BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
5
9
3
AB 593( Ma)
As Amended May 21, 2012
Hearing date: June 12, 2012
Penal Code
MK:dl
DOMESTIC VIOLENCE: BATTERING:
RECALL AND RESENTENCING
HISTORY
Source: Author
Prior Legislation: AB 2306 (Karnette) - Ch.146, Stats. 2008
SB 1385 (Burton) - Ch. 609, Stats. 2004
SB 784 (Karnette) - Ch. 136, Stats.
2003
SB 799 (Karnette) - Ch. 858, Stats.
2001
AB 1211 (Kuehl) - 1995, held in the
Assembly
AB 2295 (B. Friedman) - Vetoed 1993
Support: California Public Defenders Association; AFSCME,
AFL-CIO; City of Palm Desert; Peace over Violence;
Rainbow Services, Ltd.; Correctional Counseling for
Change/Yorke Consulting; Californians United for a
Responsible Budget; The Global Center for Women &
Justice at Vanguard University; Legal Services for
Prisoners with Children; California Communities United
Institute; Prototypes; California Attorneys for
(More)
AB 593 (Ma)
Page 2
Criminal Justice; California Partnership to End
Domestic Violence; Center for Domestic Peace;
California Habeas Project; California Catholic
Conference, Inc.; a number of individuals
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 51 - Noes 20
KEY ISSUES
SHOULD A WRIT OF HABEAS CORPUS BE PROSECUTED ON THE BASIS THAT THE
EVIDENCE OF INTIMATE PARTNER BATTERING PRESENTED AT THE TRIAL IN A
CASE PRIOR TO AUGUST 26, 1996 WAS NOT COMPETENT OR SUBSTANTIAL?
SHOULD THE BURDEN BE ON THE PETITIONER TO SHOW THAT THE INTIMATE
PARTNER BATTERING PRESENTED AT TRIAL WAS NOT COMPETENT OR
SUBSTANTIAL?
SHOULD A WRIT OF HABEAS CORPUS BE PROSECUTED WHEN THE INTRODUCTION
OF EVIDENCE ON INTIMATE PARTNER BATTERING WOULD HAVE CHANGED THE
SENTENCE?
SHOULD THE JANUARY 2020 SUNSET ON THE PROVISION ALLOWING A WRIT OF
HABEAS CORPUS TO BE PROSECUTED BECAUSE EVIDENCE OF INTIMATE PARTNER
BATTERING WAS NOT PRESENTED BE REMOVED?
PURPOSE
The purpose of this bill is to expand the provisions allowing a
habeas corpus petition in cases where intimate partner battering
was not introduced into evidence to include cases where the
evidence was not competent or substantial and where such
evidence may have changed the sentence not just the conviction.
Existing law provides that in a criminal action expert testimony
(More)
AB 593 (Ma)
Page 3
is admissible by either the prosecution or defense regarding
intimate partner battering and its effects, including the nature
and effect of physical, emotional, or mental abuse on the
beliefs, perceptions, or behavior of victims of domestic
violence, except when offered against a defendant to prove the
occurrence of the act or acts of abuse which form the basis of a
criminal charge. (Evidence Code �1107.)
Existing law provides that 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. (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;
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. (Penal Code �
1473(b).)
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).)
Existing law requires the Board of Parole Hearings in
considering a prisoner's suitability for parole, to consider any
evidence that, at the time of the commission of the crime, the
prisoner had experienced intimate partner battering and was
(More)
AB 593 (Ma)
Page 4
convicted of the offense prior to this defense being recognized.
(Penal Code � 4801(b).)
Existing law provides that a writ of habeas corpus may be
brought on the basis that evidence relating to intimate partner
battering and its effects, as defined, was not received into
evidence at the trial relating to the prisoner's incarceration
for a murder conviction, and was of such substance that had it
been received into evidence there is a reasonable probability,
sufficient to undermine confidence in the judgment of
conviction, that the result of the proceedings would have been
different. (Penal Code � 1473.5(a).)
This bill provides instead that a writ of habeas corpus may be
prosecuted on the basis that competent and substantial expert
testimony relating to inmate partner battering and its effects
was not presented to the trier of fact at the trial court
proceedings and is of such substance that had the competent and
substantial expert testimony been presented, there is a
reasonable probability, sufficient to undermine confidence in
the judgment of conviction or sentence that the result of the
proceedings would have been different.
Existing law provides that a writ of habeas corpus based on the
fact that evidence of partner battering was not received into
evidence at trial is limited to violent felonies committed
before August 29, 1996 that resulted in judgments of conviction
as to which expert testimony admissible pursuant to Evidence
Code Section 1107 may be probative on the issue of culpability.
(Penal Code � 1473.5 9b).)
This bill would also apply if the evidence if the evidence
admissible under Evidence Code 1107 would impact the sentence.
This bill provides that a showing that expert testimony relating
to intimate partner battering and its effects was presented to
the trier of fact is not a bar to granting a petition under this
section fi that expert testimony was not competent or
substantial.
(More)
AB 593 (Ma)
Page 5
This bill provides that the burden of proof is on the petitioner
to establish a sufficient showing that competent and substantial
expert testimony, of a nature which would be competent using
prevailing understanding of intimate partner battering and its
effects, was not present to the trier of fact, and had that
evidence been presented, there is a reasonable probability that
the result of the proceedings would have been different.
Existing law provides that the section authorizing a writ of
habeas corpus based on intimate partner battering and its
effects shall remain in effect only until January 1, 2020.
(Penal Code � 1473.5(e).)
This bill removes that sunset provision.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
(More)
AB 593 (Ma)
Page 6
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
(More)
AB 593 (Ma)
Page 7
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
In 1991, the Legislature enacted AB 785, which amends
Evidence Code Section 1107 to allow expert testimony on
Intimate Partner Battering and its Effects (IPB) to be
introduced as evidence in cases where battered women
are charged with crimes related to their experiences of
being abused. IPB testimony was intended to educate
juries about domestic violence and help them understand
the effects of the abuse on the defendant at the time
of the crime.
In 2002, the Legislature passed SB 799 and SB 1385 in
2005, which allows incarcerated victims of domestic
violence who were convicted of crimes related to their
experiences of being abused are able to submit a
petition for a writ of habeas corpus challenging their
original convictions. Such petitioners can seek a new
trial, a reduced sentence, or another equitable remedy
if expert testimony on intimate partner battering and
its effects was not received into evidence during their
original trial proceedings, and it is reasonable to
(More)
AB 593 (Ma)
Page 8
believe that the outcome of the trial would have been
different with such expert testimony. Since expert
testimony on IPB was a new type of evidence, some of
the expert's testimony was limited in ways that
prejudiced the battered woman on trial.
While SB 799 was intended to provide relief for all
domestic violence victims who lacked expert testimony
during their original trial proceedings, some battered
women have been denied access to this relief because
they did not have substantial and competent expert
testimony during their original trials, even though
this testimony was deficient by today's standards.
(More)
Additionally, due to the amount of time needed to
investigate these 20+ year old cases, only 16 women
have successfully petitioned for a writ and been
released. According to the Habeas Project, which helps
find legal representation for women that qualify under
Penal Code 1473.5, there are 19 women still waiting for
attorneys; some of whom have been waiting for over 5
years. By the time legal representation is found,
investigations are conducted and habeas petitions are
prepared, the current sunset clause in P.C. 1473.5 may
preclude these women from seeking relief.
AB 593 captures the original intent of SB 799 and
rectifies the problem with current law by allowing
victims of domestic violence whose expert testimony was
incompetent and unsubstantial during their trial court
proceedings to file for a writ of habeas corpus.
AB 593 also gives victims more time to receive legal
representation by deleting the sunset date currently in
the statute.
2. Background
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." SB 799 (Karnette), Chapter 858, Statutes of 2001,
specifically permitted habeas corpus petitions for battered
persons convicted of killing their abusers. SB 799 created a
new habeas corpus remedy under Penal Code Section 1473.5 for a
narrow class of prisoners on the basis that they did not have
BWS testimony presented at trial
3. Evidence was not Competent and Substantial
(More)
AB 593 (Ma)
Page 10
Under existing law a person may bring a writ of habeas corpus if
they were convicted of a violent felony prior to August 29, 1996
and expert testimony regarding intimate partner battering and
its effects was not introduced at the trial and if it had been
there is a reasonable probability that the result in the
proceeding would have been different. This bill would expand
that provision by allowing a person also to bring a writ of
habeas if there was expert testimony regarding intimate partner
battering introduced at the trial but it was not "competent and
substantial." The burden of showing that the evidence that was
admitted was not competent and substantial will be on the person
who brought the petition. The standard of whether or not the
evidence was admitted was competent and substantial is the
"prevailing understanding of intimate partner battering and its
effects."
It is not clear what "competent and substantial" will mean to a
court looking at a writ. Competent as to testimony or evidence
can just mean admissible. It is not clear whether "substantial"
has a legal definition. The intent is to get to cases where
some "expert" testimony had been taken at the time but that
testimony does not meet today's standards. In support the
California Public Defender's Association states:
These laws were intended to provide relief from all
domestic violence victims who lacked expert testimony
during their original trial proceedings; some
imprisoned victims of domestic violence have been
denied access to this relief because expert testimony
was technically admitted during their original trials
but testimony would be deficient by current standards.
For example, some individuals holding themselves out to
be experts on intimate partner battering and its
effects, previously referred to as Battered Women's
Syndrome, were in fact not competent in the field.
Furthermore, some courts did not allow even competent
IPB experts to testify fully and perhaps did not allow
the trier of fact to receive the expert's full report
or hear the expert's full conclusions.
AB 593 (Ma)
Page 11
4. Impact on the Sentence
In the writ of habeas corpus brought because evidence of
intimate partner battering was not admitted, the petitioner must
show that if the evidence had been received into evidence that
there is a reasonable probability, sufficient to undermine
confidence in the judgment of conviction, that the result in the
proceedings would have been different. This bill would also
allow the writ if there is a reasonable probability, sufficient
to undermine confidence in the sentence.
5. Sunset
Existing law sunsets the provisions relating to the habeas
corpus for intimate partner battering on January 1, 2020. This
bill removes that sunset. When this provision was originally
created by SB 799 (Karnette) in 2001, the bill took effect
January 2002 and was to sunset on January 1, 2005. The short
sunset was intentional because there would be a limited number
of cases and the intent was to not let them get "stale." But,
no money was given to assist people in bringing their claims and
it became apparent that it was complicated to get the proof of
battering so the sunset was first extended to 2010 and then to
2020. The author's background expresses concern that before the
remaining people eligible for this writ have counsel and can
bring the writ, the sunset will expire. However, this provision
was never intended to be a permanent provision and the current
sunset is still longer than either of the original sunsets.
Since a sunset could encourage more attorneys to take on these
cases or to act to keep evidence becoming even staler, should
the Committee consider not removing the sunset at this point and
instead waiting until it is closer to its expiration?
***************
AB 593 (Ma)
Page 12