BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 378 (Block)                                              
          As Amended April 2, 2013 
          Hearing date:  April 9, 2013
          Evidence Code
          MK:dl

                               EVIDENCE: ADMISSIBILITY:

                           ELECTRONIC DIGITIZED DOCUMENTS  


                                       HISTORY

          Source:  San Diego District Attorney Bonnie Dumanis

          Prior Legislation: None

          Support: California District Attorneys Association

          Opposition:None known




                                         KEY ISSUE
           
          SHOULD ELECTRONICALLY DIGITIZED DOCUMENTS BE ADMISSIBLE UNDER  
          EVIDENCE CODE PROVISIONS MAKING SPECIFIED DOCUMENTS OR RECORDS  
          ADMISSIBLE?



                                       PURPOSE




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          The purpose of this bill is to authorize the use of  
          electronically digitized documents as evidence in situations  
          where documents or records can be admitted.



           Existing law  in the "Electronic Discovery Act" establishes  
          procedures for parties to discover electronically stored  
          information from opposing parties for use as evidence in state  
          court actions.  (Code of Civil Procedure §§ 2031.010 et seq.)

           Existing law  provides that judicial notice may be taken of the  
          specified matters including official acts of the legislative,  
          executive and judicial departments of the United States and any  
          state of the United States and records of any court of this  
          state, any other state or the United States.  (Evidence Code §  
          452 (c), (d).)

           Existing law  provides that the official acts and records in (c)  
          and (d) of Section 452 include any computer generated official  
          court records which relate to criminal convictions, when the  
          record is certified by a clerk of the superior court pursuant to  
          the Government Code at the time of computer entry.  (Penal Code  
          § 452.5(a).)

           This bill  provides that "electronically digitized copy" means a  
          copy that is made by scanning, photographing, or otherwise  
          exactly reproducing a document, is stored or maintained in a  
          digitized format, and bears an electronic signature or watermark  
          unique to the entity responsible for certifying the document.
           
          Existing law  provides that an official certified record of  
          conviction is admissible to prove the commission, attempted  
          commission, or solicitation of a criminal offense, prior  
          conviction, service of a prison term, or other act, condition,  
          or event recorded by the record.  (Evidence Code § 452.5 (b).)
           
           This bill  adds that an electronically digitized copy of the  




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          record is also admissible.

            .

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.  

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order to reduce the state's prison population to  
          137.5 percent of design capacity.  The State submitted in part  
          that the, ". . .  population in the State's 33 prisons has been  
          reduced by over 24,000 inmates since October 2011 when public  
          safety realignment went into effect, by more than 36,000 inmates  
          compared to the 2008 population . . . , and by nearly 42,000  
          inmates since 2006 . . . ."  Plaintiffs, who oppose the state's  




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          motion, argue in part that, "California prisons, which currently  
          average 150% of capacity, and reach as high as 185% of capacity  
          at one prison, continue to deliver health care that is  
          constitutionally deficient."  

          In an order dated January 29, 2013, the federal court granted  
          the state a six-month extension to achieve the 137.5 % prisoner  
          population cap by December 31st of this year.  



































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          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unsettled.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; whether a measure proposes  
               penalties which are proportionate, and cannot be achieved  
               through any other reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.


                                       COMMENT

          1.    Need for This Bill  

          According to the author:

               Prosecutors need court-certified copies of prior  
               convictions in many cases, both to verify that charges  
               are to be brought, and then to prove those charges at  
               trial.  These court-certified copies are taking longer  
               to receive, despite the statutorily mandated time for  
               bringing charged defendants to hearing.  Court staff  
               budget cuts make the processing of these requests  
               onerous and time-consuming, as well as expensive.
               SB 378 will authorize the use of electronically  
               digitized copies of prior convictions as admissible  
               evidence to the same extent as the original record or a  
               certified copy.  This bill will result in cost savings  
               and will decrease the processing time due to the  




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               increased efficiency and speed with which items can be  
               digitally scanned and emailed.

          2.  Admissibility of Documents and Records  

          The Evidence Code generally governs the admissibility of  
          evidence in civil and criminal proceedings including the  
          admissibility of documents and records.  The hearsay rule states  
          that "evidence of a statement that was made other than by a  
          witness while testifying at the hearing and that is offered to  
          prove the truth of the matter stated" is inadmissible except as  
          otherwise provided by law.  (Evidence Code § 1200.)  The  
          Evidence Code creates a number of exceptions to the hearsay rule  
          for documents and records that are produced by a public entity.   
          The idea is that these documents are trustworthy:

              A long-established hearsay exception makes admissible  
              the statement of a public official, provided the  
              official was under a duty to make it and it was based on  
              facts within the official's personal knowledge.  The  
              regular practice of the public office and the official  
              duty make the statement trustworthy, and public  
              functions could not be conveniently performed if  
              officers and deputies were constantly called as  
              witnesses to testify to the matters covered by official  
              statements.  (See 2 McCormick 6th, § 295; 5 Wigmore  
              (Chadbourn Rev.) § 1630 et seq.; 80 A.L.R.3d 414  
              [admissibility of public record in absence of express  
              statutory authorization]; 29A Am.Jur.2d (2008 ed.);  
              (Evidence § 1296.) (1 Witkin Cal. Evid. Hearsay § 245.)

          3.    Electronically Digitized Versions of Documents  

          This bill would make electronically digitized copies of an  
          official record of a criminal conviction admissible.  The  
          definition for electronically digitized copy requires that it  
          bear an electronic signature or watermark unique to the entity  
          responsible for certifying the document.  According to the  
          sponsor, it has been taking longer to obtain court certified  











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          copies of prior convictions which can cause problems with the  
          speedy trial timelines in a criminal case.  This bill would  
          allow them to use electronically digitized versions of the  
          documents.   
           

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