BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 694        Hearing Date:    April 21, 2015    
          
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          |Author:    |Leno                                                 |
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          |Version:   |February 27, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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              Subject:  New Evidence:  Habeas Corpus:  Motion to Vacate  
 
                                Judgment:  Indemnity



          HISTORY
          Source:   California Innocence Project
                    Northern California Innocence Project

          Prior Legislation:SB 1058 (Leno) Chapter 623, Stats. 2014
                         SB 618 (Leno) Chapter 800, Stats. 2013

          Support:  California Attorneys for Criminal Justice; California  
                    Public Defender's Association; Ella Baker Center for  
                    Human Rights; Friends Committee on Legislation of  
                    California; American Civil Liberties Union; Drug  
                    Policy Alliance; Legal Services for Prisoners with  
                    Children; The Innocence Project

          Opposition:California District Attorneys Association; Crime  
          Victims Action Alliance

                                                


          PURPOSE

          The purpose of this bill is to allow the granting of a habeas  







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          corpus petition based on new evidence which "raises a reasonable  
          probability of a different outcome if a new trial were granted."

          Existing law provides that every person unlawfully imprisoned or  
          restrained of his or her liberty, under any pretense whatever,  
          may prosecute a writ of habeas corpus to inquire into the cause  
          of such imprisonment or restraint.  (Penal Code  1473(a).)

          Existing law states that a writ of habeas corpus may be  
          prosecuted for, but not limited to, the following reasons:

                 False evidence that is substantially material or  
               probative on the issue of guilt, or punishment was  
               introduced against a person at any hearing or trial  
               relating to his incarceration;
                 False physical evidence believed by a person to be  
               factual, material or probative on the issue of guilt, which  
               was known by the person at the time of entering a plea of  
               guilty and which was a material factor directly related to  
               the plea of guilty by the person. (Penal Code  1473 (b))

          Existing law provides that any allegation that the prosecution  
          knew or should have known of the false nature of the evidence is  
          immaterial to the prosecution of a writ of habeas corpus.   
          (Penal Code  1473(c).)

          Existing law states that nothing in this section shall be  
          construed as limiting the grounds for which a writ of habeas  
          corpus may be prosecuted or as precluding the use of any other  
          remedies.  (Penal Code  1473(d).)

          This bill would add, as grounds for a writ of habeas corpus, new  
          evidence exists which would raise a reasonable probability of a  
          different outcome if a new trial were granted.

          Existing law provides that in a contested proceeding, if a court  
          grans a writ of habeas corpus concerning a person who is  
          unlawfully imprisoned or restrained, the court vacates a  
          judgment on the basis of new evidence concerning a person who is  
          no longer unlawfully imprisoned or restrained and if the court  
          finds that the new evidence on the petition points unerringly to  
          innocence, that finding shall be binding on the California Crime  
          Victims Compensation and Government Claims board for acclaim  
          presented to the board, and upon application by the person, the  








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          board shall, without a hearing, recommend to the legislation  
          that an appropriation be made. (Penal Code  148.55(a)) 

          This bill changes that standard from "points unerringly to  
          innocence' to "raises a possibility of a different outcome if a  
          new trial were granted."

          Existing law provides that "new evidence" means evidence that  
          was not available or knows at the time of trial that completely  
          undermines the prosecution case and points unerringly to  
          innocence. (Penal Code  148.55(b))

          This bill changes that standard from "undermines the prosecution  
          case and points unerringly to innocence' to "raises a  
          possibility of a different outcome if a new trial were granted."

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  








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          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.




          COMMENTS

          1.  Need for This Bill

          According to the author:

               Under existing California law, an inmate who has been  
               convicted of committing a crime for which he or she  
               claims that s/he has new evidence that points to  
               innocence may file a petition for writ of habeas  
               corpus.  The burden for proving that newly discovered  
               evidence entitles an individual to a new trial is not  
               currently defined by statute, but has evolved from  








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               appellate court opinions.   In order to prevail on a  
               new evidence claim, a petitioner must undermine the  
               prosecution's entire case and "point unerringly to  
               innocence with evidence no reasonable jury could  
               reject" (In re Lawley (2008) 42 Cal.4th 1231, 1239).   
               The California Supreme Court has stated that this  
               standard is very high, much higher than the  
               preponderance of the evidence standard that governs  
               other habeas claims.  (Ibid.)  

               This standard is nearly impossible to meet absent DNA  
               evidence, which exists only in a tiny portion of  
               prosecutions and exonerations.  For example, if a  
               petitioner has newly discovered evidence that  
               completely undermines all evidence of guilt and shows  
               that the original jury would likely not have  
               convicted, but the new evidence does not "point  
               unerringly to innocence" the petitioner will not have  
               met the standard and will have no chance at a new  
               trial.  Thus, someone who would likely never have been  
               convicted if the newly discovered evidence had been  
               available in their original trial is almost guaranteed  
               to remain in prison under the status quo in  
               California.  The proposed new standard in SB 694  
               addresses this anomaly.  Our criminal justice system  
               was built on the understanding that even innocent  
               people cannot always affirmatively prove innocence,  
               which is why the burden is on the prosecution to prove  
               guilt when a charge is brought to trial, and absent  
               evidence of guilt beyond a reasonable doubt, innocence  
               is presumed.  The new standard contained in this bill  
               ensures that innocent men and women do not remain in  
               prison even after new evidence shows that a conviction  
               never would have occurred had it been available.

               SB 694 seeks to bring California's innocence standard  
               into line with the vast majority of other states'  
               standards, thirty-nine in total, and to make it  
               consistent with other post-conviction standards for  
               relief such as ineffective assistance of counsel, or  
               prosecutorial misconduct.  There is no justification  
               for a different standard to govern these types of  
               claims, as opposed to those brought on the basis of  
               newly discovered evidence.  Our laws must recognize  








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               that if evidence exists that a jury did not hear  
               (regardless of whether it is the fault of a mistaken  
               or lying witness, an ineffective attorney, or the  
               misconduct of law enforcement) creates a reasonable  
               probability of a different outcome, the conviction  
               should be reversed.  

               As a result of the onerously high standard governing  
               new evidence claims, individuals often choose to  
               re-package evidence of innocence into other types of  
               claims, such as infective assistance of counsel for  
               example.  The impact of this is not just a dearth in  
               case law on new evidence claims but it also means that  
               some exonerees may never receive legal recognition of  
               their innocence. To illustrate, consider the case of  
               Maurice Caldwell. Caldwell was convicted of murder in  
               1991 based on the mistaken identification of a single  
               eyewitness. It was later established that it was  
               scientifically impossible for the witness to have  
               identified the perpetrator from her vantage point,  
               thus rendering his conviction invalid. It was not for  
               the fact that there was new evidence available,  
               however, that the conviction was overturned. It was a  
               claim of ineffective assistance of counsel that  
               ultimately ended Caldwell's wrongful incarceration.  
               While Caldwell no longer suffers from the immediate  
               harm of a wrongful conviction he still has no legal  
               recognition of his innocence, which may limit his  
               ability to continue to recover from the long-lasting  
               and difficult burdens of a wrongful conviction. A  
               finding of innocence is a crucial component of  
               recovery for many people who have been wrongfully  
               convicted in California and without justification for  
               such a high standard, there is no basis for requiring  
               the victims of wrongful incarceration to meet it. 
          
          2.   Habeas Corpus
          
          Habeas corpus, also known as "the Great Writ", is a process  
          guaranteed by both the federal and state Constitutions to obtain  
          prompt judicial relief from illegal restraint.  The functions of  
          the writ is set forth in Penal Code section 1473(a):  "Every  
          person unlawfully imprisoned or restrained of his or her  
          liberty, under any pretense whatever, may prosecute a writ of  








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          habeas corpus, to inquire into the cause of such imprisonment or  
          restraint."  A writ of habeas corpus may be prosecuted for, but  
          not limited to, the following reasons:
                 False evidence that is substantially material or  
               probative on the issue of guilt, or punishment was  
               introduced against a person at any hearing or trial  
               relating to his incarceration;
                 False physical evidence believed by a person to be  
               factual, material or probative on the issue of guilt, which  
               was known by the person at the time of entering a plea of  
               guilty and which was a material factor directly related to  
               the plea of guilty by the person; and,
                 Any allegation that the prosecution knew or should have  
               known of the false nature of the evidence is immaterial to  
               the prosecution of a writ of habeas corpus.   

          3.  Reasonable Probability Standard

          In California, there is no codified standard of proof for a writ  
          of habeas corpus brought on the basis of new evidence.  The  
          current standard is based on case law. In re Lawley (2008) 42  
          Cal. 4th 1231, 1239 found that newly discovered evidence "must  
          undermine the entire prosecution case and point unerringly to  
          innocence or reduced culpability;" and " if 'a reasonable jury  
          could have rejected' the evidence presented, a petition has not  
          satisfied his burden."  This bill would instead set the standard  
          for the granting of a writ of habeas corpus as "new evidence  
          exists which would raise a reasonable probability of a different  
          outcome if a new trial were granted. The reasonable probability  
          standard the same standard that is used  in most other states  
          and in California is used for cases of: ineffective assistance  
          of counsel; false evidence; and, prosecutorial misconduct.

          In support the ACLU notes that:

               SB 694 would incorporate into California law a  
               standard of proof that is in alignment with almost all  
               other states. SB 694 will allow a wrongfully convicted  
               person to receive a new trial if he or she presents  
               the reviewing court with evidence that is of such a  
               decisive value and force that there is a reasonable  
               probability of a different outcome if a new trial were  
               granted. This standard brings the actual innocence  
               claim into alignment with other post-conviction  








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               remedies for established constitutional violations,  
               including claims of ineffective assistance of counsel,  
               prosecutorial misconduct, and false evidence.

           This bill also makes conforming changes, making it clear the  
          standard is a "reasonable probability of a different outcome if  
          a new trial were grated" in the section requiring the Victim  
          Compensation and Government Claims Board to make a  
          recommendation for an appropriation when the court has granted a  
          writ of habeas corpus on the basis of new evidence.

          4. Opposition
          
          The California District Attorneys Association opposes this bill  
          stating:

               The proposed standard allows for a new trial when  
               there is merely a reasonable probability that the  
               outcome would be different because of newly discovered  
               evidence. This standard is even less than a  
               preponderance of the evidence, and thus is  
               ridiculously low in this context. The proposed  
               standard is currently mandated by the United States  
               Constitution  only  when there is a constitutionality  
               defective trial because of ineffective assistance of  
               counsel or Brady error for example. (emphasis in  
               original)

               In contrast, SB 694 proposes to use the standard for  
               relief designed to remedy a constitutionally defective  
               trial, even though the trial was fair. Simply put, the  
               finality of judgments is sacrificed, and the meaning  
               of a guilty verdict is redefined for the public,  
               victims, and the justice system to mean guilty unless  
               the defendant can produce newly discovered evidence  
               with less than fifty percent chance of changing the  
               outcome. The standard is no longer that the defendant  
               appears to be innocent, but rather, even though the  
               defendant is more likely guilty than not, the  
               defendant gets a new trial.

               When habeas relief is granted years after a conviction  
               by trial, it is frequently not possible to retry the  
               defendant due to passage of time. Thus the effect of  








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               SB 694 is to "exonerate" convicted individuals who  
               have less than fifty percent chance of winning a new  
               trial.
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