Amended in Senate September 4, 2015

Amended in Senate July 8, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1328

Introduced by Assembly Member Weber

February 27, 2015

An act to begin insert amend Section 6086.7 of the Business and Professions Code, and to end insert add Section 1424.5 to the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

AB 1328, as amended, Weber. Criminal procedure: withholding of evidence.

Existing law requires the prosecuting attorney to disclose to the defendant or his or her attorney certain materials and information, including statements of all defendants and any exculpatory evidence, as specified. Existing law authorizes a court to grant a motion to disqualify a district attorney from performing an authorized duty, subject to specified procedural requirements.

This bill would begin delete require end delete begin insert authorize end insert a court, begin delete if the court determines that end delete begin insert upon receiving information that end insert the prosecuting attorney has deliberately and intentionally withheld relevant begin insert or material end insert exculpatory begin delete materials end delete begin insert evidence end insert or information in violation of law, begin insert to make a finding, supported by clear and convincing evidence, that a violation occurred. If the court makes such a finding, the bill would require the court end insert to inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense. The bill would authorize a court to disqualify an individual prosecuting attorney from a case if the court begin delete determines that the prosecuting attorney deliberately and intentionally withheld relevant exculpatory materials or information in that case in violation of law and that the prosecuting attorney acted in bad faith. end delete begin insert finds that a violation occurred in bad faith. end insert The bill would also begin delete authorize a court end delete begin insert authorize, upon a determination by a court to disqualify an individual prosecuting attorney from a case, the defendant or his or her counsel to file and serve a notice of a motion end insert to disqualify the prosecuting attorney’s office if there is sufficient evidence that other employees of the prosecuting attorney’s office knowingly begin insert and in bad faith end insert participated in or sanctioned the intentional withholding of the relevant begin insert or material end insert exculpatory begin delete materials end delete begin insert evidence end insert or information and that withholding is part of a pattern and practice of violations. The bill would specify that its provisions do not limit the authority or discretion begin delete of end delete begin insert of, or any requirement placed upon, end insert the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, begin insert requirements, end insert remedies, or actions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 6086.7 of the end insert begin insert Business and Professions
Code end insert begin insert is amended to read: end insert

6086.7.  

(a) A court shall notify the State Bar of any of the
following:

(1) A final order of contempt imposed against an attorney that
may involve grounds warranting discipline under this chapter. The
court entering the final order shall transmit to the State Bar a copy
of the relevant minutes, final order, and transcript, if one exists.

(2) Whenever a modification or reversal of a judgment in a
judicial proceeding is based in whole or in part on the misconduct,
incompetent representation, or willful misrepresentation of an
attorney.

(3) The imposition of any judicial sanctions against an attorney,
except sanctions for failure to make discovery or monetary
sanctions of less than one thousand dollars ($1,000).

(4) The imposition of any civil penalty upon an attorney pursuant
to Section 8620 of the Family Code.

begin insert

(5) A violation described in paragraph (1) of subdivision (a) of
Section 1424.5 of the Penal Code by a prosecuting attorney, if the
court finds that the prosecuting attorney acted in bad faith and
the impact of the violation contributed to a guilty verdict, guilty
or nolo contendere plea, or, if identified before conclusion of trial,
seriously limited the ability of a defendant to present a defense.

end insert

(b) In the event of a notification made under subdivision (a) the
court shall also notify the attorney involved that the matter has
been referred to the State Bar.

(c) The State Bar shall investigate any matter reported under
this section as to the appropriateness of initiating disciplinary
action against the attorney.

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

Section 1424.5 is added to the Penal Code, immediately
following Section 1424, to read:

1424.5.  

(a) (1)  begin delete If a court determines end delete begin insert Upon receiving
information end insert that a prosecuting attorney begin delete has end delete begin insert may have end insert deliberately
and intentionally withheld relevant begin insert or material end insert exculpatory
begin delete materials end delete begin insert evidence end insert or information in violation of law, begin insert a court may
make a finding, supported by clear and convincing evidence, that
a violation occurred. If the court finds such a violation, end insert the court
shall inform the State Bar of California of that violation if the
prosecuting attorney acted in bad faith and the impact of the
withholding contributed to a guilty verdict, guilty or nolo
contendere plea, or, if identified before conclusion of trial, seriously
limited the ability of a defendant to present a defense.

(2) A begin insert court may hold a end insert hearing to consider whether a
begin delete prosecuting attorney or his or her office should be disqualified end delete
begin insert violation occurred end insert pursuant to begin delete this section shall be initiated only
upon the court’s own motion. end delete begin insert paragraph (1). end insert

(b) (1)  begin delete Upon its own motion, a end delete begin insert If a court finds, pursuant to
subdivision (a), that a violation occurred in bad faith, the end insert court
may disqualify an individual prosecuting attorney from a begin delete case if
the court determines that the prosecuting attorney deliberately and
intentionally withheld relevant exculpatory materials or information
in that case in violation of law and that the prosecuting attorney
acted in bad faith. end delete begin insert case. end insert

(2)  begin delete The court may also end delete begin insert Upon a determination by a court to
disqualify an individual prosecuting attorney pursuant to
paragraph (1), the defendant or his or her counsel may file and
serve a notice of a motion pursuant to Section 1424 to end insert disqualify
the prosecuting attorney’s office if there is sufficient evidence that
other employees of the prosecuting attorney’s office knowingly
begin insert and in bad faith end insert participated in or sanctioned the intentional
withholding of the relevant begin insert or material end insert exculpatory begin delete materials end delete
begin insert evidence end insert or information and that withholding is part of a pattern
and practice of violations.

(c) This section does not limit the authority or discretion begin delete of end delete begin insert of,
or any requirement placed upon, end insert the court or other individuals to
make reports to the State Bar of California regarding the same
conduct, or otherwise limit other available legal authority,
begin insert requirements, end insert remedies, or actions.