AB1071 - Criminal procedure: discrimination.

Assembly Bill No. 1071 CHAPTER 721 An act to amend Sections 745, 1473, and 1473.7 of the Penal Code, relating to criminal procedure. [ Approved by Governor October 13, 2025. Filed with Secretary of State October 13, 2025. ] LEGISLATIVE COUNSEL'S DIGEST AB 1071, Kalra. Criminal procedure: discrimination. Existing law prohibits the state from seeking, obtaining, or imposing a criminal conviction or sentence on the basis of race, ethnicity, or national origin. Under existing law, a defendant may pursue relief for a violation of this prohibition by filing a motion pursuant to the provisions that prohibit this conduct, a petition for a writ of habeas corpus, or a motion to vacate a conviction or sentence. This bill would authorize the defendant in these proceedings to file a motion for disclosure of all relevant evidence related to a potential violation of the prohibition on the state seeking, obtaining, or imposing a criminal conviction or sentence on the basis of race, ethnicity, or national origin, as specified. The bill would also authorize the court to remedy a violation of these provisions with any other remedy not prohibited by another law. The bill would make other technical changes. This bill makes legislative findings and declarations in support of its provisions. This bill would incorporate additional changes to Sections 745, 1473, and 1473.7 of the Penal Code proposed by SB 734 to be operative only if this bill and SB 734 are enacted and this bill is enacted last. Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO Bill Text The people of the State of California do enact as follows: SECTION 1. The Legislature finds and declares all of the following: (a) In 2020, the Legislature enacted the California Racial Justice Act (RJA) because discrimination based on race, ethnicity, or national origin (hereafter “race” or “racial bias”) has a deleterious effect not only on individual criminal defendants but on our entire legal system. This bill clarifies the RJA’s procedures to assure its meaningful implementation. The dissenting statement in In re Mendoza (2024) 2024 WL 5171483 accurately articulates the Legislature’s intent in passing the RJA and concern about its silent evisceration. These findings illustrate some of the ways in which courts misconstrue the statute to apply procedural barriers or otherwise impose impediments to relief, discordant with the legislative intent of the RJA, and improperly insulate convictions and sentences tainted by racial bias. (b) This discordance is evident in cases where courts have imposed on RJA petitioners higher burdens than the Legislature intended to meet the thresholds to secure counsel and discovery. The RJA’s threshold to secure counsel is extremely low, and yet courts have denied counsel to litigants raising RJA claims far more than they have appointed counsel. This bill clarifies that the court shall appoint counsel to all indigent postconviction litigants who allege a plausible claim of an RJA violation, and whenever the State Public Defender requests. The Legislature reaffirms that the threshold showing for appointment of counsel does not require a prima facie showing, as correctly held by McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, and should be construed as a minimal pleading requirement. The Legislature also intends that individuals must be afforded access to a broad range of relevant discovery to develop and support their potential RJA claims. Otherwise, they are left in the impossible position of having their claims rejected for want of the very data they seek. This is antithetical to the RJA. (c) The Legislature reasserts the low threshold required to establish a prima facie showing under paragraphs (1) through (4) of subdivision (a) of the RJA. Courts have failed to find a prima facie showing or a violation in cases where individuals involved in the prosecution or investigation have: invoked long-held biases about men of color preying on White women; used dehumanizing and othering language such as “predator,” “monster,” “sociopath,” “terrorist,” “brute,” “thug,” “gangster,” “uncivilized,” “welfare queen,” “superpredator,” or “superhuman”; made racial slurs; elicited or made gratuitous references to gangs, tattoos, nicknames, or neighborhoods; used racially incendiary or coded words such as “ghetto,” “hood,” “baby mama,” or “pimp”; denigrated people who have immigrated to the United States; made gratuitous references to nationality, race, or immigration status; evoked historical and unacknowledged racialized fears that people of color are deceptive, manipulative, crime prone, or a present or future danger; and exaggerated the physical appearance and size of people of color. These examples reflect some of the “many incarnations of racism that have plagued our criminal and juvenile justice systems since their inception.” (People v. Hardin (2024) 15 Cal.5th 834, 906 (dis. opn. of Evans, J.).) Courts also have at times failed to find a prima facie showing or a violation despite evidence of disparate charging and sentencing. The Legislature again emphasizes its rejection of McCleskey v. Kemp (1987) 481 U.S. 279, and its intent that statistical evidence be sufficient for finding a prima facie case and may suffice to show an RJA violation. (See, for example, Mosby v. Superior Court (2024) 99 Cal.App.5th 106, 133 (conc. opn. of Menetrez, J.).) (d) Systemic racism and the White supremacy on which it is founded have remarkable powers of adaptation. When courts recognize only the most egregious, historic manifestations of racism, they allow present-day racism to go uncorrected. (Roberts, “Racism, Abolition, and Historical Resemblance” (2022) 136 Harv. L.Rev. F. 37.) The Legislature intends that in applying the RJA, courts consider evidence of racism’s origins, insidious shifts, and current manifestations. (e) The Legislature reaffirms the importance of courts imposing remedies that serve to eliminate bias and redress past harms. “[N]othing can be changed until it is faced.” (Baldwin, “As Much Truth As One Can Bear” N.Y. Times (Jan. 14, 1962) p. 120.) The RJA mandates that we face that racial bias exists in our criminal legal system, and that we remedy it. Racial bias in criminal prosecutions, in all its forms or degrees, is never minor or harmless. (People v. Simmons (2023) 96 Cal.App.5th 323.) Like a metastatic cancer, racial bias in one part of a criminal prosecution infects the whole and cannot be remedied by removing a single diseased cell. Remedies must match the gravity of the ills of racial bias and not be so narrow as to minimize the harm or fail to address it in its entirety. Further, this bill clarifies that the prohibition on death sentences for cases in which an RJA violation occurs is categorical, and not a remedy in itself. This is because the racially disproportionate application of the death penalty is “in historical continuity with the long and sordid history of lynching in this country.” (Ogletree, “Black Man’s Burden: Race and the Death Penalty in America” (2002) 81 Or. L.Rev. 15.) Thus, in addition to the categorical prohibition, courts must impose a remedy commensurate with the violation(s) in the case. (f) Because racial bias in the criminal legal system is the result of centuries of historical and embedded racial injustice, it requires bold, concerted, and ongoing efforts to undo. “The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans.” (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) 600 U.S. 181, 408 (dis. opn. of Jackson, J.).) Thus is the aim of California’s Racial Justice Act and the Legislature’s intent in passing it. Its provisions should be interpreted in this light. SEC. 2. Section 745 of the Penal Code is amended to read: 745. (a) The 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: (1) The 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’s race, ethnicity, or national origin. (2) During the defendant’s 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’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful. This paragraph does not apply if the person speaking is relating 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. (3) The defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct 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’s race, ethnicity, or national origin in the county where the convictions were sought or obtained. (4) (A) A 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’s race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county where the sentence was imposed. (B) A 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. (b) A defendant may file a motion pursuant to this section, or 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). For claims based on the trial record, a defendant may raise a claim alleging a violation of subdivision (a) on direct appeal from the conviction or sentence. The defendant may also move to stay the appeal and request remand to the superior court to file a motion pursuant to this section. If 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. (c) If 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. A motion made at trial shall be made as soon as practicable upon the defendant learning of the alleged violation. A motion that is not timely may be deemed waived, in the discretion of the court. (1) At 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. For the purpose of a motion and hearing under this section, out-of-court statements that the court finds trustworthy and reliable, statistical evidence, and aggregated data are admissible for the limited purpose of determining whether a violation of subdivision (a) has occurred. (2) The defendant shall have the burden of proving a violation of subdivision (a) by a preponderance of the evidence. The defendant does not need to prove intentional discrimination. (3) At the conclusion of the hearing, the court shall make findings on the record. (d) In any proceeding alleging a violation of subdivision (a), a defendant or petitioner 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, a motion under paragraph (2) of subdivision (e) of Section 1473, or a motion under paragraph (3) of subdivision (a) of Section 1473.7, shall describe the type of records or information the defendant seeks. Upon a showing of good cause, the court shall order the records to be released. Upon a showing of good cause, and in order to protect a privacy right or privilege, the court may permit the prosecution to redact information prior to disclosure or may subject disclosure to a protective order. If a statutory privilege or constitutional privacy right cannot be adequately protected by redaction or a protective order, the court shall not order the release of the records. (e) Notwithstanding any other law, except as provided in subdivision (k), or 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: (1) Before a judgment has been entered, the court shall impose any of the following remedies: (A) Grant a defendant’s request for a mistrial. (B) Discharge the jury panel and empanel a new jury. (C) If 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. (D) Any other remedy not prohibited by another law. (2) (A) After a 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). If the court finds that the only violation of subdivision (a) that occurred is based on paragraph (3) of subdivision (a), the court may modify the judgment to a lesser included or lesser related offense. On resentencing, the court shall not impose a new sentence greater than that previously imposed. (B) After a 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. (3) The remedies available under this section do not foreclose any ot [Text truncated for display. Full text available on Congress.gov.]