BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1087       Hearing Date:    March 29, 2016    
          
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          |Author:    |Anderson                                             |
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          |Version:   |February 17, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|MK                                                   |
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                 Subject:  Evidence:  Production of Business Records



          HISTORY

          Source:   California District Attorneys Association

          Prior Legislation:None

          Support:  California Police Chiefs Association

          Opposition:None known

                                                


          PURPOSE

          The purpose of this bill is to provide for the admissibility of  
          business documents produced by search warrant.

          Existing law provides that if the original records would be  
          admissible in evidence if the custodian or other qualified  
          witness had been present and testified in matters stated in an  
          affidavit accompanying copies of business records then the  
          affidavit is admissible as evidence of the matters state therein  
          and are presumed to be true. (Evidence Code § 1562)








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          Existing law provides that when a subpoena duces tecum is served  
          upon the custodian of records of a business in an action in  
          which the business is neither a party nor the place where the  
          action is alleged to have taken place, it is sufficient  
          compliance if the custodian delivers by mail or otherwise a  
          true, legible and durable copy of all the records described in  
          the subpoena to the clerk of the court together with an  
          affidavit within five days of receipt. (Evidence Code §1560)

          This bill would in addition provide that if a search warrant for  
          business records is served upon the custodian of records in an  
          action or investigation in which the business is neither a party  
          nor the place where any cause of action is alleged to have  
          arisen, the warrant will be deemed executed if the business  
          cause the delivery of records described in the warrant to the  
          law enforcement agency if the custodian delivers by mail or  
          otherwise a true, legible, and durable copy of all the records  
          described  in the search warrant, together with an affidavit  
          within five days or within such other time as set forth in the  
          warrant.

          Existing law provides what shall be in an affidavit accompanying  
          records submitted by a business in response to a subpoena duces  
          tecum.  (Evidence Code §1561)

          This bill provides that this section shall also apply to  
          affidavits accompanying records submitted by a business in  
          response a search warrant.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  








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          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and








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              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.





          COMMENTS

          1. Need for This Bill

          According to the author:

               When a prosecuting office is doing a criminal  
               investigation, most business records are obtained via  
               search warrant because there is very limited subpoena  
               power until criminal charges are actually filed. In  
               fact, it's not uncommon for records to be destroyed  
               between the date the search warrant is executed and the  
               time charges are eventually filed.

               Business record, whether produced pursuant to a  
               subpoena or search warrant, are usually provided with  
               an accompanying affidavit intended to comply with  
               Evidence Code sections 1560-1562. If the records were  
               produced in response to a subpoena, these sections  
               govern admissibility of the records at trial without  
               live testimony from the custodian of record.

               Unfortunately, since sections 1560 and 1561 only refer  
               to the admissibility of documents obtained by subpoena  
               and not by search warrant, the search warrant records  
               may not be admitted at trial without testimony by the  
               custodian of records-even if the exact same records are  
               produced and even if they are provided with the exact  
               same affidavit.

               Prosecutors then face two choices. They can rely on EC  
               1560 et seq for admissibility, which requires them,  
               after filing criminal charges, to subpoena the exact  
               same records we obtained via search warrant.  If these  
               records still exist, they must be re-copied, re-sent,  
               and re-discovered. This is a significant expenditure of  








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               material and human resources on the part of the court,  
               the attorneys, and the target of entities of the  
               subpoena.

               Alternatively, or if the records have been destroyed in  
               the intervening period, they must procure live  
               testimony from the custodian of records in order to  
               make the records received in response to the search  
               warrant admissible. This requires the target entity to  
               incur the cost and inconvenience of sending a live  
               witness to testify.

               SB 1087 seeks to solve this problem by amending the  
               Evidence Code to refer to documents obtained by search  
               warrants as well as subpoena.  This would remove an  
               artificial barrier to admissibility, promote trial  
               efficiency by eliminating an otherwise unnecessary  
               witness (and a hearing on the subpoena), and save  
               resources for the court as well as the businesses that  
               comply with records requests.

          2. Admissibility of Business Records

          As stated in the author's statement, business records that are  
          submitted in a case pursuant to a subpoena duces tecum and  
          accompanied by the appropriate affidavit are admissible in the  
          criminal or civil case for which they were requested.  However,  
          since a subpoena dusces tecum can only be used once a case is  
          filed, law enforcement will use a search warrant to seek  
          documents while in the investigative stage of the case and those  
          documents are not admissible under existing law, even though  
          their veracity is identical to those submitted by subpoena.   
          Because they are inadmissible, law enforcement must either get  
          the custodian of record to testify in court as to the veracity  
          of the documents or make a second request for the same documents  
          with a subpoena duces tecum and thereby get another copy of the  
          documents with the appropriate affidavit.  This bill provides  
          that documents submitted in response to a search warrant, with  
          the appropriate affidavit, are admissible in the same manner as  
          those documents submitted in response to a subpoena duces tecum.

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