BILL NUMBER: AB 316 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 8, 2009
PASSED THE ASSEMBLY SEPTEMBER 10, 2009
AMENDED IN SENATE JUNE 28, 2009
AMENDED IN SENATE JUNE 16, 2009
INTRODUCED BY Assembly Member Solorio
(Coauthor: Senator Leno)
FEBRUARY 18, 2009
An act to amend Section 340.6 of the Code of Civil Procedure, and
to amend Sections 851.8, 4901, 4903, and 4904 of, and to add Section
851.86 to, the Penal Code, relating to wrongful convictions.
LEGISLATIVE COUNSEL'S DIGEST
AB 316, Solorio. Wrongful convictions.
Existing law requires that an action against an attorney for a
wrongful act or omission, other than for actual fraud, arising in the
performance of professional services must be commenced within one
year after the plaintiff discovers, or should have discovered, the
wrongful act or omission, or 4 years from the date of the wrongful
act or omission, whichever occurs first.
This bill would provide that, if the plaintiff is required to
establish his or her factual innocence for an underlying criminal
charge as an element of his or her claim against an attorney, the
time period to commence this action shall be 2 years after the
plaintiff achieves postconviction exoneration in the form of a final
judicial disposition of the criminal case.
Existing law provides that any finding that an arrestee is
factually innocent, as specified, shall not be admissible as evidence
in any action.
This bill would provide that, notwithstanding this provision, a
finding that an arrestee is factually innocent shall be admissible as
evidence at a hearing before the California Victim Compensation and
Government Claims Board.
Existing law allows a presiding judge, whenever a person is
acquitted of a charge and it appears to the judge that the defendant
is factually innocent of the charge, to order that the records in the
case be sealed.
This bill would require a judge, upon written or oral motion of
any party in the case or the court, to order that the records in a
case be sealed whenever a person is convicted of a charge and the
conviction is set aside because a determination was made that the
person was factually innocent.
Existing law allows a person erroneously convicted and imprisoned
to present a claim within a period of 6 months after judgment of
acquittal or discharge given, or after pardon granted, or after
release from imprisonment, against the state to the California Victim
Compensation and Government Claims Board for the pecuniary injury
sustained by him or her through the erroneous conviction and
imprisonment.
This bill would instead provide that a person erroneously
convicted and imprisoned may present this claim within 2 years.
Existing law establishes a process for a hearing on an erroneously
convicted person's claim at which the claimant is required to
introduce evidence in support of the claim and the Attorney General
may introduce evidence in opposition. Existing law requires the
claimant to prove the facts set forth in the statement constituting
the claim, including that the crime charged was either not committed
at all, or, if committed, not committed by the claimant, and the fact
that the claimant did not, by any act or omission, either
intentionally or negligently, contribute to the bringing about of his
or her arrest or conviction, and that he or she sustained pecuniary
injury. If the evidence shows that the claimant has proved these
facts, existing law requires the board to recommend to the
Legislature that an appropriation be made for indemnifying the
claimant.
This bill would remove the requirement on the claimant to prove
that he or she did not negligently contribute to his or her arrest or
conviction. The bill would provide that when determining whether the
claimant intentionally contributed to the bringing about of his or
her arrest or conviction, the factfinder shall not consider
statements obtained from an involuntary false confession or
involuntary plea. The bill would provide that the claimant shall bear
the burden of proving by a preponderance of the evidence that the
statements were obtained from an involuntary false confession or
involuntary plea.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all the following:
(a) It is the intent of the Legislature to remedy some of the harm
caused to all factually innocent people who have been wrongfully
convicted and served time in state prison in California.
(b) A factually innocent person is a person who was convicted of a
crime that either was not committed or, if committed, was not
committed by him or her.
(c) This act would remove some of the obstacles to compensation
for the factually innocent and would ease their transition back into
society.
SEC. 2. Section 340.6 of the Code of Civil Procedure is amended to
read:
340.6. (a) An action against an attorney for a wrongful act or
omission, other than for actual fraud, arising in the performance of
professional services shall be commenced within one year after the
plaintiff discovers, or through the use of reasonable diligence
should have discovered, the facts constituting the wrongful act or
omission, or four years from the date of the wrongful act or
omission, whichever occurs first. If the plaintiff is required to
establish his or her factual innocence for an underlying criminal
charge as an element of his or her claim, the action shall be
commenced within two years after the plaintiff achieves
postconviction exoneration in the form of a final judicial
disposition of the criminal case. Except for a claim for which the
plaintiff is required to establish his or her factual innocence, in
no event shall the time for commencement of legal action exceed four
years except that the period shall be tolled during the time that any
of the following exist:
(1) The plaintiff has not sustained actual injury.
(2) The attorney continues to represent the plaintiff regarding
the specific subject matter in which the alleged wrongful act or
omission occurred.
(3) The attorney willfully conceals the facts constituting the
wrongful act or omission when such facts are known to the attorney,
except that this subdivision shall toll only the four-year
limitation.
(4) The plaintiff is under a legal or physical disability which
restricts the plaintiff's ability to commence legal action.
(b) In an action based upon an instrument in writing, the
effective date of which depends upon some act or event of the future,
the period of limitations provided for by this section shall
commence to run upon the occurrence of that act or event.
SEC. 3. Section 851.8 of the Penal Code is amended to read:
851.8. (a) In any case where a person has been arrested and no
accusatory pleading has been filed, the person arrested may petition
the law enforcement agency having jurisdiction over the offense to
destroy its records of the arrest. A copy of the petition shall be
served upon the prosecuting attorney of the county or city having
jurisdiction over the offense. The law enforcement agency having
jurisdiction over the offense, upon a determination that the person
arrested is factually innocent, shall, with the concurrence of the
prosecuting attorney, seal its arrest records, and the petition for
relief under this section for three years from the date of the arrest
and thereafter destroy its arrest records and the petition. The law
enforcement agency having jurisdiction over the offense shall notify
the Department of Justice, and any law enforcement agency that
arrested the petitioner or participated in the arrest of the
petitioner for an offense for which the petitioner has been found
factually innocent under this subdivision, of the sealing of the
arrest records and the reason therefor. The Department of Justice and
any law enforcement agency so notified shall forthwith seal their
records of the arrest and the notice of sealing for three years from
the date of the arrest, and thereafter destroy their records of the
arrest and the notice of sealing. The law enforcement agency having
jurisdiction over the offense and the Department of Justice shall
request the destruction of any records of the arrest which they have
given to any local, state, or federal agency or to any other person
or entity. Each agency, person, or entity within the State of
California receiving the request shall destroy its records of the
arrest and the request, unless otherwise provided in this section.
(b) If, after receipt by both the law enforcement agency and the
prosecuting attorney of a petition for relief under subdivision (a),
the law enforcement agency and prosecuting attorney do not respond to
the petition by accepting or denying the petition within 60 days
after the running of the relevant statute of limitations or within 60
days after receipt of the petition in cases where the statute of
limitations has previously lapsed, then the petition shall be deemed
to be denied. In any case where the petition of an arrestee to the
law enforcement agency to have an arrest record destroyed is denied,
petition may be made to the superior court that would have had
territorial jurisdiction over the matter. A copy of the petition
shall be served on the law enforcement agency and the prosecuting
attorney of the county or city having jurisdiction over the offense
at least 10 days prior to the hearing thereon. The prosecuting
attorney and the law enforcement agency through the district attorney
may present evidence to the court at the hearing. Notwithstanding
Section 1538.5 or 1539, any judicial determination of factual
innocence made pursuant to this section may be heard and determined
upon declarations, affidavits, police reports, or any other evidence
submitted by the parties which is material, relevant and reliable. A
finding of factual innocence and an order for the sealing and
destruction of records pursuant to this section shall not be made
unless the court finds that no reasonable cause exists to believe
that the arrestee committed the offense for which the arrest was
made. In any court hearing to determine the factual innocence of a
party, the initial burden of proof shall rest with the petitioner to
show that no reasonable cause exists to believe that the arrestee
committed the offense for which the arrest was made. If the court
finds that this showing of no reasonable cause has been made by the
petitioner, then the burden of proof shall shift to the respondent to
show that a reasonable cause exists to believe that the petitioner
committed the offense for which the arrest was made. If the court
finds the arrestee to be factually innocent of the charges for which
the arrest was made, then the court shall order the law enforcement
agency having jurisdiction over the offense, the Department of
Justice, and any law enforcement agency which arrested the petitioner
or participated in the arrest of the petitioner for an offense for
which the petitioner has been found factually innocent under this
section to seal their records of the arrest and the court order to
seal and destroy the records, for three years from the date of the
arrest and thereafter to destroy their records of the arrest and the
court order to seal and destroy such records. The court shall also
order the law enforcement agency having jurisdiction over the offense
and the Department of Justice to request the destruction of any
records of the arrest which they have given to any local, state, or
federal agency, person or entity. Each state or local agency, person
or entity within the State of California receiving such a request
shall destroy its records of the arrest and the request to destroy
the records, unless otherwise provided in this section. The court
shall give to the petitioner a copy of any court order concerning the
destruction of the arrest records.
(c) In any case where a person has been arrested, and an
accusatory pleading has been filed, but where no conviction has
occurred, the defendant may, at any time after dismissal of the
action, petition the court that dismissed the action for a finding
that the defendant is factually innocent of the charges for which the
arrest was made. A copy of the petition shall be served on the
prosecuting attorney of the county or city in which the accusatory
pleading was filed at least 10 days prior to the hearing on the
petitioner's factual innocence. The prosecuting attorney may present
evidence to the court at the hearing. The hearing shall be conducted
as provided in subdivision (b). If the court finds the petitioner to
be factually innocent of the charges for which the arrest was made,
then the court shall grant the relief as provided in subdivision (b).
(d) In any case where a person has been arrested and an accusatory
pleading has been filed, but where no conviction has occurred, the
court may, with the concurrence of the prosecuting attorney, grant
the relief provided in subdivision (b) at the time of the dismissal
of the accusatory pleading.
(e) Whenever any person is acquitted of a charge and it appears to
the judge presiding at the trial at which the acquittal occurred
that the defendant was factually innocent of the charge, the judge
may grant the relief provided in subdivision (b).
(f) In any case where a person who has been arrested is granted
relief pursuant to subdivision (a) or (b), the law enforcement agency
having jurisdiction over the offense or court shall issue a written
declaration to the arrestee stating that it is the determination of
the law enforcement agency having jurisdiction over the offense or
court that the arrestee is factually innocent of the charges for
which the person was arrested and that the arrestee is thereby
exonerated. Thereafter, the arrest shall be deemed not to have
occurred and the person may answer accordingly any question relating
to its occurrence.
(g) The Department of Justice shall furnish forms to be utilized
by persons applying for the destruction of their arrest records and
for the written declaration that one person was found factually
innocent under subdivisions (a) and (b).
(h) Documentation of arrest records destroyed pursuant to
subdivision (a), (b), (c), (d), or (e) that are contained in
investigative police reports shall bear the notation "Exonerated"
whenever reference is made to the arrestee. The arrestee shall be
notified in writing by the law enforcement agency having jurisdiction
over the offense of the sealing and destruction of the arrest
records pursuant to this section.
(i) (1) Any finding that an arrestee is factually innocent
pursuant to subdivision (a), (b), (c), (d), or (e) shall not be
admissible as evidence in any action.
(2) Notwithstanding paragraph (1), a finding that an arrestee is
factually innocent pursuant to subdivisions (a) to (e), inclusive,
shall be admissible as evidence at a hearing before the California
Victim Compensation and Government Claims Board.
(j) Destruction of records of arrest pursuant to subdivision (a),
(b), (c), (d), or (e) shall be accomplished by permanent obliteration
of all entries or notations upon the records pertaining to the
arrest, and the record shall be prepared again so that it appears
that the arrest never occurred. However, where (1) the only entries
on the record pertain to the arrest and (2) the record can be
destroyed without necessarily affecting the destruction of other
records, then the document constituting the record shall be
physically destroyed.
(k) No records shall be destroyed pursuant to subdivision (a),
(b), (c), (d), or (e) if the arrestee or a codefendant has filed a
civil action against the peace officers or law enforcement
jurisdiction which made the arrest or instituted the prosecution and
if the agency which is the custodian of the records has received a
certified copy of the complaint in the civil action, until the civil
action has been resolved. Any records sealed pursuant to this section
by the court in the civil actions, upon a showing of good cause, may
be opened and submitted into evidence. The records shall be
confidential and shall be available for inspection only by the court,
jury, parties, counsel for the parties and any other person
authorized by the court. Immediately following the final resolution
of the civil action, records subject to subdivision (a), (b), (c),
(d), or (e) shall be sealed and destroyed pursuant to subdivision
(a), (b), (c), (d), or (e).
(l) For arrests occurring on or after January 1, 1981, and for
accusatory pleadings filed on or after January 1, 1981, petitions for
relief under this section may be filed up to two years from the date
of the arrest or filing of the accusatory pleading, whichever is
later. Until January 1, 1983, petitioners can file for relief under
this section for arrests which occurred or accusatory pleadings which
were filed up to five years prior to the effective date of the
statute. Any time restrictions on filing for relief under this
section may be waived upon a showing of good cause by the petitioner
and in the absence of prejudice.
(m) Any relief which is available to a petitioner under this
section for an arrest shall also be available for an arrest which has
been deemed to be or described as a detention under Section 849.5 or
851.6.
(n) This section shall not apply to any offense which is
classified as an infraction.
(o) (1) This section shall be repealed on the effective date of a
final judgment based on a claim under the California or United States
Constitution holding that evidence that is relevant, reliable, and
material may not be considered for purposes of a judicial
determination of factual innocence under this section. For purposes
of this subdivision, a judgment by the appellate division of a
superior court is a final judgment if it is published and if it is
not reviewed on appeal by a court of appeal. A judgment of a court of
appeal is a final judgment if it is published and if it is not
reviewed by the California Supreme Court.
(2) Any decision referred to in this subdivision shall be stayed
pending appeal.
(3) If not otherwise appealed by a party to the action, any
decision referred to in this subdivision which is a judgment by the
appellate division of the superior court shall be appealed by the
Attorney General.
(p) A judgment of the court under subdivision (b), (c), (d), or
(e) is subject to the following appeal path:
(1) In a felony case, appeal is to the court of appeal.
(2) In a misdemeanor case, or in a case in which no accusatory
pleading was filed, appeal is to the appellate division of the
superior court.
SEC. 4. Section 851.86 is added to the Penal Code, to read:
851.86. Whenever a person is convicted of a charge, and the
conviction is set aside based upon a determination that the person
was factually innocent of the charge, the judge shall order that the
records in the case be sealed, including any record of arrest or
detention, upon written or oral motion of any party in the case or
the court, and with notice to all parties to the case. If such an
order is made, the court shall give the defendant a copy of that
order and inform the defendant that he or she may thereafter state he
or she was not arrested for that charge and that he or she was not
convicted of that charge, and that he or she was found innocent of
that charge by the court. The court shall also inform the defendant
of the availability of indemnity for persons erroneously convicted
pursuant to Chapter 5 (commencing with Section 4900) of Title 6 of
Part 3, and the time limitations for presenting those claims.
SEC. 5. Section 4901 of the Penal Code is amended to read:
4901. A claim under Section 4900, accompanied by a statement of
the facts constituting the claim, verified in the manner provided for
the verification of complaints in civil actions, must be presented
by the claimant to the California Victim Compensation and Government
Claims Board within a period of two years after judgment of acquittal
or discharge given, or after pardon granted, or after release from
imprisonment, and no claim not so presented shall be considered by
the California Victim Compensation and Government Claims Board.
SEC. 6. Section 4903 of the Penal Code is amended to read:
4903. On such hearing the claimant shall introduce evidence in
support of the claim, and the Attorney General may introduce evidence
in opposition thereto. The claimant must prove the facts set forth
in the statement constituting the claim, including the fact that the
crime with which he or she was charged was either not committed at
all, or, if committed, was not committed by him or her, the fact that
he or she did not, by any act or omission on his or her part,
intentionally contribute to the bringing about of his or her arrest
or conviction for the crime with which he or she was charged, and the
pecuniary injury sustained by him or her through his or her
erroneous conviction and imprisonment. For purposes of this chapter,
when determining whether the claimant intentionally contributed to
the bringing about of his or her arrest or conviction, the factfinder
shall not consider statements obtained from an involuntary false
confession or involuntary plea. The claimant shall bear the burden of
proving by a preponderance of the evidence that the statements were
obtained from an involuntary false confession or involuntary plea.
SEC. 7. Section 4904 of the Penal Code is amended to read:
4904. If the evidence shows that the crime with which the
claimant was charged was either not committed at all, or, if
committed, was not committed by the claimant, and that the claimant
did not, by any act or omission, intentionally contribute to the
bringing about of his or her arrest or conviction for the crime with
which he or she was charged, and that the claimant has sustained
pecuniary injury through his or her erroneous conviction and
imprisonment, the California Victim Compensation and Government
Claims Board shall report the facts of the case and its conclusions
to the next Legislature, with a recommendation that an appropriation
be made by the Legislature for the purpose of indemnifying the
claimant for the pecuniary injury. The amount of the appropriation
recommended shall be a sum equivalent to one hundred dollars ($100)
per day of incarceration served subsequent to the claimant's
conviction and that appropriation shall not be treated as gross
income to the recipient under the Revenue and Taxation Code.