Amended in Senate May 4, 2015

Senate Bill No. 603

Introduced by Senator Hueso

February 27, 2015

An act to add Section 686.3 to the Penal Code, relating to criminal proceedings.

LEGISLATIVE COUNSEL’S DIGEST

SB 603, as amended, Hueso. Defendant: acting as his or her own attorney (in pro per).

The California Constitution provides that a victim of crime is entitled to be treated with fairness and respect for his or her privacy and dignity throughout the criminal justice process. Existing law also provides that in a criminal action the defendant is entitled to appear and defend in person and with counsel, except as specified, and to confront the witnesses against him or her.

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Existing law makes it a crime for a person to practice law in this state unless he or she is a member of the State Bar.

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This bill would require a court to conduct a hearing to determine whether intermediary standby counsel begin insert or another person end insert shall be appointed, at county expense, for the limited purpose of presenting the defendant’s examination of the victim, upon a motion by the prosecutor, at the request of a victim, or upon the court’s own motion, if a defendant is acting as his or her own attorney in the proceeding and if the victim’s testimony will involve a recitation of the facts of one of specified alleged felony offenses committed against the victim, including begin delete violent felonies and end delete felony offenses for which a convicted defendant is required to register as a sex offender. The bill would require the hearing on the motion to be conducted outside the presence of the jury and would provide that the hearing shall not require the testimony of the victim. The bill would authorize the court to appoint intermediary standby counsel begin insert or, if intermediary counsel is not available, to conduct the examination or to appoint any individual the court deems fit to conduct the examinati end insert begin insert on, end insert if the court makes specified findings, including that the denial of the defendant’s personal examination of the victim, and the use of begin delete intermediary standby counsel end delete begin insert another person or the court end insert to present the defendant’s examination of the victim, is necessary to protect the victim from trauma, as specified. The bill would also exempt the appointed intermediary standby counsel from sanctions and from liability in an action for malpractice brought by the defendant against that counsel for his or her service in that capacity, as specified. begin insert The bill would also exempt a person from criminal prosecution for the unlawful practice of law for engaging in activities he or she is authorized to perform pursuant to these provisions. end insert By imposing a higher level of service on counties, the bill would impose a state-mandated local program. The bill would also include legislative findings and declarations and a statement of legislative intent.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 686.3 is added to the Penal Code, to read:

686.3.  

(a) The Legislature hereby finds and declares all of the
following:

(1) Sexual abuse, child abuse, begin delete stalking end delete begin insert stalking, end insert and violent
crimes are some of the most difficult crimes to detect and
prosecute, in large part because there are often no witnesses except
the victim, and because of the extreme psychological harm to the
victims. Victims of sex crimes, child abuse, begin delete stalking end delete begin insert stalking, end insert and
other violent crimes have a right to be protected from further
victimization by the alleged perpetrator of the crime. These victims
have constitutional rights, as enumerated in Marsy’s Law, to be
treated with fairness and respect for their dignity, to be free from
intimidation, harassment, and abuse throughout the criminal justice
process, and to be reasonably protected from the defendant.

(2) A defendant generally has the right to represent himself or
herself in a criminal proceeding, and the right to confront his or
her accusers in court. However, courts have held that this right is
not absolute, and where the reliability of the testimony is otherwise
ensured, the defendant’s rights may be outweighed by important
public policy concerns.

(3) Courts are entitled to control the mode of witness
interrogation, so as to more effectively ascertain the truth and
protect the witness from harassment or further trauma. Courts have
held that a state’s interest in the physical and psychological
well-being of victims and witnesses may be sufficiently important
to outweigh, in some cases, a defendant’s right to face his or her
accuser or accusers in court.

(4) The state has a compelling interest in protecting the physical
and psychological well-being of victims of sex offenses, child
abuse, begin delete stalking end delete begin insert stalking, end insert and other violent crimes.

(b) It is the intent of the Legislature in enacting this section to
provide the court with authority to employ alternative court
procedures to protect the rights of victims of an alleged sexual
assault, child abuse, begin delete stalking end delete begin insert stalking end insert begin insert , end insert and other crimes described
in subdivision (c), so the victims are able to participate truthfully
and effectively in criminal proceedings when the alleged
perpetrator is acting as his or her own attorney, which is also
referred to as acting in pro per. In exercising its authority, the court
shall balance the rights of the defendant against the need to protect
victims of those crimes and to preserve the integrity of the court’s
truthfinding function. This authority is intended to be used
selectively when the facts and circumstances in the individual case
present compelling evidence of the need to use these alternative
procedures.

(c) Notwithstanding any other law, if the defendant is acting as
his or her own attorney, the court, upon a motion by the prosecutor,
at the request of a victim, or upon the court’s own motion, shall
conduct a hearing to determine whether intermediary standby
counsel, shall be appointed, at county expense, for the limited
purpose of presenting the defendant’s examination of the victim.
begin insert If intermediary standby counsel is not available, the court may
appoint any individual the court deems fit to conduct the
examination, or the court may conduct the examination. end insert The court
may order intermediary standby counsel begin insert or the appointed individual
to conduct the examination, or the court may conduct the
examination, end insert if the court makes all of the following findings:

(1) The victim’s testimony will involve a recitation of the facts
of any of the following alleged offenses committed against the
victim:

(A) A felony offense that is subject to sex offender registration
pursuant to Section 290.

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(B) A violent felony, as defined in subdivision (c) of Section
667.5.

(C)

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begin insert (B) end insert  Felony stalking pursuant to Section 646.9.

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(D)

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begin insert ( end insert begin insert C) end insert  Felony elder abuse pursuant to Section 368.

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(E)

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begin insert ( end insert begin insert D) end insert  Felony domestic violence pursuant to Section 273.5.

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(F)

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begin insert ( end insert begin insert E) end insert  Felony child abuse pursuant to Section 273a, begin delete 273ab end delete begin insert 273ab, end insert
or 273d.

(2) The prospect of the defendant personally presenting the
examination of the victim creates an emotionally traumatic situation
for the victim that is more than de minimis.

(3) The denial of the defendant’s personal examination, and the
use of intermediary standby counsel to present the defendant’s
examination of the victim, is necessary to protect the victim from
that trauma.

(d) The hearing on the motion pursuant to subdivision (c) shall
be conducted outside the presence of the jury and shall not require
the testimony of the victim. The court’s findings pursuant to
subdivision (c) may be established by evidence of the facts of the
underlying incident, the defendant’s subsequent behavior, and
through witnesses including, but not limited to, the victim, victim
advocate, therapist, counselor, parent, or family member.

(e) If the victim testifies at the hearing brought pursuant to
subdivision (c), the questioning of the victim shall be conducted
by the court. The prosecutor and defendant shall be permitted to
submit proposed questions to the court prior to the hearing.

(f) When the court orders intermediary standby counsel begin insert or the
appointed individual end insert to present the examination of the victim
pursuant to this section, begin insert or when the court presents the
examination, end insert the court shall do all of the following:

(1) Make a brief statement on the record, outside the presence
of the jury, of the reasons in support of its order. The reasons shall
be set forth with sufficient specificity to permit meaningful review
and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.

(2) Instruct the jury that although begin delete intermediary standby counsel end delete
begin insert another person, or the court, end insert is presenting the defendant’s
questions of that witness, the defendant is continuing to represent
himself or herself, and that the jury is to draw no negative
inferences against the defendant from the use of begin delete intermediary
standby counsel end delete begin insert another person or the court end insert to facilitate the
examination of that particular witness or to speculate as to the
reasons for begin delete intermediary standby counsel’s end delete begin insert another person’s or
the court’s end insert participation.

(g) When the court orders the examination of the victim be
presented by begin delete intermediary standby counsel, end delete begin insert another person, or
when the court conducts the examination, end insert the defendant shall
submit the entire line of questioning to begin delete intermediary standby
counsel, end delete begin insert the other person or the court, end insert including any followup
questions, and have the right to contemporaneously direct
begin delete intermediary standby counsel end delete begin insert the other person or the court end insert during
the examination to ensure the defendant maintains control of his
or her defense. The defendant shall remain personally subject to
court procedures and the rules of evidence.

(h) The appointed intermediary standby counsel who performs
merely as the presenter of the defendant’s proposed examination
of the victim pursuant to this section shall not be subject to
sanctions begin insert imposed by a court or by the State Bar end insert for presenting
the defendant’s proposed examination. The appointed intermediary
standby counsel shall not be subject to liability for malpractice for
presenting the defendant’s proposed examination in an action
brought by the defendant against that counsel for his or her service
in that capacity. begin insert A person who is appointed pursuant to this section
shall not be subject to criminal prosecution pursuant to Section
6126 of the Business and Professions Code for engaging in
activities he or she is authorized to perform pursuant to this
section. end insert

SEC. 2.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.