.9. (a) Notwithstanding any other provision of law and subject
to subdivision (b), the appropriate governmental entity shall 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. The governmental entity shall have the
discretion to determine how the evidence is retained pursuant to this
section, provided that the evidence is retained in a condition
suitable for deoxyribonucleic acid (DNA) testing.
(b) A governmental entity may dispose of biological material
before the expiration of the period of time described in subdivision
(a) if all of the conditions set forth below are met:
(1) The governmental entity notifies all of the following persons
of the provisions of this section and of the intention of the
governmental entity to dispose of the material: any person, who as a
result of a felony conviction in the case is currently serving a term
of imprisonment and who remains incarcerated in connection with the
case, any counsel of record, the public defender in the county of
conviction, the district attorney in the county of conviction, and
the Attorney General.
(2) The notifying entity does not receive, within 90 days of
sending the notification, any of the following:
(A) A motion filed pursuant to Section 1405. However, upon filing
of that motion, the governmental entity shall retain the material
only until the time that the court's denial of the motion is final.
(B) A request under penalty of perjury that the material not be
destroyed or disposed of because the declarant will file within 180
days a motion for DNA testing pursuant to Section 1405 that is
followed within 180 days by a motion for DNA testing pursuant to
Section 1405, unless a request for an extension is requested by the
convicted person and agreed to by the governmental entity in
possession of the evidence.
(C) A declaration of innocence under penalty of perjury that has
been filed with the court within 180 days of the judgment of
conviction or July 1, 2001, whichever is later. However, the court
shall permit the destruction of the evidence upon a showing that the
declaration is false or there is no issue of identity that would be
affected by additional testing. The convicted person may be
cross-examined on the declaration at any hearing conducted under this
section or on an application by or on behalf of the convicted person
filed pursuant to Section 1405.
(3) No other provision of law requires that biological evidence be
preserved or retained.
(c) Notwithstanding any other provision of law, the right to
receive notice pursuant to this section is absolute and shall not be
waived. This prohibition applies to, but is not limited to, a waiver
that is given as part of an agreement resulting in a plea of guilty
or nolo contendre.
