{"id":895,"date":"2022-03-22T10:35:21","date_gmt":"2022-03-22T10:35:21","guid":{"rendered":"https:\/\/crowdsourcelawyers.com\/statutes-california-laws\/?page_id=895"},"modified":"2022-05-20T23:48:04","modified_gmt":"2022-05-20T23:48:04","slug":"ab256","status":"publish","type":"page","link":"https:\/\/crowdsourcelawyers.com\/california-statutes\/california-statutes\/ab256\/","title":{"rendered":"AB256"},"content":{"rendered":"<section  class='av_textblock_section av-av_textblock-e878f05c31dff72941bf1e49a00d9ff5 '   itemscope=\"itemscope\" itemtype=\"https:\/\/schema.org\/CreativeWork\" ><div class='avia_textblock'  itemprop=\"text\" ><p>Currrent as of February 4, 2022<\/p>\n<\/div><\/section>\n\n<style type=\"text\/css\" data-created_by=\"avia_inline_auto\" id=\"style-css-av-l1203e8k-d631885a6e6d64bfc440c9e607e9bed5\">\n#top .av_textblock_section.av-l1203e8k-d631885a6e6d64bfc440c9e607e9bed5 .avia_textblock{\nfont-size:19px;\n}\n<\/style>\n<section  class='av_textblock_section av-l1203e8k-d631885a6e6d64bfc440c9e607e9bed5 '   itemscope=\"itemscope\" itemtype=\"https:\/\/schema.org\/CreativeWork\" ><div class='avia_textblock'  itemprop=\"text\" ><h1>Assembly Bill No. 256<\/h1>\n<hr \/>\n<table>\n<tbody>\n<tr>\n<td>\n<p style=\"text-align: center\"><strong>Introduced by Assembly Members Kalra, Kamlager, Robert\u00a0Rivas, and Santiago<br \/>\n(Principal coauthor: Assembly Member McCarty)<br \/>\n(Principal coauthors: Senators Bradford and Gonzalez)<br \/>\n(Coauthors: Assembly Members Bonta, Carrillo, Friedman, Lee, Levine, Stone, and Ting)<br \/>\n(Coauthors: Senators Durazo, Laird, Skinner, and Wiener)<\/strong><\/p>\n<\/td>\n<\/tr>\n<tr>\n<td>\n<p style=\"text-align: center\"><strong><br \/>\nJanuary\u00a014,\u00a02021<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<p style=\"text-align: center\">An act to amend Sections 745 and 1473 of the Penal Code, relating to criminal procedure.<\/p>\n<p style=\"text-align: center\">LEGISLATIVE COUNSEL&#8217;S DIGEST<\/p>\n<p>AB 256, as amended, Kalra. Criminal procedure: discrimination.<\/p>\n<p>Existing law prohibits the state from seeking a criminal conviction or sentence on the basis of race, ethnicity, or national origin, as specified, and, in a case in which judgment has not been entered prior to January 1, 2021, allows a petition to be filed alleging a violation of that prohibition. Existing law authorizes a court that finds a violation of that prohibition to impose specified remedies, including, among other things, vacating the conviction or sentence and ordering new proceedings.<\/p>\n<p>This bill would authorize that petition to be filed for cases in which a judgment was entered prior to January 1,\u00a02021, as specified. The bill would, if a motion under these provisions is based on the conduct or statements by the judge, require the judge to disqualify themselves from those proceedings.\u00a0The bill would additionally make other technical changes.<\/p>\n<p>Vote:\u00a0majority\u00a0\u00a0\u00a0Appropriation:\u00a0no\u00a0\u00a0\u00a0Fiscal Committee:\u00a0yes\u00a0\u00a0\u00a0Local Program:\u00a0no<\/p>\n<hr \/>\n<p>THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:<\/p>\n<p><strong>SECTION 1.<\/strong><\/p>\n<p>(a)\u00a0It is the intent of the Legislature to apply the California Racial Justice Act of 2020 retroactively, to ensure equal access to justice for all.<\/p>\n<p>(b)\u00a0It is the intent of the Legislature that, except as described in subdivision (a), all other amendments made by this act are to clarify existing law.<\/p>\n<p><strong>SEC. 2.<\/strong><\/p>\n<p>Section 745 of the Penal Code is amended to read:<\/p>\n<p><strong>745.<\/strong><\/p>\n<p>(a)\u00a0The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. A violation is established if the defendant proves, by a preponderance of the evidence, any of the following:<\/p>\n<p>(1)\u00a0The judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant\u2019s race, ethnicity, or national origin.<\/p>\n<p>(2)\u00a0\u00a0During the defendant\u2019s trial, in court and during the 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 about the defendant\u2019s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant\u2019s race, ethnicity, or national origin, whether or not purposeful. This paragraph does not apply if the person speaking is describing language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect.<\/p>\n<p>(3)\u00a0The defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who commit similar offenses and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant\u2019s race, ethnicity, or national origin in the county where the convictions were sought or obtained.<\/p>\n<p>(4)\u00a0(A)\u00a0A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated 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\u2019s race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county where the sentence was imposed.<\/p>\n<p>(B)\u00a0A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated 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 other races, ethnicities, or national origins, in the county where the sentence was imposed.<\/p>\n<p>(b)\u00a0A defendant may file a motion in the trial court or, if 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, alleging a violation of subdivision (a).\u00a0If the motion is based in whole or in part on conduct or statements by the judge, the judge shall disqualify themselves from any further proceedings under this section.<\/p>\n<p>(c)\u00a0If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subdivision (a), the trial court shall hold a hearing.<\/p>\n<p>(1)\u00a0At the hearing, evidence may be presented by either party, including, but not limited to, statistical evidence, aggregate data, expert testimony, and the sworn testimony of witnesses. The court may also appoint an independent expert.<\/p>\n<p>(2)\u00a0The defendant shall have the burden of proving a violation of subdivision (a) by a preponderance of the evidence.<\/p>\n<p>(3)\u00a0At the conclusion of the hearing, the court shall make findings on the record.<\/p>\n<p>(d)\u00a0A defendant may file a motion requesting disclosure to the defense of all evidence relevant to a potential violation of subdivision (a) in the possession or control of the state. A motion filed under this section shall describe the type of records or information the defendant seeks. Upon a showing of good cause, and if the records are not privileged, the court shall order the records to be released. Upon a showing of good cause, the court may permit the prosecution to redact information prior to disclosure.<\/p>\n<p>(e)\u00a0Notwithstanding any other law, except for an initiative approved by the voters, if the court finds, by a preponderance of evidence, a violation of subdivision (a), the court shall impose a remedy specific to the violation found from the following list:<\/p>\n<p>(1)\u00a0Before a judgment has been entered, the court may impose any of the following remedies:<\/p>\n<p>(A)\u00a0Declare a mistrial, if requested by the defendant.<\/p>\n<p>(B)\u00a0Discharge the jury panel and empanel a new jury.<\/p>\n<p>(C)\u00a0If the court determines that it would be in the interest of justice, dismiss enhancements, special circumstances, or special allegations, or reduce one or more charges.<\/p>\n<p>(2)\u00a0(A)\u00a0After\u00a0a judgment has been entered, 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 order new proceedings consistent with subdivision (a).<\/p>\n<p>(B)\u00a0After\u00a0a judgment has been entered, 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 impose a new sentence. On resentencing, the court shall not impose a new sentence greater than that previously imposed.<\/p>\n<p>(3)\u00a0When the court finds there has been a violation of subdivision (a), the defendant shall not be eligible for the death penalty.<\/p>\n<p>(4)\u00a0The remedies available under this section do not foreclose any other remedies available under the United States Constitution, the California Constitution, or any other law.<\/p>\n<p>(f)\u00a0This section also applies to adjudications and dispositions in the juvenile delinquency system.<\/p>\n<p>(g)\u00a0This section shall not prevent the prosecution of hate crimes pursuant to Sections 422.6 to 422.865, inclusive.<\/p>\n<p>(h)\u00a0As used in this section, the following definitions apply:<\/p>\n<p>(1)\u00a0\u201cJuror\u201d means a prospective or sworn juror, including alternate jurors.<\/p>\n<p>(2)\u00a0\u201cMore frequently sought or obtained\u201d or \u201cmore frequently imposed\u201d means that statistical evidence or aggregate data demonstrate a significant difference in seeking or obtaining convictions or in imposing sentences comparing individuals who have committed similar offenses and are similarly situated, and the prosecution cannot establish race-neutral reasons for the disparity.<\/p>\n<p>(3)\u00a0\u201cPrima facie showing\u201d means that the defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of subdivision (a) occurred. For purposes of this section, a \u201csubstantial likelihood\u201d requires more than a mere possibility, but less than a standard of more likely than not.<\/p>\n<p>(4)\u00a0\u201cRacially discriminatory language\u201d 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\u2019s physical appearance, culture, ethnicity, or national origin. Evidence that particular words or images are used exclusively or disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin is relevant to determining whether language is discriminatory.<\/p>\n<p>(5)\u00a0\u201cState\u201d includes the Attorney General, a district attorney, or a city prosecutor.<\/p>\n<p>(i)\u00a0A 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).<\/p>\n<p>(j)\u00a0This section applies in cases in which judgment has not been entered prior to January 1, 2021, and shall also apply retroactively as follows:<\/p>\n<p>(1)\u00a0Beginning January 1, 2022, in cases in which judgment was entered prior to January 1, 2021, if the petitioner is sentenced to death or currently serving a sentence in state prison or in a county jail pursuant to subdivision (h) of Section 1170, or committed to the Division of Juvenile Justice for a juvenile disposition, or if the motion is filed pursuant to Section 1473.7 because of actual or potential immigration consequences related to the conviction or sentence.<\/p>\n<p>(2)\u00a0Beginning January 1, 2023, in cases in which judgment was entered for a felony conviction or juvenile disposition after January 1, 2013.<\/p>\n<p>(3)\u00a0Beginning January 1, 2025, in cases in which judgment was entered for a felony conviction or juvenile disposition regardless of the date of judgment.<\/p>\n<p><strong>SEC. 3.<\/strong><\/p>\n<p>Section 1473 of the Penal Code is amended to read:<\/p>\n<p><strong>1473.<\/strong><\/p>\n<p>(a)\u00a0A person unlawfully imprisoned or restrained of their liberty, under any pretense, may prosecute a writ of habeas corpus to inquire into the cause of the imprisonment or restraint.<\/p>\n<p>(b)\u00a0A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons:<\/p>\n<p>(1)\u00a0False 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 the person\u2019s incarceration.<\/p>\n<p>(2)\u00a0False 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.<\/p>\n<p>(3)\u00a0(A)\u00a0New 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.<\/p>\n<p>(B)\u00a0For purposes of this section, \u201cnew evidence\u201d 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.<\/p>\n<p>(c)\u00a0Any 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).<\/p>\n<p>(d)\u00a0This section does not limit the grounds for which a writ of habeas corpus may be prosecuted or preclude the use of any other remedies.<\/p>\n<p>(e)\u00a0(1)\u00a0For purposes of this section, \u201cfalse evidence\u201d 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.<\/p>\n<p>(2)\u00a0This section does not create additional liabilities, beyond those already recognized, for an expert who repudiates the original opinion provided at a hearing or trial or whose opinion has been undermined by later scientific research or technological advancements.<\/p>\n<p>(f)\u00a0Notwithstanding any other law, a writ of habeas corpus may also be prosecuted after judgment has been entered based on evidence that a criminal conviction or sentence was sought, obtained, or imposed in violation of subdivision (a) of Section 745, if that section applies based on the date of judgement as provided in subdivision (j) of Section 745.\u00a0A 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 a successive or abusive petition. If the petitioner has a habeas corpus petition pending in state court, but it has not yet been decided, the petitioner may amend the existing petition with a claim that the petitioner\u2019s 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 the petitioner cannot afford counsel and either the petition alleges facts that would establish a violation of subdivision (a) of Section 745 or the State Public Defender requests counsel be appointed. 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. The defendant shall appear at the hearing by video unless counsel indicates that their presence in court is needed. 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.<\/p>\n<hr \/>\n<p>AB256<\/p>\n<\/div><\/section>\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":3,"featured_media":0,"parent":2019,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-895","page","type-page","status-publish","hentry"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v28.7 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>AB256 - California Statutes<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/crowdsourcelawyers.com\/california-statutes\/california-statutes\/ab256\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"AB256 - 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