SB 779, as amended, Anderson. Capital punishment: appeals.
begin insert(1) Existing law requires the Governor to appoint a State Public Defender and requires the State Public Defender, among other things, to formulate plans for the representation of indigents in the Supreme Court and each appellate district.
end insertbegin insertThis bill would delete the provision requiring the State Public Defender to formulate plans for the representation of indigents. The bill would require the State Public Defender to report annually to the Governor and the Legislature on the status of, and appointment of counsel for, indigent persons with respect to death penalty appeals.
end insertbegin insert(2) Existing law provides that the duties prescribed by the State Public Defender in existing law are not exclusive, and allows the State Public Defender to perform any acts consistent with his or her prescribed duties in carrying out the functions of the office.
end insertbegin insertThis bill would delete these provisions.
end insertbegin insert(3) Existing law establishes the California Habeas Corpus Resource Center in the judicial branch of state government and authorizes the center employ up to 34 attorneys who may be appointed by the Supreme Court to represent any person convicted and sentenced to death in this state, who is without counsel, and who is determined by a court to be indigent, for the purposes of instituting and prosecuting postconviction actions in state and federal courts, challenging the legality of the judgment or sentence imposed against that person, and preparing petitions for executive clemency. Among other things, existing law requires the center to establish and periodically update a roster of attorneys qualified as counsel in postconviction proceedings in capital cases.
end insertbegin insertExisting law requires the Supreme Court to offer to appoint counsel to represent all state prisoners subject to a capital sentence for state postconviction proceedings and enter an order to appoint one or more counsel to represent the prisoner in postconviction state proceedings upon a finding that the prisoner is indigent or unable to completely decide whether to accept or reject that offer. Existing law grants the center the power to employ investigators and staff to provide services to appointed counsel, and to provide legal or other advice or, to the extent not otherwise available, any other assistance to the appointed counsel in postconviction proceedings as is appropriate.
end insertbegin insertThis bill would instead require the superior court which imposed the death sentence to offer to appoint counsel to represent state prisoners subject to a capital sentence for purposes of state postconviction proceedings, and would require the superior court to appoint one or more counsel to represent the prisoner in a state habeas corpus proceeding. The bill would require the Legislature to ensure funding to fulfill these requirements, and would authorize the Legislature to consider utilizing funds that were formerly appropriated for the support of the Supreme Court. The bill would provide that the center shall annually recommend attorneys to the Supreme Court for inclusion in a roster of attorneys qualified as counsel in postconviction proceedings in capital cases, provided that the final determination of whether to include an attorney in a roster shall be made by the Supreme Court and not delegated to the center. This bill would remove the power of the center to provide any other assistance to appointed counsel other than employing investigators and staff, or providing legal or other advice.
end insertbegin insertThe bill would provide that the center may only represent a person sentenced to death on one federal habeas corpus petition, and only if certain requirements are met, including that the center was appointed to represent that person on a state petition for habeas corpus.
end insertbegin insert(4) Existing law requires that the executive director of the California Habeas Corpus Resource Center be chosen by a 5-member board of directors and confirmed by the Senate, as provided.
end insertbegin insertThis bill would eliminate the provisions regarding the 5-member board of directors and instead require the executive director to be appointed by the Supreme Court. The bill would provide that the executive director shall receive the salary that is specified in existing law for the State Public Defender and would require all other attorneys employed by the center to be compensated at the same level as comparable positions in the office of the State Public Defender.
end insertbegin insert(5) Existing law requires the Judicial Counsel and the Supreme Court to adopt binding and mandatory competency standards for the appointment of counsel in death penalty direct appeals and habeas corpus proceedings.
end insertbegin insertThis bill would instead provide that an attorney shall be deemed competent for appointment as counsel in a death penalty direct appeal or habeas corpus proceeding if the attorney has been admitted to practice in a court of appeal for not less than 5 years, and has had not less than 3 years of experience in handling appeals in that court in felony cases, as specified in federal law. The bill would allow the Judicial Council and the Supreme Court to adopt mandatory competency standards in lieu of the above provision, as specified, and would require the above standard to be in effect until the Judicial Council or the Supreme Court has adopted new standards.
end insertbegin insert(6) Existing law requires the California Habeas Corpus Resource Center to report annually to the Legislature, the Governor, and the Supreme Court on the status of appointment of counsel for indigent persons in postconviction capital cases, and on the operations of the center.
end insertbegin insertThis bill would require the report to list all cases in which the center is providing representation. For each case that has been pending for more than one year in any court, the bill would require the report to state the reason for the delay and actions the center is taking to bring the case to completion. The bill would require the report to be made available on the center’s Internet Web site or by another medium providing equal or better access to the public.
end insertbegin insert(7) Existing law, for purposes of the death penalty, defines the “entire record” as including the normal and additional record prescribed in the rules adopted by the Judicial Council pertaining to an appeal taken by the defendant from a judgment of conviction, a copy of any other record on file or lodged with the superior court, and a transcript of any other oral proceeding reported in the superior court.
end insertbegin insertThis bill would instead define the record for purposes of death penalty cases and provide that jury questionnaires filled out by jurors who were excused without having been seated in the jury box during the selection process and who were not excused for cause are not part of the record.
end insertbegin insert(8) Existing law requires the record on appeal to be expeditiously certified in 2 stages, first for completeness and 2nd for accuracy, in any case in which the death sentence has been imposed. Existing law requires the clerk of the superior court to provide trial counsel copies of the clerk’s transcript within 30 days of the imposition of the death sentence. Existing law requires trial counsel to alert the court’s attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the normal course of trial preparation. Existing law requires the trial court to certify the record for completeness and for incorporation of all corrections no later than 90 days after entry of the imposition of the death sentence unless good cause is shown, except that existing law provides this time period may be extended if the trial transcript exceeds 10,000 pages.
end insertbegin insertExisting law requires the trial court to hold one or more hearings for trial counsel to address the completeness of the record and any outstanding errors that have come to their attention and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported. Existing law requires the trial court to certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel, except that existing law provides that this time may be extended, as provided.
end insertbegin insertThis bill would delete the requirement that the record be certified in 2 stages for completeness and accuracy. The bill would require the superior court to provide trial counsel with copies of the clerk’s transcript, the reporter’s transcript, and a comprehensive journal of proceedings, as provided. The bill would require trial counsel to undertake to identify and promptly alert the court’s attention to any errors in the transcript of proceedings and to provide a list of any proposed corrections to the reporter’s transcript. The bill would remove the exception to the 90-day certification requirement for proceedings in which the trial transcript exceeds 10,000 pages. The bill would require the clerk of the trial court to deliver a copy of the record on appeal to the Attorney General.
end insertbegin insertThe bill would provide that no additional motion for correcting the record may be entertained after the record is certified, except that either party may file in the Supreme Court a motion for referral to the trial court for correction of a material error in the record, as provided. The bill would require the Supreme Court to rule on the motion not later than 21 days after it is filed.
end insertbegin insert(9) Under existing law, when an appeal lies on behalf of a defendant or the people, the appeal may be taken in the manner provided in the rules adopted by the Judicial Counsel. Under existing law, when a judgment of death is rendered, an appeal is automatically taken by the defendant without any action by him or his or her counsel.
end insertbegin insertThis bill would provide that the appellate court may require the appellant to be represented by counsel, but would require counsel to respect the right of the client to determine the goals of representation.
end insertbegin insert(10) Existing law authorizes the Supreme Court to appoint counsel other than the State Public Defender in cases where a judgment of death has been rendered.
end insertbegin insertThis bill would instead prohibit the State Public Defender from being appointed in a noncapital case at any time when there is a backlog of capital cases awaiting appointment of more than 3 months and the State Public Defender is unable to take all of the cases for which the State Public Defender would otherwise be appointed. The bill would require the clerk of the Supreme Court to notify the State Public Defender of a case promptly upon docketing, and would require the State Public Defender to notify the Supreme Court if the office is unable to represent the appellant within 30 days. The bill would require the Supreme Court to promptly issue an order appointing the State Public Defender as counsel for the appellant if notice is not received within the 30 days. The bill would require any attorney who is qualified for appointment in capital appeals to agree to accept any appointments as a condition of remaining on the list of attorneys for appointment by a court of appeals in noncapital cases, as provided.
end insertbegin insert(11) Existing law provides that every person unlawfully imprisoned or restrained of liberty may prosecute a writ of habeas corpus to inquire into the cause of the imprisonment or restraint. Existing law requires that the person upon whom the writ is served to file a return. Existing law requires that if the party is held under illegal restraint or custody, he or she shall be discharged, and if not, he or she shall be restored to the care or custody of the person entitled thereto. Existing law provides that an appeal may be taken from a final order of a superior court upon the return of a writ of habeas corpus discharging the defendant to the court of appeal in all criminal cases, except that existing law requires the appeal to be to the Supreme Court in cases where judgment of death has been rendered.
end insertbegin insertThis bill would provide the exclusive procedure for collateral attack on a judgment of death. The bill would require any petition for writ of habeas corpus filed by a person in custody pursuant to a judgment of death to be filed in, or transferred to, the court that imposed the sentence unless good cause is shown for the petition to be heard by another court. The bill would require that the prisoner be offered counsel, and would authorize the prisoner or the State to appeal the decision on the petition to the court with jurisdiction over the appeal from the underlying criminal judgment. The bill would prohibit a successive petition to be used as a means of reviewing a denial of habeas relief. The bill would require the initial petition to be filed within one year of appointing counsel or of the defendant’s rejecting of counsel, unless the court finds, by a preponderance of all available evidence that the defendant is actually innocent of the crime or is ineligible for the sentence of death. The bill would require that a successive petition claiming innocence or ineligibility for the sentence of death to disclose all material information relating to guilt in possession of the petitioner.
end insertbegin insert(12) Existing law requires that every male person upon whom a judgment of death has been imposed to be delivered to the warden of the California state prison designated by the department for the execution of the death penalty, and requires the person to be kept there until the execution of judgment. Existing law allows an inmate who commits specified crimes to be housed in secure condemned housing. Existing law requires that a judgment for imprisonment where the judgment is for death to direct the defendant to be delivered to the warden of the California Prison at San Quentin.
end insertbegin insertThis bill would instead allow the department to transfer any inmate, without regard to gender, to another prison which the department determines provides a level of security sufficient for the inmate, and would require the inmate to be returned to the prison designated for execution of the death penalty after an execution date has been set. The bill would allow a condemned inmate to be housed in any state prison designated by the Secretary of the Department of Corrections and Rehabilitation for the housing of condemned prisoners.
end insertbegin insert(13) Existing law requires a court, if a judgment of death remains in force and has not been executed, to enter an order appointing a day upon which the judgment shall be executed that is not less than 30 days, nor more than 60 days from the time of making the order.
end insertbegin insertThis bill would instead require the court enter an order specifying a period of 30 days during with the judgment shall be executed, as provided. The bill would make conforming changes.
end insertbegin insert(14) Existing law requires that, in order to expedite certification of the entire record on appeal in all criminal cases, the defendant’s trial counsel and the prosecutor continue to represent the respective parties. Existing law specifies that each counsel’s obligations extend to taking all steps necessary to facilitate the preparation and timely certification of the record of superior court proceedings. Existing law specifies that these provisions do not foreclose the defendant’s appellate counsel from requesting additions or corrections to the record on appeal in either the trial court or the Supreme Court in a manner provided by the rules of court adopted by the Judicial Council.
end insertbegin insertThis bill would delete these provisions.
end insertbegin insert(15) Under existing law, when a defendant has been charged with a public offense triable in any court, he or she may, and in cases other than those for which the punishment may be death, the people may, have witnesses examined conditionally, as specified.
end insertbegin insertThis bill would allow witnesses to be examined conditionally by the defendant and by the people in any case where the defendant has been charged with a public offense triable in any court, as provided.
end insertbegin insert(16) Existing law requires a judgment of death to be executed within the walls of the California State Prison at San Quentin. Existing law requires every female person, upon whom has been imposed the judgment of death, to be delivered to the warden of the Central California Women’s Facility, to be held pending appeal. Upon affirmance of her appeal, existing law requires the female person sentenced to death to be delivered to the warden of the California state prison designated by the department for the execution of the death penalty
end insertbegin insertThis bill would delete the above provisions relating to condemned female inmates and would instead require the judgment of death in the case of both genders to be executed within the walls of a state prison to be determined by the Secretary of the Department of Corrections and Rehabilitation. The bill would provide that this determination, and any standards, procedures, or regulations promulgated by the department in regard to the administration of the penalty of death, would not be subject to review by the Office of Administrative Law, as provided.
end insertbegin insert(17) Existing law requires the punishment of death to be inflicted by the administration of lethal gas or an intravenous injection and provides that if either method is held invalid that the punishment shall be imposed by the other method.
end insertbegin insertThis bill would provide that the punishment of death would be inflicted by the administration of lethal gas or injection by any means. The bill would specify that lethal gas may include any gas administered in a lethal manner, including by displacing oxygen. In the event a method of execution is held invalid, the bill would require the court to order the use of a valid method of execution, as provided. If the method of execution is enjoined by a federal court, the bill would require the Department of Corrections and Rehabilitation to adopt a method that conforms to federal requirements, as specified. If the Department of Corrections and Rehabilitation fails to perform any duty needed to enable it to execute judgment, the bill would require the court which rendered the judgment of death to order the department to perform that duty on its own motion, on the motion of the district attorney or Attorney General, or on the motion of any victim of the crime, as specified. The bill would provide that the execution of judgment shall not be prevented or substantially delayed under any circumstances.
end insertbegin insert(18)end insertbegin insert end insertbegin insertThe California Constitution requires that a statute that limits the right of access to meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by that limitation and the need for protecting that interest. Except as provided by statute enacted by a two-thirds vote of the membership in each house of the legislature, the California Constitution prohibits the exclusion of relevant evidence in any criminal proceeding, including pretrial and postconviction motions and hearings.end insert
begin insertThis bill would require the identity and personal identifying information of the members of an execution team, medical professionals who assist in or consult on executions, persons who perform ancillary functions in an execution, and persons who supply drugs, medical supplies, or medical equipment for an execution to be privileged official information. The bill would prohibit disclosure of this information, and would provide the information shall not be subject to discovery in any civil, criminal, or administrative proceedings, except as specified. Because this bill would potentially exclude relevant evidence from a criminal proceeding, it would require a 2/3 vote. The bill would make a legislative finding and declaration relating to the necessity of protecting the privacy of these individuals.
end insertbegin insertThe bill would require any pharmacy operated by the Department of Corrections and Rehabilitation to obtain and provide any drugs or other controlled substances and medical supplies necessary for the execution process and practice sessions. The bill would require the secretary of the department to maintain ultimate authority over the pharmacy for purposes of obtaining these supplies.
end insertbegin insertThe bill would prohibit the infliction of the punishment of death from being construed to be the practice of medicine. The bill would prohibit any physician from being compelled by the state to perform an execution. The bill would allow the state to employ a physician to be present during the execution and to pronounce death. The bill would prohibit any agency that regulates the practice of health care from taking disciplinary action against any licensed health care professional for participating in, or providing assistance with, and execution.
end insertbegin insert(19) Existing law requires that the warden of the state prison where an execution is to take place be present at the execution and invite the presence of the Attorney General, the members of the immediate family of the victim or victims of the defendant, and at least 12 reputable citizens selected by the warden.
end insertbegin insertThis bill would require the warden, in the event that a condemned inmate has been sentenced to death in one or more proceedings or jurisdictions, to invite the prosecuting attorney, the judge, and the chief law enforcement official from each jurisdiction where any death sentence has issued to attend the execution.
end insertbegin insert(20) The bill would provide that it would not be operative unless Senate Constitutional Amendment No. ____ of the 2013-14 Regular Session is approved by the voters.
end insertExisting law requires the record on appeal in any case in which a death sentence has been imposed to be expeditiously certified in 2 stages, first for completeness and 2nd for accuracy. Existing law requires the clerk of the superior court to provide trial counsel copies of the clerk’s transcript within 30 days of the imposition of the death sentence. Existing law requires trial counsel to alert the court’s attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the normal course of trial preparation. Existing law requires the trial court to certify the record for completeness and for incorporation of all corrections no later than 90 days after entry of the imposition of the death sentence unless good cause is shown, except that existing law provides this time period may be extended if the trial transcript exceeds 10,000 pages.
end deleteThis bill would make technical, nonsubstantive changes to these provisions.
end deleteVote: begin deletemajority end deletebegin insert2⁄3end insert.
Appropriation: no.
Fiscal committee: begin deleteno end deletebegin insertyesend insert.
State-mandated local program: no.
The people of the State of California do enact as follows:
This act shall be known, and may be cited, as the
2Death Penalty reform Act of 2013.
The Legislature of California finds and declares the
4following:
5(a) The review of capital cases in this state is taking far longer
6than is needed for a fair adjudication of claims, that the delay is
7contrary to the right of victims and their families to a prompt
8conclusion of the case, that the delay impairs the deterrent effect
9of capital punishment, costing innocent lives, and that the delay
10constitutes a denial of justice in the worse criminal cases. Reforms
11in the review process are needed to bring these cases to a prompt,
12fair conclusion.
13(b) As presently administered, the death penalty costs far more
14than it needs to. Among the unnecessary expenses are the excessive
15length of incarceration during the needlessly prolonged review of
16the sentence, unnecessarily expensive conditions of confinement,
17unnecessary litigation of execution protocols, briefing of frivolous
18claims by defense counsel with the requisite response by the
19Attorney General and decision by the courts, and unnecessary
20repetitive review of judgments on issues having no bearing on
21actual guilt of the offense.
22(c) In order to protect the privacy of individuals who are
23members of an execution team, medical professionals who assist
24in or consult
on executions, persons who perform ancillary
25functions in an execution, and persons who supply drugs, medical
26supplies, or medical equipment for an execution, it is necessary
27that the identity and personal identifying information of these
28persons be kept confidential pursuant to Section 26 of this act
begin insertSection 15403 of the end insertbegin insertGovernment Codeend insertbegin insert is repealed.end insert
The State Public Defender shall formulate plans for the
2representation of indigents in the Supreme Court and in each
3appellate district as provided in this article. Each plan shall be
4adopted upon the approval of the court to which the plan is
5applicable. Any such plan may be modified or replaced by the
6State Public Defender with the approval of the court to which the
7plan is applicable.
begin insertSection 15403 is added to the end insertbegin insertGovernment Codeend insertbegin insert, to
9read:end insert
(a) The State Public Defender shall report annually
11to the Governor and the Legislature on the status of, and
12appointment of counsel for, indigent persons with respect to
13appeals under Section 11 of Article VI of the California
14Constitution.
15(b) A report to be submitted pursuant to subdivision (a) shall
16be submitted in compliance with Section 9795 of the Government
17Code.
begin insertSection 15425 of the end insertbegin insertGovernment Codeend insertbegin insert is repealed.end insert
The duties prescribed for the State Public Defender by
20this chapter are not exclusive and he may perform any acts
21consistent with them in carrying out the functions of the office.
begin insertSection 68661 of the end insertbegin insertGovernment Codeend insertbegin insert is amended to
23read:end insert
There is hereby created in the judicial branch of state
25government the California Habeas Corpus Resource Center, which
26shall have all of the following general powers and duties:
27(a) To employ up to 34 attorneys who may be appointedbegin delete by the begin insert pursuant to Section 68662end insert to represent any person
28Supreme Courtend delete
29convicted and sentenced to death in this state who is without
30counsel, and who is determined by a court of competent jurisdiction
31to be indigent, for the purpose of instituting and prosecuting
32postconviction actions in the state and federal courts,
challenging
33the legality of the judgment or sentence imposed against that
34personbegin insert, subject to the limitations specified in Section 68661.1end insert, and
35preparing petitions for executive clemency. An appointment may
36be concurrent with the appointment of the State Public Defender
37or other counsel for purposes of direct appeal under Section 11 of
38Article VI of the California Constitution.
39(b) To seek reimbursement for representation and expenses
40pursuant to Section 3006A of Title 18 of the United States Code
P12 1when providing representation to indigent persons in the federal
2courts and process those payments via the Federal Trust Fund.
3(c) To work with the Supreme Court in recruiting members of
4the private bar to accept death penalty habeas corpus case
5appointments.
6(d) Tobegin delete establish and periodically updateend deletebegin insert recommend attorneys
7on an annual basis to the Supreme Court for inclusion inend insert a roster
8of attorneys qualified as counsel in postconviction proceedings in
9capital casesbegin insert, provided that the final determination of whether to
10include an attorney in the roster shall be made by the Supreme
11Court and not delegated to the centerend insert.
12(e) To establish and periodically update a roster of experienced
13investigators and experts who are qualified to assist counsel in
14postconviction proceedings in capital cases.
15(f) To employ investigators and experts as staff to provide
16services to appointed counsel upon request of counsel, provided
17that whenbegin delete the provision ofend delete those servicesbegin delete is toend deletebegin insert are provided byend insert
18 private counsel under appointmentbegin delete by the Supreme Courtend delete, those
19services shall be pursuant to contract between appointed counsel
20and the center.
21(g) To provide legal or other advicebegin delete or, to the extent not to appointed counsel in
22otherwise available, any other assistanceend delete
23postconviction proceedings as is appropriate
when not prohibited
24by law.
25(h) To develop a brief bank of pleadings and related materials
26on significant, recurring issues that arise in postconviction
27proceedings in capital cases and to make those briefs available to
28appointed counsel.
29(i) To evaluate cases and recommend assignment by the court
30of appropriate attorneys.
31(j) To provide assistance and case progress monitoring as
32needed.
33(k) To timely review case billings and recommend compensation
34of members of the private bar to the court.
35(l) The center shall report annually to thebegin insert
people, by way of its
36Internet Web site or other medium providing equal or better public
37access, theend insert Legislature, the Governor, and the Supreme Court on
38the status of the appointment of counsel for indigent persons in
39postconviction capital cases, and on the operations of the center.
40begin delete On or before January 1, 2000, the Legislative Analyst’s Office begin insert The report shall list all cases
P13 1shall evaluate the available reports.end delete
2in which the center is providing representation. For each case that
3has been pending for more than one year in any court, the report
4shall state the reason for the delay and the actions the center is
5taking to bring the case to completion.end insert
begin insertSection 68661.1 is added to the end insertbegin insertGovernment Codeend insertbegin insert, to
7read:end insert
(a) The center may represent a person sentenced to
9death on one federal habeas corpus petition if, and only if, all of
10the following requirements are met:
11(1) The center was appointed to represent that person on a state
12petition for habeas corpus.
13(2) The center is appointed for that purpose by the federal court.
14(3) The executive director determines that compensation from
15 the federal court will fully cover the cost of representation.
16(b) Neither the center nor any other person or entity receiving
17state funds shall use state resources to attack any
judgment by a
18state court in a capital case in a federal court, other than review
19in the United States Supreme Court pursuant to Section 1257 of
20Title 28 of the United States Code.
21(c) The center is not authorized to represent any person on
22successive habeas corpus petitions or in any action that constitutes
23a collateral attack on the judgment or seeks to delay or prevent
24its execution. The center shall not engage in any other litigation
25or expend funds in any form of advocacy other than as expressly
26authorized by this section or Section 68661.
begin insertSection 68662 of the end insertbegin insertGovernment Codeend insertbegin insert is amended to
28read:end insert
Thebegin delete Supreme Courtend deletebegin insert superior court that imposed the
30sentenceend insert shall offer to appoint counsel to represent all state
31prisoners subject to a capital sentence for purposes of state
32postconviction proceedings, and shall enter an order containing
33one of the following:
34(a) The appointment of one or more counsel to represent the
35prisoner inbegin delete postconviction stateend delete proceedingsbegin insert pursuant to Section
361509 of
the Penal Codeend insert upon a finding that the person is indigent
37and has accepted the offer to appoint counsel or is unable to
38competently decide whether to accept or reject that offer.
P14 1(b) A finding, after a hearing if necessary, that the prisoner
2rejected the offer to appoint counsel and made that decision with
3full understanding of the legal consequences of the decision.
4(c) The denial to appoint counsel upon a finding that the person
5is not indigent.
6(d) The Legislature shall ensure that funding is made available
7to fulfill the requirements of this section and Section 1509 of the
8Penal Code, and may, in so doing, consider utilizing funds that
9were formerly appropriated for the support of the Supreme Court
10in order
to comply with this section.
begin insertSection 68664 of the end insertbegin insertGovernment Codeend insertbegin insert is amended to
12read:end insert
(a) The center shall be managed by an executive
14director who shall be responsible for the day-to-day operations of
15the center.
16(b) The executive director shall be chosen bybegin delete a five-member begin insert the Supreme Court and shall serve at the
will of the
17board of directors and confirmed by the Senate. Each Appellate
18Project shall appoint one board member, all of whom shall be
19attorneys. However, no attorney who is employed as a judge,
20prosecutor, or in a law enforcement capacity shall be eligible to
21serve on the board. The executive director shall serve at the will
22of the boardend delete
23Supreme Courtend insert.
24(c) Each member of the board shall be appointed to serve a
25four-year term, and vacancies shall be filled in the same manner
26as the original appointment. Members of the board shall receive
27no compensation, but shall be reimbursed for all reasonable and
28necessary expenses incidental to their duties. The first members
29of the board shall be appointed no later than February 1, 1998.
30(d)
end delete
31begin insert(c)end insert The executive director shall meet the appointment
32qualifications of the State Public Defender as specified in
Section
3315400.
34(d) The executive director shall ensure that all matters in which
35the center provides representation are completed as expeditiously
36as possible, consistent with providing effective representation.
37(e) The executive director shall receive the salary that shall be
38specified for thebegin delete executive directorend deletebegin insert
State Public Defenderend insert in
39Chapter 6 (commencing with Section 11550) of Part 1 of Division
403 of Title 2.begin insert All attorneys employed by the center shall be
P15 1compensated at the same level as positions with the same or similar
2experience requirements in the office of the State Public Defender.end insert
begin insertSection 68665 of the end insertbegin insertGovernment Codeend insertbegin insert is amended
4to read:end insert
(a) Except as provided in subdivision (b), an attorney
6shall be deemed competent for appointment as counsel in a death
7penalty direct appeal or habeas corpus proceeding if the attorney
8has been admitted to practice in a court of appeals for not less
9than five years, and has had not less than three years’ experience
10in the handling of appeals in that court in felony cases, as specified
11in standards adopted by Congress for federal capital proceedings
12in subdivision (c) of Section 3599 of Title 18 of the United States
13Code or any successor statute.
14 The
end delete
15begin insert(b)end insertbegin insert end insertbegin insertTheend insert Judicial Council and the Supreme Courtbegin delete shallend deletebegin insert
mayend insert adopt,
16by rule of court, binding and mandatory competency standards for
17the appointment of counsel in death penalty direct appeals and
18habeas corpus proceedingsbegin insert in lieu of those provided in subdivision
19(a). In establishing the standards, the Judicial Council and the
20Supreme Court shall consider the qualifications needed to achieve
21competent representation, the need to avoid unduly restricting the
22available pool of attorneys in order to provide a timely
23appointment, and the standards needed to qualify pursuant to
24Chapter 154 (commencing with Section 2261) of Part VI of Title
2528 of the United States Code. Experience requirements shall not
26be limited to defense experienceend insert.
27(c) Immediately upon the effective date
of the act adding this
28subdivision, Rule 8.605 of the Rules of Court shall be suspended.
29The standards under subdivision (a) of this section shall apply
30until the Judicial Council or the Supreme Court has adopted new
31standards in accordance with the criteria specified in subdivision
32(b).
begin insertSection 190.7 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
(a) begin deleteThe “entire record” referred to in Section 190.6 end deletebegin insertFor
35purposes of this chapter, the record end insertincludes, but is not limited to,
36the following:
37(1) The normal and additional record prescribed in the rules
38adopted by the Judicial Council pertaining to an appeal taken by
39the defendant from a judgment of conviction.
P16 1(2) A copy of any other paper or record on file or lodged with
2the superiorbegin delete or municipalend delete
court and a transcript of any other oral
3proceeding reported in the superiorbegin delete or municipalend delete court pertaining
4to the trial of the cause.
5(b) Notwithstanding this section, the Judicial Council may adopt
6rules, not inconsistent with the purpose of Section 190.6,
7specifically pertaining to the content, preparation and certification
8of the record on appeal when a judgment of death has been
9pronounced.
10(c) Jury questionnaires filled out by jurors who were excused
11without having been seated in the jury box during the selection
12process and who were not excused for cause are not part of the
13“entire record” for purposes of this chapter.
Section 190.8 of the Penal Code is amended to read:
(a) In any case in which a death sentence has been
17imposed, the record on appeal shall be expeditiously certifiedbegin delete in . The trial court
18two stages, the first for completeness and the second for accuracy,
19as provided by this sectionend deletebegin delete mayend deletebegin insert shallend insert use all
20reasonable means to ensure compliance with all applicable statutes
21and rules of court pertaining to record certification in capital
22appeals, including, but not limited to, the imposition of sanctions.
23(b) Within 30 days of the imposition of the death sentence, the
24clerk of the superior court shall provide to trial counsel copies of
25the clerk’s transcriptbegin delete and shall deliver the transcript as provided begin insert, the reporter’s transcript, and a
26by the court reporterend delete
27comprehensive journal of proceedings, prepared on a form
28approved by the Judicial Council, listing each date on which
29proceedings culminating in the judgment occurred and noting the
30duration end insertbegin insertand nature of each session, the names of the court
31reporters present at each session, and the page length and volume
32designation of all transcriptions prepared in connection with each
33sessionend insert.
Trial counsel shall promptly notify the court if he or she
34has not received the transcript within 30 days.
35(c) (1) During the course of a trial in which the death penalty
36is being sought, trial counsel shallbegin insert undertake to identify and
37promptlyend insert alert the court’s attention to any errors in the transcripts
38begin delete incidentally discovered by counsel while reviewing them in the begin insert of the proceedingsend insert. The court
39ordinary course of trial preparationend delete
40shall periodically request that trial counsel provide a list ofbegin delete errors begin insert
any proposed corrections to the reporter’send insert transcript
P17 1in the trialend delete
2during the course of trial and may hold hearings in connection
3therewith.
4(2) Corrections to the record shall not be required to include
5immaterial typographical errors that cannot conceivably cause
6confusion.
7(d) The trial court shall certify the recordbegin delete for completeness and no later than 90 days after entry of the imposition of the death
8for incorporation of all corrections, as provided by subdivision
9(c),end delete
10sentence unless good cause is shown.begin delete However, this time period
11may be extended for proceedings in which the trial transcript
12exceeds 10,000 pages in accordance with the timetable set forth
13in, or for good cause pursuant to the procedures set forth in, the
14rules of court adopted by the Judicial Council.end delete
15(e) Following the imposition of the death sentence and prior to
16the deadline set forth in subdivision (d), the trial court shall hold
17one or more hearings for trial counsel to address the completeness
18of the record and anybegin delete outstanding errors that have come to their begin insert proposed corrections,end insert and to certify that they have
19attentionend delete
20reviewedbegin insert the comprehensive journal of proceedings prepared by
21the clerk andend insert all docket sheets to ensure that the record contains
22begin insert complete and correctend insert transcripts forbegin delete anyend deletebegin insert
allend insert proceedings, hearings,
23begin delete orend deletebegin insert andend insert discussions that are required to be reported and that have
24occurred in the course of the case in any court, as well as all
25documents required by this code and the rules adopted by the
26Judicial Council.
27(f) The clerk of the trial court shall deliver a copy of the record
28on appeal tobegin insert the Attorney General and the appellant’send insert appellate
29counsel when the clerk receives notice of counsel’s appointment
30or retention, or when the record is certifiedbegin delete for completenessend delete
31
pursuant to subdivision (d), whichever is later.
32(g) The trial court shall certify the record for accuracy no later
33than 120 days after the record has been delivered to appellate
34counsel. However, this time may be extended pursuant to the
35timetable and procedures set forth in the rules of court adopted by
36the Judicial Council. The trial court may hold one or more status
37conferences for purposes of timely certification of the record for
38accuracy, as set forth in the rules of court adopted by the Judicial
39Council.
P18 1(g) After the
record is certified as provided in subdivision (d),
2no additional motions for correcting the record shall be entertained
3except as provided in subdivision (h).
4(h) Either party may file a motion in the Supreme Court for
5referral to the trial court for correction of a material error in the
6record. The motion shall (1) specify the particular correction
7sought, (2) identify the basis for the moving party’s belief that the
8proposed correction will accurately reflect the events that
9transpired at trial, and (3) explain how the proposed correction
10will materially affect the disposition of the pending appeal. The
11motion shall be made no later than five days after filing the moving
12party’s principal brief, except
that a motion may be made later if
13the moving party demonstrates by clear and convincing evidence
14that failure to effect the corrections will result in a miscarriage of
15justice.
16(i) The Supreme Court shall rule on any motion under
17subdivision (h) not later than 21 days after it is filed. That motion
18may be granted only upon a showing of good cause. If the motion
19is granted, the Supreme Court shall specify the proposed
20corrections that shall be considered by the trial court. The trial
21court shall, within 30 days, or any shorter period specified by the
22Supreme Court, issue an order granting or denying the proposed
23corrections referred for the trial court’s consideration.
14 24(h)
end delete
25begin insert(j)end insert The Supreme Court shall identify in writing to the Judicial
26Council any case that has not met the time limit for certification
27of the recordbegin delete for completenessend delete
pursuant to subdivision (d)begin delete or for
28accuracy
pursuant to subdivision (g)end delete
29and its reasons, for which it has granted an extension of time. The
30Judicial Council shall include this information in its annual report
31to the Legislature.
21 32(i)
end delete
33begin insert(k)end insert As used in this section, “trial counsel” means both the
34prosecution and the defense counsel in the trial in which the
35sentence of death has been imposed.
24 36(j)
end delete
37begin insert(l)end insert This section shall be implemented pursuant to rules of court
38adopted by the Judicial Council.
P19 1(k) This section shall only apply to those proceedings in which
2a sentence of death has been imposed following a trial that was
3commenced on or after January 1, 1997.
4(m) The amendments made to this section by the act adding this
5subdivision shall apply only to cases in which the trial commenced
660 days or more after the effective date of the act adding this
7subdivision.
begin insertSection 1202a of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
begin insert(a)end insertbegin insert end insert If the judgment is for imprisonment in the state
10prison the judgment shall direct that the defendant be delivered
11into the custody of thebegin delete Directorend deletebegin insert Secretaryend insert ofbegin insert the Department ofend insert
12 Correctionsbegin insert and Rehabilitationend insert
at the state prison or institution
13designated by thebegin delete Director of Correctionsend deletebegin insert secretaryend insert as the place
14for the reception of persons convicted of felonies, except where
15the judgment is for death in which case the defendant shall be
16begin delete taken to the warden of the California State Prison at San Quentinend delete
17begin insert delivered into the custody of the secretary to be housed in any state
18prison designated by the secretary for the housing of condemned
19prisonersend insert.
20Unless a different place or places are so designated by the
21Director of Corrections, the judgment shall direct that the defendant
22be delivered into the custody of the Director of Corrections at the
23California State Prison at San Quentin.
24begin insert(b)end insertbegin insert end insertThebegin delete Director of Correctionsend deletebegin insert secretaryend insert shall designate a place
25or places for the reception of persons convicted of felonies by
26order, which order or orders shall be served by registered mail,
27return receipt requested, upon each judge of each superior court
28in the state. Thebegin delete Director of Correctionsend deletebegin insert secretaryend insert may change the
29place or places of commitment by the issuance of a new order.
30Nothing contained in this section affects any provision of Section
31
3400.
begin insertSection 1227 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
begin insert(a)end insertbegin insert end insert If for any reason other than the pendency of an
34appeal pursuant to subdivision (b) of Section 1239 of this code a
35judgment of death has not been executed, and it remains in force,
36the court in which the conviction was had shall, on application of
37the district attorney, or may upon its own motion, make and cause
38to be entered an orderbegin delete appointing a day uponend deletebegin insert specifying a period
39of 30 days duringend insert which the judgment shall
be executedbegin delete, which begin insert. The 30-day
40must not be less than 30 days nor more than 60 days from the time
P20 1of making such order; and immediately thereafter,end delete
2period shall begin no more than 30 days after the order is entered
3and shall end no more than 60 days after the order is entered.
4Immediately after the order is entered,end insert a certified copy ofbegin delete suchend deletebegin insert theend insert
5 order, attested by the clerk, under the seal of the court, shall, for
6the purpose of execution, be transmitted by registered mail to the
7warden of the state prison having the custody of the defendant;
8provided, that if the defendant be at large, a warrant for his
9apprehension may be issued,
and upon being apprehended, he shall
10be brought before the court, whereupon the court shall make an
11order directing the warden of the state prison to whom the sheriff
12is instructed to deliver the defendant to execute the judgmentbegin delete at a begin insert within a period of 30
13specified time, which shall not be less than 30 days nor more than
1460 days from the time of making such orderend delete
15days. The 30-day period shall begin no more than 30 days after
16the order is made and shall end no more than 60 days after the
17order is madeend insert.
18From
end delete
19begin insert(b)end insertbegin insert end insertbegin insertFrom end insertan order fixing the time for and directing the execution
20of such judgment as herein provided, there shall be no appeal.
begin insertSection 1239 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
(a) Where an appeal lies on behalf of the defendant or
23the people, it may be taken by the defendant or his or her counsel,
24or by counsel for the people, in the manner provided in rules
25adopted by the Judicial Council.
26(b) When upon any plea a judgment of death is rendered, an
27appeal is automatically taken by the defendant without any action
28by him or her or his or her counsel. The defendant’s trial counsel,
29whether retained by the defendant or court appointed, shall continue
30to represent the defendant until completing the additional duties
31set forth in paragraph (1) of subdivision (e) of Section 1240.1.
32(c) The appellate court may require the appellant to be
33represented by counsel, but counsel shall respect the right of the
34client to determine the goals of representation.
begin insertSection 1240 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
(a) When in a proceeding falling within the provisions
37of Section 15421 of the Government Code a person is not
38represented by a public defender acting pursuant to Section 27706
39of the Government Code or other counsel and he is unable to afford
P21 1the services of counsel, the court shall appoint the State Public
2Defender to represent the person except as follows:
3(1) The court shall appoint counsel other than the State Public
4Defender when the State Public Defender has refused to represent
5the person because of conflict of interest or other reason.
6(2) The court may, in its discretion, appoint either the State
7Public Defender or the attorney who represented the
person at his
8trial when the person requests the latter to represent him on appeal
9and the attorney consents to the appointment. In unusual cases,
10where good cause exists, the court may appoint any other attorney.
11(3) A court may appoint a county public defender, private
12attorney, or nonprofit corporation with which the State Public
13Defender has contracted to furnish defense services pursuant to
14Government Code Section 15402.
15(4) When a judgment of death has been rendered the Supreme
16Court may, in its discretion, appoint counsel other than the State
17Public Defender or the attorney who represented the person at trial.
18(5) The State Public Defender shall not be appointed in a
19noncapital case at any time when there is a backlog of capital
20
cases awaiting appointment of more than three months, and the
21State Public Defender is unable, by reason of workload, to take
22all of the capital cases that the State Public Defender would
23otherwise be appointed as provided in subdivision (b).
24(b) Promptly upon docketing an appeal in a capital case, the
25clerk of the Supreme Court shall notify the State Public Defender
26of the case. Within 30 days, the State Public Defender shall notify
27the court if the office is unable to represent the appellant by reason
28of a conflict, workload, or other good cause. If the Supreme Court
29does not receive such a notice, the court shall promptly issue an
30order appointing the State Public Defender as counsel for the
31appellant. The State Public Defender shall ensure that briefs in
32capital cases are filed within the time limits specified in Section
33190.6 and in the rules of court, without extensions of time, except
34in unusual cases.
35(c) An attorney who is qualified for appointment in a capital
36appeal shall accept appointments to capital appeals as a condition
37of remaining on the list of attorneys for appointment by the
38appellate court in noncapital cases. An attorney who is not yet
39qualified for appointment in capital appeals shall make good faith
40efforts to become qualified as a condition of remaining on the list
P22 1of attorneys for appointment by the appellate court in noncapital
2cases. The Supreme Court may suspend these requirements if the
3court determines that there is no more than a six-month delay in
4the appointment of counsel for capital appeals, on average, but
5shall reinstate these requirements if an average delay of six months
6or more develops.
7(b)
end delete
8begin insert(d)end insert If counsel other than the State Public Defender is appointed
9pursuant to this section, hebegin insert or sheend insert may exercise the same authority
10as the State Public Defender pursuant to Chapter 2 (commencing
11with Section 15420) of Part 7 of Division 3 of Title 2 of the
12Government Code.
begin insertSection 1240.1 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
(a) In any noncapital criminal, juvenile court, or civil
15commitment case wherein the defendant would be entitled to the
16appointment of counsel on appeal if indigent, it shall be the duty
17of the attorney who represented the person at trial to provide
18counsel and advice as to whether arguably meritorious grounds
19exist for reversal or modification of the judgment on appeal. The
20attorney shall admonish the defendant that he or she is not able to
21provide advice concerning his or her own competency, and that
22the State Public Defender or other counsel should be consulted for
23advice as to whether an issue regarding the competency of counsel
24should be raised on appeal. The trial court may require trial counsel
25to certify that he or she has counseled the defendant as to whether
26arguably
meritorious grounds for appeal exist at the time a notice
27of appeal is filed. Nothing in this section shall be construed to
28prevent any person having a right to appeal from doing so.
29(b) It shall be the duty of every attorney representing an indigent
30defendant in any criminal, juvenile court, or civil commitment
31case to execute and file on his or her client’s behalf a timely notice
32of appeal when the attorney is of the opinion that arguably
33meritorious grounds exist for a reversal or modification of the
34judgment or orders to be appealed from, and where, in the
35attorney’s judgment, it is in the defendant’s interest to pursue any
36relief that may be available to him or her on appeal; or when
37directed to do so by a defendant having a right to appeal.
38With the notice of appeal the attorney shall file a brief statement
39of the points to be raised on appeal and a designation of any
40document, paper, pleading,
or transcript of oral proceedings
P23 1necessary to properly present those points on appeal when the
2document, paper, pleading, or transcript of oral proceedings would
3not be included in the normal record on appeal according to the
4applicable provisions of the California Rules of Court. The
5executing of the notice of appeal by the defendant’s attorney shall
6not constitute an undertaking to represent the defendant on appeal
7unless the undertaking is expressly stated in the notice of appeal.
8If the defendant was represented by appointed counsel on the
9trial level, or if it appears that the defendant will request the
10appointment of counsel on appeal by reason of indigency, the trial
11attorney shall also assist the defendant in preparing and submitting
12a motion for the appointment of counsel and any supporting
13declaration or affidavit as to the defendant’s financial condition.
14These documents shall be filed with the trial court at the time of
15filing a notice of appeal, and
shall be transmitted by the clerk of
16the trial court to the clerk of the appellate court within three judicial
17days of their receipt. The appellate court shall act upon that motion
18without unnecessary delay. An attorney’s failure to file a motion
19for the appointment of counsel with the notice of appeal shall not
20foreclose the defendant from filing a motion at any time it becomes
21known to him or her that the attorney has failed to do so, or at any
22time he or she shall become indigent if he or she was not previously
23indigent.
24(c) The State Public Defender shall, at the request of any
25attorney representing a prospective indigent appellant or at the
26request of the prospective indigent appellant himself or herself,
27provide counsel and advice to the prospective indigent appellant
28or attorney as to whether arguably meritorious grounds exist on
29which the judgment or order to be appealed from would be reversed
30or modified on appeal.
31(d) The failure of a trial attorney to perform any duty prescribed
32in this section, assign any particular point or error in the notice of
33appeal, or designate any particular thing for inclusion in the record
34on appeal shall not foreclose any defendant from filing a notice of
35appeal on his or her own behalf or from raising any point or
36argument on appeal; nor shall it foreclose the defendant or his or
37her counsel on appeal from requesting the augmentation or
38correction of the record on appeal in the reviewing court.
39(e) (1) In order to expedite certification of the entire record on
40appeal in all capital cases, the defendant’s trial counsel, whether
P24 1retained by the defendant or court-appointed, and the prosecutor
2shall continue to represent the respective parties. Each counsel’s
3obligations extend to taking all steps necessary to facilitate the
4preparation and timely certification of the record of all trial court
5proceedings.
6(2) The duties imposed on trial counsel in paragraph (1) shall
7not foreclose the defendant’s appellate counsel from requesting
8additions or corrections to the record on appeal in either the trial
9court or the California Supreme Court in a manner provided by
10rules of court adopted by the Judicial Council.
begin insertSection 1335 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
begin delete(a)end deletebegin delete end deleteWhen a defendant has been charged with a public
13offense triable in any court, he or shebegin delete in all cases,end delete and the people
14begin delete in cases other than those for which the punishment may be death,end delete
15 may, if the defendant has been fully informed of his or her right
16to counsel as provided by law, have witnesses examined
17conditionallybegin delete in his or her or their behalf,end delete as prescribed in this
18chapter.
19(b) When a defendant has been charged with a serious felony
20or in a case of domestic violence, the people or the defendant may,
21if the defendant has been fully informed of his or her right to
22counsel as provided by law, have a witness examined conditionally
23as prescribed in this chapter, if there is evidence that the life of the
24witness is in
jeopardy.
25(c) As used in this section, “serious felony” means any of the
26felonies listed in subdivision (c) of Section 1192.7 or any violation
27of Section 11351, 11352, 11378, or 11379 of the Health and Safety
28Code.
29(d) If a defendant has been charged with a case of domestic
30violence and there is evidence that a victim or material witness
31has been or is being dissuaded by the defendant or any person
32acting on behalf of the defendant, by intimidation or a physical
33threat, from cooperating with the prosecutor or testifying at trial,
34the people or the defendant may, if the defendant has been fully
35informed of his or her right to counsel as provided by law, have a
36witness examined conditionally as prescribed in this chapter.
37(e) For the purposes of this section, “domestic violence” means
38any public offense arising from
acts of domestic violence as defined
39in Section 13700.
begin insertSection 1509 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert
begin insert(a) This section applies to any petition for writ of habeas
2corpus filed by a person in custody pursuant to a judgment of
3death. A writ of habeas corpus made pursuant to this section is
4the exclusive procedure for collateral attack on a judgment of
5death. A petition filed in any court other than the court which
6imposed the sentence shall be transferred to that court unless good
7cause is shown for the petition to be heard by another court. A
8petition to be filed in or transferred to the court which imposed
9the sentence shall be assigned to the original trial judge unless
10that judge is unavailable or there is other good cause to assign
11the case to a different judge.
12(b) After the entry of judgment in the trial court, that court shall
13offer
counsel to the defendant as provided in Section 68662 of the
14Government Code. Counsel’s appointment terminates upon the
15final disposition of the petition, including appellate review. The
16court may appoint counsel to represent the petitioner on a
17successive petition only if there is a reasonable basis to believe
18that the petitioner may be able to meet the criteria for a successive
19petition under subdivision (e).
20(c) Either party may appeal the decision on the petition to the
21court with jurisdiction over the appeal from the underlying criminal
22judgment. A successive petition shall not be used as a means of
23reviewing a denial of habeas relief.
24(d) Except as provided in subdivisions (e) and (h), the initial
25petition shall be filed within one year of the order entered pursuant
26to Section 68662 of the Government Code.
27(e) An initial petition which is untimely pursuant to subdivision
28(d), or a successive petition whenever filed, shall be dismissed
29unless the court finds, by a preponderance of all available
30evidence, whether or not admissible at trial, that the defendant is
31actually innocent of the crime of which he or she was convicted
32or is ineligible for the sentence. A stay of execution shall not be
33granted for the purpose of considering a successive or untimely
34petition unless the court finds that the petitioner has a substantial
35claim of actual innocence or ineligibility for the sentence of death.
36Ineligibility for the sentence of death means that circumstances
37exist placing that sentence outside the range of the sentencer’s
38discretion. Claims of ineligibility include a claim that none of the
39special circumstances specified in subdivision (a) of Section 190.2
40is true, a claim that the defendant was under the age of 18 at the
P26 1time of the crime, or a claim that the defendant is intellectually
2disabled as
defined in Section 1376. A claim based on voluntary
3intoxication, a claim based on mental disease or defect other than
4intellectually disabled, or a claim relating to the sentencing
5decision pursuant to Section 190.3 is not a claim of actual
6innocence for the purposes of this section.
7(f) A petitioner claiming innocence or ineligibility for the death
8sentence pursuant to subdivision (e) shall disclose all material
9information relating to guilt that is in the possession of the
10petitioner or present counsel for the petitioner. If the petitioner
11willfully fails to make the disclosure required by this subdivision
12to authorize disclosure by counsel, the petition shall be dismissed.
13(g) Proceedings held pursuant to this section shall be conducted
14as expeditiously as possible, consistent with a fair adjudication.
15In the typical case, the superior court shall render a decision on
16the
petition within one year of filing, and the Supreme Court shall
17decide the appeal from the decision of the superior court within
18one year. All cases shall be decided within two years unless the
19court finds that a delay is necessary to resolve a substantial claim
20of actual innocence.
21(h) This section shall apply to all cases where a judgment of
22death is entered after the effective date of the act adding this
23section, and to all cases where a judgment was entered earlier but
24no application for habeas corpus has been filed as of the effective
25date of the act adding this section. If a habeas petition is pending
26on the effective date of the act adding this section, the court may
27transfer it to the court which imposed the sentence. If no habeas
28petition has been filed prior to the effective date of this section, a
29motion that would otherwise be barred by subdivision (d) may be
30filed within one year of the effective date, or within the time
31allowed
under law as it existed prior to the effective date of the
32act adding this section, whichever is earlier.
begin insertSection 3600 of the end insertbegin insertPenal Codeend insertbegin insert is repealed.end insert
(a) Every male person, upon whom has been imposed
35the judgment of death, shall be delivered to the warden of the
36California state prison designated by the department for the
37execution of the death penalty, there to be kept until the execution
38of the judgment, except as provided in subdivision (b).
39(b) Notwithstanding any other provision of law:
P27 1(1) A condemned inmate who, while in prison, commits any of
2the following offenses, or who, as a member of a gang or disruptive
3group, orders others to commit any of these offenses, may,
4following disciplinary sanctions and classification actions at San
5Quentin State Prison, pursuant to regulations established by the
6Department of Corrections, be housed in secure condemned
7housing designated by the Director of Corrections, at the California
8State Prison, Sacramento:
9(A) Homicide.
10(B) Assault with a weapon or with physical force capable of
11causing serious or mortal injury.
12(C) Escape with force or attempted escape with force.
13(D) Repeated serious rules violations that substantially threaten
14safety or security.
15(2) The condemned housing program at California State Prison,
16Sacramento, shall be fully operational prior to the transfer of any
17condemned inmate.
18(3) Specialized training protocols for supervising condemned
19inmates shall be provided to those line staff and supervisors at the
20California State Prison, Sacramento, who supervise condemned
21inmates on a regular basis.
22(4) An inmate whose medical or mental health needs are so
23critical as to endanger the inmate or others may, pursuant to
24regulations established by the Department of Corrections, be
25housed at the California Medical Facility or other appropriate
26institution for medical or mental health treatment. The inmate shall
27be returned to the institution from which the inmate was transferred
28when the condition has been adequately treated or is in remission.
29(c) When housed pursuant to subdivision (b) the following shall
30apply:
31(1) Those local procedures relating to privileges and
32classification procedures provided to Grade B condemned inmates
33at San Quentin State Prison shall be similarly instituted at
34California State Prison, Sacramento, for condemned inmates
35housed pursuant to paragraph (1) of subdivision (b) of Section
363600. Those classification procedures shall include the right to the
37review of a classification no less than every 90 days and the
38opportunity to petition for a return to San Quentin State Prison.
39(2) Similar attorney-client access procedures that are afforded
40to condemned inmates housed at San Quentin State Prison shall
P28 1be afforded to condemned inmates housed in secure condemned
2housing designated by the Director of Corrections, at the California
3State Prison, Sacramento. Attorney-client access for condemned
4inmates housed at an institution for medical or mental health
5treatment shall be commensurate with the institution’s visiting
6procedures and appropriate treatment protocols.
7(3) A condemned inmate housed in secure condemned housing
8pursuant to subdivision (b) shall be returned to San Quentin State
9Prison at least 60 days prior to his scheduled date of execution.
10(4) No more than 15 condemned inmates may be rehoused
11pursuant to paragraph (1) of subdivision (b).
12(d) Prior to any relocation of condemned row from San Quentin
13State Prison, whether proposed through legislation or any other
14means, all maximum security Level IV, 180-degree housing unit
15facilities with an electrified perimeter shall be evaluated by the
16Department of Corrections for suitability for the secure housing
17and execution of condemned inmates.
begin insertSection 3600 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert
begin insertEvery person, upon whom has been imposed the judgment
20of death, shall be delivered to the warden of the state prison
21designated by the department for the execution of the death penalty.
22The inmate shall be kept in a state prison until execution of
23judgment. The department may transfer the inmate to another state
24prison which the department determines provides a level of security
25sufficient for that inmate. The inmate shall be returned to the prison
26designated for execution of the death penalty after an execution
27date has been set.
begin insertSection 3601 of the end insertbegin insertPenal Codeend insertbegin insert is repealed.end insert
Every female person, upon whom has been imposed the
30judgment of death, shall be delivered to the warden of the Central
31California Women’s Facility, there to be held pending decision
32upon appeal.
begin insertSection 3602 of the end insertbegin insertPenal Codeend insertbegin insert is repealed.end insert
Upon the affirmance of her appeal, the female person
35sentenced to death shall thereafter be delivered to the warden of
36the California state prison designated by the department for the
37execution of the death penalty, not earlier than three days before
38the day upon which judgment is to be executed; provided, however,
39that in the event of a commutation of sentence said female prisoner
P29 1shall be returned to the Central California Women’s Facility, there
2to be confined pursuant to such commutation.
begin insertSection 3603 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
The judgment of death shall be executed within the walls
5ofbegin delete the California State Prison at San Quentinend deletebegin insert a state prison facility
6to be determined by the Secretary of the Department of Corrections
7and Rehabilitationend insert.
begin insertSection 3604 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
(a) The punishment of death shall be inflicted by the
10administration of a lethal gas or by anbegin delete intravenousend delete injection of a
11substance or substances in a lethal quantity sufficient to cause
12death, by standards established under the direction of the
13Department of Correctionsbegin insert and Rehabilitation. Lethal gas may
14include, but is not limited to, a nontoxic gas administered in a
15lethal manner, such as by displacing oxygen. The department shall
16at all times maintain the capability to execute a sentence of death
17by either meansend insert.
18(b) Persons
sentenced to death prior to or after the operative
19date of this subdivision shall have the opportunity to elect to have
20the punishment imposed by lethal gas or lethal injection. This
21choice shall be made in writing and shall be submitted to the
22warden pursuant to regulations established by the Department of
23Correctionsbegin insert and Rehabilitationend insert. If a person under sentence of death
24does not choose either lethal gas or lethal injection within 10 days
25after the warden’s service upon the inmate of an execution warrant
26issued following the operative date of this subdivision, the penalty
27of death shall be imposed by lethal injection.
28(c) Where the person sentenced to death is not executed on the
29date set for execution and a new execution date is subsequently
30set, the inmate again shall have the opportunity to elect to have
31punishment imposed by lethal
gas or lethal injection, according to
32the procedures set forth in subdivision (b).
33(d) Notwithstanding subdivision (b), if either manner of
34execution described in subdivision (a) is held invalid,begin insert has been
35enjoined by a court of competent jurisdiction, or is unavailable
36for any reason,end insert the punishment of death shall be imposed by the
37alternative means specified in subdivision (a).
38(e) The provisions of Chapter 3.5 (commencing with Section
3911340) of Part 1 of Division 3 of Title 2 of the Government Code
P30 1shall not apply to standards, procedures, or regulations
2promulgated pursuant to this section.
3(f) The court which rendered the
judgment of death has exclusive
4jurisdiction to hear any claim by the condemned inmate that the
5method of execution is unconstitutional or otherwise invalid. A
6claim shall be made within one year of the adoption of the method
7or within one year of the enactment of the act adding this
8subdivision, whichever is later. If the method is found invalid, the
9court shall order the use of a valid method of execution. The
10execution of judgment shall not be prevented or substantially
11delayed under any circumstances. If the use of a method of
12execution is enjoined by a federal court, the department shall
13promptly adopt a method that conforms to federal requirements
14as found by that court. If the department fails to perform any duty
15needed to enable it to execute judgment, the court which rendered
16the judgment of death shall order it to perform that duty on its own
17motion, on the motion of the district attorney or Attorney General,
18or on motion of any victim of the crime as specified in subdivision
19(c) of Section 28 of
Article I of the California Constitution.
begin insertSection 3604.1 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert
begin insert(a) The identity and personal identifying information
22of the members of the execution team, medical professionals who
23assist in or consult on executions, persons who perform ancillary
24functions in an execution, and persons who supply drugs, medical
25supplies or medical equipment for an execution is privileged
26official information.
27(1) This information shall not be subject to disclosure pursuant
28to Government Code Chapter 3.5 (commencing with Section 6250)
29of Division 7 of Title 1 of the Government Code.
30(2) This information shall not be subject to discovery in any
31civil, criminal or administrative proceeding absent a court order
32made pursuant to subdivisions (b) to (f),
inclusive.
33(b) A party seeking the discovery or disclosure of the information
34specified in subdivision (a) shall file a written motion with the
35appropriate court or administrative body upon written notice to
36the governmental agency which has custody and control of the
37information. The written notice shall be given at the times
38prescribed by subdivision (b) of Section 1005 of the Code of Civil
39Procedure. Upon receipt of the notice the governmental agency
P31 1served shall expeditiously notify the individual whose information
2is being sought.
3(c) The motion shall include all of the following:
4(1) A specific description of the information sought.
5(2) Identification of the proceeding in which discovery or
6disclosure is sought, the identity of the party seeking
discovery or
7disclosure, the governmental agency which has custody and control
8of the information, and the time and place at which the motion for
9discovery or disclosure shall be heard.
10(3) Affidavits showing good cause for the discovery or disclosure
11sought, setting forth the materiality thereof to the subject matter
12involved in the pending litigation, and stating upon reasonable
13belief that the governmental agency identified has the information.
14Good cause in a criminal case consists of a substantial showing
15that the information sought is material to the guilt of the defendant.
16Good cause in a civil case or administrative proceeding consists
17of a substantial showing that the information sought is critical to
18the ultimate issue to be decided by the trier of fact.
19(d) No hearing upon a motion for discovery or disclosure shall
20be held without full compliance with the notice
provisions of this
21section except upon a waiver of the hearing by the governmental
22agency identified as possessing the information and by the person
23whose information is being sought.
24(e) The court shall hold the hearing outside the presence of any
25party other than the holder of the information, the person whose
26information is being sought, and their counsel, except that the
27person whose information is being sought may waive his or her
28presence. At the in camera hearing, the agency in possession of
29the information and the person whose information is being sought
30may offer evidence which would tend to disclose, or which
31discloses, the information sought, to aid the court in its
32determination of whether there is a reasonable possibility that
33nondisclosure might deprive the moving party of a fair trial or
34hearing. A court reporter shall be present at the in camera hearing.
35Any transcription of the proceedings at the in camera hearing, as
36well as
any physical evidence presented at the hearing, shall be
37ordered sealed by the court, and only a court may have access to
38its contents.
39(f) Unless a protective order is waived by the agency possessing
40the information and the person whose information is being sought,
P32 1the court shall make any protective order which justice requires
2to protect the person or agency from unnecessary annoyance,
3embarrassment or oppression including but not limited to the
4following:
5(1) Limiting disclosure of the information sought to the moving
6party, counsel of record for the moving party, and investigators
7who are working on that case.
8(2) Prohibiting further disclosure of the information by the
9parties to any other person or entity.
10(3) Ordering that the information
disclosed or discovered may
11not be used for any purpose other than a court proceeding pursuant
12to applicable law.
13(4) Redacting the information to avoid identifying the person
14whose information is sought.
begin insertSection 3604.2 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert
begin insertAny pharmacy operated by the Department of
17Corrections and Rehabilitation shall be required to obtain and
18provide any drugs or other controlled substances and medical
19supplies necessary for the execution procedure and for any practice
20sessions. Notwithstanding who is in control of the pharmacy for
21any other purpose, the Secretary of the Department of Corrections
22and Rehabilitation shall maintain ultimate authority over the
23pharmacy for purposes of obtaining and providing supplies and
24controlled substances to be used in executions.
begin insertSection 3604.3 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert
begin insert(a) It being in the best interest of the state and the
27condemned to secure the participation of medical professionals
28to assure that the execution process is effective and humane, the
29infliction of the punishment of death by administration of the
30required lethal substances in the manner required by this chapter
31shall not be construed to be the practice of medicine.
32(1) A physician may not be compelled by the state to perform
33an execution.
34(2) The state may employ a physician for the purpose of ensuring
35that the execution protocol is effective and humane.
36(3) The state may employ a physician to be present during an
37
execution for the purpose of ensuring that the execution is
38performed with minimal distress and discomfort to the inmate. A
39physician who is so employed may intervene in an execution to
P33 1correct any deficiencies he or she observes that may cause
2unnecessary distress or discomfort to the condemned inmate.
3(b) The state may employ a physician for purposes of
4pronouncing death after an execution.
5(c) Notwithstanding any provision of law to the contrary, no
6licensing board, department, commission or accreditation agency
7which oversees or regulates the practice of health care or certifies
8or licenses healthcare professionals may censure, reprimand,
9suspend, revoke, or take any other disciplinary action against any
10licensed health care professional, including, but not limited to,
11physicians, nurses, pharmacists, and pharmaceutical compounders,
12for participating in or providing assistance
with the execution of
13any convicted person carried out under this article or the
14formulation of an execution protocol.
15(d) The purchase of drugs, medical supplies or medical
16equipment necessary to carry out an execution shall not be subject
17to the provisions of Chapter 9 (commencing with Section 4000) of
18Division 2 of the Business and Professions Code, and any
19pharmacist, or supplier, compounder or manufacturer of
20pharmaceuticals is authorized to dispense drugs and supplies to
21the Secretary or the Secretary’s designee, without prescription,
22for carrying out the provisions of this section.
begin insertSection 3605 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
(a) The warden of the state prison where the execution
25is to take place shall be present at the execution and shall, subject
26to any applicable requirement or definition set forth in subdivision
27(b), invite the presence of the Attorney General, the members of
28the immediate family of the victim or victims of the defendant,
29and at least 12 reputable citizens, to be selected by the warden.
30The warden shall, at the request of the defendant, permit those
31ministers of the Gospel, not exceeding two, as the defendant may
32name, and any persons, relatives or friends, not to exceed five, to
33be present at the execution, together with those peace officers or
34any other Department of Corrections employee as he or she may
35think expedient, to witness the execution. But no other persons
36than those
specified in this section may be present at the execution,
37nor may any person under 18 years of age be allowed to witness
38the execution.
39(b) (1) For purposes of an invitation required by subdivision
40(a) to members of the immediate family of the victim or victims
P34 1of the defendant, the warden of the state prison where the execution
2is to take place shall make the invitation only if a member of the
3immediate family of the victim or victims of the defendant so
4requests in writing. In the event that a written request is made, the
5warden of the state prison where the execution is to take place
6shall automatically make the invitation 30 days prior to the date
7of an imminent execution or as close to this date as practicable.
8(2) For purposes of this section, “immediate family” means
9those persons who are related by blood, adoption, or marriage,
10within the second
degree of consanguinity or affinity.
11(c) No physician or any other person invited pursuant to this
12section, whether or not employed by the Department of
13Corrections, shall be compelled to attend the execution, and any
14physician’s attendance shall be voluntary. A physician’s or any
15other person’s refusal to attend the execution shall not be used in
16any disciplinary action or negative job performance citation.
17(d) If a condemned inmate has been sentenced to death in one
18or more criminal proceedings in this state, or has been sentenced
19to death in this state and by one or more courts of competent
20jurisdiction in another state, or pursuant to federal authority, or
21any combination thereof, and this state has priority to execute the
22defendant, the warden shall invite the prosecuting attorney, or his
23or
her designee, the judge, and the chief law enforcement official,
24from each jurisdiction where any death sentence has issued, to
25attend the execution.
begin insertSection 3700.5 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
Whenever a court makes and causes to be entered an
28order appointing abegin delete day uponend deletebegin insert 30-day period duringend insert which a
29judgment of death shall be executed upon a defendant, the warden
30of the state prison to whom such defendant has been delivered for
31executionbegin delete or, if the defendant is a female, the warden of the Central shall notify the
32California Women’s Facility,end deletebegin delete Director of begin insert
Secretary of the Department of Corrections and
33Correctionsend delete
34Rehabilitationend insert who shall thereupon select and appoint three
35begin delete alienistsend deletebegin insert psychiatrists or licensed psychologistsend insert, all of whom must
36be from the medical staffs of thebegin delete Department of Correctionsend delete
37begin insert departmentend insert, to examine the defendant, under the judgment of death,
38and investigate his or her sanity. It is the duty of thebegin delete alienistsend delete
39begin insert psychiatrists or licensed psychologistsend insert
so selected and appointed
40to examinebegin delete suchend deletebegin insert theend insert defendant and investigate his or her sanity,
P35 1and to report their opinions and conclusions thereon, in writing,
2to the Governorbegin delete, to the warden of the prison at which the execution
3is to take place,
or, if the defendant is female, the warden of the
4Central California Women’s Facility,end delete
520 days prior to thebegin insert firstend insert daybegin insert of the 30-day periodend insert appointed for
6the execution of the judgment of death upon the defendant. The
7warden shall furnish a copy of the report to counsel for the
8defendant upon his or her request.
If any provision of this act, or any part of any
10provision, or if its application to any person or circumstance is
11held to be invalid or unconstitutional for any reason, the remaining
12provisions and application that can be given effect without the
13invalid or unconstitutional provisions or application shall not be
14affected, but shall remain in full force and effect, and, to this end,
15the provisions are severable.
This act shall only become operative if Senate
17Constitutional Amendment No. ____ of the 2013-14 Regular
18Session is approved by the voters.
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