BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 316 (Solorio)
As Amended June 16, 2009
Hearing date: June 23, 2009
Code of Civil Procedure; Penal Code
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WRONGFUL CONVICTION AND IMPRISONMENT:
COMPENSATION AND CIVIL ACTIONS
HISTORY
Source: Northern California Innocence Project
Prior Legislation: AB 2937 (Solorio) - 2008, vetoed
AB 1799 (Baugh) - Ch. 630, Stats. 2000
Support: American Civil Liberties Union; American Federation of
State, County and Municipal Employees; Friends
Committee on Legislation; Legal Services for Prisoners
with Children; Taxpayers for Improving Public Safety
(support if amended)
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
SHOULD THE TIME FOR FILING A CLAIM WITH THE VICTIM COMPENSATION
AND GOVERNMENT CLAIMS BOARD FOR COMPENSATION FOR A WRONGFUL
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CONVICTION AND IMPRISONMENT IN STATE PRISON BE EXTENDED FROM SIX
MONTHS TO TWO YEARS?
(CONTINUED)
SHOULD A FINDING THAT A PERSON IS FACTUALLY INNOCENT BE ADMISSIBLE
AS EVIDENCE AS TO A CLAIM FOR COMPENSATION FROM A WRONGFUL
CONVICTION PRESENTED TO THE VICTIMS COMPENSATION AND GOVERNMENT
CLAIMS BOARD, AS SPECIFIED?
SHOULD THE STATUTE OF LIMITATIONS FOR A LEGAL MALPRACTICE CASE BE
EXTENDED FROM ONE YEAR TO TWO YEARS IF THE PLAINTIFF WAS FOUND TO BE
FACTUALLY INNOCENT?
PURPOSE
The purposes of this bill are to 1) extend the time for filing a
claim with the Victim Compensation and Government Claims Board
(VCGCB) for a wrongful conviction and imprisonment from six
month to two years; 2) allow a finding that a person is
factually innocent to be used as evidence in a claim for
wrongful conviction filed with the VCGCB; and 3) extend the
statute of limitations for legal malpractice from one year to
two years where the plaintiff has obtained a finding of factual
innocence.
Existing law provides that where a person has been arrested for
a crime but no accusatory pleading has been filed, he or she may
petition the arresting agency to destroy the arrest records.
Existing law 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). (Pen. Code 851.8, subd.
(a).)
Existing law requires the law enforcement agency and the DOJ to
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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. (Pen. Code 851.8, subd. (a).)
Existing law 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
believe that the arrestee committed the offense for which the
arrest was made. (Pen. Code 851.8, subd. (b).)
Existing law 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. (Pen. Code 851.8, subds.
(b)-(c).)
Existing law 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. (Pen. Code 851.8, subd. (b).)
Existing law 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. (Pen. Code 851.8, subd. (b).)
Existing law states that whenever a person is acquitted of a
charge and it appears to the presiding judge at the trial that
the defendant was factually innocent, the judge may order the
records sealed. (Pen. Code 851.8, subd. (d).)
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Existing law 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).
(Pen. Code 851.8, subd. (e).)
Existing law 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. (Pen. Code 851.8,
subd. (k).)
Existing law provides that notwithstanding any other provision
of law, the 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. (Pen. Code 1417.9, subd. (a).)
Existing law 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. (Pen. Code 4900.)
Existing law 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.
(Pen. Code 4901.0.)
Existing law 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
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thereto. 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. (Pen. Code 4903.)
Existing law 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. (Pen. Code 4904.)
This bill 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).
This bill provides that where a person's conviction has been set
aside because he or she is factually innocent, the court shall
do the following:
upon the motion of a party or the court, order that the
records in the case be sealed;
provide the person with a copy of the order;
inform the person that he or she may state that he or
she was neither arrested nor convicted of the crime; and
inform the person of the right to indemnity for persons
who have been wrongfully convicted and imprisoned.
This bill amends the time for filing a wrongful conviction claim
with the Victim Compensation and Government Claims Board (VCGCB)
from six months to two years from the time of a judgment of
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acquittal or discharge, or after a pardon, or release from
prison.
This bill provides that a finding of factual innocence shall be
admissible as evidence at the VCGCB.
This bill includes legislative intent to remedy some of the
harms that result when factually innocent persons are convicted
and imprisoned.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
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necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Persons who have been wrongfully convicted 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
provides limited compensation for innocent persons
wrongly sent to prison. Wrongfully convicted persons
must file a claim within six months of acquittal, and
all claims must be individually approved by the
Legislature.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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The difficult adjustment required after release from
wrongful incarceration and the haphazard notification
process that compensation may be available frequently
renders the current deadline of six months to file a
claim for compensation unreasonable. Convictions
often continue to appear on the criminal history of
the wrongfully convicted, even after the conviction
has been vacated, making it more difficult for them to
find employment and housing.
To recover damages for malpractice against an
attorney, a person whose conviction has been set aside
must be legally exonerated before a claim can be
filed. Often times, the exoneration process takes
years, surpassing timetables set by the Statute of
Limitations to file a cause of action.
Out of fear of receiving a longer sentence, a person
may agree to a plea of guilty even though they did not
commit the crime. Currently that admission can
jeopardize a claim against the state for compensation
for an erroneous conviction.
This bill provides that upon the determination that a
person was factually innocent and wrongly
incarcerated, the court order all records regarding
the case be sealed. The court would also inform the
defendant of compensation options and time
limitations.
This bill extends the deadline to file a claim for
damages with the California Victim's Compensation and
Government Claims Board and extend the statute of
limitations to file a claim of malpractice to two
years after innocence has been established.
The bill clarifies that an involuntary false
confession or an involuntary plea would not be
considered as intentionally contributing to bringing
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about an arrest or conviction. The bill also allows a
finding that the arrestee is factually innocent to be
admitted as evidence at a hearing before the
California Victim Compensation and Government Claims
Board, although the claimant will have the burden of
proving that his or her prior plea or admission was
involuntary.
2. Related Bill - AB 2937 of the 2007-2008 Session - Was Vetoed;
This Bill was Drafted to Address the Governor's Concerns
A related 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
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
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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.
3. Compensation for Wrongfully Convicted
Claim for compensation
Under existing law, a person can apply to the California Victim
Compensation and Government Claims Board for reimbursement upon
an acquittal or discharge or after a pardon is granted or after
release from imprisonment. Existing law requires this claim to
be made in six months; this bill extends that statute of
limitations to two years.
Under existing law, the claimant must prove certain facts in the
claim. In particular, he or she must prove that the underlying
crime was either not committed at all, or, if committed, was not
committed by him or her. The claimant must also show that he or
she did not intentionally or negligently contribute to his or her
arrest or conviction by any act or omission.
Many of those found to be wrongfully convicted had originally
either confessed to the crime or pleaded guilty, often through
coercion. This has raised the issue as to whether or not a
claimant at least negligently contributed to his or arrest or
conviction by making a coerced confession or plea. This bill
clearly provides instead that the person must show that through
his or her own misconduct he or she did not, by any act or
omission, intentionally bring about his or her arrest or
conviction.
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Compensation amount
Prior to 2000, the maximum compensation a person could receive
from the state for erroneous conviction and imprisonment was
$10,000. AB 1799 (Baugh), Chapter 630, Statutes of 2000, raised
the amount of compensation to $100 a day ($36,500 a year).
4. Civil Action by Wrongfully Convicted Person Against his or her
Former Attorney
Under existing law, an action against an attorney for a wrongful
act or omission shall commence within one year after the
plaintiff discovers the facts constituting the act or omission.
This bill provides that if the plaintiff is required to
establish his or her actual 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
post-conviction exoneration.
SHOULD A PERSON WHO WAS WRONGFULLY CONVICTED BE ALLOWED TWO
YEARS TO FILE A CIVIL LAWSUIT AGAINST HIS OR HER FORMER
ATTORNEY?
5. Factual Innocence Proceedings
Generally, a finding that an arrestee is factually innocent
under Penal Code Section 851.8 is not admissible in any action.
This bill creates an exception to that rule, providing instead
that an arrestee found factually innocent under Penal Code
Section 851.8 is admissible as evidence at a hearing before the
California Victim Compensation and Government Claims Board. The
proceeding to consider factual innocence would typically provide
the most direct, comprehensive and full evidence of a person's
wrongful conviction. Further, not allowing evidence from the
factual innocence proceeding would require duplication of effort
and more lengthy proceedings by the VCGCB.
SHOULD EVIDENCE FROM A HEARING TO ESTABLISH A PERSON'S FACTUAL
INNOCENCE BE ADMISSIBLE IN A PROCEEDING TO CONSIDER THE PERSON'S
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CLAIM TO THE VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD FOR
COMPENSATION FOR WRONGFUL CONVICTION AND INCARCERATION?
6. The Bill was Amended on June 16, 2009, to Clarify the Burden
of Proof in a VCGCB Wrongful Conviction and Imprisonment Claim
that a Confession or Plea was Involuntary
The Governor's office requested that the bill be amended as
concerns the burden of proof at a claim for wrongful conviction
and imprisonment presented to the VCGCB. In particular, the
amendment concerns the requirement that the claimant must not
have intentionally contributed to his or her wrongful
conviction. The amendment would provide that the VCGCB claimant
shall have the burden of proof that any statement taken from a
confession or plea made by him or her was involuntary. In
particular, the bill essentially describes a confession or plea
as a statement. The bill was amended on June 16, 2009, to
address the Governor's request.
It would appear that if the claimant's confession or plea was
involuntary, the claimant would have demonstrated the
involuntary nature of the confession or plea as a petitioner in
proceedings to establish his or her factual innocence. In a
proceeding concerning factual innocence, the petitioner must
establish that "no reasonable cause exists to believe" that the
petitioner committed the crime. The burden then shifts to the
prosecution to prove that there is such reasonable cause. In
any case where the petitioner's conviction was based on a
confession or guilty plea, the basis for the confession or plea
would be the major issue in the proceeding.
Thus, it appears that a VCGCB wrongful conviction and
imprisonment claimant who has obtained a finding of factual
innocence could prove by a preponderance of the evidence that
his or her confession or plea was involuntary. The claimant
would likely present to the evidence or findings from the
factual innocence proceeding to the VCGCB in this regard.
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