BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session C
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SCA 13 (Anderson)
As Amended April 1, 2013
Hearing date: April 30, 2013
California Constitution
MK:jr
COURTS: APPELLATE JURISDICTION
HISTORY
Source: California District Attorneys Association
Prior Legislation: SCA 20 (Anderson) failed Senate Public Safety
2012
SB 1514 (Anderson) failed Senate Public Safety 2012
SCA 27 (Harman) failed Senate Public Safety 2010
SB 636 (Harman) - failed Senate Public Safety,
2008
SB 1558 (Morrow) - not heard Senate
Public Safety, 2006
SB 378 (Morrow) - failed Senate
Public Safety, 2005
SB 513 (Lockyer) - Ch. 869,
Stats. 1997
SB 1088 (Lockyer) - from
Conference 1997, content
placed in SB 513 (Lockyer)
on 9-10-97
SB 911 (Calderon) - held in
Senate Approps., 1997
AB 1471 (Pacheco) - held in
Assembly Approps., 1997
SB 1533 (Calderon) - failed in
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SCA 13 (Anderson)
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Senate Criminal Procedure 1996
AB 195 (Morrow) - Ch. 1086,
Stats. 1996
AB 2008 (K. Murray) - vetoed
1996
AB 1508 (Bowler) - held in
Assembly Public Safety, 1993
AB 2196 (Bentley) - failed in Assembly Public
Safety, 1991
Support: Unknown
Opposition:American Civil Liberties Union; Friends Committee on
Legislation of California; Capital Appellate Defense
Counsel; California Public Defenders Association
KEY ISSUE
SHOULD THE CONSTITUTION GIVE THE APPELLATE COURTS JURISDICTION WHEN
A JUDGMENT OF DEATH HAS BEEN PRONOUNCED?
PURPOSE
The purpose of this bill is to remove the appellate jurisdiction
in cases where the judgment is death from the Supreme Court and
give it to the courts of appeal.
Existing law provides that the Supreme Court has appellate
jurisdiction when judgment of death has been pronounced. With
that exception, courts of appeal have appellate jurisdiction
when superior courts have original jurisdiction and in other
causes prescribed by statute. (CA. Const. Article IV � 11.)
Existing law provides that when a judgment of death is rendered,
an appeal is automatically taken by the defendant without any
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action by him or his or her counsel. (Penal Code � 1239.)
Existing Rules of Court state that if a judge imposes a sentence
of death, an appeal by the defendant is automatically taken by
the Supreme Court. (California Rule of Court 34.)
Existing law provides that the Supreme Court may, before the
decision, transfer to itself a cause in a court of appeal. It
may before the decision, transfer a cause from itself to a court
of appeal, or from one court of appeal or division to another.
The court to which a cause is transferred has jurisdiction. The
Supreme Court may review the decision of a court of appeal in
any case. However, it specifically provides that this authority
to transfer a case shall not apply to a judgment of death. (CA.
Const. Article IV, � 12.)
This constitutional amendment removes the appellate jurisdiction
of the Supreme Court in cases where death has been pronounced
and places it in the courts of appeal.
This constitutional amendment provides that cases appealed to
the Supreme Court prior to the effective date of the amendment
vesting jurisdiction in the courts of appeal shall remain in the
jurisdiction of the Supreme Court.
This constitutional amendment provides that the Supreme Court
shall review the decision of a court of appeal in a capital case
on an issue necessary to the judgment on which the court of
appeal panel was not unanimous and may review other issues in
that case.
Existing law provides that the Supreme Court consists of the
Chief Justice of California and six associate justices. The
Chief Justice may convene the court at any time. Concurrence of
four judges present at the argument is necessary for a judgment.
(CA. Const. Article VI, � 2.)
This constitutional amendment provides that if the Supreme Court
is required to review the decision of a court of appeal in a
capital case and does not grant review of any additional issues,
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the court may decide the case upon the concurrence of four
judges without oral argument.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
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part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety
of others for which there is no other reasonably
appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for the bill .
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According to the author:
Given the size of the state, the number of capital
cases is simply too large for one court to handle. The
original reason for vesting all capital appeals in the
Supreme Court was to provide greater uniformity of
decision in the most important criminal cases, and that
reason remains valid. Experience with the Ninth
Circuit demonstrates that trusting capital cases to a
simple majority of a three-judge panel, subject only to
discretionary review in a higher court, raises too
great a danger of wrongful reversals. This amendment
would address that problem by making review mandatory
if the panel is divided on an issue necessary to the
judgment. If the panel is divided on one issue but
unanimous, that the judgment must be reversed for
another reason, the mandatory review would not be
triggered. The courts of appeal would thus filter out
the vast bulk of meritless claims, requiring the
Supreme Court to decide only those issues that produce
a genuine division of opinion and only cases where the
judgment turns on such an issue.
Additionally, Section 2 of Article VI requires the
"concurrence of 4 judges present at argument" for the
Supreme Court to render a decision. This amendment
would allow the Supreme Court to dispense with oral
argument when it is required to review a nonunanimous
decision of the Court of Appeal in a capital case.
Delay is a major problem in capital case appeals. For
most cases, the additional layer of review provided by
this amendment should be compensated by the more rapid
processing of cases by the Courts of Appeal. However, a
mandatory second oral argument could substantially
increase delay. This amendment leaves to the discretion
of the Supreme Court whether to hold an argument in
cases it is required to review.
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2. History of Similar Proposals
This bill removes the automatic appeal to the Supreme Court in
death penalty cases and removes the right to an automatic appeal
and places the jurisdiction for death penalty cases in the
appellate courts.
The idea of allowing the appellate courts to hear death penalty
appeals was initially proposed by former Chief Justice Ron
George. His proposal was to give the Supreme Court the
authority to transfer some of the appeals to the appellate
courts. He brought his idea before the California Commission on
the Fair Administration of Justice, which also believed that the
idea was worth exploring provided there was funding for court
personnel and the appointment and training of attorneys. (The
California Commission on the Fair Administration of Justice
Report and Recommendations on the Administration of the Death
Penalty in California, June 30, 2008 p.47 final report available
at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf .)
However, the Former Chief Justice later withdrew his proposal to
allow a transfer of some death penalty cases because he believed
the additional cost needed for court staff and counsel might
"overburden the limited financial resources of the court of
appeals. (Pantenesco, Joshua "California Supreme Court
withdraws proposal to ease death penalty backlog."
http://jurist.org/paperchase/2008/02/california-supreme-court-wit
hdraws.php )
SCA 27 (Harman), which failed Senate Public Safety in 2010 and
SCA 20 (Anderson) which failed Senate Public Safety in 2012 also
proposed to give the Supreme Court the right to transfer death
penalty cases to the appellate court.
The current Chief Justice Tani Cantil-Sakauye, in discussion
with the LA Times editorial board, also suggested that more
resources are needed in order to discuss sending cases to the
court of appeal.
(http://opinion.latimes.com/opinionla/2012/01/california-death-pe
nalty.html)
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3. Appeal in the Appellate Courts
Currently death penalty appeals go directly to the Supreme
Court. This bill would instead place those appeals in the
appellate courts. This is broader than the original
recommendation made by Former Chief Justice George which was to
transfer some of the appeals to the appellate courts.
a. Resources
As noted in Comment 2, when changing death penalty appeals to
the appellate court, the issue of resources has arisen. The
Supreme Court has staff that is trained and experienced in
handling death penalty cases which can have voluminous
transcripts and complex evidentiary issues. Each of the
appellate courts would need to have extra staff to handle the
addition of these cases. However, since ultimately many of
the cases will also eventually be heard by the Supreme Court,
the Supreme Court would have to retain some staff to also hear
the cases, even if, as permitted by this constitutional
amendment, they can hear the appeal from the appellate court
case without oral argument.
b. Consistency
One of the reasons to have all cases heard by the Supreme
Court is to have consistent holdings in cases where the
ultimate punishment is being imposed. If six different Courts
of Appeal hear death penalty cases, it will certainly lead to
at least some inconsistencies in holdings on similar issues.
The Supreme Court will be required to resolve the
inconsistencies thus requiring a second hearing in the Supreme
Court.
4. Opposition
The American Civil Liberties Union argues that shifting "all
death penalty appeals to the Court of Appeals will result in
additional legal chaos, confusion and delay." They believe
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there will be equal protection challenges with some cases being
allowed to proceed in the Supreme Court and others being brought
in the lower courts. They also raise concerns about the
inconsistency of decisions coming out of the appellate courts
noting that:
Indeed, this is why almost every state in the country
requires the highest court in the state to review de
novo all death penalty appeals. The American Bar
Association's Death Penalty Representation Project
commissioned the law firm of Kilpatrick and Stockton to
complete a study of the appellate procedures in death
penalty states. The study found that Alabama is the
only state in the county that does not require the
highest court in the state to review de novo ever death
penalty case. One state, Tennessee, provides for review
first by the appellate court then by the supreme court.
All other death penalty states in the country mandate
that the appeal goes directly to the highest court in
the state for a direct, de novo review?.
California with the largest death row in the country,
should not sacrifice justice in the name of expediency.
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