SENATE THIRD READING

STR Bill Id:SB 651

Author:(Glazer)

As Introduced Ver:February 22, 2019

Majority vote

SUMMARY:

Clarifies that the right to post conviction discovery applies to any case in which a person was convicted of a serious or violent felony resulting in a sentence of 15 years or more without regard to when that conviction occurred, and further clarifies that a provision of law requiring attorneys to keep their files for the term of the client's incarceration is meant to apply prospectively.

Major Provisions

1. Clarifies a provision of law in order to allow access to postconviction discovery materials for defendants who are serving time on a serious or violent felony conviction resulting in a sentence of 15 years or more without regard to when the conviction occurred.
2. Provides that the requirement that in criminal matters involving a conviction for a serious or a violent felony resulting in a sentence of 15 years or more, trial counsel must retain a copy of a former client's files for the term of his or her that client's imprisonment, applies prospectively.

COMMENTS:

According to the Author:

"Innocent people are currently serving time for crimes they did not commit. From 1999-2018, the California Innocence Coalition won the freedom of over 60 wrongly imprisoned individuals who collectively spent over 750 years in prison. It takes innocence projects, on average, 3-4 years to investigate these cases because they are often working with incomplete files to recreate what happened years prior. Access to discovery is a critical tool for post-conviction review and expanding post-conviction discovery eligibility would speed up the review process, reducing the number of years an innocent person spends wrongfully incarcerated.

"In 2018, Governor Brown signed AB 1987 (Lackey) into law, which expanded post-conviction motion for discovery for defendants convicted of serious and violent crimes for more than 15 years. However, the bill only applied prospectively to future cases—omitting any conviction prior to January 1, 2019. SB 651 would allow the motion for discovery provisions of AB 1987 to be uniformly applied to anyone who qualifies."

Arguments in Support:

According to the bill's sponsor, the California Innocence Project: "Last year Governor Brown signed AB 1987 which provided the following for inmates serving 15 years or more in state prison behind a serious or violent felony conviction:

"1) Maintenance of the discovery by the defense attorney and, if this failed, 2) access to the discovery through district attorney offices.

"AB 1987 was a huge step toward a more efficient post-conviction review process for the wrongfully convicted and for post-conviction attorneys, however, a last minute amendment made the changes apply only prospectively, which has the practical effect of applying only to those that are convicted as of January 1, 2019. The impetus for the bill was to provide for a more efficient post-conviction review process for the most serious, high stakes cases. A post-conviction statute, by its very nature is a backwards looking statute in that it applies to those individuals who are presently convicted. To require the amendments to only apply prospectively would mean that a more efficient process would only exist for those individuals convicted post January 1, 2019 which does not align with the intended purpose of the bill. "

Arguments in Opposition:

According to the California District Attorneys Association: "On behalf of the California District Attorneys Association (CDAA), I regret to inform you that we are opposed to your measure, Senate Bill 651. Penal Code Section 1054.9 imposes extensive post-conviction discovery obligations on prosecutors and outlines various procedures for complying with those obligations. Last year, the legislature passed AB 1987 which expanded its scope beyond cases involving death or LWOP to any new serious or violent felony cases resulting in a sentence of 15 years or more (i.e., cases arising after 1/1/18). This bill would make that expansion retroactive and apply it to cases where defendant was convicted of a serious or violent felony with a 15-year or more sentence at any time."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, potentially reimbursable costs (General Funds/local funds) in the hundreds of thousands of dollars annually to county district attorney offices and local law enforcement to redact confidential information defined by statute before allowing a person to obtain a copy of the discovery material. Setting aside law enforcement agencies, there are 58 county district attorneys' offices across the state that may have discovery materials subject to post-conviction discovery. Costs may vary depending on the size of the county. Smaller counties may see only minor costs to review and produce discovery materials pursuant to this bill; however, large counties handling thousands of serious and violent felony cases per year will likely see significant costs to review and redact materials. The Los Angeles County District Attorney's Office anticipates costs in the millions of dollars annually to review post-conviction discovery materials.

VOTES:

SENATE FLOOR: 38-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ASM PUBLIC SAFETY: 7-0-1

YES: Jones-Sawyer, Lackey, Bauer-Kahan, Kamlager-Dove, Quirk, Santiago, Wicks

ABS, ABST OR NV: Mathis

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

UPDATED:

VERSION: February 22, 2019

CONSULTANT: Matthew Fleming (Counsel) / PUB. S. / (916) 319-3744 FN: 0001620

Date of Hearing: August 14, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 651

Author:(Glazer) – As Introduced Ver:February 22, 2019

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill expands the right to post-conviction discovery to apply to any case in which a person was convicted of a serious or violent felony resulting in a sentence of 15 years or more without regard to when that conviction occurred. This bill also clarifies that a provision of law requiring attorneys to keep their files for the term of the client’s incarceration is meant to apply prospectively beginning January 1, 2019.

FISCAL EFFECT:

Potentially reimbursable costs (GF/local funds) in the hundreds of thousands of dollars annually to county district attorney offices and local law enforcement to redact confidential information defined by statute before allowing a person to obtain a copy of the discovery material. Setting aside law enforcement agencies, there are 58 county district attorneys’ offices across the state that may have discovery materials subject to post-conviction discovery. Costs may vary depending on the size of the county. Smaller counties may see only minor costs to review and produce discovery materials pursuant to this bill; however, large counties handling thousands of serious and violent felony cases per year will likely see significant costs to review and redact materials. The Los Angeles County District Attorney’s Office anticipates costs in the millions of dollars annually to review post-conviction discovery materials. Costs to the GF will depend on whether the Commission on State Mandates determines the duties imposed by this bill constitute a reimbursable state mandated local cost.

COMMENTS:

1. Purpose. According to the author:

In 2018, Governor Brown signed AB 1987 (Lackey) into law, which expanded post-conviction motion for discovery for defendants convicted of serious and violent crimes for more than 15 years. However, the bill only applied prospectively to future cases—omitting any conviction prior to January 1, 2019. SB 651 would allow the motion for discovery provisions of AB 1987 to be uniformly applied to anyone who qualifies.

1. Post-conviction Discovery. Post-conviction discovery was initially limited to any case in which a person is sentenced to death or life without parole. AB 1987 (Lackey), Chapter 482, Statutes of 2018, however, expanded the availability of a post-conviction motion for discovery materials to include cases where a defendant was convicted of a serious or violent felony and sentenced to 15 years or more. However, AB 1987 only applied prospectively. This bill expands possible access to post conviction discovery for a defendant convicted of a serious or violent felony and sentenced to 15 years or more at any time – not just after January 1, 2019. This bill, however, states the requirement that a trial attorney retain records for the length of a clients’ incarceration only applies prospectively.
2. Support. According to the California Innocence Project:

SB 651 is a simple fix that will fulfill the intended purpose of last year’s bill and allow for post-conviction discovery access for our clients, increasing the efficiency of post-conviction review, and allowing innocent people to dramatically reduce the amount of time they spend behind bars for crimes they did not commit.

1. Opposition. According to the California District Attorneys Association:

By requiring the district attorneys to respond to a whole new wave of 1054.9 requests for discovery, the legislature is imposing new duties (i.e., a new program or higher level of service) without allocating specific funds in the budget for the increase. Without a specific funding mechanism, we cannot support the bill for fiscal reasons.

1. Prior Legislation. AB 1987 (Lackey) Chapter 482, Statutes of 2018, expanded the availability of a post-conviction motion for discovery materials to include cases where a defendant was convicted of a serious or violent felony and sentenced to 15 years or more.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: June 25, 2019

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 651

Author:(Glazer) – As Introduced Ver:February 22, 2019

SUMMARY: Clarifies that the right to post conviction discovery applies to any case in which a person was convicted of a serious or violent felony resulting in a sentence of 15 years or more without regard to when that conviction occurred, and further clarifies that a provision of law requiring attorneys to keep their files for the term of the client’s incarceration is meant to apply prospectively. Specifically, this bill:

1. Clarifies a provision of law in order to allow access to postconviction discovery materials for defendants who are serving time on a serious or violent felony conviction resulting in a sentence of 15 years or more without regard to when the conviction occurred.
   
2. Provides that the requirement that in criminal matters involving a conviction for a serious or a violent felony resulting in a sentence of 15 years or more, trial counsel must retain a copy of a former client’s files for the term of his or her that client’s imprisonment, applies prospectively.

EXISTING LAW:

1. Requires a court to order that discovery materials be produced to a defendant who has been convicted of a serious felony or a violent felony resulting in a sentence of 15 years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment, or in preparation to file that writ or motion, if the defendant has shown a good faith effort to obtain the materials from the criminal defense attorney who represented him or her at the time of the conviction. (Pen. Code, § 1054.9, subd. (a).)
   
2. Defines “discovery materials” in the post-conviction context as “materials in the possession of the prosecution and law enforcement authorities to which the defendant would have been entitled to at the time of trial.” (Pen. Code, § 1054.9, subd. (b).)
   
3. Provides that a court may allow the defendant access to physical evidence relating to the investigation, arrest, and prosecution of the defendant if he or she makes a showing of good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief. (Pen. Code, § 1054.9, subd. (c).)
   
4. Provides that in response to a writ or motion, the court may order that the defendant be provided access to physical evidence for the purpose of examination, including, but not limited to, any physical evidence relating to the investigation, arrest, and prosecution of the defendant only upon a showing that there is good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief. (Pen. Code, § 1054.9, subd. (d).)
   
5. Provides that in criminal matters involving a conviction for a serious or violent felony resulting in a sentence of 15 years or more, trial counsel shall retain a copy of a former client’s files for the term of imprisonment. (Penal Code, § 1054.9 (g).)
   
6. Provides that specified changes to the postconviction discovery laws are intended to only apply prospectively. (Penal Code, § 1054.9 (j).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “Innocent people are currently serving time for crimes they did not commit. From 1999-2018, the California Innocence Coalition won the freedom of over 60 wrongly imprisoned individuals who collectively spent over 750 years in prison. It takes innocence projects, on average, 3-4 years to investigate these cases because they are often working with incomplete files to recreate what happened years prior. Access to discovery is a critical tool for post-conviction review and expanding post-conviction discovery eligibility would speed up the review process, reducing the number of years an innocent person spends wrongfully incarcerated.

“In 2018, Governor Brown signed AB 1987 (Lackey) into law, which expanded post-conviction motion for discovery for defendants convicted of serious and violent crimes for more than 15 years. However, the bill only applied prospectively to future cases—omitting any conviction prior to January 1, 2019. SB 651 would allow the motion for discovery provisions of AB 1987 to be uniformly applied to anyone who qualifies.”

1. Discovery in Post-Conviction Cases: “Post-conviction discovery” is generally understood in the legal community as the provision of materials and documents to defendants after they have been convicted at the trial level and exhausted their appeals. Current law limits post-conviction discovery to only those cases in which a person is sentenced to death or life without parole. There are four categories of evidence or documents that may be necessary for a person attempting to establish his or her innocence in the post-conviction context. Those are documents or materials that either (1) the prosecution did provide at time of trial but have since become lost to the defendant; (2) the prosecution should have provided at time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence; (3) the prosecution should have provided at time of trial because the defense specifically requested them at that time and was entitled to receive them; or (4) the prosecution had no obligation to provide at time of trial absent a specific defense request, but to which the defendant would have been entitled at time of trial had the defendant specifically requested them. (Davis v. Superior Court (2016) 1 Cal. App. 5th 881, 886.)
   
2. AB 1987: AB 1987 (Lackey) Chapter 482, Statutes 2018, extended to the right to post-conviction discovery to serious or violent felonies resulting in a sentence of 15 years or more. Previously, postconvction discovery was only available to defendant who had been sentenced to death or life in prison without the possibility of parole. The intent behind AB 1987 (Lackey) was to have this apply to cases no matter when the person was convicted. The section in the bill requiring defense attorneys to keep their client’s files for the duration of incarceration was intended to be prospective only. However, when the amendments were drafted to make the section dealing with the client’s files prospective, there was an error in the drafting and the entire section became prospective. This bill corrects that error and makes it clear that the only portion that shall be prospective is the provision requiring attorneys to keep client files. The expansion of post-conviction discovery to serious or violent felonies with sentences longer than 15 years will apply to convictions occurring before the implementation date as originally intended.
   
3. Argument in Support: According to the bill’s sponsor, the California Innocence Project:

“Last year Governor Brown signed AB 1987 which provided the following for inmates serving 15 years or more in state prison behind a serious or violent felony conviction:

“1) maintenance of the discovery by the defense attorney and, if this failed, 2) access to the discovery through district attorney offices.

“AB 1987 was a huge step toward a more efficient post-conviction review process for the wrongfully convicted and for post-conviction attorneys, however, a last minute amendment made the changes apply only prospectively, which has the practical effect of applying only to those that are convicted as of January 1, 2019. The impetus for the bill was to provide for a more efficient post-conviction review process for the most serious, high stakes cases. A post-conviction statute, by its very nature is a backwards looking statute in that it applies to those individuals who are presently convicted. To require the amendments to only apply prospectively would mean that a more efficient process would only exist for those individuals convicted post January 1, 2019 which does not align with the intended purpose of the bill.

“AB 1987 also provided a requirement that defense counsel retain all files in these serious or violent cases so that inmates could access their discovery first through their previous counsel rather than burdening the district attorney’s offices. To require this part of AB 1987 to apply prospectively was a reasonable requirement in light of the fact that defense attorneys who have already destroyed files of past clients prior to the enactment of AB 1987 should not be penalized for doing so when no such requirement previously existed.

“The vast majority of felony convictions would be unaffected by the change in this law, as only those individuals who did not retain their legal documents from trial—and who are interested in challenging their conviction through a habeas process—would be interested in obtaining these documents. To mitigate concerns about privacy and cost, all of the limitations and protections in place to protect victims and witnesses are still in effect and applicable because post-conviction discovery encompasses any items that would have been accessible to the defendant at the time of trial. Furthermore, AB 1987 made it safely through both appropriations committee last year prior to this last minute amendment.

“SB 651 is a simple fix that will fulfill the intended purpose of last year’s bill and allow for post-conviction discovery access for our clients, increasing the efficiency of post-conviction review, and allowing innocent people to dramatically reduce the amount of time they spend behind bars for crimes they did not commit.”

1. Argument in Opposition: According to the California District Attorneys Association: “On behalf of the California District Attorneys Association (CDAA), I regret to inform you that we are opposed to your measure, Senate Bill 651. Penal Code Section 1054.9 imposes extensive post-conviction discovery obligations on prosecutors and outlines various procedures for complying with those obligations. Last year, the legislature passed AB 1987 which expanded its scope beyond cases involving death or LWOP to any new serious or violent felony cases resulting in a sentence of 15 years or more (i.e., cases arising after 1/1/18). This bill would make that expansion retroactive and apply it to cases where defendant was convicted of a serious or violent felony with a 15-year or more sentence at any time.

“Since AB 1987 passed into law, we are not arguing the merits of the policy as it is a prosecutor’s duty to carry out the law. However, applying the law retroactively would place a heavy burden on prosecutors due to the sheer volume of these cases. Any prosecutor who has had to respond to a PC 1054.9 request knows the immense time commitment it entails. These cases involve not just hours or days, but weeks of responding to discovery requests. AB 1987 exponentially increases the number of cases that will involve section 1054.9 requests. Although the actual costs of examination by the defendant or copying are borne or reimbursed by the defendant, a defendant is not required to reimburse the agency providing the discovery for costs related to prosecutorial examination and preparation of documents for production. (See Rubio v. Superior Court (2016) 244 Cal.App.4th 459, 465-466.)

“By requiring the district attorneys to respond to a whole new wave of 1054.9 requests for discovery, the legislature is imposing new duties (i.e., a new program or higher level of service) without allocating specific funds in the budget for the increase. Without a specific funding mechanism, we cannot support the bill for fiscal reasons.”

1. Prior Legislation:
   
   1. AB 1987 (Lackey) Chapter 482, Statutes of 2018, expanded the availability of a post-conviction motion for discovery materials to include cases where a defendant was convicted of a serious or violent felony and sentenced to 15 years or more.
      
   2. SB 1391 (Burton) Chapter 1105, Statutes of 2002, created a process for attorneys in habeas corpus proceedings in death penalty or life imprisonment cases to obtain access to discovery materials, and created a separate process for convicted persons, whether or not in custody, to vacate a judgement based on fraud or the presentation of false evidence by the government.

REGISTERED SUPPORT / OPPOSITION:

Support

California Innocence Project (Sponsor)
Loyola Law School Project for the Innocence (Co-Sponsor)
Northern California Innocence Project (Co-Sponsor)
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Exonerated Nation
San Francisco Public Defender's Office

Oppose

California District Attorneys Association

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 651

Author: Glazer (D), et al.

Introduced: 2/22/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/2/19

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 6-0, 5/16/19

AYES: Portantino, Bates, Bradford, Hill, Jones, Wieckowski

SUBJECT: Discovery: postconviction

SOURCE: California Innocence Coalition

DIGEST:

This bill clarifies that the right to post conviction discovery applies to any case in which a person was convicted of a serious or violent felony resulting in a sentence of 15 years or more whenever that conviction occurred and that the only provision to be prospective is the one requiring attorneys to keep their files for the term of the client’s incarceration.

ANALYSIS:

Existing law:

1. Requires a court to order that discovery materials be produced to a defendant who has been convicted of a serious felony or a violent felony resulting in a sentence of 15 years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgement or in preparation to file that writ or motion if the defendant has shown a good faith effort to obtain the materials from the criminal defense attorney who represented him or her at the time of the conviction. (Penal Code, § 1054.9 (a).)
2. Provides that in a case in which a sentence other than death or life in prison without the possibility of parole has been imposed, if the court has entered a previous order granting discovery pursuant to this section, a subsequent order grating discovery may be made at the court’s discretion. (Penal Code, § 1054.9 (b).)
3. Defines “discovery materials” in the post-conviction context as” materials in the possession of the prosecution and law enforcement authorities to which the defendant would have been entitled to at the time of trial.” (Penal Code, § 1054.9 (c).)
   
4. Provides that a court may allow the defendant access to physical evidence relating to the investigation, arrest, and prosecution of the defendant if he or she makes a showing of good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief. (Penal Code, § 1054.9 (d).)
5. Provides that in criminal matters involving a conviction for a serious or violent felony resulting in a sentence of 15 years or more, trial counsel shall retain a copy of a former client’s files for the term of imprisonment. (Penal Code, § 1054.9 (g).)

This bill:

1. Clarifies that the right to post conviction discovery in this section shall apply to a defendant who has ever been convicted of a serious or violent felony resulting in a sentence of 15 years or more.
2. Clarifies that the requirement that counsel retain a copy of a former client’s only applies prospectively commencing January 1, 2019.

Background

1. Discovery in Post-Conviction Cases.

“Post-conviction discovery” is generally understood in the legal community as the provision of materials and documents to defendants after they have been convicted at the trial level and exhausted their appeals. Current law limits post-conviction discovery to only those cases in which a person is sentenced to death or life without parole. This bill would expand the kinds of cases in which a defendant can seek and obtain post-conviction discovery to cases where a person was convicted of a violent or serious felony and sentenced to 15 years in prison or more.

There are four categories of evidence or documents that may be necessary for a person attempting to establish his or her innocence in the post-conviction context. Those are documents or materials that either (1) the prosecution did provide at time of trial but have since become lost to the defendant; (2) the prosecution should have provided at time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence; (3) the prosecution should have provided at time of trial because the defense specifically requested them at that time and was entitled to receive them; or (4) the prosecution had no obligation to provide at time of trial absent a specific defense request, but to which the defendant would have been entitled at time of trial had the defendant specifically requested them. (Davis v. Superior Court (2016) 1 Cal. App. 5th 881, 886.)

1. The stated need for AB 1987 (Lackey) Chapter 482, Statutes 2018.

The sponsor of AB 1987 (Lackey), the California Innocence Project, is a law school clinical program that exclusively works on post-conviction cases where there is evidence of actual innocence. (<https://californiainnocence project.org/ ) According to their Web site:

The California Innocence Project (CIP) is a law school clinical program at California Western School of Law dedicated to releasing wrongfully convicted inmates and providing an outstanding educational experience to the students enrolled in the clinic.

Founded in 1999, CIP reviews more than 2,000 claims of innocence from California inmates each year. Students who participate in the year-long clinic work alongside CIP staff attorneys on cases where there is strong evidence of factual innocence. Together, they have secured the release of many innocent people who otherwise may have spent the rest of their lives in prison.

Clinic students assist in investigation and litigation by locating and re-interviewing witnesses, examining new evidence, filing motions, securing experts, and providing support to attorneys during evidentiary hearings and trials. CIP has trained more than 200 students who have gone on to become highly successful criminal defense attorneys, criminal prosecutors, Assistant Attorneys General, and civil attorneys; all of whom, after their experience in CIP, believe in a fair and honest justice system and realize there is always room for improvement in the law.

On its Web site, the California Innocence Project provides numerous examples of individuals they have successfully exonerated through their efforts. Many of those cases involved some sort of sentence that fell short of the death penalty or life in prison without the possibility of parole.

3) Clarification on the prospective portion of the bill.

AB 1987 (Lackey) extended to the right to post-conviction discovery to serious or violent felonies resulting in a sentence of 15 years or more. The intent was to have this apply to cases no matter when the person was convicted. The section in the bill requiring defense attorneys to keep their client’s files for the duration of incarceration was intended to be prospective only. However, when the amendments were drafted to make the section dealing with the client’s files prospective, there was an error in the drafting and the entire section became prospective. This bill corrects that error and makes it clear that the only portion that shall be prospective is the provision requiring attorneys to keep client files. The expansion of post-conviction discovery to serious or violent felonies with sentences longer than 15 years will apply to convictions occurring before the implementation date as originally intended.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee, unknown, potentially-significant costs to prosecutors’ and law enforcement offices to, upon presentation of a court order, review case files to redact sensitive information before allowing the person to obtain a copy of the material. Setting aside law enforcement agencies, there are 58 county district attorneys’ offices across the state that could have discovery materials that would be the subject of a post-conviction discovery of relevance to this measure. If it would cost each district attorney’s office a minimum of $1,000 in staff time to review and redact case files, costs would surpass the Suspense File threshold, as local costs to comply with a state mandates that require a new or higher level of service would be subject to reimbursement from the General Fund. The Los Angeles County District Attorney’s Office alone anticipates costs in the millions of dollars annually for this process. The amount of reimbursement owed by the state, however, would be decided by the Commission on State Mandates, which might determine that not all of those costs require reimbursement. (General Fund, local funds)

SUPPORT: (Verified 5/16/19)

California Innocence Coalition (source)

American Civil Liberties Union of California

California Public Defenders Association

San Francisco Public Defender’s Office

OPPOSITION: (Verified 5/16/19)

California District Attorneys Association

ARGUMENTS IN SUPPORT: According to the American Civil Liberties Union:

Post-conviction discovery provides defendants with documents and materials relating to their case after they have been convicted of a qualifying crime. In order to be granted a motion for post-conviction discovery, defendants must make a good faith effort to request those documents and materials from their defense attorney. If they cannot receive these documents and materials from their defense attorney, a judge may grant their motion for access to this information from the prosecution.

Innocent people are currently serving time for crimes they did not commit. For example, from 1999-2018, the California Innocence Coalition won the freedom of over 60 wrongly imprisoned individuals who collectively spent over 750 years in prison. I takes innocence projects on average 3-4 to investigate these cases because they are often working with incomplete files to recreate what happened years prior. Access to discovery is a critical tool for post-conviction review and expanding post-conviction discovery eligibility would speed up the review process, reducing the number of years an innocent person spends wrongfully incarcerated.

In 2018, Governor Brown signed into law AB 1987 (Lackey) which expanded post-conviction motions for discovery for defendants convicted of serious and violent crimes for more than 15 years. However, the bill only applied prospectively to future cases-omitting any conviction prior to January 1, 2019. SB 651 would allow the motion for discovery provisions of AB 1987 to be uniformly applied to anyone who qualifies.

ARGUMENTS IN OPPOSITION: The California District Attorneys Association argues:

Since AB 1987 passed into law, we are not arguing the merits of the policy as it is a prosecutor’s duty to carry out the law. However, applying the law retroactively would place a heavy burden on the prosecutors due to the sheer volume of these cases. Any prosecutor who has had to respond to a PC 1054.9 request knows the immense time commitment it entails. These cases involve not just hours or days, but weeks of responding to discovery requests. AB 1987 exponentially increases the number of cases that will involve section 1054.9 requests. Although the actual costs of examination by the defendant or copying are borne or reimbursed by the defendant, a defendant is not required to reimburse the agency providing the discovery for costs related to prosecutorial examination and preparation for production. (See Rubio v. Superior Court (2016) 244 Cal. App. 4^th 459, 465-466)

Prepared by: Mary Kennedy / PUB. S. /

5/18/19 11:18:13

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 651 (Glazer) - Discovery: postconviction

Bill Summary:

SB 651 would expand the ability of a defendant who has been sentenced to 15 years or more for the conviction of a serious or violent felony to obtain post-conviction discovery for cases prior to January 1, 2019, as specified.

Fiscal Impact:

Unknown, potentially-significant costs to prosecutors’ and law enforcement offices to, upon presentation of a court order, review case files to redact sensitive information before allowing the person to obtain a copy of the material. Setting aside law enforcement agencies, there are 58 county district attorneys’ offices across the state that could have discovery materials that would be the subject of a post-conviction discovery of relevance to this measure. If it would cost each district attorney’s office a minimum of $1,000 in staff time to review and redact case files, costs would surpass the Suspense File threshold, as local costs to comply with a state mandates that require a new or higher level of service would be subject to reimbursement from the General Fund. The Los Angeles County District Attorney’s Office alone anticipates costs in the millions of dollars annually for this process. The amount of reimbursement owed by the state, however, would be decided by the Commission on State Mandates, which might determine that not all of those costs require reimbursement. (General Fund, local funds)

Background:

In a case in which a sentence of death or life in prison without the possibility of parole has been imposed, a court must order that a defendant be provided reasonable access to discovery materials upon prosecution of a post-conviction writ of habeas corpus or a motion to vacate judgment and a showing that good faith efforts to obtain discovery materials from trial counsel were unsuccessful. The access to “discovery material,” which, for these purposes, is defined as materials in the possession of the prosecuting and law enforcement authorities to which the defendant would have been entitled at time of trial, for these types of cases applies retroactively. For convictions of a serious or violent felony that include a sentence of 15 years or more, access the discovery material applies only prospectively, starting January 1, 2019.

Proposed Law:

This bill would allow a defendant who is or has ever been convicted of a serious or violent felony, as those terms are specified, that results in a sentence of 15 years or more, upon the prosecution of a post-conviction writ of habeas corpus or a motion to vacate a judgment, or in preparation to file that writ or motion, and on a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, to obtain a court order that the defendant be provided reasonable access to any discovery materials. “Discovery materials” is defined to mean materials in the possession of the prosecution and law enforcement authorities that the defendant would have been entitled to at time of trial.

Related Legislation:

AB 1987 (Lackey, Ch. 482, Stats. 2018), in part, allowed for the prospective post-conviction discovery of case files, upon an order by the court upon the finding of specified conditions, for a defendant who has been sentenced to 15 years or more for the conviction of a serious or violent felony.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: SB 651 Hearing Date: April 2, 2019

Subject: Discovery: Postconviction

HISTORY

Source: California Innocence Coalition

Prior Legislation: AB 1987 (Lackey) Chapter 482, Stats. 2018

SB 1391 (Burton) Chapter 1105, Stats. 2002

Support: California Public Defenders Association; San Francisco Public Defender’s Office

Opposition: California District Attorneys Association

PURPOSE

The purpose of this bill is to clarify that the right to post conviction discovery applies to any case in which a person was convicted of a serious or violent felony resulting in a sentence of 15 years or more whenever that conviction occurred and that the only provision to be prospective is the one requiring attorneys to keep their files for the term of the client’s incarceration.

Existing law requires a court to order that discovery materials be produced to a defendant who has been convicted of a serious felony or a violent felony resulting in a sentence of 15 years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgement or in preparation to file that writ or motion if the defendant has shown a good faith effort to obtain the materials from the criminal defense attorney who represented him or her at the time of the conviction. (Penal Code, § 1054.9 (a).)

Existing law provides that in a case in which a sentence other than death or life in prison without the possibility of parole has been imposed, if the court has entered a previous order granting discovery pursuant to this section, a subsequent order grating discovery may be made at the court’s discretion. (Penal Code, § 1054.9 (b).)

Existing law defines “discovery materials” in the post-conviction context as” materials in the possession of the prosecution and law enforcement authorities to which the defendant would have been entitled to at the time of trial.” (Penal Code, § 1054.9 (c).)

Existing law provides that a court may allow the defendant access to physical evidence relating to the investigation, arrest, and prosecution of the defendant if he or she makes a showing of good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief. (Penal Code, § 1054.9 (d).)

Existing law provides that in criminal matters involving a conviction for a serious or violent felony resulting in a sentence of 15 years or more, trial counsel shall retain a copy of a former client’s files for the term of imprisonment. (Penal Code, § 1054.9 (g).)

This bill clarifies that the right to post conviction discovery in this section shall apply to a defendant who has ever been convicted of a serious or violent felony resulting in a sentence of 15 years or more.

This bill clarifies that the requirement that counsel retain a copy of a former client’s only applies prospectively commencing January 1, 2019.

COMMENTS

1. Need for This Bill

According to the author:

Innocent people are currently serving time for crimes they did not commit. From 1999-2018, the California Innocence Coalition won the freedom of over 60 wrongly imprisoned individuals who collectively spent over 750 years in prison. It takes innocence projects, on average, 3-4 years to investigate these cases because they are often working with incomplete files to recreate what happened years prior. Access to discovery is a critical tool for post-conviction review and expanding post-conviction discovery eligibility would speed up the review process, reducing the number of years an innocent person spends wrongfully incarcerated.

In 2018, Governor Brown signed AB 1987 (Lackey) into law, which expanded post-conviction motion for discovery for defendants convicted of serious and violent crimes for more than 15 years. However, the bill only applied prospectively to future cases—omitting any conviction prior to January 1, 2019. SB 651 would allow the motion for discovery provisions of AB 1987 to be uniformly applied to anyone who qualifies.

2. Discovery in Post-Conviction Cases

“Post-conviction discovery” is generally understood in the legal community as the provision of materials and documents to defendants after they have been convicted at the trial level and exhausted their appeals. Current law limits post-conviction discovery to only those cases in which a person is sentenced to death or life without parole. This bill would expand the kinds of cases in which a defendant can seek and obtain post-conviction discovery to cases where a person was convicted of a violent or serious felony and sentenced to 15 years in prison or more.

There are four categories of evidence or documents that may be necessary for a person attempting to establish his or her innocence in the post-conviction context. Those are documents or materials that either (1) the prosecution did provide at time of trial but have since become lost to the defendant; (2) the prosecution should have provided at time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence; (3) the prosecution should have provided at time of trial because the defense specifically requested them at that time and was entitled to receive them; or (4) the prosecution had no obligation to provide at time of trial absent a specific defense request, but to which the defendant would have been entitled at time of trial had the defendant specifically requested them. (Davis v. Superior Court (2016) 1 Cal. App. 5th 881, 886.)

3. The stated need for AB 1987 (Lackey) Chapter 482, Statutes 2018

The sponsor of AB 1987 (Lackey), the California Innocence Project is a law school clinical program that exclusively works on post-conviction cases where there is evidence of actual innocence. (<https://californiainnocenceproject.org/>) According to their website:

The California Innocence Project (CIP) is a law school clinical program at California Western School of Law dedicated to releasing wrongfully convicted inmates and providing an outstanding educational experience to the students enrolled in the clinic.

Founded in 1999, CIP reviews more than 2,000 claims of innocence from California inmates each year. Students who participate in the year-long clinic work alongside CIP staff attorneys on cases where there is strong evidence of factual innocence. Together, they have secured the release of many innocent people who otherwise may have spent the rest of their lives in prison.

Clinic students assist in investigation and litigation by locating and re-interviewing witnesses, examining new evidence, filing motions, securing experts, and providing support to attorneys during evidentiary hearings and trials. CIP has trained more than 200 students who have gone on to become highly successful criminal defense attorneys, criminal prosecutors, Assistant Attorneys General, and civil attorneys; all of whom, after their experience in CIP, believe in a fair and honest justice system and realize there is always room for improvement in the law.

On its website, the California Innocence Project provides numerous examples of individuals they have successfully exonerated through their efforts. Many of those cases involved some sort of sentence that fell short of the death penalty or life in prison without the possibility of parole.

4. Clarification on the prospective portion of the bill

AB 1987 (Lackey) extended to the right to post-conviction discovery to serious or violent felonies resulting in a sentence of 15 years or more. The intent was to have this apply to cases no matter when the person was convicted. The section in the bill requiring defense attorneys to keep their client’s files for the duration of incarceration was intended to be prospective only. However, when the amendments were drafted to make the section dealing with the client’s files prospective, there was an error in the drafting and the entire section became prospective. This bill corrects that error and makes it clear that the only portion that shall be prospective is the provision requiring attorneys to keep client files. The expansion of post-conviction discovery to serious or violent felonies with sentences longer than 15 years will apply to convictions occurring before the implementation date as originally intended.

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