BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
6
1
8
SB 618 (Leno)
As Amended April 15, 2013
Hearing date: April 23, 2013
Penal Code
JM:mc
COMPENSATION FOR EXONERATED INMATES
AND FORMER INMATES
HISTORY
Source: California Innocence Project
Prior Legislation: AB 316 (Solorio) - Ch. 432, Stats. 2009
AB 2937 (Solorio) -vetoed, 2008,
AB 1799 (Baugh) - Ch. 630, Stats. 2000
Support: American Civil Liberties Union of California;
Innocence Project of Northern California at Santa
Clara University School of Law; Southwestern Law
School; Equal Justice Society; Death Penalty Focus;
Friends Committee on Legislation; Amnesty
International Group 597, San Diego; San Diego
Coalition of SAFE California; John Van De Kamp, Chair,
California Commission on the Fair Administration of
Justice; Honorable, La Doris Cordell, Retired, State
Court Judge, Santa Clara County; Patrick Boyd, Chief
Probation Officer, Retired, San Francisco County;
Taxpayers for Improving Public Safety; California
(More)
SB 618 (Leno)
PageB
Public Defenders Association; Legal Services for
Prisoners with Children
Opposition:California District Attorneys Association; Crime
Victims Action Alliance
KEY ISSUE
SHOULD THE PROCESS FOR COMPENSATING PERSONS WHO HAVE BEEN EXONERATED
AFTER SERVING TIME INCARCERATED BE STREAMLINED AND CLARIFIED, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to streamline and clarity the
process for compensating exonorees, to 1) provide that a
unlawfully imprisoned or restrained person (exonoree) shall be
entitled to a recommendation by the Victims Compensation and
Government Claims Board (board) for compensation without a
hearing under the following circumstances: a) a court in a
habeas corpus proceeding or a motion to vacate a judgment finds
that the evidence unerringly points to the innocence of the
exonoree, b) a court issues a certificate of factual innocence
following a hearing, or c) a court issues a certificate of
innocence upon the stipulation by the prosecutor; or 2) provide
that where the district attorney or Attorney General stipulates
to or does not contest the factual basis for the granting of a
writ of habeas corpus or motion to vacate a judgment those facts
shall be binding on the board, the fact finder at the hearing
and the Attorney General; 3) provide that factual findings of
the court, including witness credibility determinations, made in
considering a petition for habeas corpus or motion to vacate a
judgment shall be binding on the board, the fact finder and the
Attorney General; 4) provide that an innocent person who has
served an executed felony sentence in a jail may be entitled to
compensation; 5) provide that the Attorney General shall have 60
(More)
SB 618 (Leno)
PageC
days to respond to a claim for compensation filed with the
board, with extensions of time for good cause; 6) include
executed felony jail terms in the method for calculating the
statute of limitations for bringing a claim for compensation; 7)
provide that a person who committed fraud or obstruction of
justice in relation to a conviction shall not be entitled to
compensation; and 8) to strike a provision in existing law
prohibiting compensation where the claimant contributed to his
conviction, including a plea of guilty or admission that was not
involuntary.
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.
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 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 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 includes procedures for the filing and hearing of a
petition for a writ of habeas corpus, which allows a person to
challenge his or her incarceration or related restraint as
unlawful. (Pen. Code §§1474-1508.)
Existing law describes specific grounds for a writ of habeas
(More)
SB 618 (Leno)
PageD
corpus, including:
False evidence that was material or substantially
probative on the issue of guilt or punishment was
introduced against the person at a trial or hearing related
to the petitioner's incarceration.
A person entered a guilty plea based on false physical
evidence that the person entering the plea believed to be
true.
The specified grounds for a writ of habeas corpus do not
limit any other valid grounds for the writ or other
available remedies. (Pen. Code §1473.)
Existing law provides that a person who is no longer unlawfully
imprisoned or restrained as a result of a criminal conviction
may file a motion to vacate the judgment for the following
reasons:
Newly discovered evidence of fraud by a government
official completely and conclusively undermines the
prosecution's case and points unerringly to innocence
Newly discovered evidence that a government official
testified falsely at trial and the testimony was
substantially material and probative on the issue of guilt.
(Pen. Code §1474.6.)
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
(More)
SB 618 (Leno)
PageE
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 Victims Compensation and Government Claims Board
(board) 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 board, 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. (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 provides that an unlawfully imprisoned person
(exonoree) shall be entitled to a recommendation by the board
for compensation without a hearing under the following
circumstances:
A court in a habeas corpus proceeding finds that the
evidence unerringly points to the innocence of the
exonoree.
(More)
SB 618 (Leno)
PageF
A court in a motion to vacate a judgment<1> finds that
the evidence unerringly points to the innocence of the
exonoree.
A court issues a certificate of innocence upon the
stipulation by the prosecutor.
A court issues a certificate of factual innocence
following a hearing.
This bill provides that where the district attorney or Attorney
General stipulates to or does not contest the factual basis for
the granting of a writ of habeas corpus or motion to vacate a
judgment, those facts shall be binding on the board, the fact
finder and the Attorney General.
This bill provides that factual findings, including witness
credibility determinations, made by a court in a hearing on a
habeas corpus petition or a motion to vacate a judgment shall be
binding on the board, the fact finder and the Attorney General
in a proceeding to consider a claim filed by a person who
alleges that he or she is entitled to compensation despite his
or her innocence.
This bill provides that an innocent person who has served an
executed felony sentence in a jail may be entitled to
compensation. The bill includes felony jail terms in the method
for calculating the statute of limitations for filing a claim.
This bill provides that the Attorney General shall have 60 days
to respond to a claim for compensation filed with the board, and
that extensions of time may be granted for good cause
This bill strikes a provision in existing law denying
compensation to any person who contributed to his or her
conviction, including through a guilty plea or confession that
---------------------------
<1> As noted in existing law, a petition for habeas corpus
concerns a person who is unlawfully imprisoned or restrained. A
motion to vacate a judgment is filed by a person who is no
longer in prison or restrained because of a criminal conviction.
The motion has been traditionally known as a writ of coram
nobis.
(More)
SB 618 (Leno)
PageG
was not legally involuntary.
This bill provides that a person who committed fraud or
obstruction of justice in relation to a conviction shall not be
entitled to compensation.
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 issued by the Three-Judge Court three years
earlier 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
(More)
SB 618 (Leno)
PageH
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's 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.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. 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.
COMMENTS
1. Need for This Bill
(More)
SB 618 (Leno)
PageI
According to the author
120 men and women from California have been listed on
the National Registry of Exonerations. This database
tracks and reports the cases of individuals whose
convictions have been completely dismissed or reversed
by the court or by the prosecution due to a showing of
innocence. California has surpassed all other states
in this dubious distinction including Illinois (110),
Texas (100) and New York (100). 40% of the men and
women listed were originally sentenced to life in
prison, life without the possibility of parole, or
death.
Fortunately, California law offers a remedy for the
men and women that prove their innocence and thereby
secure their freedom by providing compensation in the
amount of $100 for each day he or she spent illegally
behind bars away from society, employment, and their
loved ones. California's compensation statute became
law with a single dissenting vote in 2000, and while
well intended, has been grossly underutilized due to a
number of barriers that deny access to the very
population the funds were designed to assist.
Since the year 2000, of the 132 men and women released
from custody after serving time for murder, rape, or
another serious offense they did not commit, only 11
were granted an approval and recommendation for
payment by the California Victim Compensation and
Government Claims Board (VCGCB) allowing them to get
on with their lives and get back on their feet.
Exonerees who have been denied compensation include
individuals who were found to be "unerringly innocent"
by a trial court and those whose convictions were
reversed based on DNA evidence and findings of factual
innocence.
Take for example Timothy Atkins who was imprisoned for
(More)
SB 618 (Leno)
PageJ
a crime he didn't commit for 23 years before a witness
recanted her testimony. After more than two decades
behind bars, the same judge that heard his original
case found that the new evidence pointed to unerring
innocence and stated on the record that the witness
testimony on which his conviction was based was not
credible and could not be believed.
Timothy Atkins entered jail at 17. He exited as a 40
year-old man. And what did the state offer him for
all of those years of unlawful custody? Because he
was innocent, and not on parole, he was not allowed
access to post-release services. Because he was
innocent, he was worse off than a convicted felon
because he was not even entitled to the gate money
that parolees receive after serving their sentence.
After years of unlawful imprisonment, Timothy Atkins's
claim for relief from the Victim Compensation Board
was denied.
Under our current system, an innocent person must go
through the intensely arduous task of proving their
innocence in a full court hearing by completely
dismantling the state's case. And then, he or she
must start again from scratch in a completely new and
separate administrative process - a process in which
the innocence that he or she has previously proven is
ignored or discounted and the rules of evidence of a
trial court do not apply. It's like winning a
marathon, only to find that the prize for winning is
to run an ultra-marathon, at the end of which you are
likely to get nothing.
Inmates are often exonerated and released with much
fanfare and publicity. However, after their fifteen
minutes of fame are over, the exonerated are left with
scars from years of pain and frustration spent
fighting a system that often fails to acknowledge its
mistakes and even more rarely offers an apology.
Although many of the exonerated possess unfathomable
(More)
SB 618 (Leno)
PageK
courage, determination, and heart, they often lack the
resources and skills to muster their way unassisted
through the labyrinth of requirements necessary to see
their compensation claim through.
SB 618 addresses this problem by creating a fair and
efficient review process that reduces a number of
obstacles that continue to prevent eligible exonerees
from gaining access to meaningful compensation for
their unlawful imprisonment.
2. Background - Legal Principles and Procedures Applicable to
Cases of Exoneree Compensation
Habeas Corpus Petitions and Motions to Vacate a Judgment -
Determinations of Innocence
The writ of habeas corpus is used to challenge a person's
unlawful incarceration. Habeas corpus is one of the foundations
of justice in the United States and the United Kingdom. It
dates from the late 17th Century. A habeas corpus petition also
may be used to challenge unlawful parole and similar restraints
on a person's liberty. California habeas corpus statutes are
found in Penal Code Sections 1473 through 1508. Another writ -
coram nobis - challenges the basis for a conviction and
punishment after a person has served his or her sentence and is
no longer being directly restrained by the state. The writ of
coram nobis is described in California statutes as a motion to
vacate a judgment. (Pen. Code § 1473.6.)
This bill provides that any person whose conviction was reversed
in a habeas corpus proceeding or motion to vacate a judgment
shall be entitled to compensation from the state without the
need for an additional hearing where the court that heard the
petition or motion found that the evidence at the proceeding
pointed unerringly to innocence. The person's burden is
extremely high, as the petitioner is attacking a judgment that
(More)
SB 618 (Leno)
PageL
is presumed to be correct, such that every reasonable inference
to support the judgment will be drawn by a reviewing court.
(Crawford v. Southern Pacific (1935) 3 Cal.2d 427, 429.)
In order for a person to obtain a reversal of conviction on the
basis that he or she is unerringly innocent, the person must
essentially destroy the entire basis for the prosecution's case.
"A criminal judgment may be collaterally attacked on habeas
corpus on the basis of newly discovered evidence if such
evidence casts fundamental doubt on the accuracy and reliability
of the proceedings. At the guilt phase, such evidence, if
credited, must undermine the entire prosecution case and point
unerringly to innocence or reduced culpability. (In re Hall
(1981) 30 Cal.3d 408, 417, italics in original; see also, In re
Lindley (1947) 29 Cal.2d 709 and In re Hardy (2008) 42 Cal.4th
1231.) The burden of establishing actually innocent is much
higher than a preponderance of the evidence. (In re Lawley
(2008) 42 Cal.4th 1231 1239-1240.)
Petitions for a Finding of Factual Innocence under Penal Code
Section 851.8
The bill also provides that where a person succeeds in obtaining
a certificate of factual innocence from a court pursuant to
Penal Code Section 851.8, he or she shall be entitled to
compensation for felony imprisonment without the need for a
hearing in front of the board. A certificate of factual
innocence is granted where the court finds there was no basis
for a person's arrest and prosecution. (People v. Adair (2003)
29 Cal.4th 895.)
A 2003 appellate case succinctly summarized the basis for and
effect of a certificate of factual innocence:
Section 851.8 is for the benefit of those defendants
who have not committed a crime. It permits those
petitioners who can show that the state should never
(More)
SB 618 (Leno)
PageM
have subjected them to the compulsion of the criminal
law--because no objective factors justified official
action--to purge the official records of any reference
to such action. . . . Hence, much more than a failure
of the prosecution to convict is required in order to
justify the sealing and destruction of records under
section 851.8. Establishing factual innocence . . .
entails establishing as a prima facie matter not
necessarily just that the [defendant] had a viable
substantive defense to the crime charged, but more
fundamentally that there was no reasonable cause to
arrest him in the first place. (People v. Adair (2003)
29 Cal.4th 895, 905, citations omitted.)
This bill also provides that where the prosecutor stipulates to
the granting of a finding of factual innocence, the claimant
shall be entitled to compensation. The court in Tennison v.
California Victim Compensation and Government Claims Board
(2007) 152 Cal.App.4th 1164 held that a finding of factual
innocence under Penal Code Section 851.8 does not have
collateral estoppel effect in a compensation matter. Collateral
estoppel and res judicata essentially mean that a party who has
had a full and fair opportunity to litigate an issue may not
re-litigate the issue in a later proceeding. (Id, at p. 1174;
In re Crow (1971) 4 Cal.3d 613, 622.)
The Tennison decision is complex, but one of the core reasons it
cited for not making the finding of factual innocence in the
Section 851.8 proceeding in that case binding on the
compensation board was that the issue of innocence was not
actually litigated. The district attorney in that conceded
Tennisons' petition. There was no indication that the district
attorney intended his concession to bind the Attorney General in
a compensation claim.
The court in Tennison did note that the issues in a compensation
case and in a Section 851.8 case are the same in "the rare case
where a defendant's conviction has been overturned for
insufficient evidence." (Tennison v. Victim Comp. Bd., at
1179.) Those rare cases are considered in this bill.
(More)
SB 618 (Leno)
PageN
Further, this bill would establish that a stipulation or
concession by a district attorney to a finding of factual
innocence would have consequences in a compensation case.
Prosecutors could seek to avoid that consequence by litigating
petitions for a finding of factual innocence.
AS THIS BILL COULD ENTITLE A PERSON TO COMPENSATION WHO OBTAINS
A FINDING OF FACTUAL INNOCENCE, WOULD THIS BILL CREATE AN
INCENTIVE FOR PROSECUTORS TO FULLY LITIGATE PETITIONS FOR A
FINDING OF FACTUAL INNOCENCE?
Factual Findings by a Court in a Litigated Petition are binding
on the Board and the Attorney General
(More)
The bill provides that where the district attorney or Attorney
General stipulates to or does not contest the factual
allegations for granting a habeas corpus petition or a motion to
vacate a judgment, those facts are binding on the board and the
Attorney General. As with stipulations of the district attorney
in a petition for a finding of factual innocence, this provision
may give prosecutors and the Attorney General incentive to
contest or dispute important factual allegations in these
proceedings.
This bill also provides that factual findings by a court,
including determinations of witness credibility, in a habeas
proceeding, motion to vacate a judgment, or petition for a
finding of factual innocence shall be binding on the board in a
hearing for compensation for wrongful imprisonment. Court
hearings are generally subject to the rules of evidence and each
side can subpena witnesses. The court directly hears testimony
and reviews relevant documents, scientific evidence and
demonstrative evidence. Trial courts are trained jurists with
substantial trial experience. It is a maxim of jurisprudence
that a court that did not directly hear and see evidence - such
as a court hearing an appeal of a conviction - shall defer to
the factual findings of a trial court that heard the evidence.
(Crawford v. Southern Pacific, supra, 3 Cal2d at p. 429.)
In contrast, board hearing officers are not judges, but rather
are attorneys hired by the board and trained in the compensation
hearing process. Hearings in front of the board are not subject
to the rules of evidence applicable in trials, and the board
does not have the power to issue subpenas for witnesses. (2
C.C.R. §§ 640-644.)
It appears from discussions with representatives of the board
and the Attorney General's office that the board essentially
seeks a recommendation from the Attorney General as to whether
or not a claim should be paid. The governing statute, however,
provides that the Attorney General may oppose the claim. (Pen.
Code § 4900.) This arguably puts the Attorney General in
conflicting roles of advisor to the hearing officer and
(More)
SB 618 (Leno)
PageP
adversary. Further, the Attorney General has usually been the
adversary counsel opposing the claimant in appeals and the writ
process.
SHOULD FACTUAL FINDINGS MADE BY A COURT IN A HEARING ON A HABEAS
CORPUS PETITION OR MOTION TO VACATE A JUDGMENT BE BINDING IN A
COMPENSATION CLAIM HEARING?
SHOULD CONCESSIONS AND STIPULATIONS OF FACT BY A PROSECUTOR OR
THE ATTORNEY GENERAL IN A HABEAS PETITION OR MOTION TO VACATE
JUDGMENT BE BINDING IN A COMPENSATION CLAIM HEARING?
WOULD THE BINDING NATURE OF FACTS DETERMINED IN A HABEAS CORPUS
PROCEEDING OR MOTION TO VACATE JUDGMENT GIVE A DISTRICT ATTORNEY
OR THE ATTORNEY GENERAL INCENTIVE TO DISPUTE OR CONTEST FACTUAL
ALLEGATIONS IN THESE MATTERS?
California District Attorneys Association: Concerns that a
Defendant Convicted on Retrial could be Compensated based on
Facts found in a Habeas Proceeding
The California District Attorneys Association has argued that a
person could have a conviction reversed for legal error - not
insufficiency of the evidence - and face retrial of the charges
that were reversed. The person could still file a claim for
compensation and rely on factual findings in his or her favor
from the habeas proceeding, despite the pending or completed
retrial. CDAA objects to the possibility that a person could
obtain a grant of compensation and still be convicted in the
second trial. While this scenario is theoretically possible, it
appears to be extremely unlikely. All material factual findings
from the habeas proceeding would be binding on the board, not
just those favorable to the claimant. Further, the Attorney
General would have full access to the prosecution's evidence
countering any claim of innocence and would present that
evidence to the board.
***************
SB 618 (Leno)
PageQ