Today's Law As Amended


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AB-2200 Criminal procedure: discrimination.(2019-2020)



As Amends the Law Today


SECTION 1.
 The Legislature finds and declares all of the following:
(a) Discrimination in our criminal justice system based on race, ethnicity, or national origin (hereafter “race” or “racial bias”) has a deleterious effect not only on individual criminal defendants but on our system of justice as a whole. The United States Supreme Court has said: “Discrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice.” (Rose v. Mitchell, 443 U.S. 545, 556 (1979) (quoting Ballard v. United States, 329 U.S. 187, 195 (1946))). The United States Supreme Court has also recognized “the impact of … evidence [of racial bias] cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.” (Buck v. Davis, 137 S. Ct. 759, 777 (2017)). Discrimination undermines public confidence in the fairness of the state’s system of justice and deprives Californians of equal justice under law.
(b) A United States Supreme Court Justice has observed, “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” (Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, 572 U.S. 291, 380-81 (2014) (Sotomayor, J., dissenting)). We cannot simply accept the stark reality that race pervades our system of justice. Rather, we must acknowledge and seek to remedy that reality and create a fair system of justice that upholds our democratic ideals.
(c) Even though racial bias is widely acknowledged as intolerable in our criminal justice system, it nevertheless persists because courts generally only address racial bias in its most extreme and blatant forms. More and more judges in California and across the country are recognizing that current law, as interpreted by the high courts, is insufficient to address discrimination in our justice system. (State v. Saintcalle, 178 Wash. 2d 34, 35 (2013); Ellis v. Harrison, 891 F.3rd 1160, 1166-67 (9th Cir. 2018) (Nguyen, J., concurring), reh’g en banc granted Jan. 30, 2019; Turner v. Murray, 476 U.S. 28, 35 (1986); People v. Bryant, 40 Cal.App.5th 525 (2019) (Humes, J., concurring)). Even when racism clearly infects a criminal proceeding, under current legal precedent, proof of purposeful discrimination is often required, but nearly impossible to establish. For example, one justice on the California Court of Appeals recently observed the legal standards for preventing racial bias in jury selection are ineffective, observing that “requiring a showing of purposeful discrimination sets a high standard that is difficult to prove in any context.” (Bryant, 40 Cal.App.5th 525 (Humes, J., concurring)).
(d) Current legal precedent often results in courts sanctioning racism in criminal trials. Existing precedent countenances racially biased testimony, including expert testimony, and arguments in criminal trials. A court upheld a conviction based in part on an expert’s racist testimony that people of Indian descent are predisposed to commit bribery. (United States v. Shah, 768 Fed. Appx. 637, 640 (9th Cir. 2019)). Existing precedent has provided no recourse for a defendant whose own attorney harbors racial animus towards the defendant’s racial group, or toward the defendant, even where the attorney routinely used racist language and “harbor[ed] deep and utter contempt” for the defendant’s racial group (Mayfield v. Woodford, 270 F.3d 915, 924-25 (9th Cir. 2001) (en banc); id. at 939-40 (Graber, J., dissenting)). Existing precedent holds that appellate courts must defer to the rulings of judges who make racially biased comments during jury selection. (People v. Williams, 56 Cal. 4th 630, 652 (2013); see also id. at 700 (Liu, J., concurring)).
(e) Existing precedent tolerates the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials. For example, courts have upheld convictions in cases where prosecutors have compared defendants who are people of color to Bengal tigers and other animals, even while acknowledging that such statements are “highly offensive and inappropriate” (Duncan v. Ornoski, 286 Fed. Appx. 361, 363 (9th Cir. 2008); see also People v. Powell, 6 Cal.5th 136, 182-83 (2018)). Because use of animal imagery is historically associated with racism, use of animal imagery in reference to a defendant is racially discriminatory and should not be permitted in our court system (Phillip Atiba Goff, Jennifer L. Eberhardt, Melissa J. Williams, and Matthew Christian Jackson, Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, Journal of Personality and Social Psychology (2008) Vol. 94, No. 2, 292-293; Praatika Prasad, Implicit Racial Biases in Prosecutorial Summations: Proposing an Integrated Response, 86 Fordham Law Review, Volume 86, Issue 6, Article 24 3091, 3105-06 (2018)).
(f) Existing precedent also accepts racial disparities in our criminal justice system as inevitable. Most famously, in 1987, the United States Supreme Court found that there was “a discrepancy that appears to correlate with race” in death penalty cases in Georgia, but the court would not intervene without proof of a discriminatory purpose, concluding that we must simply accept these disparities as “an inevitable part of our criminal justice system” (McCleskey v. Kemp, 481 U.S. 279, 295-99, 312 (1987)). In dissent, one Justice described this as “a fear of too much justice” (Id. at p. 339 (Brennan, J., dissenting)).
(g) Current law, as interpreted by the courts, stands in sharp contrast to this Legislature’s commitment to “ameliorate bias-based injustice in the courtroom” subdivision (b) of Section 1 of Chapter 418 of the Statutes of 2019 (Assembly Bill 242). The Legislature has acknowledged that all persons possess implicit biases (Id. at Section 1(a)(1)), that these biases impact the criminal justice system (Id. at Section (1)(a)(5)), and that negative implicit biases tend to disfavor people of color (Id. at Section (1)(a)(3)-(4)). In California in 2020, we can no longer accept racial discrimination and racial disparities as inevitable in our criminal justice system and we must act to make clear that this discrimination and these disparities are illegal and will not be tolerated in California, both prospectively and retroactively.
(h) There is growing awareness that no degree or amount of racial bias is tolerable in a fair and just criminal justice system, that racial bias is often insidious, and that purposeful discrimination is often masked and racial animus disguised. The examples described here are but a few select instances of intolerable racism infecting decisionmaking in the criminal justice system. Examples of the racism that pervades the criminal justice system are too numerous to list.
(i) It is the intent of the Legislature to eliminate racial bias from California’s criminal justice system because racism in any form or amount, at any stage of a criminal trial, is intolerable, inimical to a fair criminal justice system, and violates the laws and Constitution of the State of California. It is the intent of the Legislature to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing. It is the intent of the Legislature to reject the conclusion that racial disparities within our criminal justice are inevitable, and to actively work to eradicate them.
(j) It is the further intent of the Legislature to provide remedies that will eliminate racially discriminatory practices in the criminal justice system, in addition to intentional discrimination. It is the further intent of the Legislature to ensure that individuals have access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences.

SEC. 2.

 Section 745 is added to the Penal Code, immediately following Section 740, to read:

745.
 (a) The state shall not seek or obtain a criminal conviction or sentence on the basis of race, ethnicity, or national origin.
(b) A violation of subdivision (a) is established if the defendant proves, by a preponderance of the evidence, any of the following:
(1) The judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror was biased against a defendant because of the defendant’s race, ethnicity, or national origin.
(2) In court and during the criminal proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language or otherwise demonstrated bias or animus based on race, ethnicity, or national origin, whether or not purposeful or directed at a defendant.
(3) Race, ethnicity, or national origin was a factor in the exercise of peremptory challenges. The defendant need not show that purposeful discrimination occurred in the exercise of peremptory challenges to demonstrate a violation of subdivision (a).
(4) The prosecution sought or obtained a conviction for an offense for which convictions are more frequently sought or obtained against people who share the defendant’s race, ethnicity, or national origin than for defendants of other races, ethnicities, or national origins in the state or in the county where the convictions were sought or obtained.
(5) (A) A longer or more severe sentence was imposed on the defendant than was imposed on other individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for that offense on people that share the defendant’s race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the state or the country where sentencing occurred.
(B) A longer or more severe sentence was imposed on the defendant than was imposed on other individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for the same offense on defendants in cases with victims of one race, ethnicity, or national origin than in cases with victims of another race, ethnicity, or origin, in the state or in the county where the sentence was imposed.
(c) Notwithstanding any other law, a defendant may file a motion in the trial court or, if final judgment has been imposed, may file a petition for writ of habeas corpus or a motion under Section 1473.7 in a court of competent jurisdiction based on evidence of a violation of subdivision (a). The court shall hold a hearing and make findings on the record. Evidence may be presented in the form of statistical evidence, aggregate data at the state or county level, the sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system, or in any other form the court deems relevant and appropriate. The prosecution may offer evidence in rebuttal of the defendant’s evidence, including statistical evidence or evidence of training and policies to address explicit or implicit bias. The court may appoint an independent expert. The defendant shall have the burden of proving a violation of subdivision (a) by a preponderance of the evidence.
(d) Pursuant to a written request, the prosecution shall disclose to the defense all evidence relevant to a potential violation of subdivision (a). If the prosecution has reason to believe that relevant evidence is in the possession of another law enforcement agency, the prosecution shall request that information and disclose it to the defense. Following a hearing showing good cause, the court may permit the prosecution to redact information prior to disclosure.
(e) Notwithstanding any other law, if the court finds, by a preponderance of evidence, a violation of subdivision (a), the following remedies shall be imposed:
(1) When there has not been a final conviction, the court may reseat a juror removed by use of a peremptory challenge, declare a mistrial, discharge the jury panel and empanel a new jury, or dismiss or reduce charges. Monetary sanctions and training alone are not sufficient as a remedy.
(2) (A) When there has been a final conviction or sentence, if the court finds that a conviction was sought or obtained in violation of subdivision (a), the court shall vacate the conviction and sentence, find that it is legally invalid, and remand the case for new proceedings consistent with subdivision (a).
(B) When there has been a final conviction or sentence, if the court finds that only the sentence was sought, obtained, or imposed in violation of subdivision (a), the court shall vacate the sentence, find that it is legally invalid, and remand the case for resentencing consistent with subdivision (a). On remand, the court shall not impose a new sentence greater than that previously imposed.
(3) When the court finds there has been a violation of subdivision (a), the defendant shall not be eligible for the death penalty.
(f) This section also applies to commitments in the juvenile justice system.
(g) This section shall not prevent the prosecution of hate crimes pursuant to Sections 422.6 to 422.865, inclusive.
(h) As used in this section, the following definitions apply:
(1) “More frequently sought or obtained” or “more frequently imposed” means that statistical evidence or aggregate data demonstrate a significant difference in seeking or obtaining convictions or in imposing sentences and the prosecution cannot establish race-neutral reasons for the disparity.
(2) “Racially discriminatory language” means language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal, or language that references the defendant’s physical appearance, culture, ethnicity, or national origin. Evidence that particular words or images are used exclusively or disproportionately in cases where the defendant is a person of color or of a specific race, ethnicity, or national origin is relevant to determining whether language is discriminatory.
(3) “State” includes the Attorney General, a district attorney, a city prosecutor, or a superior court judge.
(i) A defendant may share a race, ethnicity, or national origin with more than one group. A defendant may aggregate data among groups to demonstrate a violation of subdivision (a).

SEC. 3.

 Section 1473 of the Penal Code is amended to read:

1473.
 (a) A person unlawfully imprisoned or restrained of his or her liberty,  restrained,  under any pretense, may prosecute a writ of habeas corpus to inquire into the cause of his or her  the  imprisonment or restraint.
(b) A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons:
(1) False evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing or trial relating to his or her  the person’s  incarceration.
(2) False physical evidence, believed by a person to be factual, probative, or material on the issue of guilt, which was known by the person at the time of entering a plea of guilty, which was a material factor directly related to the plea of guilty by the person.
(3) (A) New evidence exists that is credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.
(B) For purposes of this section, “new evidence” means evidence that has been discovered after trial, that could not have been discovered prior to trial by the exercise of due diligence, and is admissible and not merely cumulative, corroborative, collateral, or impeaching.
(c) Any allegation that the prosecution knew or should have known of the false nature of the evidence referred to in paragraphs (1) and (2) of subdivision (b) is immaterial to the prosecution of a writ of habeas corpus brought pursuant to paragraph (1) or (2) of subdivision (b).
(d) This section does not limit the grounds for which a writ of habeas corpus may be prosecuted or preclude the use of any other remedies.
(e) (1) For purposes of this section, “false evidence” includes opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.
(2) This section does not create additional liabilities, beyond those already recognized, for an expert who repudiates his or her  the  original opinion provided at a hearing or trial or whose opinion has been undermined by later scientific research or technological advancements.
(f) Notwithstanding any other law, a writ of habeas corpus may also be prosecuted based on evidence that a criminal conviction or sentence was sought, obtained, or imposed in violation of subdivision (a) of Section 745. A petition raising a claim of this nature for the first time, or on the basis of new discovery provided by the state or other new evidence that could not have been previously known by the petitioner with due diligence, shall not be deemed successive. If the petitioner already has a habeas corpus petition on file in state court, but it has not yet been decided, the petitioner may amend the existing petition with a claim that the petitioner’s conviction or sentence was sought, obtained, or imposed in violation of subdivision (a) of Section 745. The petition shall state if the petitioner requests appointment of counsel and the court shall appoint counsel if requested. Newly appointed counsel may amend a petition filed before their appointment. The court shall review a petition raising a claim pursuant to Section 745 and shall determine if the petitioner has made a prima facie showing of entitlement to relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause why relief shall not be granted and hold an evidentiary hearing, unless the state declines to show cause. If the court determines that the petitioner has not established a prima facie showing of entitlement to relief, the court shall state the factual and legal basis for its conclusion on the record or issue a written order detailing the factual and legal basis for its conclusion.
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.