California Assembly Bill AB1328 Amended / Bill

 BILL NUMBER: AB 1328AMENDED BILL TEXT 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, as amended, 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  require   authorize  a court,  if the court determines that   upon receiving information that  the prosecuting attorney has deliberately and intentionally withheld relevant  or material  exculpatory  materials   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  determines that the prosecuting attorney deliberately and intentionally withheld relevant exculpatory materials or information in that case in violation of law and that the prosecuting attorney acted in bad faith.   finds that a violation occurred in bad faith.  The bill would also  authorize a court   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  materials   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  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. 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 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. SECTION 1.   SEC. 2.  Section 1424.5 is added to the Penal Code, immediately following Section 1424, to read: 1424.5. (a) (1)  If a court determines  Upon receiving information  that a prosecuting attorney  has   may have  deliberately and intentionally withheld relevant  or material  exculpatory  materials   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  prosecuting attorney or his or her office should be disqualified   violation occurred  pursuant to  this section shall be initiated only upon the court's own motion.  paragraph (1).  (b) (1)  Upon its own motion, a   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 if the court determines that the prosecuting attorney deliberately and intentionally withheld relevant exculpatory materials or information in that case in violation of law and that the prosecuting attorney acted in bad faith.   case.  (2)  The court may also   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  materials   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   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.