BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 694


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          Date of Hearing:  July 14, 2015


          Counsel:               Gabriel Caswell








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          SB  
          694 (Leno) - As Amended July 2, 2015





          SUMMARY:  Codifies a standard for habeas corpus petitions filed  
          on the basis of new evidence.  Specifically, this bill:  





          1)Permits a writ of habeas corpus to be prosecuted on the basis  
            of new evidence which would raise a reasonable probability of  
            a different outcome if a new trial were granted.









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          2)Requires the Victims Compensation and Government Claims Board  
            to recommend payment for incarceration of a person if the  
            court finds that the person is factually innocent.  



          3)Makes additional clarifying and technical changes.  





          EXISTING LAW:  



          1)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.  (Pen. Code, § 1473 subd.  
            (a).)

          2)States that a writ of habeas corpus may be prosecuted for, but  
            not limited to, the following reasons:  (Pen. Code, § 1473  
            subd. (b).)

             a)   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;

             b)   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. 

          3)Provides that any allegation that the prosecution knew or  
            should have known of the false nature of the evidence is  








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            immaterial to the prosecution of a writ of habeas corpus.   
            (Pen. Code, § 1473 subd. (c).)

          4)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.   
            (Pen. Code, § 1473 subd. (d).)

          5)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 board shall, without a hearing, recommend to the  
            legislation that an appropriation be made. (Pen. Code, §  
            1485.55 subd. (a).) 

          6)Provides that "new evidence" means evidence that was not  
            available or known at the time of trial that completely  
            undermines the prosecution case and points unerringly to  
            innocence. (Pen. Code, § 1485.55, subd. (b).)

          7)Establishes the Victim Compensation and Government Claims  
            Board (board).  (Gov. Code, § 13950 et. seq.)  

          8)Provides than an application for compensation shall be filed  
            with the board in the manner determined by the board.  (Gov.  
            Code, § 13952, subd.(a).)

          9)States that, except as provided by specified sections of the  
            Government Code, a person shall be eligible for compensation  
            when all of the following requirements are met:

             a)   The person form whom compensation is being sought any of  
               the following:








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               i)     A victim.

               ii)          A derivative victim.

               iii)         A person who is entitled to reimbursement for  
                 funeral, burial or crime scene clean-up expenses pursuant  
                 to specified sections of the Government Code.

             b)   Either of the following conditions is met:

               i)     The crime occurred within California, whether or not  
                 the victim is a resident of California.  This only  
                 applies when the VCGCB determines that there are federal  
                 funds available to the state for the compensation of  
                 crime victims. 

               ii)          Whether or not the crime occurred within the  
                 State of California, the victim was any of the following:

                  (1)          A California resident.  

                  (2)          A member of the military stationed in  
                    California.

                  (3)          A family member living with a member of the  
                    military stationed in California.  

             c)   If compensation is being sought for derivative victim,  
               the derivative victim is a resident of California, or the  
               resident of another state who is any of the following:

               i)     At the time of the crimes was the parent,  
                 grandparent, sibling, spouse, child or grandchild of the  
                 victim.  

               ii)          At the time of the crime was living in the  
                 household of the victim.  









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               iii)         At the time of the crime was a person who had  
                 previously lived in the house of the victim for a period  
                 of not less than two years in a relationship  
                 substantially similar to a previously listed  
                 relationship. 

               iv)          Another family member of the victim including,  
                 but not limited to the victim's fiancé or fiancée, and  
                 who witnessed the crime.  

               v)     Is the primary caretaker of a minor victim, but was  
                 not the primary caretaker at the time of the crime.

             d)   And other specified requirements.  (Gov. Code, § 13955.)

          10)   States that an application shall be denied if the board  
            finds that the victim failed to reasonably cooperate with law  
            enforcement in prosecution of the crime.  (Gov. Code, § 13956,  
            subd. (b)(1).)

          11)   Disqualifies certain individuals from eligibility,  
            including a participant in the crime for which compensation is  
            being sought, and persons convicted of a felony who are  
            currently on probation or parole.  (Gov. Code, § 13956.)

          12)   Authorizes the board to reimburse for pecuniary loss for  
            the following types of losses (Gov. Code, § 13957, subd. (a)):

             a)   The amount of medical or medical-related expenses  
               incurred by the victim, subject to specified limitations.

             b)   The amount of out-patient psychiatric, psychological or  
               other mental health counseling-related expenses incurred by  
               the victim, as specified, including peer counseling  
               services provided by a rape crisis center.

             c)   The expenses of non-medical remedial care and treatment  
               rendered in accordance with a religious method of healing  
               recognized by state law.








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             d)   Compensation equal to the loss of income or loss of  
               support, or both, that a victim or derivative victim incurs  
               as a direct result of the victim's injury or the victim's  
               death, subject to specified limitations.

             e)   Cash payment to, or on behalf of, the victim for job  
               retraining or similar employment-oriented services.

             f)   The expense of installing or increasing residential  
               security, not to exceed $1,000, with respect to a crime  
               that occurred in the victim's residence, upon verification  
               by law enforcement to be necessary for the personal safety  
               of the victim or by a mental health treatment provider to  
               be necessary for the emotional well-being of the victim.

             g)   The expense of renovating or retrofitting a victim's  
               residence or a vehicle to make them accessible or  
               operational, if it is medically necessary.

             h)   Expenses incurred in relocating, as specified, if the  
               expenses are determined by law enforcement to be necessary  
               for the personal safety or by a mental health treatment  
               provider to be necessary for the emotional well-being of  
               the victim.

          13)   Limits the total award to or on behalf of each victim to  
            $35,000, except that this amount may be increased to $70,000  
            if federal funds for that increase are available.  (Gov. Code,  
            § 13957, subd. (b).)

          FISCAL EFFECT:  Unknown.





          COMMENTS:  









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          1)Author's Statement:  According to the author, "Under existing  
            California law an inmate who has been convicted of committing  
            a crime, but claims that they are factually innocent, may file  
            a petition for writ of habeas corpus, which, if a court agrees  
            with their claim, could potentially result in a new trial if  
            warranted. The burden for proving one's innocence in such  
            cases that are based on newly available evidence is not  
            currently defined by statute, but has evolved from appellate  
            court opinions, and is practically impossible to achieve in  
            California.   
            
            "In order to prevail on a new evidence claim under current  
            law, an individual must undermine the prosecution's entire  
            case and 'point unerringly to innocence with evidence no  
            reasonable jury could reject.'  The California Supreme Court  
            has acknowledged that this standard is very high, much higher  
            than the 'preponderance of the evidence' standard that governs  
            other habeas corpus claims, such as those based on ineffective  
            assistance of counsel.  It is by far the most difficult  
            standard to meet in the entire nation.  

            "As a legal and practical matter, current case law requires  
            wrongfully incarcerated individuals who have produced new  
            evidence to conclusively and affirmatively prove their  
            innocence, often decades after the fact when witness memories  
            have faded, other evidence has disappeared, and re-litigating  
            the original case is essentially impossible. Even when new  
            evidence shows that their conviction would have never occurred  
            in the first place, an individual is likely to remain  
            wrongfully incarcerated under the status quo in California.

            "This proposed standard in SB 694 simply brings claims of  
            actual innocence based on new evidence into alignment with  
            other post-conviction remedies for various established  
            constitutional violations, such as claims of ineffective  
            assistance of counsel, prosecutorial misconduct, or false  
            evidence, as well as bringing California in line with 39 other  








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            states.  Simply put, the wrongful incarceration of an innocent  
            citizen, no matter how rare, is the greatest injustice society  
            can perpetrate.  When it occurs it is our moral obligation to  
            address that shortcoming in our justice system, which is what  
            SB 694 will accomplish for those wrongfully behind bars."

          2)Background:  According to the background provided by 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 pointing 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 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,  








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            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 in California 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 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  








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            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."

          3)Writ of Habeas Corpus Generally:  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 habeas corpus, to  
            inquire into the cause of such imprisonment or restraint."   
            Penal Code Section 1473(d) specifies that "nothing in this  
            section shall be construed as limiting the grounds for which a  
            writ of habeas corpus may be prosecuted."  A writ of habeas  
            corpus may be prosecuted for, but not limited to, the  
            following reasons:

             a)   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;

             b)   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,

             c)   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.  (Pen. Code, §  
               1473, subd. (b).)     

            A habeas corpus claim of false testimony requires proof that  
            false evidence was introduced against the petitioner at his or  
            her trial and that such evidence was material or probative on  








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            the issue of his or her guilt.  (In re Bell (2007) 42 Cal.4th  
            630.) False evidence introduced at trial against a defendant  
            is substantially material or probative if there is a  
            reasonable probability that, had the false evidence not been  
            introduced, the result would have been different. (In re  
            Roberts (2003) 29 Cal.4th 726.)  A reasonable probability that  
            the result would have been different if false evidence had not  
            been introduced against defendant is a chance great enough,  
            under the totality of circumstances, to undermine the court's  
            confidence in the outcome. (Ibid.) A habeas claim of false  
            testimony does not require a showing of perjury or other  
            knowledge of impropriety. (In re Hall (1981) 30 Cal.3d 308.)

            A writ of habeas corpus may also be prosecuted based on newly  
            discovered evidence, and shall be granted only if the new  
            evidence undermines the entire prosecution case and point  
            unerringly to innocence or reduced culpability.  (In re Clark  
            (1993) 5 Cal.4th 750, 766.)

          4)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 this  
            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 is 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  








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            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 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 finding of factual innocence by a court 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.

          5)Argument in Support:  According to The California Innocence  
            Project, "The burden for proving one's actual innocence with  
            new evidence of innocence is not defined by statute in  
            California.  Rather, California case law from more than sixty  
            years ago requires a wrongfully convicted person seeking  
            relief from their conviction to meet a very high burden.   
            Specifically, they must present evidence no reasonable jury  
            would reject, evidence which undermines the prosecution's  
            entire case and points unerringly to innocence.  Even the  
            California Supreme Court has recognized this standard as much  
            higher than other standards for relief which govern other  
            habeas claims.  
            
            "The inordinately high burden currently in place in California  
            means individuals who are actually innocent often cannot get  
            relief through new evidence shows their convictions should be  
            reversed.  The case of William Richards demonstrates this  
            tragic scenario.  Richards was convicted in 1999 of the murder  
            of his wife, Pamela Richards.  After the conviction, the  
                                                                                        California Innocence Project discovered DNA evidence on the  
            murder weapon and under the victim's fingernails.  Experts  
            testified this male DNA profile, which did not match Richards,  
            belonged to the perpetrator.  The DNA evidence, in combination  
            with other evidence, completely undermined the prosecution  








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            case, establishing that Richards was not the killer.   
            Unfortunately, however, the court reasoned the DNA, even in  
            combination with the other evidence, did not point unerringly  
            to innocence, partially because the DNA profile did not match  
            any known perpetrator in the DNA database.  

            "SB 694 would amend the existing California statute to  
            incorporate a standard of proof that is in alignment with most  
            all other jurisdictions-38 states and the District of  
            Columbia-and create a standard which is at once practical,  
            achievable, and effective.  Specifically, SB 694 will allow a  
            wrongfully convicted person to receive a new trial if he or  
            she presents evidence demonstrating 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 remedies for established  
            constitutional violations, including claims of ineffective  
            assistance of counsel, prosecutorial misconduct, and false  
            evidence."

          6)Argument in Opposition:  According to  The Judicial Council of  
            California, "While recognizing that establishing the standard  
            of review for writs of habeas corpus as contemplated by SB 694  
            is within the purview of the Legislature, the council  
            regretfully opposes SB 694 for significant procedural reasons  
            that impact the administration of justice and because the  
            council has significant concerns about the potential workload  
            and costs associated with the bill would it be signed into  
            law.  
            
            "Currently there is no codified standard of proof for a writ  
            of habeas corpus brought on the basis of new evidence and the  
            current standard is based on case law.  The Supreme Court, in  
            In re Lawley, held that for newly discovered evidence to be  
            used to overturn a conviction it 'must undermine the entire  
            prosecution case and point unerringly to innocence or reduced  
            culpability;' ((2008) 42 Cal. 4th 1231, 1239).  Further the  
            court stated 'if a reasonable jury could have rejected the  
            evidence presented, a petitioner has not satisfied his  








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            burden.; (Id.)  SB 694 would lower the current judicially  
            established standard of review for a writ of habeas corpus  
            based on new evidence from 'undermines the prosecution of the  
            case and points unerringly to innocence' to a standard of  
            'raises a reasonable probability of a different outcome if a  
            new trial were granted.' 

            "The council believes that changing the standard of review for  
            writs of habeas corpus in this manner will substantially  
            increase the workload of trial courts and appellate courts,  
            including the Supreme Court, in at least three instances.   
            First, the council believes that SB 694's standard of review  
            would substantially increase the number of writs of habeas  
            corpus filed in trial courts and appellate courts.  Second,  
            the council believes that the standard will substantially  
            increase the number of evidentiary hearings and new trials.   
            Third, under certain circumstances, including writs of habeas  
            corpus in capital cases, the costs of appointed council for  
            petitioners are paid by the courts.  An increase in habeas  
            petitions will therefore lead to an increase in costs to the  
            courts.  Additionally, the council is concerned that the new  
            lower standard undermines the conviction process as it has the  
            appearance of questioning the integrity of trial court  
            proceedings.  As a result, numerous subsequent writs could be  
            filed based on newly discovered evidence."  

          7)Prior Legislation:  

             a)   SB 1058 (Leno), Chapter 623, Statutes of 2014, allowed a  
               writ of habeas corpus when evidence given at trial has  
               subsequently been repudiated by the expert that testified  
               or undermined by later scientific research or technological  
               advances.

             b)   SB 618 (Leno), Chapter 800, Statutes of 2013,  
               streamlined the process for compensating persons who have  
               been exonerated after being wrongfully convicted and  
               imprisoned.  









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             c)   AB 1593 (Ma), Chapter 809, Statutes of 2012, allows a  
               writ of habeas corpus to be prosecuted if expert testimony  
               relating to intimate partner battering and its effects was  
               received into evidence but was limited at the trial court  
               proceedings relating to a prisoner's incarceration for the  
               commission of a violent felony committed prior to August  
               29, 1996, and there is a reasonable probability, sufficient  
               to undermine confidence in the judgment of conviction, that  
               if the testimony had not been limited, the result of the  
               proceedings would have been different.

             d)   SB 1471 (Runner), of the 2007-08 Legislative Session,  
               would have required habeas petitions in death penalty cases  
               to be filed within one year and change the standards for  
               competent counsel.  SB 1471 failed passage in Senate Public  
               Safety.







          REGISTERED SUPPORT / OPPOSITION:





          Support


          


          California Innocence Project (Co-sponsor)


          Northern California Innocence Project (Co-sponsor)








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          American Civil Liberties Union 


          California Attorneys for Criminal Justice 


          California Public Defenders Association 


          Drug Policy Alliance 


          Friends Committee on Legislation of California 


          Innocence Project 


          Legal Services for Prisoners with Children


          Westward Liberty 





          Opposition


          


          California District Attorneys Association 


          Judicial Council of California 








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          Los Angeles County District Attorney's Office 


          Sacramento County District Attorney's Office 





          Analysis Prepared by:Gabriel Caswell / PUB. S. / (916)  
          319-3744