BILL NUMBER: AB 593 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 5, 2012
AMENDED IN ASSEMBLY JANUARY 4, 2012
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Ma
FEBRUARY 16, 2011
An act to add Chapter 6 (commencing with Section 1566) to
Title 12 of Part 2 amend Section 1473.5 of the
Penal Code, relating to domestic violence.
LEGISLATIVE COUNSEL'S DIGEST
AB 593, as amended, Ma. Domestic violence: battering: recall and
resentencing.
Existing law authorizes every person who is unlawfully imprisoned
or restrained of his or her liberty to prosecute a writ of habeas
corpus to inquire into the cause of that imprisonment or restraint.
Existing law also provides, until January 1, 2020, that a writ of
habeas corpus may be prosecuted on the basis that expert testimony
relating to intimate partner battering and its effects was not
received in evidence at the trial court proceedings relating to a
prisoner's incarceration for the commission of a violent felony
committed prior to August 29, 1996, if there is a reasonable
probability, sufficient to undermine confidence in the judgment of
conviction, that if the testimony had been admitted, the result of
the proceedings would have been different.
This bill would make the provisions for a writ of habeas corpus
based on intimate partner battering operative indefinitely. The bill
would also provide that a writ of habeas corpus may also be
prosecuted if expert testimony relating to intimate partner battering
and its effects was received into evidence but was limited at the
trial court proceedings relating to a prisoner's incarceration for
the commission of a violent felony committed prior to August 29,
1996, and there is a reasonable probability, sufficient to undermine
confidence in the judgment of conviction, that if the testimony had
not been limited, the result of the proceedings would have been
different.
This bill would authorize a defendant who suffered intimate
partner battering and its effects, and who was convicted of one or
more violent felonies, as specified, that were committed before
August 29, 1996, and which resulted in a judgment of conviction after
a plea or trial in which expert testimony on intimate partner
battering and its effects was either not received into evidence or
was limited, to file a petition, containing specified statements by
the defendant, with the sentencing court for recall and resentencing
if, during the crime, the defendant was in imminent danger or under
duress, or acting in self-defense. The bill would require that a copy
of the petition be served on the prosecuting agency. The bill would
require that a reply to the petition, if any, be filed with the court
within 60 days of the date on which the prosecuting agency was
served the petition, unless a continuance is granted for good cause.
The bill would require the court to hold a hearing to consider the
defendant's statements, expert testimony, and any other new relevant
information to determine whether, had the information been received
into evidence at the trial court proceedings, there is a reasonable
probability that the result of the proceedings would have been
different. In that case, the bill would authorize the court to recall
the sentence and commitment previously ordered and resentence the
defendant, provided that the new sentence, if any, is not greater
than the initial sentence.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1473.5 of the Penal
Code is amended to read:
1473.5. (a) A writ of habeas corpus also may be prosecuted on the
basis that expert testimony relating to intimate partner battering
and its effects, within the meaning of Section 1107 of the Evidence
Code, was not received in evidence , or was received into
evidence but was limited, at the trial court proceedings
relating to the prisoner's incarceration, and is of such substance
that, had it been received in evidence or had it
not been limited , there is a reasonable
probability, sufficient to undermine confidence in the judgment of
conviction, that the result of the proceedings would have been
different. Sections 1260 to 1262, inclusive, apply to the prosecution
of a writ of habeas corpus pursuant to this section. As used in this
section, "trial court proceedings" means those court proceedings
that occur from the time the accusatory pleading is filed until and
including judgment and sentence.
(b) This section is limited to violent felonies as specified in
subdivision (c) of Section 667.5 that were committed before August
29, 1996, and that resulted in judgments of conviction after a plea
or trial as to which expert testimony admissible pursuant to Section
1107 of the Evidence Code may be probative on the issue of
culpability.
(c) If a petitioner for habeas corpus under this section has
previously filed a petition for writ of habeas corpus, it is grounds
for denial of the new petition if a court determined on the merits in
the prior petition that the omission of expert testimony relating to
battered women's syndrome or intimate partner battering and its
effects at trial was not prejudicial and did not entitle the
petitioner to the writ of habeas corpus.
(d) For purposes of this section, the changes that become
effective on January 1, 2005, are not intended to expand the uses or
applicability of expert testimony on battering and its effects that
were in effect immediately prior to that date in criminal cases.
(e) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SECTION 1. Chapter 6 (commencing with Section
1566) is added to Title 12 of Part 2 of the Penal Code, to read:
CHAPTER 6. DEFENDANTS WHO ARE VICTIMS OF DOMESTIC VIOLENCE:
RECALL AND RESENTENCING
1566. (a) (1) A defendant who was convicted of one or more
violent felonies as specified in subdivision (c) of Section 667.5
that were committed before August 29, 1996, who suffered intimate
partner battering and its effects, and which resulted in a judgment
of conviction after a plea or trial shall be permitted to submit a
petition for recall and resentencing if, during each crime, the
defendant was in imminent danger or duress or if the defendant acted
in self-defense.
(2) This section applies only to cases where expert testimony on
intimate partner battering and its effects, within the meaning of
Section 1107 of the Evidence Code, was not received into evidence or
was limited during the trial court proceedings and expert testimony
admissible pursuant to Section 1107 of the Evidence Code would be of
probative value in regard to the defendant's culpability or
sentencing.
(b) (1) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include all of
the following statements by the defendant:
(A) That he or she was convicted of one or more violent felonies
as specified in subdivision (c) of Section 667.5 that were committed
before August 29, 1996.
(B) That he or she suffered the effects of intimate partner
battering at the time of the violent offense or offenses.
(C) That expert testimony on intimate partner battering was not
received into evidence or was limited during the trial court
proceedings.
(D) That intimate partner battering and its effects were directly
related to his or her participation in the violent offense or
offenses.
(E) A description of his or her actions while committing the crime
and the circumstances surrounding those actions that demonstrate
either that the crime was committed while the defendant was in
imminent danger or under duress, or that the defendant was forced to
act in self-defense in committing the crime.
(c) As used in this section, "trial court proceedings" means those
court proceedings that occur from the time the accusatory pleading
is filed until and including judgment and sentence.
(d) If any of the information required in subdivision (b) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(e) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served the petition, unless a continuance is granted for good cause.
(f) The court shall hold a hearing to consider the defendant's
statements, expert testimony regarding intimate partner battering and
its effects, and any other new, relevant information, including all
of the factors described in subdivision (g) to determine whether, had
the information been received into evidence at the trial court
proceedings relating to the prisoner's incarceration, there is a
reasonable probability that the result of the proceedings would have
been different. In that case, the court may recall the sentence and
commitment previously ordered and resentence the defendant, provided
that the new sentence, if any, is not greater than the initial
sentence. Victims, or victim family members if the victim is
deceased, shall retain the right to participate in the hearing.
(g) The factors that the court may consider in the hearing held
pursuant to subdivision (f) include, but are not limited to, the
following:
(1) The defendant's history of physical, sexual, and emotional
abuse or trauma.
(2) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(3) The effects of intimate partner battering at the time of the
commitment offense.
(4) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.