Legislature gives some victories to proponents of criminal justice system overhaul

Those calling on the Legislature to restructure California's criminal justice system saw small victories this week as lawmakers sent several measures that will impact how criminal trial juries are selected and how police are prosecuted to Gov. Gavin Newsom's desk. Bills that would have stripped officers with histories of misconduct of their badges and required complaints of police violence to be subject to open records laws died without being heard.

A measure that would broaden a judge's discretion in evaluating whether to require a person who had sex with a minor to register as a sex offender passed after a fiery debate. And others that were expected to be met with similar contention moved on quietly as lawmakers in both chambers tried to plow through a mountain of measures before the clock struck midnight Monday.

Fatal police shootings of unarmed civilians will now be investigated and prosecuted by California's attorney general if charges are warranted, relieving district attorneys of that responsibility at a time when communities are demanding independent oversight of law enforcement, if Newsom signs AB 1506.

Titled the Deadly Force Accountability Act, the measure passed the Assembly without debate an hour before the legislative deadline after it received bipartisan support from the Senate on Sunday. If signed into law, AB 1506 would also create a division within the California Department of Justice that will review a law enforcement agency's use of force policy and make recommendations for change.

"I think it's a terrific idea," said retired Los Angeles Superior Court Judge Katherine Mader, the first inspector general of the Los Angeles Police Department and a former deputy district attorney who prosecuted an LAPD officer in 1993 for killing an unarmed Black man. "The only problem is that the attorney general is also an elected official, so depending on who the attorney general is and who they choose to head the units, and depending upon how much access they're given to the scenes and access to all of the other discovery that law enforcement agencies are accumulating, it could work or it couldn't."

Despite agreeing with the concept behind the measure, the California District Attorneys Association chose not to endorse it. The association's president, El Dorado County DA Vern Pierson, a former deputy attorney general, said the group didn't have enough time to review the last few iterations of the bill, which was amended three times in 12 days leading up to Monday's deadline.

"We recognize there are certain cases where the person that's been shot and killed is unarmed, and that type of circumstance is such that the local community is likely to only believe an investigation that's being conducted by an outside entity," Pierson said in an interview. "But when you have bills of major consequence like this that are being amended ... it's difficult to have a full vetting of the language under the circumstances."

Attorney General Xavier Becerra and law enforcement groups opposed the measure. Becerra has been hesitant to take on local investigations of fatal police shootings, made clear by a disagreement with Solano County DA Krishna Abrams over the Vallejo police shooting death of Sean Monterrosa in June. Becerra cited fiscal and constitutional concerns about his office's ability to assume these investigations on a statewide basis.

Prosecutors in Los Angeles County applauded a sex offender registration bill that cleared the Legislature after it received critiques from both sides of the aisle. SB 145, authored by Sen Scott Weiner, D-San Francisco, broadens a judge's discretion in determining whether someone should be required to register as a sex offender. Under existing law, a judge can decide whether sex registration is warranted in cases of voluntary sexual intercourse between a minor aged 14 to 17 and a partner up to 10 years older. However, judges are not permitted to exercise that authority for all other forms of intercourse, discriminating against LGBTQ youth, Weiner said.

Los Angeles County Deputy District Attorney Bradley McCartt said if signed, the measure will guarantee that California's sex offender registration law will be equally and fairly applied regardless of sexual orientation.

"Ordering someone onto the sex offender registry carries lifelong consequences," McCartt said in a statement. "Allowing judges and prosecutors to evaluate cases involving voluntary sex acts between young people on an individual basis will ensure justice for all Californians."

The measure was opposed by some Democratic lawmakers who said they couldn't conceive how sexual contact between a 14-year-old and 24-year-old could be consensual.

Proponents say it will not legalize any kind of sex with a minor and does not change the potential sentence for doing so. Instead, the measure extends judicial discretion that already exists under current law to other forms of sexual intercourse.

The Legislature also passed two measures the authors say will reduce discrimination in jury selection and criminal trials. AB 3070, authored by Assemblywoman Shirley Weber, D-San Diego, and sponsored by California Attorneys for Criminal Justice, would ban peremptory challenges based on protected traits such as race, sexual orientation or religion.

Proponents of the measure, which is modeled after a 2018 Washington State Supreme Court ruling that modified the three-step Batson test, say existing law doesn't go far enough to root out discrimination in jury selection because a party objecting to a peremptory challenge must prove the strike was based on implicit bias.

AB 3070 instead places the burden on a judge to decide whether an objective observer could view implicit bias played a factor in a strike. If so, the judge can either seat the challenged juror, declare a mistrial or provide an appropriate alternative remedy accepted by the objecting party.

Prosecutors opposed the measure because it would invalidate what would have otherwise been valid reasons for a party to ask to have a juror excused, including a juror's expressed distrust of law enforcement, a juror's failure to make eye contact and a juror's unintelligible answers to questions.

The bill's authors say these behaviors have historically been associated with improper discrimination in jury selection.

Mader, however, said she doesn't agree with that.

"We've had many situations where jurors are so upset about being called into a courtroom because it gives them bad feelings that they just exude hostility towards one side or the other, and it's obvious," Mader said. "Or jurors have really odd philosophical ideas that come across as unintelligent or confused. I don't think that has anything to do with race."

"I think that this is well intentioned but completely impractical, and it's going to have to be sorted out for years if it passes by appellate courts," she added.

The measure largely emerged in response to a study by the UC Berkeley School of Law Death Penalty Clinic that found in 12 years of court of appeal opinions, prosecutors struck black jurors in 75% of the cases the researchers selected for the study.

"The disproportionate exclusion of African American and Latinx prospective jurors has damaged the integrity of our judicial system for far too long," said Eric Schweitzer, president of California Attorneys for Criminal Justice. "AB 3070 says: Enough."

If signed, it will apply to all criminal trials beginning on Jan. 1, 2022 and civil trials after Jan. 1, 2026.

AB 2542, the California Racial Justice Act, authored by Assemblymember Ash Kalra, D-San Jose, would prohibit prosecutors from seeking a criminal conviction or sentence on the basis of race, ethnicity or national origin. If signed, the measure would also create a pathway for criminal defendants to petition for a writ of habeas corpus or file a motion in trial court to vacate a conviction or sentence based on evidence that it was based on prejudicial error.

While lawmakers passed some moderate policing bills such as AB 1196, which would ban police choke holds, a measure backed by the ACLU and Black Lives Matter that would have made California the 46th state to adopt a decertification process for officers with histories of misconduct slipped through the cracks before it could be heard Monday. AB 731 is what many protesters in the wake of the George Floyd killing hailed as one of the most important bills being heard this legislative cycle.

The measure from Sen. Steven Bradford, D-Gardena, would have created a process for the state to revoke an officer's badge and would have scaled back qualified immunity, allowing citizens to sue officers involved in the death of a civilian.

"If a state like California cannot muster the political fortitude at a time like this to do the right thing, I worry what the future holds for our increasingly diversified state and nation," said Micha Star Liberty, president of Consumer Attorneys of California.

Another police measure, AB 776, which would have made complaints of police violence subject to open records laws, also died due to time restrictions.