BILL NUMBER: AB 1328 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 4, 2015
AMENDED IN SENATE JULY 8, 2015
INTRODUCED BY Assembly Member Weber
FEBRUARY 27, 2015
An act to amend Section 6086.7 of the Business and
Professions Code, and to 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 require authorize a
court, if the court determines that upon
receiving information that the prosecuting attorney has
deliberately and intentionally withheld relevant or material
exculpatory materials evidence or
information in violation of law, 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 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 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. finds that a violation occurred in bad faith.
The bill would also authorize a court
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
to disqualify the prosecuting attorney's office if there is
sufficient evidence that other employees of the prosecuting attorney'
s office knowingly and in bad faith participated in or
sanctioned the intentional withholding of the relevant or
material exculpatory materials evidence
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 of of,
or any requirement placed upon, 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,
requirements, 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:
SECTION 1. Section 6086.7 of the
Business and Professions Code is amended to read:
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.
(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.
(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.
SECTION 1. SEC. 2. Section 1424.5 is
added to the Penal Code, immediately following Section 1424, to read:
1424.5. (a) (1) If a court determines Upon
receiving information that a prosecuting attorney has
may have deliberately and intentionally
withheld relevant or material exculpatory
materials evidence or information in violation
of law, a court may make a finding, supported by clear and
convincing evidence, that a violation occurred. If the court finds
such a violation, 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 court may hold a hearing to consider whether a
prosecuting attorney or his or her office should be
disqualified violation occurred pursuant to
this section shall be initiated only upon the court's own
motion. paragraph (1).
(b) (1) Upon its own motion, a If a court
finds, pursuant to subdivision (a), that a violation occurred in bad
faith, the court may disqualify an individual prosecuting
attorney from a 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.
case.
(2) The court may also 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 disqualify the prosecuting attorney's office if there
is sufficient evidence that other employees of the prosecuting
attorney's office knowingly and in bad faith participated
in or sanctioned the intentional withholding of the relevant or
material exculpatory materials evidence
or information and that withholding is part of a pattern and
practice of violations.
(c) This section does not limit the authority or discretion
of of, or any requirement placed upon,
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, requirements, remedies, or
actions.