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AB-1987 Discovery: postconviction.(2017-2018)

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Date Published: 04/19/2018 04:00 AM
AB1987:v96#DOCUMENT

Amended  IN  Assembly  April 18, 2018
Amended  IN  Assembly  April 12, 2018
Amended  IN  Assembly  April 04, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1987


Introduced by Assembly Member Lackey
(Coauthor: Senator Skinner)

February 01, 2018


An act to amend Sections 6068, 6086.1, and 6086.15 of the Business and Professions Code, and to amend Section 1054.9 of the Penal Code, relating to discovery.


LEGISLATIVE COUNSEL'S DIGEST


AB 1987, as amended, Lackey. Discovery: postconviction.

Existing

(1) Existing law requires, in a case in which a sentence of death or life in prison without the possibility of parole has been imposed, a court to order that a defendant be provided reasonable access to discovery materials upon prosecution of a postconviction writ of habeas corpus or a motion to vacate judgment and a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful. Existing law defines “discovery materials” for these purposes as materials in the possession of the prosecuting and law enforcement authorities to which the defendant would have been entitled at time of trial.
This bill would expand this right of access to discovery materials to any case in which a defendant is convicted of a serious or violent felony, a conviction felony resulting in a sentence of 15 years or more, or a conviction for specified crimes. more. By authorizing the court to require local agencies to provide access to physical evidence under certain circumstances, this bill would impose a state-mandated local program.
The bill would, in a case in which a sentence other than death or life in prison without the possibility of parole has been imposed, if a court has entered a previous order granting discovery pursuant to the above provision, authorize a subsequent order granting discovery to be made in the court’s discretion. The bill would require a subsequent request for discovery to include a statement by the person requesting discovery as to whether he or she has previously been granted an order for discovery.
(2) Existing law makes it the duty of an attorney to support the Constitution and laws of the United States and California, to maintain respect due to the courts of justice, and to maintain his or her client’s confidence, among other duties.
The bill would, in cases This bill would make it a duty of an attorney, in criminal matters involving a conviction resulting in a sentence of 15 years or more for a serious or violent felony, require the attorney for the defendant to retain a copy of his or her client’s files for the term of his or her imprisonment.
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 the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 6068 of the Business and Professions Code is amended to read:

6068.
 It is the duty of an attorney to do all of the following:
(a) To support the Constitution and laws of the United States and of this state.
(b) To maintain the respect due to the courts of justice and judicial officers.
(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.
(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.
(e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.
(2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.
(f) To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.
(g) Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.
(h) Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.
(i) To cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against himself or herself. However, this subdivision shall not be construed to deprive an attorney of any privilege guaranteed by the Fifth Amendment to the Constitution of the United States, or any other constitutional or statutory privileges. This subdivision shall not be construed to require an attorney to cooperate with a request that requires him or her to waive any constitutional or statutory privilege or to comply with a request for information or other matters within an unreasonable period of time in light of the time constraints of the attorney’s practice. Any exercise by an attorney of any constitutional or statutory privilege shall not be used against the attorney in a regulatory or disciplinary proceeding against him or her.
(j) To comply with the requirements of Section 6002.1.
(k) To comply with all conditions attached to any disciplinary probation, including a probation imposed with the concurrence of the attorney.
(l) To keep all agreements made in lieu of disciplinary prosecution with the agency charged with attorney discipline.
(m) To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.
(n) In criminal matters involving a conviction for a serious felony or a violent felony resulting in a sentence of 15 years or more, to retain a copy of a former client’s files for the term of his or her imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied and preserved.

(n)

(o) To provide copies to the client of certain documents under time limits and as prescribed in a rule of professional conduct which the board shall adopt.

(o)

(p) To report to the agency charged with attorney discipline, in writing, within 30 days of the time the attorney has knowledge of any of the following:
(1) The filing of three or more lawsuits in a 12-month period against the attorney for malpractice or other wrongful conduct committed in a professional capacity.
(2) The entry of judgment against the attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.
(3) The imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).
(4) The bringing of an indictment or information charging a felony against the attorney.
(5) The conviction of the attorney, including any verdict of guilty, or plea of guilty or no contest, of a felony, or a misdemeanor committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.
(6) The imposition of discipline against the attorney by a professional or occupational disciplinary agency or licensing board, whether in California or elsewhere.
(7) Reversal of judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation, or willful misrepresentation by an attorney.
(8) As used in this subdivision, “against the attorney” includes claims and proceedings against any firm of attorneys for the practice of law in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has to the attorney’s knowledge already been reported by the law firm or corporation.
(9) The State Bar may develop a prescribed form for the making of reports required by this section, usage of which it may require by rule or regulation.
(10) This subdivision is only intended to provide that the failure to report as required herein may serve as a basis of discipline.

SEC. 2.

 Section 6086.1 of the Business and Professions Code is amended to read:

6086.1.
 (a) (1) Subject to subdivision (b), and except as otherwise provided by law, hearings and records of original disciplinary proceedings in the State Bar Court shall be public, following a notice to show cause.
(2) Subject to subdivision (b), and except as otherwise provided by law, hearings and records of the following matters shall be public:
(A) Filings for involuntary inactive enrollment or restriction under subdivision (a), (c), (d), or (e) of Section 6007.
(B) Petitions for reinstatement under Section 6078.
(C) Proceedings for suspension or disbarment under Section 6101 or 6102.
(D) Payment information from the Client Security Fund pursuant to Section 6140.5.
(E) Actions to cease a law practice or assume a law practice under Section 6180 or 6190.
(b) All disciplinary investigations are confidential until the time that formal charges are filed and all investigations of matters identified in paragraph (2) of subdivision (a) are confidential until the formal proceeding identified in paragraph (2) of subdivision (a) is instituted. These investigations shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality requirement may be waived under any of the following exceptions:
(1) The member whose conduct is being investigated may waive confidentiality.
(2) The Chief Trial Counsel or President of the State Bar may waive confidentiality, but only when warranted for protection of the public. Under those circumstances, after private notice to the member, the Chief Trial Counsel or President of the State Bar may issue, if appropriate, one or more public announcements or make information public confirming the fact of an investigation or proceeding, clarifying the procedural aspects and current status, and defending the right of the member to a fair hearing. If the Chief Trial Counsel or President of the State Bar for any reason declines to exercise the authority provided by this paragraph, or disqualifies himself or herself from acting under this paragraph, he or she shall designate someone to act in his or her behalf. Conduct of a member that is being inquired into by the State Bar but that is not the subject of a formal investigation shall not be disclosed to the public.
(3) The Chief Trial Counsel or his or her designee may waive confidentiality pursuant to Section 6044.5.
(c) Notwithstanding the confidentiality of investigations, the State Bar shall disclose to any member of the public so inquiring, any information reasonably available to it pursuant to subdivision (o) (p) of Section 6068, and to Sections 6086.7, 6086.8, and 6101, concerning a member of the State Bar which is otherwise a matter of public record, including civil or criminal filings and dispositions.

SEC. 3.

 Section 6086.15 of the Business and Professions Code is amended to read:

6086.15.
 (a) The State Bar shall issue an Annual Discipline Report by April 30 of each year describing the performance and condition of the State Bar discipline system, including all matters that affect public protection. The report shall cover the previous calendar year and shall include accurate and complete descriptions of all of the following:
(1) The existing backlog of cases within the discipline system, including the number of complaints as of December 31 of the preceding year that were pending beyond six months after receipt without dismissal, admonition, or the filing of a notice of disciplinary charges. In addition to written complaints received by the State Bar, the backlog of cases shall include other matters opened in the Office of the Chief Trial Counsel and pending beyond six months after receipt without the filing of notices of disciplinary charges, or the initiation of other disciplinary proceedings in the State Bar Court for the purpose of seeking the imposition of discipline against a member of the State Bar, and tables showing time periods beyond six months and the number in each category and a discussion of the reason for the extended periods.
(2) The number of inquiries and complaints and their disposition.
(3) The number, average pending times, and types of matters self-reported by members of the State Bar pursuant to subdivision (o) (p) of Section 6068 and subdivision (c) of Section 6086.8.
(4) The number, average pending times, and types of matters reported by other sources pursuant to Sections 6086.7, 6086.8, 6091.1, subdivision (b) of Section 6101, and Section 6175.6.
(5) The speed of complaint handling and dispositions by type, measured by the median and the average processing times.
(6) The number, average pending times, and types of filed notices of disciplinary charges and formal disciplinary outcomes.
(7) The number, average pending times, and types of other matters, including petitions to terminate practice pursuant to Section 6180 or 6190, interim suspensions and license restrictions pursuant to Section 6007, motions to enforce a binding arbitration award, judgment, or agreement pursuant to subdivision (d) of Section 6203, motions to revoke probation, letters of warning, private reprovals, admonitions, and agreements in lieu of discipline.
(8) The number, average pending times, and outcomes of complaints involving a State Bar member who has been disbarred or who has resigned, and is engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities, or petitions to terminate practice pursuant to Section 6180.
(9) The number, average pending times, and outcomes of complaints against nonattorneys engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities; petitions to terminate practice pursuant to Section 6126.3; or referrals to prosecuting authorities or actions by the State Bar pursuant to Section 6126.7.
(10) A description of the condition of the Client Security Fund, including an accounting of payouts.
(11) An accounting of the cost of the discipline system by function.
(b) The Annual Discipline Report shall include statistical information presented in a consistent manner for year-to-year comparison and shall compare the information required under subdivision (a) to similar information for the previous three years.
(c) The Annual Discipline Report shall be presented to the Chief Justice of California, to the Governor, to the Speaker of the Assembly, to the President pro Tempore of the Senate, and to the Assembly and Senate Judiciary Committees, for their consideration and shall be considered a public document.

SECTION 1.SEC. 4.

 Section 1054.9 of the Penal Code is amended to read:

1054.9.
 (a) In a case involving a conviction of a serious felony or a violent felony, a conviction resulting in a sentence of 15 years or more, or a conviction for an offense specified in subdivision (g), felony resulting in a sentence of 15 years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment, or in preparation to file that writ or motion, and on a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, the court shall, except as provided in subdivision (b) or (d), order that the defendant be provided reasonable access to any of the materials described in subdivision (c).
(b) Notwithstanding subdivision (a), in a case in which a sentence other than death or life in prison without the possibility of parole has been imposed, if a court has entered a previous order granting discovery pursuant to this section, a subsequent order granting discovery pursuant to subdivision (a) may be made in the court’s discretion. A request for discovery subject to this subdivision shall include a statement by the person requesting discovery as to whether he or she has previously been granted an order for discovery pursuant to this section.
(c) For purposes of this section, “discovery materials” means materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial.
(d) In response to a writ or motion satisfying the conditions in subdivision (a), the court may order that the defendant be provided access to physical evidence for the purpose of examination, including, but not limited to, any physical evidence relating to the investigation, arrest, and prosecution of the defendant only upon a showing that there is good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief. The procedures for obtaining access to physical evidence for purposes of postconviction DNA testing are provided in Section 1405, and this section does not provide an alternative means of access to physical evidence for those purposes.
(e) The actual costs of examination or copying pursuant to this section shall be borne or reimbursed by the defendant.
(f) This section does not require the retention of any discovery materials not otherwise required by law or court order.

(g)This section applies to a conviction for an offense described in Section 261, 262, 269, 286, 288, 288a, 288.7, or 289, an aggravated assault in violation of Section 273ab, or any conviction that results in a life sentence, including, but not limited, a sentence imposed pursuant to Section 667, 667.61, 667.71, or 1170.12.

(h)In a case involving a conviction resulting in a sentence of 15 years or more for a serious or violent felony, the attorney for the defendant shall retain a copy of his or her client’s files for the term of his or her imprisonment. An electronic copy is sufficient to satisfy the requirement of this subdivision only if every item in the file is digitally copied and preserved.

(i)

(g) As used in this section, a “serious felony” is a conviction of a felony enumerated in subdivision (c) of Section 1192.7.

(j)

(h) As used in this section, a “violent felony” is a conviction of a felony enumerated in subdivision (c) of Section 667.5.

SEC. 2.SEC. 5.

 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.