BILL ANALYSIS
AB 458
Page 1
ASSEMBLY THIRD READING
AB 458 (Cook)
As Amended April 29, 2009
Majority vote
PUBLIC SAFETY 6-0
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|Ayes:|Solorio, Hagman, | | |
| |Furutani, Gilmore, Hill, | | |
| |Ma | | |
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SUMMARY : Deletes the authority of a witness to voluntarily
testify from provisions of law related to the granting of
immunity in misdemeanor prosecutions, but maintains provisions
requiring the type of immunity granted must be transactional in
nature, as specified.
EXISTING LAW :
1)Provides that in any felony proceeding or in any investigation
or proceeding before a grand jury for any felony offense, if a
person refuses to answer a question or produce evidence of any
other kind on the ground that he or she may be incriminated
thereby, and if the district attorney of the county or any
other prosecuting agency in writing requests the court, in and
for that county, to order that person to answer the question
or produce the evidence, a judge shall set a time for hearing
and order the person to appear before the court and show
cause, if any, why the question should not be answered or the
evidence produced; and, the court shall order the question
answered or the evidence produced unless it finds that to do
so would be clearly contrary to the public interest, or could
subject the witness to a criminal prosecution in another
jurisdiction; and, that person shall comply with the order.
After complying, and if, but for this section, he or she would
have been privileged to withhold the answer given or the
evidence produced by him or her, no testimony or other
information compelled under the order or any information
directly or indirectly derived from the testimony or other
information may be used against the witness in any criminal
case. But he or she may nevertheless be prosecuted or
subjected to penalty or forfeiture for any perjury, false
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swearing, or contempt committed in answering, or failing to
answer, or in producing, or failing to produce, evidence in
accordance with the order. Nothing in this section shall
prohibit the district attorney or any other prosecuting agency
from requesting an order granting use immunity or
transactional immunity to a witness compelled to give
testimony or produce evidence.
2)States that in any misdemeanor proceeding in any court, if a
person refuses to answer a question or produce evidence of any
other kind on the ground that he may be incriminated thereby,
the person may agree in writing with the district attorney of
the county, or the prosecuting attorney of a city, as the case
may be, to testify voluntarily pursuant to this section. Upon
written request of such district attorney, or prosecuting
attorney, the court having jurisdiction of the proceeding
shall approve such written agreement, unless the court finds
that to do so would be clearly contrary to the public
interest. If, after court approval of such agreement, and if,
but for this section, the person would have been privileged to
withhold the answer given or the evidence produced by him,
that person shall not be prosecuted or subjected to penalty or
forfeiture for or on account of any fact or act concerning
which, in accordance with such agreement, he answered or
produced evidence; but he may, nevertheless, be prosecuted or
subjected to penalty or forfeiture for any perjury, false
swearing, or contempt committed in answering or in producing
evidence in accordance with such agreement. If such person
fails to give any answer or to produce any evidence in
accordance with such agreement, that person shall be
prosecuted or subjected to penalty or forfeiture in the same
manner and to the same extent as he or she would be prosecuted
or subjected to penalty or forfeiture but for this section.
FISCAL EFFECT : None
COMMENTS : According to the author, "Many witnesses in criminal
cases would rather not testify. They might fear retaliation,
embarrassment, or exposure to their own criminal liability.
Recalcitrant witnesses are prevalent in cases involving gang
violence, family violence, and other crimes where witnesses may
be subject to coercion or intimidation. Witnesses might attempt
to avoid testifying by informing the court that their testimony
would jeopardize their privilege against self-incrimination
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under the 5th Amendment. If the court finds the witness has a
basis to raise this privilege, the testimony is prevented unless
the witness receives a grant of immunity. The power to grant
immunity lies with the prosecution. In felony cases, immunity
is granted under California Penal Code Section 1324. A witness
who receives immunity under this section cannot refuse to accept
it. In misdemeanor cases, Penal Code 1324.1 requires that the
witness agree to immunity. The need for agreement allows a
misdemeanor witness to refuse immunity. It becomes more
difficult to prove misdemeanor cases than to prove a felony
violation. This bill would make the process for granting
immunity uniform for all crimes."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
FN: 0000537