BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 316|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 316
Author: Solorio (D), et al
Amended: 6/28/09 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/23/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,
Wright
SENATE APPROPRIATIONS COMMITTEE : 8-5, 8/27/09
AYES: Kehoe, Corbett, Hancock, Leno, Oropeza, Price, Wolk,
Yee
NOES: Cox, Denham, Runner, Walters, Wyland
ASSEMBLY FLOOR : 79-0, 6/1/09 - See last page for vote
SUBJECT : Wrongful convictions and imprisonment:
compensation and
civil actions
SOURCE : Northern California Innocence Project
DIGEST : This bill (1) extends 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) allows 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
CONTINUED
AB 316
Page
2
a finding of factual innocence.
ANALYSIS :
Existing law provides that where a person has been arrested
for a crime but no accusatory pleading has been filed,
he/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). (Penal Code
Section 851.8, subdivision (a).)
Existing law 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, subdivision (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. (Penal Code Section
851.8, subdivision (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. (Penal
Code Section 851.8, subdivisions (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. (Penal Code Section 851.8,
subdivision (b).)
AB 316
Page
3
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. (Penal Code Section 851.8,
subdivision (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. (Penal Code Section 851.8,
subdivision (d).)
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). (Penal Code Section 851.8,
subdivision. (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.
(Penal Code Section 851.8, subdivision (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. (Penal Code Section 1417.9,
subdivision (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/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 California Victim
Compensation and Government Claims Board (VCGCB) for the
pecuniary injury sustained through the wrongful conviction
and imprisonment. (Penal Code Section 4900.)
AB 316
Page
4
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. (Penal Code Section 4901.0.)
Existing law provides the claimant shall introduce evidence
in support of his/her claim at a hearing before the VCGCB,
and the Attorney General may introduce evidence in
opposition 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. (Penal Code Section 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. (Penal Code
Section 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 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: (1) upon the motion of a
party or the court, order that the records in the case be
sealed; (2) provide the person with a copy of the order;
(3) inform the person that he or she may state that he or
she was neither arrested nor convicted of the crime; and
(4) 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 VCGCB from six months to two years from the
AB 316
Page
5
time of a judgment of 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.
Related legislation
AB 2937 (Solorio), of 2007-08 Session, was vetoed, in his
veto message 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 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.
AB 316
Page
6
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11
2011-12 Fund
Extends time limit toUnknown, potentially significant costs
Special*
file specified VCGCB claims
Changes VCGCB Unlikely to specifically incur new
costs Special*
evidence rules
*Restitution Fund
SUPPORT : (Verified 8/27/09)
Northern California Innocence Project (source)
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)
ARGUMENTS IN SUPPORT : According to the author's office,
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.
The difficult adjustment required after release from
wrongful incarceration and the haphazard notification
AB 316
Page
7
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 will 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 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.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
AB 316
Page
8
Berryhill, Tom Berryhill, Blakeslee, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani,
Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi,
Hernandez, Hill, Huber, Huffman, Jeffries, Jones, Knight,
Krekorian, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza,
Miller, Monning, Nava, Nestande, Niello, Nielsen, John A.
Perez, V. Manuel Perez, Portantino, Price, Ruskin, Salas,
Saldana, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Villines, Yamada, Bass
NO VOTE RECORDED: Block
RJG:do 8/28/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****