BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1867 (Steinorth)
          Version: March 31, 2016
          Hearing Date:  June 14, 2016
          Fiscal: No
          Urgency: No
          RD   


                                        SUBJECT
                                           
             Evidence:  judicial notice:  official records of conviction

                                      DESCRIPTION  

          Existing law provides that an official record of conviction  
          certified in accordance with specified law, or an electronically  
          digitized copy thereof, 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.  Existing law  
          defines, "electronically digitized copy" to require, among other  
          things, that the copy bear an electronic signature or watermark  
          unique to the entity responsible for certifying the document.

          This bill would now expand this definition of "electronically  
          digitized copy" to also include a copy that does not bear an  
          electronic signature or watermark, but that, instead, is a  
          certified copy of an official record of conviction, as  
          specified, that has been transmitted by the clerk of the  
          superior court in a manner showing that the copy was prepared  
          and transmitted by that clerk of the superior court.  This bill  
          would provide that a seal, signature, or other indicia of the  
          court shall constitute adequate showing.

                                      BACKGROUND  

          Under the doctrine of "judicial notice," certain matters are  
          assumed to be indisputably true, and the introduction of  
          evidence to prove them will not be required. Judicial notice is  
          thus a substitute for formal proof.  (See generally Evid. Code  








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          Sec. 450 et seq.)  The use of judicial notice as a substitute  
          for formal proof of matters that cannot be successfully  
          controverted is seen as a highly desirable means of saving time  
          and money.  Nevertheless, considerations of relevance remain  
          applicable.  Thus, even material for which judicial notice might  
          seem mandatory may be excluded under other provisions of the  
          Evidence Code, such as Section 350, which provides that only  
          relevant evidence is admissible, or Section 352, which allows  
          for the exclusion of otherwise relevant evidence where its  
          probative value is substantially outweighed by the probability  
          of its prejudicial effect.  (See 1 Witkin Cal. Evid. Judicial  
          Notice Sec. 1,

          There are certain matters listed under Section 451 of the  
          Evidence Code of which judicial notice must be taken (compulsory  
          judicial notice) regardless of whether a party makes a request.   
          These include for example, the decisional, constitutional, and  
          public statutory law of this state and of the United States, as  
          well as facts and propositions of generalized knowledge that are  
          so universally known that they cannot reasonably be the subject  
          of dispute.  There are other broader matters listed in Section  
          452 of the Evidence Code as to which judicial notice "may" be  
          taken (optional judicial notice-though once a party requests it,  
          it becomes compulsory and the court must grant judicial notice  
          under Section 453 of the Evidence Code).  (See id. at Sec. 4.)   
          Those include, for example, official acts of the legislative,  
          executive, and judicial departments of the United States and of  
          any state of the United States, as well as any court records of  
          this state, or any court of record of the United States or of  
          any state of the United States.  (Evid. Code Sec. 452(c), (d).) 

          Of particular relevance to this bill, the Criminal Convictions  
          Record Act, Section 452.5 of the Evidence Code, provides that  
          such official acts and records (of which judicial notice may be  
          taken) include 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.  Most pertinent to this bill, this  
          section also allows an official record of conviction, certified  
          as a correct copy by a public employee, or a deputy of a public  
          employee, having the legal custody of the writing (or by other  
          authorized method), to be admitted 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.  Moreover, as a  







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          result of legislation enacted in 2013, SB 378 (Block, Ch. 150,  
          Stats. 2013), an electronically digitized copy of an official  
          record of conviction is also admissible under this Act 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 as well.    
          That legislation specified that for these purposes,  
          "electronically digitized copy" means a copy that: (1) is made  
          by scanning, photographing, or otherwise exactly reproducing a  
          document;  (2) is stored or maintained in a digitized format;  
          and (3) bears an electronic signature or watermark unique to the  
          entity responsible for certifying the document.

           This bill would now expand "electronically digitized copy" for  
          these purposes to include a copy that: (1) is made by scanning,  
          photographing, or otherwise exactly reproducing a document; (2)  
          is stored or maintained in a digitized format; and (3) is  
          certified as an official record of conviction, as specified, and  
          transmitted by the superior court clerk in a manner showing  
          (such as by a seal, signature, or other indicia of the court)  
          that the copy was prepared and transmitted by that clerk.  

                                CHANGES TO EXISTING LAW
           
          Existing law  defines "hearsay evidence" as 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.  Existing law provides that, except as provided  
          by law, hearsay evidence is inadmissible.   These provisions are  
          collectively known as the "hearsay rule."  (Evid. Code Sec.  
          1200.)  
          
           Existing law  provides that evidence of a writing made as a  
          record of an act, condition, or event is not made inadmissible  
          by the hearsay rule when offered in any civil or criminal  
          proceeding to prove the act, condition, or event, if:
           the writing was made by and within the scope of duty of a  
            public employee;
           the writing was made at or near the time of the act,  
            condition, or event; and 
           the sources of information and method and time of preparation  
            were such as to indicate its trustworthiness.  (Evid. Code  
            Sec. 1280.)  
          
           Existing law  , provides that the content of a writing may be  







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          proven by introducing the otherwise admissible original.  (Evid.  
          Code Sec. 1520.) Existing law, the "Secondary Evidence Rule,"  
          provides that the content of a writing may also be proved by  
          otherwise admissible secondary evidence.  The Secondary Evidence  
          Rule further requires, however, that the court exclude secondary  
          evidence of the content of writing if the court determines  
          either of the following:
           a genuine dispute exists concerning material terms of the  
            writing and justice requires the exclusion; or 
           admission of the secondary evidence would be unfair.  (Evid.  
            Code Sec. 1521(a).)  

           Existing law,  the Secondary Evidence Rule provides that nothing  
          in the above makes admissible oral testimony to prove the  
          content of a writing if the testimony is inadmissible under  
          specified law regarding oral testimony of the content of a  
          writing.
          Existing law further provides that nothing in these provisions  
          excuses compliance with Section 1401, below, requiring  
          authentication of a writing.  (Evid. Code Sec. 1521(b), (c).) 

           Existing law  requires, in a criminal action, that the court  
          exclude secondary evidence of the content of a writing under  
          specified circumstances.  This section, however, does not apply  
          to, among other things, a copy of a writing in the custody of a  
          public entity, or a copy of a writing that is recorded in the  
          public records, if the record or a certified copy of it is made  
          evidence of the writing by statute.  (Evid. Code Sec. 1522(a).) 

           Existing law  requires authentication of a writing before it can  
          be received in evidence and also requires authentication of a  
          writing before secondary evidence of its content can be received  
          in evidence.  (Evid. Code Sec. 1401.).

           Existing law  provides that a seal is presumed to be genuine and  
          its use authorized if it purports to be the seal of, among other  
          things:
           the United States (U.S.) or a department, agency, or public  
            employee of the U.S.;
           a public entity in the U.S. or a department, agency, or public  
            employee of such public entity; or 
           a notary public within any state of the U.S.  (Evid. Code Sec.  
            1452.) 

           Existing law  provides that a signature is presumed to be genuine  







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          and authorized if it purports to be the signature, affixed in  
          his official capacity, of:
           a public employee of the U.S.;
           a public employee of any public entity in the U.S.; or
           a notary public within any state of the U.S.  (Evid. Code Sec.  
            1453.)

           Existing law , in relevant part, provides that a purported copy  
          of a writing in the custody of a public entity, or of an entry  
          in such a writing, is prima facie evidence of the existence and  
          content of such writing or entry if:
           the copy purports to be published by the authority of the  
            nation or state, or public entity therein in which the writing  
            is kept; 
           the office in which the writing is kept is within the U.S or  
            specified territories and the copy is attested or certified as  
            a correct copy of the writing or entry by a public employee,  
            or a deputy of a public employee, having the legal custody of  
            the writing; or 
           the office in which the writing is kept is not within the U.S.  
            or any other territory described, above, and the copy is  
            attested as a correct copy of the writing or entry by a person  
            having authority to make attestation, as specified. (Evid.  
            Code Sec. 1530(a).)

           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 U.S. and any state of  
          the U.S., and records of any court of this state, any other  
          state or the U.S.  (Evid. Code Sec. 452(c), (d).)

           Existing law  provides that the official acts and records  
          specified above include any computer-generated official court  
          records, as specified by the Judicial Council, that relate to  
          criminal convictions, when the record is certified by a superior  
          court clerk pursuant to the Government Code at the time of  
          computer entry.  (Evid. Code Sec. 452.5(a).) 
           
           Existing law  provides that an official record of conviction  
          certified in accordance with specified law above, or an  
          electronically digitized copy thereof, 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.  Existing  
          law provides "electronically digitized copy" means a copy that  







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          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. (Evid. Code  
          Sec. 452.5.)
          
           This bill  would, now, define "electronically digitized copy" to  
          mean a copy that is made by scanning, photographing, or  
          otherwise exactly reproducing a document, is stored or  
          maintained in a digitized format, and meets either of the  
          following: 
           the copy bears an electronic signature or watermark unique to  
            the entity responsible for certifying the document; or 
           the document that is copied is an official record of  
            conviction, certified in accordance with existing law, that is  
            transmitted by the superior court clerk in a manner showing  
            that the copy was prepared and transmitted by that clerk.  A  
            seal, signature, or other indicia of the court shall  
            constitute adequate showing.

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author: 

            Although courts are already allowed to prepare such documents  
            electronically, the requirement to use electronic signatures  
            or watermarks prevents most courts from using the electronic  
            system due to the lack of training, funds, and resources  
            required for implementation.  Consequently, the system is  
            outdated as courts continue to use paper hard copies of  
            records. In using paper copies, [district attorney] offices  
            and other attorneys are often required to physically travel  
            back and forth to court clerk offices to obtain these records,  
            instead of being able to e-mail them. 

            By allowing courts to scan or photocopy existing paper records  
            for digital use, we can modernize our court system without  
            requiring any new equipment or additional training. Instead,  
            court clerks will be able to use existing equipment they are  
            already familiar with to transmit documents electronically. 

            AB 1867 will [ . . . ] allow for the use of copies of official  
            records of conviction. Instead of requiring that conviction  







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            records must be prepared electronically with electronic  
            signatures or watermarks, this bill will allow court clerk  
            offices to scan/photocopy existing hard copy records in order  
            to store or transmit them electronically. The copied records  
            must contain a seal, signature, or other indicia of the court  
            for purposes of ensuring authenticity.

          The sponsor of this bill, the California District Attorneys  
          Association, writes that:

            District Attorney offices around the state have large rooms  
            overflowing with certified paper records of prior convictions  
            for use in court when defendants commit a crime and we need to  
            prove that they have suffered a prior conviction that affects  
            their sentence. These have been obtained over the years by  
            ordering them from court clerks' offices when needed to prove  
            a prior conviction, and they are saved for later use should  
            the defendant commit another crime where that prior conviction  
            needs to be proven again.

            As more DA offices move to paperless systems, we need to be  
            able to scan and save those documents electronically.  We  
            would further like to obtain these records from court clerks'  
            offices via email or fax and keep that record in the first  
            instance only in its electronic form. Right now, we cannot do  
            either of these things, because a scanned, faxed, or  
            electronic copy of a certified copy of a prior conviction from  
            the court is inadmissible.

            Currently, California law allows court clerks' offices to  
            prepare records of prior convictions electronically, and if  
            they are so prepared, to allow them to be presented in court  
            electronically.  In order to take advantage of this law, a  
            court clerk's office would have to affix an electronic  
            signature or watermark to the electronically certified  
            documents. While it may not seem difficult or costly to  
            acquire the technology, train the staff, and actually put in  
            place the method of preparing such documents electronically,  
            with court budgets under tremendous strain, it is not  
            happening.  Instead, we continue to receive certified copies  
            of prior convictions in paper form with original signatures on  
            the certifications.

            [ . . . ] AB 1867 would allow for the introduction of  
            electronic copies, faxes, or paper copies of certified prior  







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            documents, which would make it easier to adopt paperless court  
            procedures for all parties. This would allow the electronic  
            storage and presentation of certified prior documents, and  
            also allow court clerks' offices to use their existing  
            certification methods for prior documents, but to just send  
            them electronically to all counsel for use in court.

          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.  (Evid. Code Sec. 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 1 Witkin Cal. Evid. Hearsay Sec. 245  
            (internal citations omitted).)

          Currently, computer-generated official court records of criminal  
          records are admissible for purposes of judicial notice, and,  
          moreover, an official record of conviction certified as a  
          correct copy by a public employee, as otherwise required under  
          the law, is admissible as a record by a public employee under  
          Section 1280 of the Evidence Code to prove the conviction,  
          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.  In line with the  
          longstanding hearsay exception outlined, above, Section 1280  
          reflects an exception to the hearsay rule for certain writings  
          made as a record of an act, condition, or event.  Under that  
          section, such a writing is not considered inadmissible by the  
          general hearsay rule when offered in any civil or criminal  







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          proceeding to prove the act, condition, or event, as long as:  
          (1) the writing was made by and within the scope of duty of a  
          public employee; (2) the writing was made at or near the time of  
          the act, condition, or event; and (3) the sources of information  
          and method and time of preparation were such as to indicate its  
          trustworthiness.

          In 2013, SB 378 (Block, Stats. 150, Stats. 2013) was enacted to  
          also make electronically digitized copies of these records  
          admissible to prove the conviction, 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.  Pursuant to that bill, however, the definition for an  
          electronically digitized copy requires that it not only be made  
          by scanning, photographing, or otherwise exactly reproducing a  
          document, and be stored or maintained in a digitized format, but  
          that it "bear an electronic signature or watermark unique to the  
          entity responsible for certifying the document."  At the time,  
          it was asserted by the bill's sponsor (the San Diego District  
          Attorney) that it has been taking longer to obtain court  
          certified copies of prior convictions which can cause problems  
          with the speedy trial timelines in a criminal case.  (See Sen.  
          Pub. Safety Committee analysis of SB 378 (2013-2014 Reg.  
          Session) Apr. 9, 2013, p. 4.)  

          This bill, sponsored by the California District Attorneys  
          Association (CDAA), would now expand the types of electronically  
          digitized copies of these criminal conviction records that the  
          courts can take judicial notice of in civil or criminal cases.   
          Specifically, under this bill, an electronic digitized copy  
          could now include a copy that does not bear an electronic  
          signature or watermark, but that, instead, is a certified copy  
          of an official record of conviction that is transmitted by the  
          clerk of the superior court in a manner showing that the copy  
          was prepared and transmitted by that clerk of the superior  
          court.  For these purposes, the bill expressly provides that a  
          seal, signature, or other indicia of the court would constitute  
          adequate showing.   

          In support, the Judicial Council of California writes that "[b]y  
          expanding the definition of 'electronically digitized copy' the  
          council believes AB 1867 will enhance the ability of courts to  
          increase efficiencies by taking advantage of emerging  
          technologies." 
          3.   Opposition  







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          The California Attorneys for Criminal Justice writes in  
          opposition: 

            Thousands of prison sentences in California are increased or  
            extended based upon prior convictions.  These sentences are  
            often doubled or more based on prior convictions.  Judges who  
            impose sentences rely on prior convictions as well.  Therefore  
            it is critical that precise safeguards are utilized to ensure  
            documents admitted under "judicial notice" are accurate.  

            AB 1867 may be well intentioned, however, it weakens the  
            definition of "electronically digitized copy" and therefore  
            opens the door to courts relying on inaccurate documents.   
            Currently, Evidence Code 452.5 requires an electronic  
            signature or unique watermark [be] affixed to [the] document  
            to be considered an "electronically digitized copy."  These  
            markings essentially attach to the electronic document to  
            ensure that the document is not altered in any way as it  
            passes through various hands.  Unfortunately, AB 1867 makes  
            this electronic signature or watermark requirement optional.  

            It appears that this bill would allow a court record to be  
            emailed directly to a prosecutor, and the prosecutor could  
            simply print out the document and bring it to court to request  
            judicial notice of the document.  [ . . . ] AB 1867 simply  
            requires that the email sent to the prosecutor's office  
                                                                                        include a signature that it is being sent directly from a  
            court clerk.  This is common when prosecutors seek to  
            introduce convictions from other counties.  There is no  
            requirement that the document itself have a unique identifier  
            affixed to it to ensure authenticity.  Documents go through  
            many hands in a district attorney's office.  It is critical  
            that an emailed copy contain an identifier directly affixed to  
            it to ensure that no one intentionally or otherwise alters it.  
             This bill opens the door to mischief.  Essentially, after a  
            document is printed out, it could be altered before being  
            presented to a court for judicial notice.  It could also be  
            altered by someone other than the prosecutor who appears in  
            court, and she would have no basis to determine whether the  
            document is in fact an identical copy in a court file.  There  
            are no safeguards attached to the document itself.  While the  
            overwhelming majority of prosecutors in California are highly  
            professional and ethical, there are too many examples of  
            prosecutorial misconduct.  







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            Recently, a prosecutor in Kern County falsified a transcript  
            of an interrogation to include a fabricated statement of  
            admission of guilt by the accused.  The prosecutor claimed the  
            alteration was a bad joke that was being misconstrued.   
            However, this demonstrates how easy it is for a prosecutor to  
            falsify a document when there is no requirement for a  
            certifying watermark.  [ . . . ]  This bill may be well  
            intentioned, but it weakens key protections in current law. 


           Support  :  Judicial Council; Los Angeles County District  
          Attorney's Office; San Bernardino County District Attorney's  
          Office

           Opposition  :  California Attorneys for Criminal Justice

                                        HISTORY
           
           Source  :  California District Attorneys Association

           Related Pending Legislation  :  None Known 

           Prior Legislation  :  SB 378 (Block, Ch. 150, Stats. 2013) See  
          Comment 2. 

           Prior Vote  :

          Assembly Floor (Ayes 77, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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