BILL ANALYSIS �
SB 1489
Page 1
Date of Hearing: June 19, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1489 (Harman) - As Amended: June 11, 2012
SUMMARY : Authorizes a court to order the destruction of
exhibits in a death penalty case 30 days after the death of a
defendant while awaiting execution. Deletes paper exhibits from
the definition of a "court record."
EXISTING LAW:
1)Requires all exhibits which have been introduced or filed in
any criminal action to 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. (Penal Code Section 1417.)
2)Prohibits a court from ordering the destruction of an exhibit
prior to the final determination of the action or proceeding.
(Penal Code Section 1417.1.)
3)Provides that 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 the order; and
d) In cases where the death penalty is imposed, 30 days
after the date of execution of sentence. �Penal Code
SB 1489
Page 2
Section 1417.1(a) to (d).]
4)Provides that prior to the final determination of the action
or proceedings, exhibits offered by the state or defendant
shall be returned to the party offering them by order of the
court when an exhibit poses a security, storage, or safety
problem. The clerk, upon court order, shall substitute a full
and complete photographic record of any exhibit or part of any
exhibit returned to the state. The party to whom the exhibit
is being returned shall provide the photographic record.
�Penal Code Section 1417.3(a).]
5)States 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 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. �Penal Code Section 1417.3(b).]
6)Provides notwithstanding any other provision of law and
subject to the requirements listed below, 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.
�Penal Code Section 1417.9(a).]
7)Authorizes a governmental entity to dispose of biological
material before the expiration of the period of time described
above if all of the conditions set forth below are met:
a) 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
SB 1489
Page 3
in the county of conviction, the district attorney in the
county of conviction, and the Attorney General;
b) The notifying entity does not receive, within 90 days of
sending the notification, any of the following:
i) A motion filed for DNA testing. 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;
ii) 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 that
is followed within 180 days by a motion for DNA testing,
unless a request for an extension is requested by the
convicted person and agreed to by the governmental entity
in possession of the evidence; or
iii) 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 a
motion for DNA testing. �Penal Code Section 1417.9(a).]
c) No other provision of law requires that biological
evidence be preserved or retained. �Penal Code Section
1417.9(b).]
8)Provides notwithstanding any other provision of law, the right
to receive notice regarding the intent to dispose biological
material is absolute and shall not be waived. This
prohibition applies to, but is not limited to, a waiver that
is given as part of an agreement resulting in a plea of guilty
or nolo contendre. �Penal Code Section 1417.9(c).]
9)Defines a "court record" as:
a) All filed papers and documents in the case folder, but
SB 1489
Page 4
if no case folder is created by the court, all filed papers
and documents that would have been in the case folder if
one had been created;
b) Administrative records filed in an action or proceeding,
depositions, paper exhibits, transcripts, including
preliminary hearing transcripts, and recordings of
electronically recorded proceedings filed, lodged, or
maintained in connection with the case, unless disposed of
earlier in the case pursuant to law; and
c) Other records specifically listed records. �Government
Code Section 68151(a).]
10)Defines the "final disposition of the case" as an acquittal,
dismissal, or order of judgment has been entered in the case
or proceeding, the judgment has become final, and no
postjudgment motions or appeals are pending in the case or for
the reviewing court upon the mailing of notice of the issuance
of the remittitur. In a criminal prosecution, the order of
judgment shall mean imposition of sentence, entry of an
appealable order (including, but not limited to, an order
granting probation, commitment of a defendant for insanity, or
commitment of a defendant as a narcotics addict appealable
under existing law related to appeals), or forfeiture of bail
without issuance of a bench warrant or calendaring of other
proceedings. �Government Code Section 68151(c).]
11)Defines "retain permanently" to mean that the court records
shall be maintained permanently according to the standards or
guidelines established by Judicial Council. �Government Code
Section 68151(d).]
12)Authorizes a trial court clerk to destroy court records under
Government Code Section 68153 after notice of destruction and
if there is no request and order for transfer of the records,
except the comprehensive historical and sample superior court
records preserved for research under the California Rules of
Court, when the following times have expired after final
disposition of the case in the categories listed:
a) Capital felony (murder with special circumstances where
the prosecution seeks the death penalty): retain
permanently.
SB 1489
Page 5
b) Felony, except as otherwise specified: 75 years;
c) Felony, except capital felony, with court records from
the initial complaint through the preliminary hearing or
plea and for which the case file does not include final
sentencing or other final disposition of the case because
the case was bound over to the superior court: five years;
d) Misdemeanor, except as otherwise specified: five years;
e) Misdemeanors related to a driving under the influence
offense: 10 years; and
f) Habeas corpus: same period as period for retention of
the records in the underlying case category. �Government
Code Section 68152(e) and (f).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "At a time when
California Courts are experiencing lay-offs, court room
closures and reduction in services there has been an increased
focus on implementing new cost-saving ideas for courts to
mitigate these funding challenges. Under current law, courts
may destroy exhibits (not evidence which is part of the file
and must be retained) in death penalty cases once the
defendant is executed. Senate Bill 1489, if enacted, would
allow (permissive) courts to destroy exhibits if defendant
dies before execution. This would make it consistent with
existing law to destroy exhibits after the defendant is
executed. It is not mandatory. Within California there are
more than 724 inmates condemned to death row. To date, there
have been 14 executions and 82 non-execution deaths. This
situation forces California courts to bear tremendous
financial burden to continue to store and preserve physical
exhibits and records, while wrestling with a disparity in the
law.
"Unless the specific item has future evidentiary value, there is
no reason to hold onto it once the case has been disposed. In
some instances, evidence can include mannequins to be used as
models; stolen property; hazardous waste, residuals, etc."
SB 1489
Page 6
2)Concerns Regarding Adequacy of Timing : Under existing law, a
court may not order the destruction of an exhibit prior to the
final determination of the action or proceeding. (Penal Code
Section 1417.1.) A "final disposition" in a criminal action
or proceeding is defined as an acquittal, dismissal, or order
of judgment has been entered in the case or proceeding, the
judgment has become final, and no post-judgment motions or
appeals are pending in the case or for the reviewing court
upon the mailing of notice of the issuance of the remittitur.
�Government Code Section 68151(c).] In cases where the death
penalty is imposed, the proceeding becomes final 30 days after
the execution of sentence in a death penalty case. �Penal
Code Section 1417.1(d).]
When a defendant is sentenced to the death penalty, an appeal is
automatically taken by the defendant without an action by him
or her or his or her counsel. �Penal Code Section 1239(b).]
The trial attorney has the duty to review the entire record of
the proceedings to ensure its accuracy and completeness.
Because of the magnitude of the penalty, the California
Supreme Court must review the entire record of the
proceedings. (Cal. Rules of Ct. 39.5.) Under current law,
paper exhibits are considered court records which must be
retained permanently in capital cases.
When a person is executed, he or she has exhausted all appeals
or writs of habeas corpus. When a person dies while awaiting
the execution of his sentence, there is no guarantee that the
person was able to exhaust his or her appeals or writs of
habeas corpus. A person could commit suicide, die of an
illness or die of natural causes at any point after being
sentenced. Given the backlog of automatic appeals to the
California Supreme Court and long wait times to have an
attorney appointed, a person who dies awaiting execution could
still have a pending motion or appeal at the time of death.
Because the appeal would be vacated upon death, there would be
no opportunity to obtain a final disposition in the case as
would be obtained in a case where a person is executed after
judgment in his or her appeals and writs of habeas.
This bill aligns the time frame for destroying exhibits in death
penalty cases where a person dies while awaiting execution
with the 30-day time frame for a person who is executed. If
the death of a defendant awaiting execution is sudden or
unexpected, 30 days may not be adequate time for academics,
SB 1489
Page 7
law makers, counsel representing a co-defendant or
co-perpetrator tried separately, or other interested parties
including members of the public to obtain copies or
reproductions of exhibits scheduled for destruction.
Considering that a person who dies prior to execution may not
have exhausted all of his or her appeals or writs of habeas,
and considering that there is a strong public interest in
evaluating the fairness, efficacy and efficiency of our death
penalty laws, should the proposed 30-day window between the
defendant's death and the destruction of exhibits be expanded?
3)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "The incidence of mistaken
identification in capital cases is alarming. As the New York
Times noted in April 12, 2012, 123 convicts with death
sentences have been exonerated since 1973. These 123
exonerations mean that 123 actual murderers were not
apprehended and convicted. �] Law enforcement needs every
tool at its disposal to apprehend the actual perpetrators of
these heinous crimes.
"In addition, even where the actual perpetrator is convicted,
sentenced to death, and dies, there are important reasons not
to destroy the court records in the case. Policy makers,
academics and the general public have a strong interest in
evaluating the fairness, efficacy and efficiency of our death
penalty laws. They should not be deprived of original source
material for analysis of these important questions."
4)Related Legislation : SB 490 (Hancock) would have abolished
the death penalty, upon voter approval, as a punishment option
for persons convicted of murder in the first degree with
special circumstances. SB 490 was never heard by the Assembly
Committee on Appropriations.
5)Previous Legislation :
a) SB 1025 (Harman), of the 2009-2010 Legislative Session,
would have required the Supreme Court to develop necessary
rules and procedures for initiating habeas petitions in the
Superior Court. SB 1025 failed passage in the Senate
Committee on Public Safety.
b) SB 1471 (Runner), of the 2007-08 Legislative Session,
would have required habeas petitions in death penalty cases
SB 1489
Page 8
to be filed within one year, changed the standards for
competent counsel; and provided that habeas petitions in
capital cases be filed in superior court. SB 1471 failed
passage in the Senate Committee on Public Safety.
c) SB 315 (Harman), of the 2007-08 Legislative Session,
would have required all appellate attorneys who accept
appointments for indigent parties to accept appointments
for capital appeals regardless of qualifications. SB 315
failed passage in this Committee.
d) SB 1257 (Morrow), of the 2005-06 Legislative Session,
would have expedited the appellate process for capital
cases by specifying timeframes for appointment of counsel,
certification of the record and filing of the opening
brief, and by requiring any person appointed to a
non-capital appeal to also be available to take a capital
appeal. SB 1257 failed passage in Senate Committee on
Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744