BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1867|
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                                   THIRD READING 


          Bill No:  AB 1867
          Author:   Steinorth (R) 
          Amended:  3/31/16 in Assembly
          Vote:     21 

           SENATE JUDICIARY COMMITTEE:  7-0, 6/14/16
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           ASSEMBLY FLOOR:  77-0, 4/11/16 - See last page for vote

           SUBJECT:   Evidence:  judicial notice:  official records of  
                     conviction


          SOURCE:    California District Attorneys Association


          DIGEST:  This bill, for purposes of judicial notice of criminal  
          conviction records, expands an existing definition of  
          "electronically digitized copy" to also allow a court to take  
          judicial notice of an electronically digitized copy of the  
          record that does not bear any electronic signature or watermark  
          as is currently required, 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 provides that a seal,  
          signature, or other indicia of the court shall constitute  
          adequate showing.


          ANALYSIS:  








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          Existing law:   


          1)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."   
          2)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.    



          1)Provides that the content of a writing may be proven by  
            introducing the otherwise admissible original.  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.  









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          1)Provides, under the Secondary Evidence Rule, 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 of the Evidence Code,  
            below, requiring authentication of a writing.  


          2)Requires, in a criminal action, that the court exclude  
            secondary evidence of the content of a writing under specified  
            circumstances.  This provision, 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. 


          3)Requires, under Section 1401 of the Evidence Code, that  
            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.  
             


          4)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.   


          1)Provides that a signature is presumed to be genuine and  
            authorized if it purports to be the signature, affixed in his  
            official capacity, of:

                 a public employee of the U.S.;








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                 a public employee of any public entity in the U.S.; or

                 a notary public within any state of the U.S.  


          1)Provides under Section 1530 of the Evidence Code, in relevant  
            part, 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. 


          1)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.  


          2)Provides, under Section 452.5 of the Evidence Code, 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.  


          3)Provides further that an official record of conviction  







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            certified in accordance with Section 1530, above, as  
            specified, 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 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. 


          This bill defines "electronically digitized copy," instead, 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: 

          1)the copy bears an electronic signature or watermark unique to  
            the entity responsible for certifying the document; or 

          2)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.


          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  
          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  







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          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  
          result of legislation enacted in 2013, SB 378 (Block, Chapter  
          150, Statutes of 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  







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          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 now expands "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.  


          Comment


          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. 








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


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/17/16)


          California District Attorneys Association (source)
          Judicial Council
          Los Angeles County District Attorney's Office
          San Bernardino County District Attorney's Office 


          OPPOSITION:   (Verified6/17/16)


          California Attorneys for Criminal Justice 


          ARGUMENTS IN SUPPORT:     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.








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            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  
            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.


          ARGUMENTS IN OPPOSITION:     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  







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            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.  


            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  







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            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. 

          ASSEMBLY FLOOR:  77-0, 4/11/16
          AYES:  Achadjian, Alejo, Travis Allen, Atkins, Baker, Bigelow,  
            Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos,  
            Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh,  
            Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher,  
            Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gordon,  
            Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin,  
            Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,  
            Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,  
            Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark  
            Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,  
            Wood
          NO VOTE RECORDED:  Gonzalez, Rendon

          Prepared by:Ronak Daylami / JUD. / (916) 651-4113
          6/17/16 15:03:45


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