BILL NUMBER: SB 1300 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 12, 2012
INTRODUCED BY Senator Alquist
FEBRUARY 23, 2012
An act to amend add Section
1203.4 of 859.5 to the Penal Code, and to
add Section 626.8 to the Welfare and Institutions Code,
relating to criminal procedure interrogation
.
LEGISLATIVE COUNSEL'S DIGEST
SB 1300, as amended, Alquist. Crimes: dismissal after
mandatory supervision. Interrogation: electronic
recordation.
Existing law provides that under specified conditions the
statements of witnesses, victims, or perpetrators of specified crimes
may be recorded and preserved by means of videotape.
This bill would require the electronic recordation of the entire
custodial interrogation of an individual who is in a fixed place of
detention, as defined, and who, at the time of the interrogation, is
suspected of committing or accused of committing a serious or violent
felony. The bill would set forth various exceptions from this
requirement, including if the law enforcement officer conducting the
interrogation or his or her superior reasonably believes that
electronic recording would disclose the identity of a confidential
informant or jeopardize the safety of an officer, the individual
being interrogated, or another individual. The bill would require the
prosecution to show by clear and convincing evidence that an
exception applies to justify the failure to make that electronic
recording. The bill would also require the interrogating entity to
maintain the original or an exact copy of an electronic recording
made of the interrogation until the final conclusion of the
proceedings, as specified. The bill would require the Judicial
Council to develop related jury instructions. The bill would also
require the Judicial Council to develop forms to survey
interrogations and outcomes in order to ensure compliance with these
provisions, as specified. The bill would also require the Department
of Justice to develop forms to be submitted to the department in each
case of an unrecorded interrogation in order to identify patterns of
noncompliance. The bill would make these provisions applicable to
juvenile court proceedings, as specified. By imposing these new
requirements on local law enforcement, this bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Existing law authorizes a court that determines that a defendant
who has fulfilled the conditions of probation, been dismissed prior
to the completion of the period of probation, or who the court finds,
in its discretion and the interests of justice, has fulfilled the
prescribed requirements to dismiss the accusations against the
defendant or reverse a verdict of guilty against that defendant.
Under existing law, dismissal under these provisions does not exempt
the person from having that offense used as a prior conviction in a
later prosecution, from the restriction on ownership of a firearm, or
other disabilities resulting from the offense.
This bill would authorize a court to dismiss the accusation
against a person who has successfully completed a period of
incarceration or mandatory supervision through the county for a
felony charge, as specified.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature hereby finds and
declares the following:
(1) According to a national study, false confessions, extracted
during police questioning of suspects, have been identified as the
second most frequent cause of wrongful conviction. Although threats
and coercion sometimes lead innocent people to confess, even the most
standardized interrogations can result in a false confession or
admission. Mentally ill or mentally disabled persons are particularly
vulnerable, and some confess to crimes because they want to please
authority figures or to protect another person. Additionally,
innocent people may come to believe that they will receive a harsher
sentence, or even the death penalty, unless they confess to the
alleged crime.
(2) Three injustices result from false confessions. First, a false
confession can result in an innocent person being incarcerated.
Second, when an innocent person is incarcerated, the criminal
investigations end and the real perpetrator remains free to commit
similar, or potentially worse, crimes. Third, victims' families are
subjected to double the trauma: the loss of, or injury occurring to,
a loved one and the guilt over the conviction of an innocent person.
Mandating electronic recording of custodial interrogations of both
adults and juveniles will improve criminal investigation techniques,
reduce the likelihood of wrongful convictions, and further the cause
of justice in California.
(3) Evidence of a defendant's alleged statement or confession is
one of the most significant pieces of evidence in any criminal trial.
Although confessions and admissions are the most accurate evidence
used to solve countless crimes, they can also lead to wrongful
convictions. When there is a complete recording of the entire
interrogation that produced such a statement or confession, the
factfinder can evaluate its precise contents and any alleged coercive
influences that may have produced it.
(b) For these reasons, it is the intent of the Legislature to
require electronic recording of all custodial interrogations of both
adults and juveniles. Recording interrogations decreases wrongful
convictions based on false confessions and enhances public confidence
in the criminal process. Properly recorded interrogations provide
the best evidence of the communications that occurred during an
interrogation; prevent disputes about how an officer conducted
himself or herself or treated a suspect during the course of an
interrogation; prevent a defendant from lying about the account of
events he or she originally provided to law enforcement; and spare
judges and jurors the time necessary and the need to assess which
account of an interrogation to believe.
SEC. 2. Section 859.5 is added to the
Penal Code , to read:
859.5. (a) Except as otherwise provided in this section, any
custodial interrogation of any person, regardless of whether that
person is an adult or a minor, who is suspected of committing a
serious or violent felony offense shall be electronically recorded in
its entirety. A statement that is electronically recorded as
required pursuant to this section creates a rebuttable presumption
that the electronically recorded statement was, in fact, given and
was accurately recorded by the prosecution's witnesses, provided that
the electronic recording was made of the custodial interrogation in
its entirety and the statement is otherwise admissible.
(b) The requirement for the electronic recordation of a custodial
interrogation pursuant to this section shall not apply under any of
the following circumstances:
(1) Electronic recording is not feasible because of exigent
circumstances. The exigent circumstances shall be recorded in the
police report.
(2) The person to be interrogated states that he or she will speak
to the law enforcement officer or officers only if the interrogation
is not electronically recorded. If feasible, that statement shall be
electronically recorded. This requirement also does not apply if the
person being interrogated indicates during interrogation that he or
she will not participate in further interrogation unless electronic
recording ceases.
(3) The custodial interrogation took place in another jurisdiction
and was conducted by the officers of that jurisdiction in compliance
with the law of that jurisdiction, unless the interrogation was
conducted with intent to avoid the requirements of this section.
(4) The interrogation occurs when no law enforcement officer
conducting the interrogation has knowledge of facts and circumstances
that would lead an officer to reasonably believe that the individual
being interrogated may have committed a serious or violent felony
offense for which this section requires that a custodial
interrogation be recorded. If, during a custodial interrogation, the
individual reveals facts and circumstances giving a law enforcement
officer conducting the interrogation reason to believe that a serious
or violent felony offense has been committed for which this section
requires that a custodial interrogation be electronically recorded,
continued custodial interrogation concerning that serious or violent
felony offense shall be electronically recorded pursuant to this
section.
(5) A law enforcement officer conducting the interrogation or the
officer's superior reasonably believes that electronic recording
would disclose the identity of a confidential informant or jeopardize
the safety of an officer, the individual being interrogated, or
another individual. An explanation of the circumstances shall be
recorded in the police report.
(6) The failure to create an electronic recording of the entire
custodial interrogation was the result of a malfunction of the
recording device, despite reasonable maintenance of the equipment,
and timely repair or replacement was not feasible.
(7) The questions put to a person by law enforcement personnel,
and the person's responsive statements, were part of a routine
processing or booking of that person. Electronic recording is not
required for spontaneous statements made in response to questions
asked during the routine processing of the arrest of the person.
(c) If the prosecution relies on an exception in subdivision (b)
to justify a failure to make an electronic recording of a custodial
interrogation, the prosecution shall show by clear and convincing
evidence that the exception applies.
(d) The presumption of inadmissibility of statements provided in
this section may be overcome, and a person's statements that were not
electronically recorded may be admitted into evidence in a criminal
proceeding, or in a juvenile court proceeding, as applicable, if the
court finds that all of the following apply:
(1) The statements are admissible under applicable rules of
evidence.
(2) The prosecution has proven by clear and convincing evidence
that the statements were made voluntarily.
(3) Law enforcement personnel made a contemporaneous audio or
audio and visual recording of the reason for not making an electronic
recording of the statements. This provision does not apply if it was
not feasible for law enforcement personnel to make that recording.
(4) The prosecution has proven by clear and convincing evidence
that one or more of the circumstances described in subdivision (b)
existed at the time of the custodial interrogation.
(e) Unless the court finds that an exception in subdivision (b)
applies, all of the following remedies shall be granted as relief for
noncompliance:
(1) Failure to comply with any of the requirements of this section
shall be considered by the court in adjudicating motions to suppress
a statement of a defendant made during or after a custodial
interrogation.
(2) Failure to comply with any of the requirements of this section
shall be admissible in support of claims that a defendant's
statement was involuntary or is unreliable, provided the evidence is
otherwise admissible.
(3) If the court admits into evidence a statement made during a
custodial interrogation that was not electronically recorded in
compliance with this section, the court, upon request of the
defendant, shall give to the jury cautionary instructions. The
Judicial Council shall develop jury instructions that are
substantially similar to the following jury instruction:
"The law requires the electronic recording of interrogations by
law enforcement officers when a defendant is charged with any serious
or violent felony. This is done to ensure that you will have before
you a complete picture of the circumstances under which an alleged
statement of a defendant was made in a custodial setting so that you
may determine whether a statement was, in fact, made in that
custodial setting and accurately recorded. If there is a failure to
electronically record an interrogation, you have not been provided
with a complete picture of all the facts surrounding the defendant's
alleged statement and the precise details of that statement. By way
of example, you cannot hear the tone or inflection of the defendant's
and interrogator's voice, or hear first hand the interrogation, both
questions and responses, in its entirety. Instead you have been
presented with a summary based upon the recollections of law
enforcement personnel. Therefore, you should weigh the evidence of
the defendant's alleged statement made in a custodial setting with
great caution and care as you determine whether the statement was, in
fact, made in that custodial setting, and, if so, whether it was
accurately reported by state's witnesses, and what, if any, weight it
should be given in your deliberations.
You have heard evidence that the defendant made a statement to a
law enforcement officer in a custodial setting and that the statement
was not recorded. You are the exclusive judge as to whether the
defendant made the statement in that custodial setting, and as to
what was actually said.
You must first decide whether the defendant, in fact, made that
statement in a custodial setting, in whole or in part. Among the
factors you may consider in deciding whether the defendant actually
made the alleged statement in a custodial setting is the failure of
law enforcement officials to make an electronic recording of the
interrogation conducted and the alleged statement itself. The fact
that a law enforcement officer did not comply with the law requiring
the electronic recording of the reported statement shall be
considered by you as a circumstance tending to show that the
statement was not made in that custodial setting.
If you find that the defendant did make the statement in that
custodial setting, you must view the statement as reported with
caution, because unrecorded oral statements made by a defendant out
of court to a law enforcement officer should be viewed with caution.
The failure of the law enforcement officer to comply with the law
requiring recording of the reported statement shall also be
considered by you as a circumstance bearing on the weight and
credibility to be given to the officer's account of the statement.
The presence of an electronic recording that is recorded in its
entirety permits but does not compel you to conclude that the
prosecution has proven that a statement was, in fact, given and that
the electronically recorded statement was accurately reported by the
prosecution's witnesses."
(f) The interrogating entity shall maintain the original or an
exact copy of any electronic recording made of a custodial
interrogation until a conviction for any offense relating to the
interrogation is final and all direct and habeas corpus appeals are
exhausted or the prosecution for that offense is barred by law or, in
a juvenile court proceeding, as otherwise provided in subdivision
(b) of Section 626.8 of the Welfare and Institutions Code. The
interrogating entity may make one or more true, accurate, and
complete copies of the electronic recording in a different format.
(g) (1) Compliance with the electronic recording requirement shall
be monitored by the Judicial Council. The Judicial Council shall
develop forms to survey interrogations and outcomes and to identify
any patterns of noncompliance with the requirements of this section.
These forms shall be completed and submitted by the judge and the
prosecutor to the Judicial Council for any of the following cases:
(A) Cases in which recorded interrogations were introduced as
evidence in a criminal proceeding.
(B) Cases in which interrogations were not recorded but were
nonetheless introduced as evidence in a criminal proceeding.
(C) Cases in which interrogations were recorded and a plea of
guilty to a felony offense was entered and accepted by the court.
(D) Cases in which interrogations were not recorded and a plea of
guilty to a felony offense was entered and accepted by the court.
(2) Compliance with the electronic recording requirement shall
also be monitored by the Department of Justice. The Department of
Justice shall develop forms for purposes of identifying any patterns
of noncompliance. The forms shall describe whether the person
arrested is an adult or a minor, the charges against the person, the
location where the interrogation took place, and the exception listed
in subdivision (b) that was the primary basis for the failure to
record the interrogation. These forms shall be completed and
submitted to the department by the interrogating officer or officers
in each case of an unrecorded interrogation, regardless of whether
the electronic recording is presumed inadmissible into evidence under
this section, or is in fact inadmissible under this section.
(h) For the purposes of this section, the following terms have the
following meanings:
(1) "Custodial interrogation" means any interrogation in a fixed
place of detention involving a law enforcement officer's questioning
that is reasonably likely to elicit incriminating responses and in
which a reasonable person in the subject's position would consider
himself or herself to be in custody, beginning when a person should
have been advised of his or her constitutional rights, including the
right to remain silent, the right to have counsel present during any
interrogation, and the right to have counsel appointed if the person
is unable to afford counsel, and ending when the questioning has
completely finished.
(2) "Electronic recording" means an audio or video recording that
accurately records a custodial interrogation.
(3) "Fixed place of detention" means a fixed location under the
control of a law enforcement agency where an individual is held in
detention in connection with any criminal offense that has been, or
may be, filed against that person. The term also includes a jail,
police or sheriff's station, holding cell, correctional or detention
facility, juvenile hall, or a facility of the Division of Juvenile
Facilities.
(4) "Law enforcement officer" means any person employed by a law
enforcement agency whose duties include enforcing criminal laws or
investigating criminal activity, or any other person who is acting at
the request or direction of that person.
SEC. 3. Section 626.8 is added to the
Welfare and Institutions Code , to read:
626.8. (a) Subdivisions (a) to (d), inclusive, paragraphs (1) and
(2) of subdivision (e), and subdivisions (g) and (h) of Section
859.5 of the Penal Code shall apply to any custodial interrogation of
a person who is or who may be adjudged a ward of the juvenile court
on the grounds that he or she has committed a serious or violent
felony offense.
(b) (1) Except as otherwise provided in paragraph (2), Article 22
(commencing with Section 825) shall apply to any electronic recording
or other record made pursuant to this section.
(2) The interrogating entity shall maintain an original or exact
copy of any electronic recording made of a custodial interrogation
until the person is no longer subject to the jurisdiction of the
juvenile court, unless the person is transferred to a court of
criminal jurisdiction. If the person is transferred to a court of
criminal jurisdiction, subdivision (f) of Section 859.5 of the Penal
Code shall apply. The interrogating entity may make one or more true,
accurate, and complete copies of the electronic recording in a
different format.
SEC. 4. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. Section 1203.4 of the Penal Code is
amended to read:
1203.4. (a) (1) In any case in which a defendant has fulfilled
the conditions of probation for the entire period of probation, or
has been discharged prior to the termination of the period of
probation, or in any other case in which a court, in its discretion
and the interests of justice, determines that a defendant should be
granted the relief available under this section, the defendant shall,
at any time after the termination of the period of probation, if he
or she is not then serving a sentence for an offense, on probation
for an offense, or charged with the commission of an offense, be
permitted by the court to withdraw his or her plea of guilty or plea
of nolo contendere and enter a plea of not guilty. If he or she has
been convicted after a plea of not guilty, the court shall set aside
the verdict of guilty. In either case, the court shall thereupon
dismiss the accusations or information against the defendant and,
except as noted below, he or she shall thereafter be released from
all penalties and disabilities resulting from the offense of which he
or she has been convicted, except as provided in Section 13555 of
the Vehicle Code. The probationer shall be informed, in his or her
probation papers, of this right and privilege and his or her right,
if any, to petition for a certificate of rehabilitation and pardon.
The probationer may make the application and change of plea in person
or by attorney, or by the probation officer authorized in writing.
However, in a subsequent prosecution of the defendant for any other
offense, the prior conviction may be pleaded and proved and shall
have the same effect as if probation had not been granted or the
accusation or information dismissed. The order shall state, and the
probationer shall be informed, that the order does not relieve him or
her of the obligation to disclose the conviction in response to a
direct question contained in a questionnaire or application for
public office, for licensure by a state or local agency, or for
contracting with the California State Lottery Commission.
(2) Dismissal of an accusation or information pursuant to this
section does not permit a person to own, possess, or have in his or
her custody or control a firearm or prevent his or her conviction
under Chapter 2 (commencing with Section 29800) of Division 9 of
Title 4 of Part 6.
(3) Dismissal of an accusation or information underlying a
conviction pursuant to this section does not permit a person
prohibited from holding public office as a result of that conviction
to hold public office.
(4) This subdivision shall apply to all applications for relief
under this section that are filed on or after November 23, 1970.
(b) Subdivision (a) of this section does not apply to a
misdemeanor that is within the provisions of Section 42002.1 of the
Vehicle Code, to a violation of subdivision (c) of Section 286,
Section 288, subdivision (c) of Section 288a, Section 288.5, or
subdivision (j) of Section 289, a felony conviction pursuant to
subdivision (d) of Section 261.5, or to an infraction.
(c) (1) Except as provided in paragraph (2), subdivision (a) does
not apply to a person who receives a notice to appear or is otherwise
charged with a violation of an offense described in subdivisions (a)
to (e), inclusive, of Section 12810 of the Vehicle Code.
(2) If a defendant who was convicted of a violation listed in
paragraph (1) petitions the court, the court in its discretion and in
the interests of justice, may order the relief provided pursuant to
subdivision (a) to that defendant.
(d) A court may, in its discretion and in the interests of
justice, order the relief provided in this section to a defendant who
has successfully completed his or her sentence in county jail or
mandatory supervision pursuant to paragraph (1), (2), or (5) of
subdivision (h) of Section 1170.
(e) A person who petitions for a change of plea or setting aside
of a verdict under this section may be required to reimburse the
court for the actual costs of services rendered, whether or not the
petition is granted and the records are sealed or expunged, at a rate
to be determined by the court not to exceed one hundred fifty
dollars ($150), and to reimburse the county for the actual costs of
services rendered, whether or not the petition is granted and the
records are sealed or expunged, at a rate to be determined by the
county board of supervisors not to exceed one hundred fifty dollars
($150), and to reimburse the city for the actual costs of services
rendered, whether or not the petition is granted and the records are
sealed or expunged, at a rate to be determined by the city council
not to exceed one hundred fifty dollars ($150). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the costs for services established
pursuant to this subdivision.
(f) (1) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days' notice of the petition
for relief. The probation officer shall notify the prosecuting
attorney when a petition is filed, pursuant to this section.
(2) It shall be presumed that the prosecuting attorney has
received notice if proof of service is filed with the court.
(g) If, after receiving notice pursuant to subdivision (f), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.
(h) Notwithstanding the above provisions or any other provision of
law, the Governor shall have the right to pardon a person convicted
of a violation of subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of
Section 289, if there are extraordinary circumstances.