Amended in Senate January 4, 2016

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.

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.

This bill would require a court to conduct a hearing to determine whether intermediary standby counsel begin delete or another person end delete shall be appointed, at county expense, for the limited purpose of presenting the defendant’s examination of the victim, upon a motion by the begin delete prosecutor, end delete begin insert prosecutor or end insert at the request of a victim, begin delete or upon the court’s own motion, end delete 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 begin delete one of specified alleged felony offenses committed against the victim, including end delete begin insert any end insert felony begin delete offenses end delete begin insert offense end insert 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 delete or, if intermediary counsel is not available, to conduct the examination or to appoint any individual the court deems fit to conduct the examination, end delete if the court makes specified findings, including that the denial of the defendant’s personal examination of the victim, and the use of another person or the court to present the defendant’s examination of the victim, is necessary to protect the victim from trauma, as specified. begin delete 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. 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 delete 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 begin delete abuse, child abuse, stalking, and violent end delete begin insert abuse end insert crimes
are some of the most difficult crimes to detect and prosecute, in
large part because there are often no witnesses except the victim,
begin insert because of the victim’s reluctance to report, end insert and because of the
extreme psychological harm to the victims. Victims of begin delete sex crimes,
child abuse, stalking, and other violent end delete begin insert sexual abuse end insert 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 begin delete offenses, child
abuse, stalking, and other violent crimes. end delete begin insert offenses. end insert

(b) It is the intent of the Legislature in enacting this section to
provide the court with begin delete authority end delete begin insert discretion end insert to employ alternative
court procedures to protect the rights of victims of an alleged sexual begin delete assault, child abuse, stalking, and other crimes end delete begin insert assault, as end insert 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 begin delete prosecutor, end delete
begin insert prosecutor or end insert at the request of a victim, begin delete or upon the court’s own
motion, end delete 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 delete 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 delete The court
may order intermediary standby counsel begin delete or the appointed individual
to conduct the examination, or the court may conduct end delete begin insert to present end insert
the examination, if the court makes all of the following findings:

begin delete

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

end delete begin delete

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

end delete begin delete

(B) Felony stalking pursuant to Section 646.9.

end delete begin delete

(C) Felony elder abuse pursuant to Section 368.

end delete begin delete

(D) Felony domestic violence pursuant to Section 273.5.

end delete begin delete

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

end delete begin insert

(1) The victim’s testimony will involve a recitation of the facts
of any felony offense that is subject to sex offender registration
pursuant to Section 290.

end insert

(2) The prospect of the defendant personally presenting the
examination of the victim creates an emotionally traumatic situation
for the victim that begin delete is more than de minimis. end delete begin insert would substantially
impair the victim’s ability to communicate. end insert

(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.

begin delete

(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.

end delete begin delete

(f)

end delete

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

begin delete

(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 another person, or the court,
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 another person or the court to facilitate the
examination of that particular witness or to speculate as to the
reasons for another person’s or the court’s participation.

(g)

end delete

begin insert ( end insert begin insert f) end insert  When the court orders the examination of the victim be
presented by begin delete another person, or when the court conducts the
examination, end delete begin insert the intermediary standby counsel, end insert the defendant shall
submit the entire line of questioning to the begin delete other person or the
court, including any followup questions, and end delete begin insert intermediary standby
counsel, with sufficient time for counsel to prepare any followup
questions, and shall end insert have the right to contemporaneously direct
the begin delete other person or the court end delete begin insert end insert begin insert intermediary standby counsel 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.

begin delete

(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 imposed by a court or by the State Bar 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. 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 delete

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.