AB 1958

Introduced by Assembly Member Kalra
An act to amend Section 745 of the Penal Code, relating to criminal procedure.
criminal procedure
Criminal procedure: discrimination.
Existing law prohibits the state from seeking or obtaining a criminal conviction or sentence on the basis of race, ethnicity, or national origin, as specified. Existing law allows a defendant to establish a violation of these provisions under specified circumstances, including when 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 other specified conditions are met.
This bill would instead compare the defendant to similarly situated individuals who have engaged in similar conduct, as specified. The bill would make these provisions apply to disparities in plea negotiating and diversion, among other things.
Existing law authorizes a defendant in these cases to file a motion requesting disclosure to the defense of all evidence relevant to a potential violation of these provisions, as specified.
This bill would additionally authorize a defendant to request any data that has been previously disclosed pursuant to those provisions in another criminal case, and require the court to grant that request, unless the data has no relevance to the current charges.
The bill would also revise and recast definitions for these provisions.
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) to correct California’s troubled history of disproportionately prosecuting and incarcerating people of color and to eradicate and remedy race- and ethnicity-based injustices within the criminal system. As stated in the findings and declarations of the original law, “[d]iscrimination in our criminal justice system based on race, ethnicity, or national origin [...] has a deleterious effect not only on individual criminal defendants but on our system of justice as a whole. [...] It is the intent of the Legislature
				to reject the conclusion that racial disparities within our criminal justice are inevitable, and to actively work to eradicate them.”
(b) There are many disturbing examples of stark racial disparities in the California criminal justice system that have persisted for decades. Black individuals serving sentences impacted by the Three Strikes law are heavily overrepresented, relative to both the resident population of California as well as the prison population (Bird, Gill, Lacoe, Pickard, Raphael, & Skog, Three Strikes in California (California Policy Lab, Aug. 2022)). Non-White individuals from every county are overwhelmingly represented in the prison population serving gang enhancements (Committee on Revision of the Penal Code, 2020 Annual Report and Recommendations (Feb. 2021)). Decades of research shows that Black, Latino, and
				native people are more likely to be sentenced to death and to life without parole (Committee on Revision of the Penal Code, Death Penalty Report (Nov. 2021); Committee on Revision of the Penal Code, 2021 Annual Report and Recommendations (Dec. 2021)). Despite the Legislature’s intent to address these widespread and well-documented disparities, there has been limited movement in correcting these trends since the passage of the RJA in 2020.
(c) There remain ongoing barriers to presenting and proving disparity claims under the RJA, including that numerous counties do not maintain data, counties that maintain some data do not have data going back far enough in time, and sufficient data for statistical analysis may not exist in small counties. Barriers are also being erected by those resisting implementation of the RJA, including intentional
				delays in production of data, requiring duplicative litigation, and production of incomplete data. It is the intent of the Legislature that the data needed to investigate an RJA claim should be made available, including that the data already produced in one case should be accessible across cases to increase efficiency and transparency. It is also the intent of the Legislature that individuals be able to rely on other evidence of disparities aside from data.
(d) It is the intent of the Legislature to reiterate what is and what is not required to prove a disparity under the RJA, and to streamline litigation, reduce costs and delays, and increase judicial efficiency. The Legislature reaffirms that to prove a disparity claim under the RJA, a defendant or petitioner may use qualitative evidence, quantitative evidence, or any other type of
				evidence. A defendant or petitioner does not need to present data or statistical analysis in every case to prove a disparity claim under the RJA. A defendant or petitioner relying on data or statistical evidence does not also need to present individual case comparisons in every case to prove a disparity claim under the RJA. Whether a claim is proven is determined by the totality of the evidence presented (See Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130; Romo, The Disparity in Litigating Racial Disparity Claims: The Need for California Courts to Articulate A Framework for Assessing Racial Justice Act Challenges to Charging, Conviction, and Sentencing (2025) 65 Santa Clara L. Rev. 229).
(e) The Legislature again endorses the concurring opinion in Mosby v. Superior Court (2024) 99 Cal.App.5th 106, 136 (conc. opn. of
				Menetrez, J.), and intends that the language of paragraph (1) of subdivision (h) of Section 745 of the Penal Code places the burden on the prosecutor to offer race-neutral reasons to explain the disparities between groups, not between individuals, and that to prevail on a disparity claim, a defendant or petitioner need not negate every possible race-neutral reason for the charging or sentencing disparities at issue in the case.
(f) Plea negotiations and settlements are a significant source of disparities in our criminal system and are not insulated from the reach of the RJA. The Legislature has been unequivocal that the RJA covers all stages of criminal proceedings. The Legislature rejects interpretations of the statute that exclude plea negotiations and outcomes, habeas proceedings, or other carveouts to the RJA despite the plain language of
				the statute. Negotiations to reach a disposition and dispositions themselves, which constitute the vast majority of case resolutions, cannot be separated from trial proceedings and results when considering whether a disparity exists (See, e.g., Berdejo, Criminalizing Race: Racial Disparities in Plea-Bargaining (2018) 59 Boston College L. Rev. 1187).
(g) “Equality requires acknowledgment of inequality.” (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) 600 U.S. 181, 334 (dis. opn. of Sotomayor, J.)). It is the intent of the Legislature that California urgently and without hesitation open its eyes to and lift impediments that keep it from expeditiously confronting and eliminating racial injustice within its criminal system, and that those working within the system such as law enforcement, prosecutors,
				defense attorneys, and judges be vigilant and aggressive in their duty to strike out racial bias at every turn.
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 the
						group of 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 who have engaged in similar conduct, and longer or more severe sentences were more frequently imposed on people that share the defendant’s race, ethnicity, or national origin than on the group of 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 who have engaged in similar conduct and longer or more severe
						sentences were more frequently imposed 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. To satisfy the burden and establish a violation under paragraph (3) or (4) of subdivision (a), the defendant may rely on statistical evidence, aggregate data, or nonstatistical evidence. The defendant is not required to conduct a statistical analysis and is not required to present both statistical evidence and nonstatistical evidence.
(3) If the defense establishes a violation of paragraph (3) or (4) of subdivision (a), the court shall impose a remedy as provided in subdivision (e) unless the prosecution proves by a
						preponderance of the evidence that the disparity can be explained by race-neutral factors. The prosecution shall provide notice of its intent to present race-neutral factors and provide copies of reasonably available documentary evidence supporting those factors prior to the evidentiary hearing. The prosecution’s burden requires proffering affirmative evidence and cannot be met by proffering theoretical race-neutral factors.
(4) If the defendant is represented by an attorney and the motion alleges a violation of paragraph (1) or (2) of subdivision (a), based in whole or in part on the conduct of one or more law enforcement officers, the attorney shall serve a copy of the motion on the law
						enforcement agency or agencies that employed the officer or officers.
(5) At the conclusion of the hearing, the court shall make findings on the record.
(d) (1)  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 constructive possession or control of the prosecution. 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.
(2) 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.
(3) A defendant may request any data that has been previously disclosed pursuant to this subdivision in another criminal case, and a court shall grant that request, subject to redaction or protective order, unless the data has no relevance to the current charges.
(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 other remedies available under the United States Constitution, the California Constitution, or any other law.
(f) This section applies to, but is not limited to, jury or bench trials, plea negotiating practices, plea outcomes, diversion and other alternative dispositions in adult court, adjudications and dispositions in the juvenile delinquency system, and adjudications to transfer a juvenile case to adult court.
(g) This section shall not prevent the prosecution of hate crimes pursuant
						to Sections 422.6 to 422.865, inclusive.
(h) As used in this section and for the purposes of a petition pursuant to subdivision (e) of Section 1473 or a motion pursuant to paragraph (3) of subdivision (a) of Section 1473.7, the following definitions apply:
(1) “More frequently sought or obtained” or “more frequently imposed” means that the totality of the evidence, with or without statistics, demonstrates a significant difference in charging, convictions, or sentencing comparing groups of individuals of different races, ethnicities, or national origins who could have been similarly charged, convicted, or sentenced. Statistical significance is a factor the court may consider, but is not necessary to establish a significant difference. In evaluating the totality of the evidence,
						the court shall consider whether systemic and institutional racial bias, racial profiling, and historical patterns of racially biased policing and prosecution may have contributed to, or caused differences observed in, the data or impacted the availability of data overall.
(2) “Prima facie showing” 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 “substantial likelihood” requires more than a mere possibility, but less than a standard of more likely than not.
(3) “Race-neutral factors,” as that phrase relates to charging and conviction, means elements of an offense, and other factors that may be legally considered in charging, that are supported by evidence.
						“Race-neutral factors,” as the term relates to sentencing, means factors contained in the California Rules of Court pertaining to sentencing decisions. Race-neutral factors cannot be factors that are influenced by implicit, systemic, or institutional bias based on race, ethnicity, or national origin.
(4) “Racially discriminatory language” 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’s 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.
(5) “State” includes the Attorney General, a district attorney, or a city prosecutor.
(6) “Similarly situated” means that factors that are relevant in charging and sentencing are similar and do not require that all individuals in the comparison group are identical. A defendant’s conviction history may be a relevant factor to the severity of the charges, convictions, or sentences. If it is a relevant factor and the defense produces evidence that the conviction history may have been impacted by racial profiling or historical patterns of racially biased policing, the court shall consider the evidence.
(i) A 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).
(j) This section applies as follows:
(1) To all cases in which judgment is not final.
(2) Commencing January 1, 2023, to all cases in which, at the time of the filing of a petition pursuant to subdivision (e) of Section 1473 raising a claim under this section, the petitioner is sentenced to death or to cases in which the motion is filed pursuant to Section 1473.7 because of actual or potential immigration consequences related to the conviction or sentence, regardless of when the judgment or disposition became final.
(3) Commencing January 1, 2024, to all cases in which,
						at the time of the filing of a petition pursuant to subdivision (e) of Section 1473 raising a claim under this section, the petitioner is currently serving a sentence in the 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, regardless of when the judgment or disposition became final.
(4) Commencing January 1, 2025, to all cases filed pursuant to Section 1473.7 or subdivision (e) of Section 1473 in which judgment became final for a felony conviction or juvenile disposition that resulted in a commitment to the Division of Juvenile Justice on or after January 1, 2015.
(5) Commencing January 1, 2026, to all cases filed pursuant to Section 1473.7 or subdivision (e) of
						Section 1473 in which judgment was for a felony conviction or juvenile disposition that resulted in a commitment to the Division of Juvenile Justice, regardless of when the judgment or disposition became final.
(k) For petitions that are filed in cases for which judgment was entered before January 1, 2021, and only in those cases, if the petition is based on a violation of paragraph (1) or (2) of subdivision (a), the petitioner shall be entitled to relief as provided in subdivision (e), unless the state proves beyond a reasonable doubt that the violation did not contribute to the judgment.
( l ) When the court finds there has been a violation of subdivision (a), the defendant shall not be eligible for the death penalty.