BILL NUMBER: AB 2937 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 3, 2008
INTRODUCED BY Assembly Member Solorio
FEBRUARY 22, 2008
An act to amend Section 594 of the Penal Code, relating
to vandalism. An act to amend Section 340.6 of the
Code of Civil Procedure, and to amend Sections 4901, 4903, and 4904
of, and to add Sections 851.86 and 1203.95 to, the Penal Code,
relating to wrongful convictions.
LEGISLATIVE COUNSEL'S DIGEST
AB 2937, as amended, Solorio. Vandalism.
Wrongful convictions.
Under existing law, an action against an attorney for a wrongful
act or omission, other than for actual fraud, arising in the
performance of professional services is required to be commenced
within one year after the plaintiff discovers or should have
discovered the facts constituting the wrongful act or omission, or 4
years from the date of the wrongful act or omission, whichever occurs
first.
This bill would specify that if the plaintiff is required to
establish his or her actual innocence of an underlying criminal
charge as an element of his or her claim, the action is required to
be commenced within 2 years after the plaintiff achieves
postconviction exoneration in the form of a final judicial
disposition of the criminal case.
Existing law establishes procedures for a wrongfully convicted
person to seek compensation against the state for the pecuniary
injuries sustained by him or her through erroneous conviction and
imprisonment. These procedures require the California Victim
Compensation and Government Claims Board, if evidence shows the
claimant sustained pecuniary injury through erroneous conviction and
imprisonment, to report the facts of the case and its conclusion to
the next Legislature, with a recommendation that an appropriation be
made by the Legislature for the purpose of indemnifying the claimant
for the pecuniary injury, in a recommended amount of a sum equal to
$100 per day of incarceration.
This bill would increase that amount to $50,000 for each year of
prison confinement and to $100,000 for each year on death row,
adjusted on a pro rata basis for additional days and also adjusted to
reflect the annual rate of inflation. The bill would extend the
timeframe in which a person may bring a claim from 6 months to 2
years. The bill would also require the Department of Corrections and
Rehabilitation, upon release of a wrongfully convicted person, to
provide that person with release funds and to secure a case manager
within 14 days, as specified, to assist in matters related to
obtaining services, such as housing and medical care, for one year
from the date of release. The bill would make related changes to
other provisions.
Under existing law, whenever a person is acquitted of a charge and
it appears to the judge that the defendant was factually innocent,
the judge may order the records in the case be sealed, including any
record of arrest or detention, upon the written or oral motion of any
party in the case or the court, and with notice to all parties to
the case, as specified.
This bill would require a judge, whenever a person
is convicted of a charge and the conviction is set aside based upon
a determination that the person was factually innocent, to order that
the records in the case be sealed, including any record of arrest or
detention, upon written or oral motion of any party in the case or
the court. By imposing new duties on local officials regarding the
sealing of records, the 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 these
statutory provisions.
Existing law makes a person who maliciously commits any of
specified destructive acts with respect to the real or personal
property of another guilty of the crime of vandalism.
This bill would make nonsubstantive changes to that provision.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 340.6 of the Code of
Civil Procedure is amended to read:
340.6. (a) An action against an attorney for a wrongful act or
omission, other than for actual fraud, arising in the performance of
professional services shall be commenced within one year after the
plaintiff discovers, or through the use of reasonable diligence
should have discovered, the facts constituting the wrongful act or
omission, or four years from the date of the wrongful act or
omission, whichever occurs first. If the plaintiff is required
to establish his or her actual innocence for an underlying criminal
charge as an element of his or her claim, the action shall be
commenced within two years after the plaintiff achieves post
conviction exoneration in the form of a final
judicial disposition of the criminal case. In no event shall
the time for commencement of legal action exceed four years except
that the period shall be tolled during the time that any of the
following exist:
(1) The plaintiff has not sustained actual injury;
(2) The attorney continues to represent the plaintiff regarding
the specific subject matter in which the alleged wrongful act or
omission occurred;
(3) The attorney willfully conceals the facts constituting the
wrongful act or omission when such facts are known to the attorney,
except that this subdivision shall toll only the four-year
limitation; and
(4) The plaintiff is under a legal or physical disability which
restricts the plaintiff's ability to commence legal action.
(b) In an action based upon an instrument in writing, the
effective date of which depends upon some act or event of the future,
the period of limitations provided for by this section shall
commence to run upon the occurrence of such act or event.
SEC. 2. Section 851.86 is added to the
Penal Code , to read:
851.86. Whenever a person is convicted of a charge, and the
conviction is set aside based upon a determination that the person
was factually innocent of the charge, the judge shall order that the
records in the case be sealed, including any record of arrest or
detention, upon written or oral motion of any party in the case or
the court, and with notice to all parties to the case. If such an
order is made, the court shall give the defendant a copy of that
order and inform the defendant that he or she may thereafter state he
or she was not arrested for that charge and that he or she was not
convicted of that charge, and that he or she was found innocent of
that charge by the court. The court shall also inform the defendant
of the availability of indemnity for persons erroneously convicted
pursuant to Chapter 5 (commencing with Section 4900) of Title 6 of
Part 3, and the time limitations for presenting those claims.
SEC. 3. Section 1203.95 is added to the
Penal Code , to read:
1203.95. (a) As used in this section, a "wrongfully convicted
person" means an individual whose criminal conviction has been
vacated by a court, either on direct appeal or a petition for habeas
corpus, and the person has been released from custody as a result of
that court decision.
(b) Whenever a wrongfully convicted person serving a state prison
sentence has been released from custody as a result of a court
decision vacating his or her criminal conviction, the Department of
Corrections and Rehabilitation shall do both of the following:
(1) Provide the wrongfully convicted person with release funds
pursuant to Section 2713.1.
(2) Secure a case manager for the wrongfully convicted person
within 14 days, unless the wrongfully convicted person declines the
assistance of a case manager. The case manager shall assist the
wrongfully convicted person for one year from the date of release.
The case manager shall not be a parole agent, probation officer, or
other law enforcement officer, and shall not be a staff person of the
Department of Corrections and Rehabilitation.
(c) The case manager for the wrongfully convicted person shall do
the following:
(1) Conduct a risk and needs assessment for the wrongfully
convicted person and his or her family.
(2) For one year, assist the wrongfully convicted person and his
or her family with securing needed services, including, but not
limited to, housing, psychological counseling, medical services, and
vocational training.
(d) The Department of Corrections and Rehabilitation is authorized
to secure the case manager for the wrongfully convicted person by
entering into an agreement with a county social services agency or a
nonprofit community service provider.
SEC. 4. Section 4901 of the Penal Code
is amended to read:
4901. A claim under Section 4900, accompanied by a statement of
the facts constituting the claim, verified in the manner provided for
the verification of complaints in civil actions, must be presented
by the claimant to the California Victim Compensation and Government
Claims Board within a period of six months
two years after judgment of acquittal or discharge given, or
after pardon granted, or after release from imprisonment,
and at least four months prior to the next meeting of the Legislature
and no claim not so presented shall be considered by
the California Victim Compensation and Government Claims Board.
SEC. 5. Section 4903 of the Penal Code
is amended to read:
4903. On such hearing the claimant shall introduce evidence in
support of the claim, and the Attorney General may introduce evidence
in opposition thereto. The claimant must prove the facts set forth
in the statement constituting the claim, including the fact that the
crime with which he or she was charged was either not
committed at all, or, if committed, was not committed by him or
her , the fact that he or she did not, by any act or
omission on his or her part, either
intentionally or negligently, contribute to the bringing about of his
arrest or conviction for the crime with which he was charged,
through his or her own misconduct, voluntarily subvert
the judicial process, and the pecuniary injury sustained by
him or her through his or her erroneous
conviction and imprisonment.
SEC. 6. Section 4904 of the Penal Code
is amended to read:
4904. If the evidence shows that the crime with which the
claimant was charged was either not committed at all, or, if
committed, was not committed by the claimant, and that the claimant
did not, by any act or omission either intentionally or
negligently, contribute to the bringing about of his or her arrest or
conviction, through his or her own misconduct,
voluntarily subvert the judicial process, and that the claimant
has sustained pecuniary injury through his or her erroneous
conviction and imprisonment, the California Victim Compensation and
Government Claims Board shall report the facts of the case and its
conclusions to the next Legislature, with a recommendation that an
appropriation be made by the Legislature for the purpose of
indemnifying the claimant for the pecuniary injury. The amount of the
appropriation recommended shall be a sum equivalent to one
hundred dollars ($100) per day of incarceration fifty
thousand dollars ($50,000) for each year of prison confinement, pro
rata for additional days, and one hundred thousand dollars ($100,000)
for each year on death row, pro rata for additional days,
served subsequent to the claimant's conviction and that appropriation
shall not be treated as gross income to the recipient under the
Revenue and Taxation Code. These amounts shall be adjusted to
reflect the annual rate of inflation subsequent to enactment of this
amendment.
SEC. 7. 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.
SECTION 1. Section 594 of the Penal Code is
amended to read:
594. (a) Every person who maliciously commits any of the
following acts with respect to any real or personal property not his
or her own, in cases other than those specified by state law, is
guilty of vandalism:
(1) Defaces with graffiti or other inscribed material.
(2) Damages.
(3) Destroys.
Whenever a person violates this subdivision with respect to real
property, vehicles, signs, fixtures, furnishings, or property
belonging to any public entity, as defined by Section 811.2 of the
Government Code, or the federal government, it shall be a permissive
inference that the person did not own the property or have the
permission of the owner to deface, damage, or destroy the property.
(b) (1) If the amount of defacement, damage, or destruction is
four hundred dollars ($400) or more, vandalism is punishable by
imprisonment in the state prison or in a county jail not exceeding
one year, or by a fine of not more than ten thousand dollars
($10,000), or if the amount of defacement, damage, or destruction is
ten thousand dollars ($10,000) or more, by a fine of not more than
fifty thousand dollars ($50,000), or by both that fine and
imprisonment.
(2) (A) If the amount of defacement, damage, or destruction is
less than four hundred dollars ($400), vandalism is punishable by
imprisonment in a county jail not exceeding one year, or by a fine of
not more than one thousand dollars ($1,000), or by both that fine
and imprisonment.
(B) If the amount of defacement, damage, or destruction is less
than four hundred dollars ($400), and the defendant has been
previously convicted of vandalism or affixing graffiti or other
inscribed material under Section 594, 594.3, 594.4, 640.5, 640.6, or
640.7, vandalism is punishable by imprisonment in a county jail for
not more than one year, or by a fine of not more than five thousand
dollars ($5,000), or by both that fine and imprisonment.
(c) Upon conviction of any person under this section for acts of
vandalism consisting of defacing property with graffiti or other
inscribed materials, the court may, in addition to any punishment
imposed under subdivision (b), order the defendant to clean up,
repair, or replace the damaged property himself or herself, or order
the defendant, and his or her parents or guardians if the defendant
is a minor, to keep the damaged property or another specified
property in the community free of graffiti for up to one year.
Participation of a parent or guardian is not required under this
subdivision if the court deems this participation to be detrimental
to the defendant, or if the parent or guardian is a single parent who
must care for young children.
(d) If a minor is personally unable to pay a fine imposed for acts
prohibited by this section, the parent of that minor shall be liable
for payment of the fine. A court may waive payment of the fine, or
any part thereof, by the parent upon a finding of good cause.
(e) As used in this section, the term "graffiti or other inscribed
material" includes any unauthorized inscription, word, figure, mark,
or design, that is written, marked, etched, scratched, drawn, or
painted on real or personal property.
(f) The court may order any person ordered to perform community
service or graffiti removal pursuant to paragraph (1) of subdivision
(c) to undergo counseling.
(g) This section shall become operative on January 1, 2002.