BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 603        Hearing Date:    April 21, 2015    
          
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          |Author:    |Hueso                                                |
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          |Version:   |February 27, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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           Subject:  Defendant:  Acting As His or Her Own Attorney (in pro  
 
                                        per)



          HISTORY

          Source:   San Diego District Attorney's Office

          Prior Legislation:None

          Support:  California District Attorneys Association; Alliance  
                    for Hope; San Diego VOICES; Partnership to End  
                    Domestic Violence; Crime Victims United; a number of  
                    individuals; Crime Victims Action Alliance; 2  
                    individuals

          Opposition:ACLU; California Public Defenders Association

                                                


          PURPOSE

          The purpose of this bill is in cases where a defendant who is  
          charged with specified offenses is acting in pro per, to allow  
          the court to appoint intermediary standby counsel for the  
          limited purpose of presenting the defendant's examination of the  







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          victim.

          Existing law provides that in all criminal prosecutions, the  
          accused shall enjoy the right ... to be confronted by the  
          witnesses against him ? (U.S. Constitution, Amendment VI.)

          Existing law provides that the Sixth Amendment of the U.S.  
          Constitution guarantees the right accused of a crime to  
          represent him or herself.  (Faretta v. California (1975) 422  
          U.S. 806)
           
           Existing law provides that when a defendant is charged with  
          specified sex offenses, child abuse, lewd and lascivious acts on  
          a child, and the victim either is a person 15 years of age or  
          less or is developmentally disabled as a result of an  
          intellectual disability, as specified, the people may apply for  
          an order that the victim's testimony at the preliminary hearing,  
          in addition to being steno graphically recorded, be recorded and  
          preserved on videotape.  (Penal Code,  1346(a).) 

          Existing law states that at the time of trial, if the court  
          finds that further testimony in any of the qualifying cases  
          would cause the victim emotional trauma so that the victim is  
          medically unavailable or otherwise unavailable within the  
          statutory definition of unavailability, the court may admit the  
          videotape of the victim's testimony at the preliminary hearing,  
          as specified.  (Penal Code,  1346(d).) 

          Existing law establishes that a videotape prepared for court  
          testimony is subject to a protective order of the court to  
          protect the privacy of the victim and must be made available to  
          the prosecuting attorney, the defendant, and his/her attorney  
          for viewing during business hours.  The videotape is to be  
          destroyed five years from the date of judgment, unless an appeal  
          is filed. (Penal Code,  1346(e), (f), and (g).)    

          Existing law provides that when a defendant is charged with  
          spousal rape or infliction of corporal injury resulting in a  
          traumatic injury to a spouse, former spouse, or domestic  
          partner, the people may apply for an order that the victim's  
          testimony at the preliminary hearing, in addition to being steno  
          graphically recorded, be recorded and preserved on videotape.   
          If the victim's testimony at the preliminary hearing is  
          admissible, the videotape recording may be introduced as  








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          evidence at trial (Penal Code,  1346.1(a) and (d).) 

          Existing law allows, in cases where a minor, 13 years or  
          younger, will testify that a sexual offense was committed  
          against or with the minor, or that the minor was a victim of a  
          violent felony, as defined, that the minor may testify by way of  
          contemporaneous examination and cross examination in another  
          location and communicated to the courtroom by closed-circuit  
          television if the court finds that the impact on the minor of  
          one or more of the following is shown by clear and convincing  
          evidence to make the minor unavailable as a witness unless  
          closed-circuit television is used:

             a)   Testimony by the minor in the presence of the defendant  
               would result in the child suffering serious emotional  
               distress so that the child would be unavailable as a  
               witness; 

             b)   The defendant used a deadly weapon in the commission of  
               the offense;
           
             c)   Threats of serious bodily injury to be inflicted on the  
               minor or a family member, of incarceration or deportation  
               of the minor or a family member, or of removal of the minor  
               from the family or dissolution of the family in order to  
               prevent or dissuade the minor from attending or giving  
               testimony at any trial or court proceeding or to prevent  
               the minor from reporting the alleged sexual offense or from  
               assisting in the prosecution; 

             d)   The defendant inflicted great bodily injury upon the  
               child in the commission of the offense; or,
                
             e)   The defendant or his or her counsel behaved during the  
               hearing or trial in a way that caused the minor to be  
               unable to continue his or her testimony.  (Penal Code   
               1347(b).)

          This bill provides that 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.








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          This bill provides the court may order intermediary standby  
          counsel if the court makes the following findings:

                 The victim's testimony will involve the recitation of  
               facts on any of the following offenses.
                  o         A registerable sex offense.
                  o         A violent felony.
                  o         Felony stalking.
                  o         Felony elder abuse.
                  o         Felony domestic violence.
                  o         Felony child abuse.
                 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.
                 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.

            This bill provides that the hearing on the motion to have  
            standby counsel pursuant to this bill shall take place outside  
            the presence of the jury and shall not require the testimony  
            of the victim.  If the victim does testify at the hearing the  
            questioning of the victim shall be conducted by the court.

            This bill provides that if the court orders intermediary  
            standby counsel to present the examination of the victim the  
            court shall do all of the following:

                     Make a brief statement on the record 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.
                     Instruct the jury that although intermediary standby  
                 counsel 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  
                 interferences against the defendant from the sue of  
                 intermediary standby counsel to facilitate the  
                 examination of that particular witness or to speculate as  
                 to the reasons for intermediary standby counsel's  
                 participation.








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          This bill provides that when the court orders the examination of  
          the victim be presented by intermediary standby counsel, the  
          defendant shall submit the entire line of questioning to the  
          intermediary standby counsel, including any follow- up  
          questions, and have the right to contemporaneously direct  
          intermediary standby counsel 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.

          This bill provides that 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 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 his own counsel for his or her  
          service in that capacity.

          This bill contains codified legislative intent.





                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   









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                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.





          








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          COMMENTS

          1. Need For The Bill

          According to the author:

               SB 603 would set up a legal framework to prevent  
               further trauma to specified victims when their accused  
               attacker is acting in pro per.  This bill applies when  
               a defendant is representing himself or herself in a  
               criminal case involving a sex crime, stalking, elder  
               abuse, child abuse, domestic violence, or a violent  
               felony.  If a judge finds that direct questioning by  
               the accused would create an emotionally traumatic  
               situation for that victim, the judge may appoint  
               stand-by counsel to ask the questions as prepared by  
               the defendant.

                Numerous courts across the country have restricted  
               pro per defendants' ability to personally  
               cross-examine their victims, particularly in cases  
               involving sexual abuse.  For example, in 1995, the  
               Fourth Circuit Court of Appeals in Fields v. Murray,  
               affirmed a lower court's decision to appoint stand-by  
               counsel to read the defendant's questions as prepared  
               by the defendant in a case involving child  
               molestation.  The Court found it was not a violation  
               of the defendant's rights, he still maintained control  
               of his defense, and the state had an important  
               interest in protecting the child victims from further  
               trauma.  This ruling applies to the states of  
               Maryland, Virginia, West Virginia, North Carolina, and  
               South Carolina. Similar decisions were reached by the  
               Supreme Court of Kentucky in the cases of Partin and  
               Applegate, and the Washington Appellate Court case of  
               Estabrook.









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               California's public policy to protect the physical and  
               psychological well-being of victims during the  
               criminal justice process is clear.  Particularly in  
               cases of sexual assault, secondary victimization can  
               cause even more harm than the initial criminal act,  
               with the trial often being referred to as "the second  
               rape."  A rape victim should be afforded protection  
               from the trauma of being personally questioned by the  
               accused rapist.  A stalking victim should be afforded  
               another option than have to suffer the trauma from  
               direct questioning by the person who has harassed,  
               threatened, and tormented her.  By having a procedure  
               in which stand-by counsel is appointed to read a pro  
               per defendant's questions, victims of violent crime  
               will be able to avoid another direct assault by their  
               attackers during the trial.  At the same time, this  
               bill protects defendants' rights to still maintain  
               control of their case and direct their trial.

          2.  Use of Standby Counsel For Victim Cross-Examination

           The U.S. Constitution guarantees the right of a person accused  
          of a crime to represent himself or herself (in pro per).  A  
          defendant acting in pro per has the right to control the  
          organization of the defense, make motions, argue points of law,  
          participate in voir dire, question witnesses and address the  
          court and jury.  (McKaskle v. Wiggins (1984) 465 U.S. 168, 174)

          This bill would provide that in specified cases when a defendant  
          is acting in pro per a court can order standby counsel to  
          question the victim on behalf of the defendant.  The court will  
          have to find that the defendant examining the victim will create  
          an emotionally traumatic situation for the victim and that  
          appointing the stand by counsel will protect the victim from  
          that trauma.  The offenses about which the victim is testifying  
          must be one of the following: a registerable sex offense; a  
          violent felony; felony stalking; felony elder abuse; felony  
          domestic violence; or, felony child abuse.

          In support of this bill the sponsor states:

               In a recent San Diego case, a woman was violently  
               raped while walking from a store to a trolley station.  
                During the course of the criminal case, the defendant  








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               eventually chose to act as his own attorney.  The rape  
               victim in the case had not alternative by to face her  
               rapist during the trial and answer he questions  
               directly about the violent sexual assault, despite  
               having suffered panic attacks prior to trial, out of  
               increased anxiety of being directly questioned by her  
               rapist.

               Victims of sex crimes and other violent crimes already  
               suffer physical trauma, fear, and an assault on their  
               privacy and dignity.  To require those victimized to  
               have to suffer re-traumatization by answering  
               questions personally posed by their alleged attacker,  
               without an alternative, is indefensible considering  
               the vulnerable state of these victims.  Through a  
               loophole in the law, rapists can victimize their  
               victims-once during the rape and then again by  
               re-traumatizing them through direct question about the  
               crime perpetrated.  The fact that our laws allow  
               victims of violent sex crimes to endure this line of  
               question when there is an alternative is  
               reprehensible.

          3.  Offenses For Which Standby Counsel Can Be Appointed
          
          The offenses for which standby counsel can be appointed to  
          cross-examine the victim are:
                 A registerable sex offense;
                 A violent felony;
                 Felony stalking;
                 Felony elder abuse;
                 Felony domestic violence;
                 Felony child abuse;

          The list of violent felonies includes twenty-three offenses  
          including murder and sex offenses but also including any robbery  
          and any first degree burglary where another was present.  Any  
          robbery could be purse snatch when the person holds on to the  
          purse too long and a person present at a first degree burglary  
          can be a burglary downstairs while people sleep unknowing  
          upstairs.  Both events are traumatic but are they the type of  
          crimes for which a person's constitutional right to  
          self-representation should be infringed?
          








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           4.  How Will The Questioning Work And Does The Process Protect  
            The Defendant's Right        To Confrontation? 
          
          The bill states that the pro per defendant will submit the  
          entire line of questioning, including follow-up questions to the  
          standby counsel.  It is not clear how this work.  The  
          examination or cross-examination of a witness is an organic  
          process.  Follow up questions are just that, follow-up questions  
          based on the answers, how does a person submit follow up  
          questions prior to the examination?  Does the standby counsel  
          have to stop after every answer and ask the defendant if they  
          have a question?  Even an experienced attorney will not know all  
          the questions that they are going to ask on an examination until  
          the question starts, how is an in pro per defendant supposed to  
          submit the questions before?  Does the standby counsel continue  
          to ask questions even if they don't make sense based on how the  
          witness is answering?

          In opposition the ACLU states:

               It is simply not possible for an attorney to step in  
               and act as an effective mouth piece for the accused  
               during cross-examination.  Cross-examination is an  
               art.  The litigator must respond, in real time, to the  
               actual answers from the witness, constantly adjusting  
               course.  The timing of the questions is critical.   
               Requiring standby counsel to read a list of prepared  
               questions does not constitute a "full opportunity for  
               contemporaneous cross-examination." (Ibid.) Nor is  
               this problem cured by having the standby attorney  
               consult with the accused during cross-examine.  This  
               prevents rapid response to answers and destroys the  
               ability to develop effective timing. 

               Two cases in which appellate courts reversed the trial  
               courts for using the procedure proposed in SB 603  
               demonstrate this point.  In State v. Folk (Idaho 2011)  
               256 P.3d 735, the court observed: 

                  Requiring Defendant to write out questions to be  
                  asked by someone else in order to cross-examine  
                  Child is a significant impairment of the right  
                  of confrontation. [?]









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                  As anyone who has conducted cross-examination  
                  would know, one must be able to listen to the  
                  answer and then, especially with young child, be  
                  able to reword the question or come up with  
                  another question based upon the answer.   
                  Cross-examination is often a fluid process, and  
                  the person forming the questions must be able to  
                  concentrate on the answers and what further  
                  questions are necessary to elicit the desired  
                  information.

               (Id. At 745.)

               In Commonwealth v. Conefrey (Mass. 1991) 570 N.E.2d  
               1384, the court described the events at trial as  
               follows: 

                  Cross-examination of the complainant proceeded  
                  in the form directed by the judge, with the  
                  defendant writing out questions and giving them  
                  to standby counsel to ask of the complainant.   
                  During the course of the questioning, however,  
                                                                                         standby counsel protested to the judge that he  
                  felt awkward with this method of examination,  
                  and that he could not adjust his questions  
                  quickly enough to respond to the complainant's  
                  answers without constantly conferring with the  
                  defendant.

               (Id. At 1389.) The court then held:

                  We conclude that the restriction denied the  
                  defendant a fair chance to present his case his  
                  own way because it literally required standby  
                  counsel to speak in his place, thereby hindering  
                  the defendant's ability to conduct an effective  
                  cross-examination of a witness on whose  
                  credibility the Commonwealth's case depended.   
                  As a result, the defendant's constitutional  
                  right of self-representation has been violated  
                  and a new trial is necessary.

               (Id. At 1391.)









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               One state appellate court has upheld the use of the  
               procedure proposed in SB 603. (State v. Eastabrook  
               (Wash. 1993) 842 P.2d 1001.).  This court, however,  
               failed to analyze the Sixth Amendment Confrontation  
               Clause issues raised by these procedures.  While other  
               courts have approved preventing the defendant from  
               personally cross-examining the complaining witness, in  
               all of those cases the defendant was in fact  
               represented by counsel.  (See Fields v. Murray (1995)  
               49 F.3d 1024 [where defendant was acting as  
               "co-counsel" to court appointed attorney, it was  
               acceptable to require the court appointed attorney  
               conduct the cross-exam]; Partin v. Commonwealth  
               (Kentucky 2005) 168 S.W. 3d 23 [same]; State v. Taylor  
               (RI 1989) 562 A.2d 445 [accused represented by an  
               attorney].)

               As the cases from Idaho and Massachusetts demonstrate,  
               implementing the procedure proposed in SB 603 will  
               lead to the infringement of the constitutional rights  
               of the accused, leading to reversals and the need to  
               retry these cases years later.

          5.  Will The Court Be Able To Find Standby Counsel?

          This bill provides that the standby counsel cannot be sanctioned  
          or subject to malpractice liability for presenting the  
          defendant.  Sanctioned by whom?  Should it be clear that the  
          counsel cannot be sanctioned by the State Bar or the Court?

          Even without potential liability, will any defense attorney feel  
          comfortable asking questions on behalf of the pro per defendant  
          without having an ability to use their knowledge and skill to  
          follow-up?  If the court orders a defense attorney to be a  
          standby counsel and the attorney refuses can the attorney be  
          found in contempt for that?  Will attorneys who are solo  
          practitioners feel they have to agree for fear they will lose  
          appointed cases in the future?  If the attorney goes off the  
          script and asks a question on his or her own are they still  
          protected from liability?

          6. Are There Other Options For The Court?

          As the ACLU notes, there are other ways a court can deal with a  








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          pro per defendant who is being abusive so as to protect the  
          witness:

               Fortunately, California trial courts already have many  
               tools to protect witnesses. Trial courts can control  
               the mode of cross-examination by any person to protect  
               the witness from undue harassment and embarrassment.   
               (See Cal. Evid. Code,  765.)  California law provides  
               for the use of closed-circuit television to question  
               certain child witnesses and witnesses with  
               disabilities.  (Pen. Code sec. 1347, 1347.5.)  The  
               courts can require that a pro se litigant stay seated  
               while cross-examining the witness or maintain a  
               certain distance from the witness.  If a pro se  
               litigant is disruptive or threatening, the judge can  
               have him or her restrained or removed from the  
               courtroom.  See Illinois v. Allen (1970) 397 U.S. 337.  
                If a pro se litigant engages in witness intimidation  
               or in any way subverts "the core concept of a trial,"  
               the court can even terminate the accused's right to  
               represent himself or herself.  (People v. Carson  
               (2005) 35 Cal.4th 1, 9.) 

               Trial courts, thus, are already vested with broad  
               discretion to prevent the kind of harm that SB 603  
               guards against.

          Are courts using the options available to them in order to  
          protect victims and maintain the defendant's Constitutional  
          right to represent himself for herself?
          
          7. Support
          
          The supporters believe that this bill will help victims in  
          reducing their trauma at trial.  Specifically, the California  
          Partnership to End Domestic Violence states in support:

               The criminal process can be extremely traumatic for  
               survivors of domestic violence, sexual assault,  
               stalking and other violent crimes.  Many survivors are  
               reluctant to participate and fearful of confronting  
               their abusers.  By allowing an appointed stand-by  
               counsel to question the survivor in these specific  
               cases we can help reduce the possibility for emotional  








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               harm and increased trauma to the survivor.  A survivor  
               should be afforded protection from trauma of being  
               personally questioned by their accused.  By having a  
               procedure in which stand-by counsel is appointed to  
               read a pro per defendant's questions, survivors of  
               violent crime will be able to avoid another attack  
               during the trial.


                                      -- END -