BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          Bill No:    SB 1134       Hearing Date:    April 5, 2016    
          
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          |Author:    |Leno                                                 |
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          |Version:   |February 18, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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              Subject:  Habeas Corpus:  New Evidence:  Motion to Vacate  
 
                                Judgment:  Indemnity



          HISTORY
          
          Source:   California Innocence Project
                    Northern California Innocence Project
                    Loyola Project for the Innocent
                    American Civil Liberties Union


          Prior Legislation:SB 694 (Leno) held in Assembly Appropriations  
          2015
                         SB 1058 (Leno) Chapter 623, Stats. 2014
                         SB 618 (Leno) Chapter 800, Stats. 2013
                         AB 1593(Ma) Chapter 809, Stats. 2012
                          

          Support:  A New Path; A New Way of Life Re-Entry Project;  
                    California Attorneys for Criminal Justice; California  
                    Catholic Conference; California Civil Liberties  
                    Advocacy; Friends Committee on Legislation of  
                    California; John Van de Kamp, former California  
                    Attorney General; Judge Ladoris H. Cordell (Ret.);  
                    Lawyers' Committee for Civil Rights of the San  
                    Francisco Bay Area; Ella Baker Center for Human  







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                    Rights; Legal Services for Prisoners with Children

          Opposition:None known
                                                
          PURPOSE

          The purpose of this bill is to allow the granting of a habeas  
          corpus petition based on new evidence which "is credible,  
          material and presented without substantial delay, and of such  
          decisive force and value that it would have more likely than not  
          changed the outcome at trial."

          Existing law provides that every person unlawfully imprisoned or  
          restrained of his or her liberty, under any pretense, may  
          prosecute a writ of habeas corpus to inquire into the cause of  
          such imprisonment or restraint.  (Penal Code § 1473(a).)

          Existing law states that a writ of habeas corpus may be  
          prosecuted for, but not limited to, the following reasons:

                 False evidence that is substantially material or  
               probative on the issue of guilt, or punishment was  
               introduced against a person at any hearing or trial  
               relating to his incarceration; or
                 False physical evidence believed by a person to be  
               factual, material or probative on the issue of guilt, which  
               was known by the person at the time of entering a plea of  
               guilty and which was a material factor directly related to  
               the plea of guilty by the person. (Penal Code § 1473 (b))

          Existing law provides that any allegation that the prosecution  
          knew or should have known of the false nature of the evidence is  
          immaterial to the prosecution of a writ of habeas corpus.   
          (Penal Code § 1473(c).)

          Existing law states that nothing in this section shall be  
          construed as limiting the grounds for which a writ of habeas  
          corpus may be prosecuted or as precluding the use of any other  
          remedies.  (Penal Code § 1473(d).)

          This bill would add, as grounds for a writ of habeas corpus,  
          when new evidence exists that is credible, material, presented  
          without substantial delay, and of such decisive force and value  
          that it would have more likely than not changed the outcome at  








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          trial.

          This bill provides that for purposes of this section "new  
          evidence" means evidence that has been discovered after trial,  
          that could not have been discovered prior to trial but the  
          exercise of due diligence, and is admissible and not merely  
          cumulative, corroborative, collateral, or impeaching.

          Existing law provides that if the district attorney or Attorney  
          General stipulates to or does not contest the factual  
          allegations underlying one or more of the grounds for granting a  
          writ of habeas corpus or a motion to vacate a judgment, the  
          facts underlying the bases for the court's ruling or order shall  
          be binding on the attorney General, the factfinder and the  
          California Victim Compensation and Government Claims Board.  
          (Penal Code § 1485.5 (a))

          Existing law provides that the express factual findings made by  
          the court, including credibility determinations, in considering  
          a petition for a habeas corpus, a motion to vacate or an  
          application for a certificate of factual innocence shall be  
          binding on the Attorney General, the factfinder, and the  
          California Victim Compensation and Government Claims board.  
          (Penal Code § 1485.5 (c))

          This bill clarifies that the above is true in both contested and  
          uncontested proceedings.

          Existing law provides that in a contested proceeding, if a court  
          grants a writ of habeas corpus concerning a person who is  
          unlawfully imprisoned or restrained, the court vacates a  
          judgment on the basis of new evidence concerning a person who is  
          no longer unlawfully imprisoned or restrained and if the court  
          finds that the new evidence on the petition points unerringly to  
          innocence, that finding shall be binding on the California Crime  
          Victims Compensation and Government Claims board for acclaim  
          presented to the board, and upon application by the person, the  
          board shall, without a hearing, recommend to the Legislature  
          that an appropriation be made and a claim paid. (Penal Code §  
          148.55(a)) 

          This bill provides instead that in a contested proceeding, if  
          the court has granted a writ of habeas corpus, or when, the  
          court vacates a judgement, and if the court has found the that  








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          the person is factually innocent, that finding shall be binding  
          on the California Victim Compensation and Government Claims  
          Board for a claim presented to the board, and upon application  
          by the person, the board shall, without a hearing, recommend to  
          the Legislature that an appropriation be made and a claim paid.

          Existing law if the court grants a writ of habeas corpus  
          concerning a person who is unlawfully imprisoned or restrained  
          on any ground other than new evidence that points unerringly to  
          innocence or actual innocence, the petitioner may move for a  
          finding of innocence by a preponderance of evidence that the  
          crime with which he or she was charged was either not committed  
          at all, or if committed, was not by him or her. (Penal Code §  
          148.55(b))

          This bill instead provides that in a contested or uncontested  
          proceeding, if the court grants a writ of habeas corpus and did  
          not find the person factually innocent in the habeas corpus  
          proceedings, the petition may move for a finding of innocence by  
          a preponderance of the evidence that the crime with which he or  
          she was charged was either not committed at all, or if  
          committed, was not by him or her.

          Existing law provides that for the purposes of this section,  
          "new evidence" means evidence that is not available or known at  
          the time of trial that completely undermines the prosecution  
          case and points unerringly to innocence. (Penal Code §  
          148.55(g))

          This bill deletes the above provision.

                    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.   









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








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              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              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:

            Under existing California law, an inmate who has been  
            convicted of committing a crime for which he or she claims  
            that s/he has new evidence that points to innocence may file a  
            petition for writ of habeas corpus.  The burden for proving  
            that newly discovered evidence entitles an individual to a new  
            trial is not currently defined by statute, but has evolved  
            from appellate court and California Supreme Court opinions.    
            In order to prevail on a new evidence claim, a petitioner must  
            undermine the prosecution's entire case and "point unerringly  
            to innocence with evidence no reasonable jury could reject"  
            (In re Lawley (2008) 42 Cal.4th 1231, 1239).  The California  
            Supreme Court has stated that this standard is very high, much  
            higher than the preponderance of the evidence standard that  
            governs other habeas claims.  (Ibid.)  
            In fact, this standard is so high that it is nearly impossible  
            to meet absent DNA evidence, which exists only in a tiny  
            portion of prosecutions and exonerations.  For example, if a  
            petitioner has newly discovered evidence that completely  
            undermines all evidence of guilt-in other words, if the  
            evidence completely disproves every piece of evidence in the  
            prosecution's original case-and shows that the original jury  
            would therefore definitely not have convicted, but the new  
            evidence does not "point unerringly to innocence," the  
            petitioner will not have met the standard and will have no  
            chance at a new trial.  Thus, someone who would likely never  
            have been convicted if the newly discovered evidence had been  
            available in their original trial is almost guaranteed to  
            remain in prison under the status quo in California.  









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            The proposed new standard in SB 1134 addresses this anomaly.   
            Our criminal justice system was built on the understanding  
            that even innocent people cannot always affirmatively prove  
            innocence, which is why the burden is on the prosecution to  
            prove guilt when a charge is brought to trial, and absent  
            evidence of guilt beyond a reasonable doubt, innocence is  
            presumed.  The new standard contained in this bill ensures  
            that innocent men and women do not remain in prison even after  
            new evidence shows that a conviction would not have occurred  
            had it been available.

            SB 1134 seeks to bring California's innocence standard into  
            line with the vast majority of other states' standards,  
            forty-three in total, and to bring it closer in line with  
            other postconviction standards for relief such as ineffective  
            assistance of counsel, or prosecutorial misconduct, and not so  
            unreasonably high.  
              
            As a result of the onerously high standard governing new  
            evidence claims, individuals often choose to re-package  
            evidence of innocence into other types of claims, such as  
            infective assistance of counsel for example.  The impact of  
            this is not just a dearth in case law on new evidence claims  
            but it also means that some exonerees may never receive legal  
            recognition of their innocence.  To illustrate, consider the  
            case of Maurice Caldwell.  Caldwell was convicted of murder in  
            1991 based on the mistaken identification of a single  
            eyewitness.  Investigators later established that it was  
            scientifically impossible for the witness to have identified  
            the perpetrator from her vantage point, thus rendering his  
            conviction invalid.  It was not for the fact that there was  
            new evidence available, however, that the conviction was  
            overturned.  It was a claim of ineffective assistance of  
            counsel that ultimately ended Caldwell's wrongful  
            incarceration.  

            This misleading and often farcical repackaging of legitimate  
            claims of innocence into other unrelated claims, such as  
            ineffective assistance of counsel, is the direct result of the  
            impossibly high standard for new evidence as it currently  
            stands.  California judges are forced to determine not whether  
            the person's new evidence shows that he is innocent, but  
            whether the new evidence shows his attorney was ineffective,  
            even when the attorney could not have known about the  








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            evidence, as in the case of DNA.  The effect of the law is  
            that courts must decide whether a person's conviction should  
            be reversed based on something other than their claim of  
            innocence, and innocent people are often denied because their  
            claims (understandably) do not fit into a category they were  
            not intended to.
          
          2.   Habeas Corpus
          
          Habeas corpus, also known as "the Great Writ", is a process  
          guaranteed by both the federal and state Constitutions to obtain  
          prompt judicial relief from illegal restraint.  The functions of  
          the writ is set forth in Penal Code section 1473(a):  "Every  
          person unlawfully imprisoned or restrained of his or her  
          liberty, under any pretense whatever, may prosecute a writ of  
          habeas corpus, to inquire into the cause of such imprisonment or  
          restraint."  A writ of habeas corpus may be prosecuted for, but  
          not limited to, the following reasons:

                 False evidence that is substantially material or  
               probative on the issue of guilt, or punishment was  
               introduced against a person at any hearing or trial  
               relating to his incarceration;
                 False physical evidence believed by a person to be  
               factual, material or probative on the issue of guilt, which  
               was known by the person at the time of entering a plea of  
               guilty and which was a material factor directly related to  
               the plea of guilty by the person; and,
                 Any allegation that the prosecution knew or should have  
               known of the false nature of the evidence is immaterial to  
               the prosecution of a writ of habeas corpus.   

          3.  Standard

          In California, there is no codified standard of proof for a writ  
          of habeas corpus brought on the basis of new evidence.  The  
          current standard is based on case law. In re Lawley (2008) 42  
          Cal. 4th 1231, 1239 found that newly discovered evidence "must  
          undermine the entire prosecution case and point unerringly to  
          innocence or reduced culpability;" and "if 'a reasonable jury  
          could have rejected the evidence presented, a petition has not  
          satisfied his burden."  This bill would instead set the standard  
          for the granting of a writ of habeas corpus as " new evidence  
          exists that is credible, material, presented without substantial  








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          delay, and of such decisive force and value that it would have  
          more likely than not changed the outcome at trial."  As noted in  
          the author's statement, this standard will make California's  
          postconviction standard consistent with 43 other states.

          According to the February 3, 2016 report of National Registry of  
          Exonerations at the University of Michigan Law School there were  
          149 exonerations nationwide in 2015, five of which were in  
          California.  That was five exonerations under a standard that is  
          higher than the standard in most other states,  it is unclear  
          how many others were denied a hearing because they did not meet  
          the standard who would be eligible under this standard to have  
          their habeas corpus petition heard.

          4. Victims Compensation Board
          
          This bill also makes conforming changes, making it clear if  
          there is a finding of factual innocence by a court then the  
          Victim Compensation and Government Claims Board shall make a  
          recommendation for an appropriation to the Legislature.

          5.  Support

          In support former Attorney General John Van de Kamp states:

               To win a claim of factual innocence under current  
               California case law, an individual must "undermine the  
               entire prosecution case and point unerringly to  
               innocence" with evidence that no "reasonable jury would  
               reject."  This standard is the most difficult in the  
               country and is so impossibly high that it functions as  
               a barrier to wrongfully convicted individuals seeking  
               justice in our criminal justice system. SB 1334 amends  
               California Penal Code to incorporate a standard of  
               proof in line with the standards in 43 other states.

               SB 1134 will allow courts to grant relief to innocent  
               people who have new evidence that is so strong that it  
               "would likely than not changed the outcome at trial."   
               The "more likely that not" standard proposed by the  
               bill is clear and is a standard familiar to the courts.  
               It is still a very high standard, but a fair one. To  
               prevail with a claim of factual innocence under the  
               bill, an individual must still have new evidence that  








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               "is credible, material, presented without substantial  
               delay," and "admissible" and that "could not have been  
               discovered prior to the trial by the exercise of due  
               diligence."

               The bill provides a vital claim to innocent individuals  
               who do not have another recourse under other habeas  
               claims such as false testimony, Brady violations or  
               ineffective assistance of counsel.  Under the current  
               standard, those innocent individuals have little chance  
               of proving their innocence, so remain wrongfully  
               imprisoned.  SB 1134 gives these individuals a fair  
               chance to prove their innocence and the criminal  
               justice system a chance to rectify the wrongful  
               imprisonment of innocent individuals.

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