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SB-441 Criminal procedure: discovery.(2023-2024)



Current Version: 09/05/23 - Amended Assembly

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SB441:v96#DOCUMENT

Amended  IN  Assembly  September 05, 2023
Amended  IN  Assembly  June 29, 2023
Amended  IN  Senate  May 18, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 441

Introduced by Senator Bradford

February 13, 2023

An act to amend Sections 1054.1, 1054.5, and 1054.7 of the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


SB 441, as amended, Bradford. Criminal procedure: discovery.
Existing law, as enacted by Proposition 115, an initiative statute adopted by the voters at the June 5, 1990, statewide primary election, requires a prosecuting attorney to disclose to the defendant specified items of discovery, including the names and addresses of any persons the prosecutor intends to call as witnesses, the felony convictions of specified material witnesses, and any exculpatory evidence. Existing law requires a party, before seeking court enforcement of these disclosures, to make an informal request of opposing counsel for the information. Existing law authorizes a party to seek a court order if the opposing counsel does not provide the information within 15 days. Existing law, as enacted by Proposition 115, states that those provisions should be interpreted to provide that no discovery in criminal cases is to occur except as provided by those provisions or as mandated by the Constitution of the United States.
This bill would amend the initiative by additionally requiring the prosecuting attorney, in a felony case, to disclose that information to the defendant or their attorney before or at the preliminary hearing, as specified. The bill would authorize a party in a felony case in which the defendant has not waived the right to a preliminary hearing within 10 court days to seek a court order of disclosures if opposing counsel does not provide materials within 3 days. The bill would authorize a court, except as specified, to issue an order compelling discovery directed to prosecuting attorneys, law enforcement agencies that investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties. The bill would require the court, when the court has issued an order compelling discovery, to, upon motion of the defendant, continue the preliminary hearing until all of the court-ordered discovery has been produced to the defendant. If the prosecutor requests a continuance to comply with discovery and the defendant has not waived the right to a timely preliminary hearing, the bill would also authorize the court to extend the time for the preliminary hearing, as specified, if the court finds good cause.
By increasing the required discovery by the prosecution in a criminal case beyond that which was enumerated by Proposition 115 or that which is constitutionally required, this bill would amend the provision of Proposition 115.
Proposition 115 allows its provisions to be amended by the Legislature only by a 2/3 vote of the membership of each house.
Also, by increasing the duties of discovery on local prosecutors, this bill would impose a state-mandated local program.
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: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 1054.1 of the Penal Code is amended to read:

1054.1.
 (a) The prosecuting attorney shall disclose to the defendant or their attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:
(1) The names and addresses of persons the prosecutor intends to call as witnesses at trial.
(2) Statements of all defendants.
(3) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.
(4) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.
(5) Any exculpatory evidence.
(6) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.
(b) In a felony case, the prosecuting attorney shall disclose to the defendant or their attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies, before or at the preliminary hearing, as prescribed in Sections 1054.5 and 1054.7. If a prosecuting attorney requests or seeks to identify the existence of any of the following materials and information from an investigating agency and any information or material is not provided or disclosed to the prosecuting attorney in a timely manner to comply with this subdivision, the prosecuting attorney shall disclose their request to the defendant or their attorney prior to the preliminary hearing.
(1) The names and addresses of persons the prosecutor intends to call as witnesses at the preliminary hearing, and persons whose out-of-court statements the prosecutor intends to introduce into evidence at the preliminary hearing.
(2) Statements of all defendants.
(3) All A list of all relevant real evidence seized or obtained as a part of the investigation of the offenses charged. charged and reasonable access to any real evidence that the prosecution intends to introduce at the preliminary hearing. This subdivision does not reduce any other legal requirement for a prosecutor to provide the real evidence to the defense.
(4) The existence of a felony conviction of any material witness, including persons whose out-of-court statements the prosecutor intends to introduce into evidence at the preliminary hearing, whose credibility is likely to be material to the magistrate’s determination whether there is a reasonable suspicion that a crime has been committed and that the defendant is guilty thereof.
(5) Any exculpatory evidence.
(6) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the preliminary hearing, and persons whose out-of-court statements the prosecutor intends to introduce into evidence at the preliminary hearing, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the preliminary hearing.
(7) This section does not reduce the obligation to produce discovery under other statutory provisions, as mandated by the Constitution of the United States, or by any other law. Nothing in this section alters any authority a prosecutor has to charge the defendant a reasonable discovery fee.

SEC. 2.

 Section 1054.5 of the Penal Code is amended to read:

1054.5.
 (a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. Except in a felony case in which the defendant has not waived the right to a preliminary hearing within 10 court days, if within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. In a felony case in which the defendant has not waived the right to a preliminary hearing within 10 court days, if within 3 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.
(c) (1) Except in a felony case in which the defendant has not waived the right to a preliminary hearing within 10 court days, the court may issue an order compelling discovery directed to any of the agencies and persons described in paragraph (a), provided the affected agency or person has received notice of the motion for an order compelling discovery at least 10 court days before the date set for hearing on the motion.
(2) In a felony case in which the defendant has not waived the right to a preliminary hearing within 10 court days, the court may issue an order compelling discovery directed to the prosecutor, after notice of the motion presented at any time, including at the preliminary hearing. The court shall not take testimony at a preliminary hearing before hearing and deciding any outstanding motions to compel discovery.
(d) (1) In any case in which the court has issued an order compelling discovery, the court shall, upon motion of the defendant, continue the preliminary hearing until all of the court-ordered discovery has been produced to the defendant. The defendant may bring this motion to continue at any time. The defendant’s right to bring this motion is in addition to and does not vitiate the right to use any other available remedy for failure to produce court-ordered discovery. Any delay under this paragraph shall not toll the running of any statutory or constitutional right to a speedy preliminary hearing or a speedy trial.
(2) If a continuance is requested by the prosecutor to comply with subdivision (b) of Section 1054.1 and the continuance will cause the preliminary hearing not to be held within 10 court days, and the defendant has not waived the right to a preliminary hearing within 10 court days, if the court finds good cause, the time for the preliminary hearing may be extended once for an additional five calendar days.
(3) If a continuance is requested by the prosecutor to comply with subdivision (b) of Section 1054.1 and the continuance will cause the preliminary hearing not to be held within 60 court days, and the defendant has not waived the right to a preliminary hearing within 60 court days, if the court finds good cause, the time for the preliminary hearing may be extended once for an additional 10 calendar days.
(4) If a continuance is granted pursuant to this subdivision, the relief contained in Section 859b applies if the preliminary hearing does not commence within the timeframe approved by the court.
(5) Failure to comply with an order compelling discovery under this subdivision, by itself, shall not constitute good cause to continue a preliminary hearing beyond any time extended under this subdivision.
(e) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.

SEC. 3.

 Section 1054.7 of the Penal Code is amended to read:

1054.7.
 (a) The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. “Good cause” is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.
(b) Except in a felony case when the defendant has waived the right to a preliminary hearing within 10 court days, the disclosures required under this chapter shall be made no later than 10 days before the date scheduled for the preliminary hearing.
(c) In a felony case when the defendant has not waived the right to a preliminary hearing within 10 court days, the disclosures required under this chapter shall be made no later than 72 hours before the preliminary hearing is scheduled to begin.
(d) Upon the request of any party, the court may permit a showing of good cause for the denial or regulation of disclosures, or any portion of that showing, to be made in camera. A verbatim record shall be made of any such proceeding. If the court enters an order granting relief following a showing in camera, the entire record of the showing shall be sealed and preserved in the records of the court, and shall be made available to an appellate court in the event of an appeal or writ. In its discretion, the trial court may after trial and conviction, unseal any previously sealed matter.

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.