BILL ANALYSIS Ó
AB 766
Page 1
Date of Hearing: April 16, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 766 (Gaines) - As Amended: April 2, 2013
SUMMARY : Prohibits the Attorney General (AG) from offering a
promise of use or transactional immunity during the course of an
investigation into the misuse of public funds, unless specified
findings are made. Specifically, this bill :
1)Provides that the AG may not offer a promise of use or
transactional immunity during the course of an investigation
into the misuse of public funds, unless the Attorney General
makes all of the following written findings:
a) The testimony of the person to whom the offer is made is
needed to obtain a criminal conviction in the case.
b) The testimony of the person to whom the offer is made is
important to securing that conviction.
c) The person to whom the offer is made will invoke his or
her right against self-incrimination unless immunity is
granted.
2)States that if the criteria are met, the AG shall submit a
written copy of the findings to the presiding judge of the
criminal court that has jurisdiction over the case, if a
criminal complaint has been filed; or where the grand jury
relating to the investigation has been impaneled or criminal
or grand jury proceedings have not yet commenced, to the
presiding judge that would have jurisdiction over the case
subject to investigation.
EXISTING LAW :
1)Guarantees that no person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the
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land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person
be subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use, without just
compensation. (United States Constitution, 5th Amendment;
emphasis added.)
2)Provides that in any felony proceeding or in any investigation
or proceeding before a grand jury for any felony offense if a
person refuses to answer a question or produce evidence of any
other kind on the ground that he or she may be incriminated
thereby, and if the district attorney of the county or any
other prosecuting agency in writing requests the court, in and
for that county, to order that person to answer the question
or produce the evidence, a judge shall set a time for hearing
and order the person to appear before the court and show
cause, if any, why the question should not be answered or the
evidence produced, and the court shall order the question
answered or the evidence produced unless it finds that to do
so would be clearly contrary to the public interest, or could
subject the witness to a criminal prosecution in another
jurisdiction, and that person shall comply with the order.
After complying, and if, but for this section, he or she would
have been privileged to withhold the answer given or the
evidence produced by him or her, no testimony or other
information compelled under the order or any information
directly or indirectly derived from the testimony or other
information may be used against the witness in any criminal
case. But he or she may nevertheless be prosecuted or
subjected to penalty or forfeiture for any perjury, false
swearing or contempt committed in answering, or failing to
answer, or in producing, or failing to produce, evidence in
accordance with the order. Nothing in this section shall
prohibit the district attorney or any other prosecuting agency
from requesting an order granting use immunity or
transactional immunity to a witness compelled to give
testimony or produce evidence. (Penal Code Section 1324.)
3)Provides in any misdemeanor proceeding in any court, if a
person refuses to answer a question or produce evidence of any
other kind on the ground that he may be incriminated thereby,
the person may agree in writing with the district attorney of
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the county, or the prosecuting attorney of a city, as the case
may be, to testify voluntarily pursuant to this section. Upon
written request of such district attorney, or prosecuting
attorney, the court having jurisdiction of the proceeding
shall approve such written agreement, unless the court finds
that to do so would be clearly contrary to the public
interest. If, after court approval of such agreement, and if,
but for this section, the person would have been privileged to
withhold the answer given or the evidence produced by him,
that person shall not be prosecuted or subjected to penalty or
forfeiture for or on account of any fact or act concerning
which, in accordance with such agreement, he answered or
produced evidence, but he may, nevertheless, be prosecuted or
subjected to penalty or forfeiture for any perjury, false
swearing or contempt committed in answering or in producing
evidence in accordance with such agreement. If such person
fails to give any answer or to produce any evidence in
accordance with such agreement, that person shall be
prosecuted or subjected to penalty or forfeiture in the same
manner and to the same extent as he would be prosecuted or
subjected to penalty or forfeiture but for this section.(Penal
Code Section 1324.1.)
4)States that when two or more defendants are included in the
same accusatory pleading, the court may, at any time before
the defendants have gone into their defense, on the
application of the prosecuting attorney, direct any defendant
to be discharged, that he may be a witness for the people.
(Penal Code Section 1099.)
5)States that when two or more defendants are included in the
same accusatory pleading, and the court is of opinion that in
regard to a particular defendant there is not sufficient
evidence to put him on his defense, it must order him to be
discharged before the evidence is closed, that he may be a
witness for his codefendant. (Penal Code Section 1100.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The
investigation of the Department of Parks and Recreation found
that more than $20 million had been hidden away for as many as
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20 years. Additionally, an illegal buyout of vacation time
cost the state more than $285,000.
"Penal Code 424 clearly states: an officer of the state keeps
a false account or conceals an account is punishable by
imprisonment in the state prison for two, three, or four
years, and is disqualified from holding any office in this
state.
"There was substantial information to lead the Department of
Justice to investigate criminal actions of the Parks
Department employees. Yet, the Attorney General chose to
conduct an administrative investigation; therefore, any
information obtained could not be used in court. Even if a
criminal investigation was conducted, the AG is not required
to file charges if they decide it is not warranted.
"Most public servants serve California admirably; however,
when people involved in the Parks scandal are not held
accountable, or even investigated the distrust of government
swells. Letting people responsible for the misuse of millions
of state dollars off without consequence, does a disservice to
their honest coworkers and every Californian."
2)Immunity : The privilege against self-incrimination entitles a
witness or defendant to refuse to give testimony or evidence
that may tend to incriminate themselves. Various forms of
statutory and non-statutory immunity have been used by the
prosecution to compel testimony despite the privilege. By
granting a witness immunity from prosecution, the witness can
no longer assert their privilege against self-incrimination
and may be compelled to testify. There are two major forms of
immunity utilized by prosecutors: transactional and use
immunity. Despite a grant of immunity from prosecution for a
witnesses' testimony, the witness may be prosecuted for
perjury if it can be shown that the witness was not truthful
while testifying. (Penal Code Sections 1324-1324.1.)
a) Transactional Immunity : Transactional immunity provides
immunity from a later prosecution related to any matter
about which the witness testifies. People v. DeFreitas
(1983) 140 CA3d 835, 837. This form of immunity grants the
broadest protections of witnesses. California provides
transactional immunity in misdemeanor cases, however in
felony cases the prosecutor has the discretion to choose
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between transactional or use immunity.
i) Limitations on Transactional Immunity : There are
three very important limitations on transactional
immunity granted by a prosecutor.
(1) Does not prevent prosecution for perjury based
on the immunized testimony.
(2) Does not extend to an event described in an
answer totally unresponsive to the question asked.
For example, when asked in a drug sales case where a
witness saw something pertinent if the witness
suddenly confessed to an unrelated murder that
testimony would not be covered by transactional
immunity.
(3) Does not cover crimes not covered by the grant
of immunity if specified crimes are articulated in the
agreement.
b) Use Immunity : Use immunity only prevents authorities
from using the actual testimony or evidence that was
obtained under the immunity grant. Use immunity is more
limited than transactional immunity. It prevents law
enforcement authorities from using only the actual
testimony that was obtained under a grant of immunity, or
its fruit, in a subsequent prosecution of the witness.
3)Existing Procedures and Safeguards for Granting Immunity :
Under existing law there are a number of proverbial hoops to
jump through prior to the grant of immunity.
a) Witness Refuses to Answer : The procedure for a grant of
immunity requires first that a witness refuse to answer a
question or produce evidence based on a claim of privilege
against self-incrimination.
b) Request to Compel by Prosecutor : The prosecutor must
then request that the court order the witness to answer.
The court responds by issuing an order to show cause and
sets a time for a witness immunity hearing. These requests
and hearings should be made outside the presence of a jury.
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c) Immunity Hearing : At an immunity hearing the witness
claiming the privilege against self-incrimination has the
burden of showing that the information may be
incriminating. (Evidence Code Section 404.) If the
claimant presents such evidence, the judge must sustain the
claim of privilege unless it clearly appears that the
proffered evidence cannot possibly have a tendency to
incriminate the claimant.
d) Request for Immunity by Prosecutor : Once a judge has
determined that the privilege against self-incrimination
applies to the witness in the case at hand, the prosecutor
may request either transactional or use immunity with
specified terms in felony cases. In misdemeanor cases,
transactional immunity applies in all cases.
e) Court Order : Once a prosecutor requests immunity for a
witness, the court must grant immunity and "order the
question answered or the evidence produced unless it finds
that to do so would clearly be contrary to the public
interest, or could subject the witness to a criminal
prosecution in another jurisdiction." (Penal Code Section
1324.)
4)Limitation on the Prosecutorial Discretion of the California
Attorney General : In California prosecutors have the
discretion to determine whether testimony required from a
particular witness (which is protected by the privilege
against self-incrimination) is more important to their case
than the prosecution of that witness at a later time.
Additionally, in felony cases the prosecutor has the
discretion to determine whether or not to apply a narrow use
immunity or a more broad transactional immunity. This
determination may be essential to the production of evidence
in a case, and achieving justice and a remedy suitable to the
public good.
This bill would limit the prosecutorial discretion of attorney
generals by requiring that they make specified findings prior
to granting immunity in specified cases. This same limitation
is not applied to other prosecutorial agencies. It is not
clear why the limit of prosecutorial discretion would only
apply to the California Attorney General and no other
prosecutors in the State of California.
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REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744