SECTIONS 1417-1417.9

1417.  All exhibits which have been introduced or filed in anycriminal action or proceeding shall be retained by the clerk of thecourt who shall establish a procedure to account for the exhibitsproperly, subject to Sections 1417.2 and 1417.3 until finaldetermination of the action or proceedings and the exhibits shallthereafter be distributed or disposed of as provided in this chapter.1417.1.  No order shall be made for the destruction of an exhibitprior to the final determination of the action or proceeding. For thepurposes of this chapter, the date when a criminal action orproceeding becomes final is as follows: (a) When no notice of appeal is filed, 30 days after the last dayfor filing that notice. (b) When a notice of appeal is filed, 30 days after the date theclerk of the court receives the remittitur affirming the judgment. (c) When an order for a rehearing, a new trial, or otherproceeding is granted and the ordered proceedings have not beencommenced within one year thereafter, one year after the date of thatorder. (d) In cases where the death penalty is imposed, 30 days after thedate of execution of sentence.1417.2.  Notwithstanding Section 1417.5, the court may, onapplication of the party entitled thereto or an agent designated inwriting by the owner, order an exhibit delivered to that party at anytime prior to the final determination of the action or proceeding,upon stipulation of the parties or upon notice and motion if both ofthe following requirements are met: (a) No prejudice will be suffered by either party. (b) A full and complete photographic record is made of theexhibits so released. The party to whom the exhibit is being returned shall provide thephotographic 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 theaction or proceeding, exhibits offered by the state or defendantshall be returned to the party offering them by order of the courtwhen an exhibit poses a security, storage, or safety problem, asrecommended by the clerk of the court. If an exhibit by its nature isseverable the court shall order the clerk to retain a portion of theexhibit not exceeding three pounds by weight or one cubic foot byvolume and shall order the return of the balance of the exhibit tothe district attorney. The clerk, upon court order, shall substitutea full and complete photographic record of any exhibit or part of anyexhibit returned to the state under this section. The party to whomthe exhibit is being returned shall provide the photographic record. (b) Exhibits toxic by their nature that pose a health hazard tohumans shall be introduced to the court in the form of a photographicrecord and a written chemical analysis certified by competentauthority. Where the court finds that good cause exists to departfrom this procedure, toxic exhibits may be brought into the courtroomand introduced. However, following introduction of the exhibit, theperson or persons previously in possession of the exhibit shall takeresponsibility for it and the court shall not be required to storethe exhibit.1417.5.  Except as provided in Section 1417.6, 60 days after thefinal determination of a criminal action or proceeding, the clerk ofthe court shall dispose of all exhibits introduced or filed in thecase and remaining in the clerk's possession, as follows: (a) If the name and address of the person from whom the exhibitwas taken is contained in the court record, the clerk shall notifythe person that he or she may make application to the court forrelease of the exhibits within 15 days of receipt of thenotification. (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 intocustody, provided that the person was in lawful possession of theexhibits. (2) Second, a person establishing title to, or a right topossession of, the exhibits. (c) If the party entitled to an exhibit fails to apply for thereturn of the exhibit prior to the date for disposition under thissection, the following procedures shall apply: (1) Exhibits of stolen or embezzled property other than moneyshall be disposed of pursuant to court order as provided in Section1417.6. (2) Exhibits of property other than property which is stolen orembezzled 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 thepublic in the same manner provided by Article 7 (commencing withSection 25500) of Chapter 5 of Part 2 of Division 2 of Title 3 of theGovernment Code for the sale of surplus personal property. If thecounty determines that any property is needed for a public use, theproperty may be retained by the county and need not be sold. (3) Exhibits of property, other than money, currency, or stolen orembezzled property, that are determined by the court to have novalue at public sale shall be destroyed or otherwise disposed ofpursuant to court order. (4) Exhibits of money or currency shall be disposed of pursuant toSection 1420.1417.6.  (a) The provisions of Section 1417.5 shall not apply to anydangerous or deadly weapons, narcotic or poisonous drugs,explosives, or any property of any kind or character whatsoever thepossession of which is prohibited by law and that was used by adefendant in the commission of the crime of which the defendant wasconvicted, or with which the defendant was armed or that thedefendant had upon his or her person at the time of the defendant'sarrest. Any of this property introduced or filed as an exhibit shall be,by order of the trial court, destroyed or otherwise disposed of underthe conditions provided in the order no sooner than 60 daysfollowing the final determination of the criminal action orproceeding. (b) (1) Every person who knowingly has in his or her possessionany tool or device that is seized and of a type used in thecommission of a violation of Section 10801, 10802, or 10803 of theVehicle Code, shall be subject to having the tool or device intendedfor the above purpose deemed a nuisance as provided in paragraph (2). (2) An evidentiary hearing shall be held only upon conviction ofthe defendant for a violation of Section 10801, 10802, or 10803 ofthe Vehicle Code and after 15 days' notice is given to the defendantof the state's intent to declare as a nuisance any property that isdescribed in paragraph (1). All relevant evidence shall be admissibleat the hearing and the state shall prove by a preponderance of theevidence that the property seized is of a type used in facilitatingthe commission of the crime of which the defendant was convicted. (3) If a person purports to be the lawful owner of any tool ordevice the state seeks to be declared a nuisance, the person shallshow proof by a preponderance of the evidence at the hearing pursuantto paragraph (2), that he or she owns the tool or device, and theillegal use of the tool or device was without his or her knowledge orconsent. (4) Following a determination that the property shall be declareda nuisance, the property shall be disposed of as provided inparagraph (2) or (3) of subdivision (c) of Section 1417.5.1417.7.  Not less than 15 days before any proposed disposition of anexhibit pursuant to Section 1417.3, 1417.5, or 1417.6, the courtshall notify the district attorney (or other prosecuting attorney),the attorney of record for each party, and each party who is notrepresented by counsel of the proposed disposition. Before thedisposition, any party, at his or her own expense, may cause to beprepared a photographic record of all or part of the exhibit by aperson who is not a party or attorney of a party. The clerk of thecourt shall observe the taking of the photographic record and, uponreceipt of a declaration of the person making the photographic recordthat the copy and negative of the photograph delivered to the clerkis a true, unaltered, and unretouched print of the photographicrecord taken in the presence of the clerk, the clerk shall certifythe photographic record as such without charge and retain itunaltered for a period of 60 days following the final determinationof the criminal action or proceeding. A certified photographic recordof exhibits shall not be deemed inadmissible pursuant to Section1521 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 beenfound by the court to be harmful matter, as defined in Section 313,and introduced or filed as an exhibit in any criminal proceedingspecified 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 personnamed in a court order to receive the photograph. (2) After the final determination of the action or proceeding, thephotograph shall be preserved with the permanent record maintainedby the clerk of the court. The photograph may be disposed of ordestroyed after preservation through any appropriate photographic orelectronic medium. If the photograph is disposed of, it shall berendered unidentifiable before the disposal. No person shall haveaccess to the photograph unless that person has been named in a courtorder to receive the photograph. Any copy, negative, reprint, orother duplication of the photograph in the possession of the state, astate agency, the defendant, or an agent of the defendant, shall bedelivered to the clerk of the court for disposal whether or not thedefendant was convicted of the offense. (b) The procedure provided by subdivision (a) shall apply toactions listed under subdivision (c) of Section 290, and to actsunder the following provisions: (1) Section 261.5. (2) Section 272. (3) Chapter 7.5 (commencing with Section 311) of Title 9 of Part1. (4) Chapter 7.6 (commencing with Section 313) of Title 9 of Part1. (c) For the purposes of this section, "photograph" means anyphotographic 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 subjectto subdivision (b), the appropriate governmental entity shall retainall biological material that is secured in connection with a criminalcase for the period of time that any person remains incarcerated inconnection with that case. The governmental entity shall have thediscretion to determine how the evidence is retained pursuant to thissection, provided that the evidence is retained in a conditionsuitable for deoxyribonucleic acid (DNA) testing. (b) A governmental entity may dispose of biological materialbefore 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 personsof the provisions of this section and of the intention of thegovernmental entity to dispose of the material: any person, who as aresult of a felony conviction in the case is currently serving a termof imprisonment and who remains incarcerated in connection with thecase, any counsel of record, the public defender in the county ofconviction, the district attorney in the county of conviction, andthe Attorney General. (2) The notifying entity does not receive, within 90 days ofsending the notification, any of the following: (A) A motion filed pursuant to Section 1405. However, upon filingof that motion, the governmental entity shall retain the materialonly until the time that the court's denial of the motion is final. (B) A request under penalty of perjury that the material not bedestroyed or disposed of because the declarant will file within 180days a motion for DNA testing pursuant to Section 1405 that isfollowed within 180 days by a motion for DNA testing pursuant toSection 1405, unless a request for an extension is requested by theconvicted person and agreed to by the governmental entity inpossession of the evidence. (C) A declaration of innocence under penalty of perjury that hasbeen filed with the court within 180 days of the judgment ofconviction or July 1, 2001, whichever is later. However, the courtshall permit the destruction of the evidence upon a showing that thedeclaration is false or there is no issue of identity that would beaffected by additional testing. The convicted person may becross-examined on the declaration at any hearing conducted under thissection or on an application by or on behalf of the convicted personfiled pursuant to Section 1405. (3) No other provision of law requires that biological evidence bepreserved or retained. (c) Notwithstanding any other provision of law, the right toreceive notice pursuant to this section is absolute and shall not bewaived. This prohibition applies to, but is not limited to, a waiverthat is given as part of an agreement resulting in a plea of guiltyor nolo contendre.