BILL ANALYSIS
AB 316
Page 1
Date of Hearing: March 31, 2009
Consultant: Larry Yee
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 316 (Solorio) - As Introduced: February 18, 2009
SUMMARY : Extends the statute of limitations for malpractice
actions against an attorney to two years after the plaintiff
achieves post-conviction exoneration in a case in which the
plaintiff is required to show factual innocence as an element of
his or her malpractice claim, and revises various procedures of
the California Victim Compensation and Government Claims Board
(VCGCB). Specifically, this bill :
1)Amends the time for filing a claim with the VCGCB from six
months to two years.
2)Provides that a finding of factual innocence shall be
admissible as evidence at the VCGCB.
EXISTING LAW :
1)Provides that a person arrested for a crime but no accusatory
pleading has been filed, that person may petition the law
enforcement agency to destroy its records on the arrest.
States that the law enforcement agency having jurisdiction
over the arrest shall, upon a determination that the person is
factually innocent, seal its records and notify the Department
of Justice (DOJ). [Penal Code Section 851.8(a).]
2)Requires the law enforcement agency and the DOJ to request
the destruction of any records of the arrest that were
provided to any local, state or federal agency, or to any
other person or entity. [Penal Code Section 851.8(a).]
3)Provides that a finding of factual innocence and an order for
the sealing and destruction of records shall not be made
unless the court finds that no reasonable cause exists to
AB 316
Page 2
believe that the arrestee committed the offense for which the
arrest was made. [Penal Code Section 851.8(b).]
4)Provides that a judicial determination of factual innocence
may be heard and determined upon declarations, affidavits,
police reports, or any other evidence that is material,
relevant, and reliable. [Penal Code Section 851.8(b)(c).]
5)Establishes an evidentiary procedure under which the initial
burden of proof lies with the petitioner to show that there
was no reasonable cause to determine that he or she committed
the offense for which arrested. If the court finds that the
petitioner has met this initial burden of proof, the burden of
proof shifts to the respondent law enforcement agency to show
that reasonable cause in fact exists. [Penal Code Section
851.8(b).]
6)Provides that if the court finds the arrested person factually
innocent, the court shall order the law enforcement agencies
and the DOJ to seal all records for three years from the date
of the arrest and thereafter to destroy all related records.
[Penal Code Section 851.8(b).]
7)States that whenever a person is acquitted of a charge and it
appears to the presiding judge at the trial judge that the
defendant was factually innocent, the judge may order the
records sealed. [Penal Code Section 851.8(d).]
8)Provides the above-described rights to a person arrested and
charged, but acquitted. For such a person, states the
presiding judge may find the person factually innocent and
grant the relief described in Penal Code Section 851.8(b).
[Penal Code Section 851.8(e).]
9)Provides that no records shall be destroyed if the person or a
co-defendant has filed a civil action against the peace
officers or law enforcement agency that made the arrest, until
the civil action has been resolved. [Penal Code Section
851.8(k).]
10)Provides that notwithstanding any other provision of law, the
AB 316
Page 3
governmental entity shall retain all biological material for
the period that any person remains incarcerated in connection
with the case, in a condition suitable for DNA testing.
[Penal Code Section 1417.9(a).]
11)Provides that any person who, having been convicted of a
crime and imprisoned in the state prison, is granted a pardon
by the Governor because the crime with which he or she was
charged either did not occur; or if it did occur, was not
committed by him or her; or who is innocent of the charges for
either of the foregoing reasons, and who has served any part
of the term for which imprisoned may present a claim against
the State to the VCGCB for the pecuniary injury sustained
through the wrongful conviction and imprisonment. [Penal Code
Section 4900.]
12)Provides that any claim for pecuniary damage for wrongful
imprisonment shall be presented within six months after a
judgment of acquittal or release from imprisonment, and at
least four months prior to the next meeting of the
Legislature. [Penal Code Section 4901.]
13)Provides the claimant shall introduce evidence in support of
his or her claim at a hearing before the VCGCB, and the
Attorney General may introduce evidence in opposition thereto.
Provides the claimant must prove the fact that the crime with
which he was charged was either not committed at all, or if
committed, was not committed by him, the fact that he did not,
by any act or omission on his part, either intentionally or
negligently, contribute to the bringing about of his arrest
and conviction, and the pecuniary injury sustained by him
through his erroneous conviction and imprisonment. [Penal
Code Section 4903.]
14)Provides a procedure for the appropriation for the purpose of
indemnifying the claimant for pecuniary injury at the rate of
$100 per day of incarceration subsequent to the defendant's
conviction. [Penal Code Section 4904.]
FISCAL EFFECT : Unknown
COMMENTS :
AB 316
Page 4
1)Author's Statement : According to the author, "Exonerated
persons often have distinct problems re-entering society, and
have difficulty achieving legal redress due to a variety of
substantive and technical obstacles in the law. They have
been deprived of their liberty based upon a failure in the
criminal justice system. It should be the policy of the State
of California to redress the injury inflicted upon the
innocent as quickly as possible, to restore them to full
participation in the life of the community, and to provide
assistance for the difficult transition from wrongful
imprisonment to restoration of all the rights and liberties to
which they are otherwise entitled."
2)Background : According to the background submitted by the
author, "Persons whose convictions have been vacated and leave
prison custody typically face the same obstacles as released
felons as well as the unique personal and psychological
struggles of having spent years in prison for crimes they did
not commit.
"Although far below federal standards, California does provide
limited compensation for innocent persons wrongly sent to
prison with a claim filing deadline of six months after
acquittal. All claims must be individually approved by the
Legislature."
3)Veto Message of AB 2937 : A similar bill, AB 2937 (Solorio),
of the 2007-08 Legislative Session, was vetoed. The Governor
stated, "I applaud efforts to address injustice done when an
innocent person has been erroneously incarcerated and support
measures to help such an individual receive appropriate
compensation or services. However, I cannot support this bill
because it would create a state-mandated local program
resulting in increased General Fund costs.
"This bill would require counties to provide case management
services for two years to persons wrongfully incarcerated and,
upon request, for any person wrongfully incarcerated and
released since January 1, 2002. The state already compensates
these individuals, even though wrongful convictions occur at
AB 316
Page 5
the local level. Any programs to further assist these persons
should therefore be funded at the local level. In addition,
many of these individuals could otherwise be eligible for
local programs without mandating the provision of case
management services. For these reasons, I am returning this
bill without my signature."
AB 2937 would have required every board of supervisors to
designate a local agency to assist claimants with reentry
services, imposing a state-mandated local program. AB 2937
also would have imposed new duties on local officials
regarding the sealing of records after a conviction has been
set aside for a determination of factual innocence. This bill
does not have these requirements, and does not impose a
state-mandated program that would result in increased General
Fund costs.
4)Arguments in Support :
a) According to the American Federation of State, County
and Municipal Employees (AFSCME) , "AB 316 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 two years after the
plaintiff achieves postconviction exoneration in the form
of a final judicial disposition of the criminal case.
"AFSCME believes in the power of the plaintiff to file for
wrongful actions or fraud against his or her attorney.
Attorney's have the ability to manipulate or disregard
their clients, thus resulting in poor professional
communication. It is the right of every citizen to have
proper representation in any case brought toward them and
AB 316 ensures this authority. It is also important for
the attorney to be made liable for facts constituting the
wrongful act or omission when such facts are known by the
attorney."
b) According to the American Civil Liberties Union , "The
wrongfully convicted often have distinct problems
re-entering society, and have difficulty achieving legal
redress due to a variety of substantive and technical
obstacles in the law. While California does not provide
some compensation for those wrongfully convicted, the
current procedures make it difficult for wrongfully
AB 316
Page 6
convicted people to get compensated and to clear their
record.
"The California Commission on the Fair Administration of
Justice recently issued a series of unanimous
recommendations to remedy errors of justice. AB 316 would
implement the most basic elements of the Commission's
recommendations, by among other things, facilitating the
sealing of records, extending the statute of limitations
and making certain evidentiary clarifications for purposes
of getting compensation from the Victims Compensation
Board. These are modes, but important amendments that will
assist the wrongfully convicted."
5)Prior Legislation : AB 2937 (Solorio), of the 2007-08
Legislative Session, would have extended the statute of
limitations on VCGCB lawyer malpractice claims. AB 2937 was
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
American Federation of State, County and
Municipal Employees
Friends Committee on Legislation
Legal Services for Prisoners with Children
Opposition
None received
Analysis Prepared by : Larry Yee / PUB. S. / (916) 319-3744