Bill Text: CA AB1328 | 2015-2016 | Regular Session | Chaptered

California Assembly Bill 1328 (Prior Session Legislation)

Bill Title: Criminal procedure: withholding of evidence.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2015-10-03 - Chaptered by Secretary of State - Chapter 467, Statutes of 2015. [AB1328 Detail]

Download: California-2015-AB1328-Chaptered.html

BILL NUMBER: AB 1328	CHAPTERED
	BILL TEXT

	CHAPTER  467
	FILED WITH SECRETARY OF STATE  OCTOBER 3, 2015
	APPROVED BY GOVERNOR  OCTOBER 3, 2015
	PASSED THE SENATE  SEPTEMBER 10, 2015
	PASSED THE ASSEMBLY  SEPTEMBER 11, 2015
	AMENDED IN SENATE  SEPTEMBER 4, 2015
	AMENDED IN SENATE  JULY 8, 2015

INTRODUCED BY   Assembly Member Weber

                        FEBRUARY 27, 2015

   An act to amend Section 6086.7 of the Business and Professions
Code, and to add Section 1424.5 to the Penal Code, relating to
criminal procedure.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1328, Weber. Criminal procedure: withholding of evidence.
   Existing law requires the prosecuting attorney to disclose to the
defendant or his or her attorney certain materials and information,
including statements of all defendants and any exculpatory evidence,
as specified. Existing law authorizes a court to grant a motion to
disqualify a district attorney from performing an authorized duty,
subject to specified procedural requirements.
   This bill would authorize a court, upon receiving information that
the prosecuting attorney has deliberately and intentionally withheld
relevant or material exculpatory evidence or information in
violation of law, to make a finding, supported by clear and
convincing evidence, that a violation occurred. If the court makes
such a finding, the bill would require the court to inform the State
Bar of California of that violation if the prosecuting attorney acted
in bad faith and the impact of the withholding contributed to a
guilty verdict, guilty or nolo contendere plea, or, if identified
before conclusion of trial, seriously limited the ability of a
defendant to present a defense. The bill would authorize a court to
disqualify an individual prosecuting attorney from a case if the
court finds that a violation occurred in bad faith. The bill would
also authorize, upon a determination by a court to disqualify an
individual prosecuting attorney from a case, the defendant or his or
her counsel to file and serve a notice of a motion to disqualify the
prosecuting attorney's office if there is sufficient evidence that
other employees of the prosecuting attorney's office knowingly and in
bad faith participated in or sanctioned the intentional withholding
of the relevant or material exculpatory evidence or information and
that withholding is part of a pattern and practice of violations. The
bill would specify that its provisions do not limit the authority or
discretion of, or any requirement placed upon, the court or other
individuals to make reports to the State Bar of California regarding
the same conduct, or otherwise limit other available legal authority,
requirements, remedies, or actions.



THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 6086.7 of the Business and Professions Code is
amended to read:
   6086.7.  (a) A court shall notify the State Bar of any of the
following:
   (1) A final order of contempt imposed against an attorney that may
involve grounds warranting discipline under this chapter. The court
entering the final order shall transmit to the State Bar a copy of
the relevant minutes, final order, and transcript, if one exists.
   (2) Whenever a modification or reversal of a judgment in a
judicial proceeding is based in whole or in part on the misconduct,
incompetent representation, or willful misrepresentation of an
attorney.
   (3) The imposition of any judicial sanctions against an attorney,
except sanctions for failure to make discovery or monetary sanctions
of less than one thousand dollars ($1,000).
   (4) The imposition of any civil penalty upon an attorney pursuant
to Section 8620 of the Family Code.
   (5) A violation described in paragraph (1) of subdivision (a) of
Section 1424.5 of the Penal Code by a prosecuting attorney, if the
court finds that the prosecuting attorney acted in bad faith and the
impact of the violation contributed to a guilty verdict, guilty or
nolo contendere plea, or, if identified before conclusion of trial,
seriously limited the ability of a defendant to present a defense.
   (b) In the event of a notification made under subdivision (a) the
court shall also notify the attorney involved that the matter has
been referred to the State Bar.
   (c) The State Bar shall investigate any matter reported under this
section as to the appropriateness of initiating disciplinary action
against the attorney.
  SEC. 2.  Section 1424.5 is added to the Penal Code, immediately
following Section 1424, to read:
   1424.5.  (a) (1) Upon receiving information that a prosecuting
attorney may have deliberately and intentionally withheld relevant or
material exculpatory evidence or information in violation of law, a
court may make a finding, supported by clear and convincing evidence,
that a violation occurred. If the court finds such a violation, the
court shall inform the State Bar of California of that violation if
the prosecuting attorney acted in bad faith and the impact of the
withholding contributed to a guilty verdict, guilty or nolo
contendere plea, or, if identified before conclusion of trial,
seriously limited the ability of a defendant to present a defense.
   (2) A court may hold a hearing to consider whether a violation
occurred pursuant to paragraph (1).
   (b) (1) If a court finds, pursuant to subdivision (a), that a
violation occurred in bad faith, the court may disqualify an
individual prosecuting attorney from a case.
   (2) Upon a determination by a court to disqualify an individual
prosecuting attorney pursuant to paragraph (1), the defendant or his
or her counsel may file and serve a notice of a motion pursuant to
Section 1424 to disqualify the prosecuting attorney's office if there
is sufficient evidence that other employees of the prosecuting
attorney's office knowingly and in bad faith participated in or
sanctioned the intentional withholding of the relevant or material
exculpatory evidence or information and that withholding is part of a
pattern and practice of violations.
   (c) This section does not limit the authority or discretion of, or
any requirement placed upon, the court or other individuals to make
reports to the State Bar of California regarding the same conduct, or
otherwise limit other available legal authority, requirements,
remedies, or actions.