Bill Text: CA AB885 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Discovery: prosecutorial duty to disclose information.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Vetoed) 2014-09-28 - Vetoed by Governor. [AB885 Detail]

Download: California-2013-AB885-Amended.html

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BILL NUMBER: AB 885	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 14, 2013

INTRODUCED BY   Assembly Member Ammiano

                        FEBRUARY 22, 2013

   An act to  amend   add  Section 
646.9 of   1127j to  the Penal Code, relating to
 stalking   criminal procedure  .


	LEGISLATIVE COUNSEL'S DIGEST


   AB 885, as amended, Ammiano.  Stalking.  
Discovery: prosecutorial duty to disclose information. 
   Existing law  provides that a person who willfully,
maliciously, and repeatedly follows or willfully and maliciously
harasses another person and who makes a credible threat, as
specified, is guilty of stalking, and may be punished by imprisonment
in a county jail for not more than one year, or by a fine of not
more than $1,000, or by both that fine and imprisonment, or by
imprisonment in the state prison. Existing law further provides that
a person who engages in the above-described behavior when there is a
temporary restraining order, injunction, or other court order in
effect prohibiting the specified behavior against the same party, may
be punished by imprisonment in the state prison for 2, 3, or 4
years.   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. 
   This bill would  make technical, nonsubstantive changes to
those provisions.   require a court in any criminal
trial or proceeding in which the court has determined that there has
  been an intentional failure to disclose certain materials
and information, as specified, to instruct the jury that the failure
to disclose has occurred and that the jury may consider the failure
as circumstantial evidence to support the presence of reasonable
doubt. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


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

   SECTION 1.    Section 1127j is added to the 
 Penal Code   , to read:  
   1127j.  In any criminal trial or proceeding in which the court
determines that there has been an intentional failure to disclose
specified materials and information pursuant to Section 1054.1 or
Brady v. Maryland (1963) 373 U.S. 83, the court shall instruct the
jury that the intentional failure to disclose the materials and
information occurred and that the jury may consider the failure to
disclose as circumstantial evidence to support the presence of
reasonable doubt.  
  SECTION 1.    Section 646.9 of the Penal Code is
amended to read:
   646.9.  (a) A person who willfully, maliciously, and repeatedly
follows or willfully and maliciously harasses another person and who
makes a credible threat with the intent to place that person in
reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking, punishable by
imprisonment in a county jail for not more than one year, or by a
fine of not more than one thousand dollars ($1,000), or by both that
fine and imprisonment, or by imprisonment in the state prison.
   (b) A person who violates subdivision (a) when there is a
temporary restraining order, injunction, or other court order in
effect prohibiting the behavior described in subdivision (a) against
the same party, shall be punished by imprisonment in the state prison
for two, three, or four years.
   (c) (1) A person who, after having been convicted of a felony
under Section 273.5, 273.6, or 422, commits a violation of
subdivision (a) shall be punished by imprisonment in a county jail
for not more than one year, or by a fine of not more than one
thousand dollars ($1,000), or by both that fine and imprisonment, or
by imprisonment in the state prison for two, three, or five years.
   (2) Every person who, after having been convicted of a felony
under subdivision (a), commits a violation of this section shall be
punished by imprisonment in the state prison for two, three, or five
years.
   (d) In addition to the penalties provided in this section, the
sentencing court may order a person convicted of a felony under this
section to register as a sex offender pursuant to Section 290.006.
   (e) For the purposes of this section, "harasses" means engages in
a knowing and willful course of conduct directed at a specific person
that seriously alarms, annoys, torments, or terrorizes the person,
and that serves no legitimate purpose.
   (f) For the purposes of this section, "course of conduct" means
two or more acts occurring over a period of time, however short,
evidencing a continuity of purpose. Constitutionally protected
activity is not included within the meaning of "course of conduct."
   (g) For the purposes of this section, "credible threat" means a
verbal or written threat, including that performed through the use of
an electronic communication device, or a threat implied by a pattern
of conduct or a combination of verbal, written, or electronically
communicated statements and conduct, made with the intent to place
the person that is the target of the threat in reasonable fear for
his or her safety or the safety of his or her family, and made with
the apparent ability to carry out the threat so as to cause the
person who is the target of the threat to reasonably fear for his or
her safety or the safety of his or her family. It is not necessary to
prove that the defendant had the intent to actually carry out the
threat. The present incarceration of a person making the threat shall
not be a bar to prosecution under this section. Constitutionally
protected activity is not included within the meaning of "credible
threat."
   (h) For purposes of this section, the term "electronic
communication device" includes, but is not limited to, telephones,
cellular phones, computers, video recorders, fax machines, or pagers.
"Electronic communication" has the same meaning as the term defined
in Subsection 12 of Section 2510 of Title 18 of the United States
Code.
   (i) This section shall not apply to conduct that occurs during
labor picketing.
   (j) If probation is granted, or the execution or imposition of a
sentence is suspended, for a person convicted under this section, it
shall be a condition of probation that the person participate in
counseling, as designated by the court. However, the court, upon a
showing of good cause, may find that the counseling requirement shall
not be imposed.
   (k) (1) The sentencing court shall also consider issuing an order
restraining the defendant from any contact with the victim, that may
be valid for up to 10 years, as determined by the court. It is the
intent of the Legislature that the length of a restraining order be
based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim and
his or her immediate family.
   (2) This protective order may be issued by the court whether the
defendant is sentenced to state prison, county jail, or if imposition
of sentence is suspended and the defendant is placed on probation.
   (l) For purposes of this section, "immediate family" means a
spouse, parent, child, a person related by consanguinity or affinity
within the second degree, or another person who regularly resides in
the household, or who, within the prior six months, regularly resided
in the household.
   (m) The court shall consider whether the defendant would benefit
from treatment pursuant to Section 2684. If it is determined to be
appropriate, the court shall recommend that the Department of
Corrections and Rehabilitation make a certification as provided in
Section 2684. Upon the certification, the defendant shall be
evaluated and transferred to the appropriate hospital for treatment
pursuant to Section 2684.