BILL NUMBER: AB 195 CHAPTERED
BILL TEXT
CHAPTER 1086
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 1996
APPROVED BY GOVERNOR SEPTEMBER 29, 1996
PASSED THE ASSEMBLY AUGUST 31, 1996
PASSED THE SENATE AUGUST 27, 1996
AMENDED IN SENATE AUGUST 7, 1996
AMENDED IN SENATE JULY 8, 1996
AMENDED IN SENATE JUNE 27, 1996
AMENDED IN SENATE JUNE 11, 1996
AMENDED IN ASSEMBLY JANUARY 29, 1996
AMENDED IN ASSEMBLY JANUARY 8, 1996
INTRODUCED BY Assembly Member Morrow
(Coauthor: Assembly Member Kevin Murray)
(Coauthor: Senator Calderon)
JANUARY 26, 1995
An act to amend Sections 190.6, 190.7, 190.8, 190.9, and 1240.1 of
the Penal Code, relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 195, Morrow. Criminal procedure: capital case.
(1) Existing law requires the trial court to expeditiously certify
the record in any case in which a death sentence has been imposed
and requires the trial court to monitor and report the status of the
preparation of the record to the California Supreme Court if it has
not been certified within 60 days of delivery to the parties or their
counsel.
This bill would require the clerk of the superior court to provide
copies of the reporter's transcript and the clerk's transcript to
counsel within 30 days of the imposition of the death sentence and
would require the trial court to certify the entire record on appeal
for completeness within 90 days of the imposition of the death
sentence, and for accuracy within 120 days of delivery to appellate
counsel, except as specified. The bill would establish a 2-stage
procedure for the certification of the record, including the holding
of hearings to address outstanding corrections to the record and
would authorize the trial court to grant an extension of these time
limits.
The bill would require the California Supreme Court to report to
the Judicial Council any case that has not met the time limit for
certification or where an extension has been granted.
(2) Existing law requires the trial court to conduct all
proceedings in a capital case, including those conducted in chambers,
on the record with a court reporter present and requires the court
reporter to prepare and certify a daily transcript of those
proceedings.
This bill would specify the procedures by which proceedings held
in the municipal court shall be transcribed and reported, upon
notification that the prosecution is seeking the death penalty.
(3) Existing law requires the trial counsel for a capital
defendant to continue representation until the entire record on
appeal is certified and specifies the trial counsel's duties.
This bill would require both the prosecutor and counsel for the
defense to continue representation for as long as required to
participate fully in the steps mandated by these provisions and the
rules of court to create a certified record.
(4) Existing law requires the appeal in all capital cases to be
filed with the Supreme Court within 150 days of certification of the
entire record by the sentencing court.
This bill instead would require, in all cases in which a sentence
of death has been imposed on or after January 1, 1997, that the
appellant's opening brief be filed within 7 months of certification
of the record. The bill would state the Legislature's goal that the
appeal be decided and an opinion filed within 210 days of receiving
all of the parties' briefs.
(5) By increasing the duties of court personnel, this bill would
impose a state-mandated local program.
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 no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 190.6 of the Penal Code is amended to read:
190.6. (a) The Legislature finds that the sentence in all capital
cases should be imposed expeditiously.
(b) Therefore, in all cases in which a sentence of death has been
imposed on or after January 1, 1997, the opening appellate brief in
the appeal to the State Supreme Court shall be filed no later than
seven months after the certification of the record for completeness
under subdivision (d) of Section 190.8 or receipt by the appellant's
counsel of the completed record, whichever is later, except for good
cause. However, in those cases where the trial transcript exceeds
10,000 pages, the briefing shall be completed within the time limits
and pursuant to the procedures set by the rules of court adopted by
the Judicial Council.
(c) In all cases in which a sentence of death has been imposed on
or after January 1, 1997, it is the Legislature's goal that the
appeal be decided and an opinion reaching the merits be filed within
210 days of the completion of the briefing. However, where the
appeal and a petition for writ of habeas corpus is heard at the same
time, the petition should be decided and an opinion reaching the
merits should be filed within 210 days of the completion of the
briefing for the petition.
(d) The failure of the parties or the Supreme Court to meet or
comply with the time limit provided by this section shall not be a
ground for granting relief from a judgment of conviction or sentence
of death.
SEC. 2. Section 190.7 of the Penal Code is amended to read:
190.7. (a) The "entire record" referred to in Section 190.6
includes, but is not limited to, the following:
(1) 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.
(2) A copy of any other paper or record on file or lodged with the
superior or municipal court and a transcript of any other oral
proceeding reported in the superior or municipal court pertaining to
the trial of the cause.
(b) Notwithstanding this section, the Judicial Council may adopt
rules, not inconsistent with the purpose of Section 190.6,
specifically pertaining to the content, preparation and certification
of the record on appeal when a judgment of death has been
pronounced.
SEC. 3. Section 190.8 of the Penal Code is amended to read:
190.8. (a) In any case in which a death sentence has been
imposed, the record on appeal shall be expeditiously certified in two
stages, the first for completeness and the second for accuracy, as
provided by this section. The trial court may use all reasonable
means to ensure compliance with all applicable statutes and rules of
court pertaining to record certification in capital appeals,
including, but not limited to, the imposition of sanctions.
(b) Within 30 days of the imposition of the death sentence, the
clerk of the superior court shall provide to trial counsel copies of
the clerk's transcript and shall deliver the transcript as provided
by the court reporter. Trial counsel shall promptly notify the court
if he or she has not received the transcript within 30 days.
(c) During the course of a trial in which the death penalty is
being sought, trial counsel shall alert the court's attention to any
errors in the transcripts incidentally discovered by counsel while
reviewing them in the ordinary course of trial preparation. The
court shall periodically request that trial counsel provide a list of
errors in the trial transcript during the course of trial and may
hold hearings in connection therewith.
Corrections to the record shall not be required to include
immaterial typographical errors that cannot conceivably cause
confusion.
(d) The trial court shall certify the record for completeness and
for incorporation of all corrections, as provided by subdivision (c),
no later than 90 days after entry of the imposition of the death
sentence unless good cause is shown. However, this time period may
be extended for proceedings in which the trial transcript exceeds
10,000 pages in accordance with the timetable set forth in, or for
good cause pursuant to the procedures set forth in, the rules of
court adopted by the Judicial Council.
(e) Following the imposition of the death sentence and prior to
the deadline set forth in subdivision (d), the trial court shall 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 and that
have occurred in the course of the case in any court, as well as all
documents required by this code and the rules adopted by the Judicial
Council.
(f) The clerk of the trial court shall deliver a copy of the
record on appeal to appellate counsel when the clerk receives notice
of counsel's appointment or retention, or when the record is
certified for completeness under subdivision (d), whichever is later.
(g) The trial court shall certify the record for accuracy no later
than 120 days after the record has been delivered to appellate
counsel. However, this time may be extended pursuant to the
timetable and procedures set forth in the rules of court adopted by
the Judicial Council. The trial court may hold one or more status
conferences for purposes of timely certification of the record for
accuracy, as set forth in the rules of court adopted by the Judicial
Council.
(h) The Supreme Court shall identify in writing to the Judicial
Council any case that has not met the time limit for certification of
the record for completeness under subdivision (d) or for accuracy
under subdivision (g), and shall identify those cases, and its
reasons, for which it has granted an extension of time. The Judicial
Council shall include this information in its annual report to the
Legislature.
(i) As used in this section, "trial counsel" means both the
prosecution and the defense counsel in the trial in which the
sentence of death has been imposed.
(j) This section shall be implemented pursuant to rules of court
adopted by the Judicial Council.
(k) This section shall only apply to those proceedings in which a
sentence of death has been imposed following a trial that was
commenced on or after January 1, 1997.
SEC. 4. Section 190.9 of the Penal Code is amended to read:
190.9. (a) (1) In any case in which a death sentence may be
imposed, all proceedings conducted in the municipal and superior
courts, including all conferences and proceedings, whether in open
court, in conference in the courtroom, or in chambers, shall be
conducted on the record with a court reporter present. In superior
court, the court reporter shall prepare and certify a daily
transcript of these proceedings. In municipal court, the
proceedings, other than the preliminary hearing for which daily
transcripts shall be prepared, shall be reported but need not be
transcribed until the municipal court receives notice as prescribed
in paragraph (2) of subdivision (a).
(2) Upon receiving notification from the prosecution that the
death penalty is being sought, the superior court shall notify the
municipal court. Upon this notification, the municipal court shall
order the transcription and preparation of the record of all
proceedings in the municipal court in the manner prescribed by the
Judicial Council in the rules of court. The record of all
proceedings in municipal court shall be certified by the municipal
court to the superior court no later than 120 days following
notification by the superior court unless the superior court grants
an extension of time pursuant to rules of court adopted by the
Judicial Council. Upon certification, the municipal court shall
forward the record to the superior court for incorporation into the
superior court record.
(b) Any computer-readable transcript produced by court reporters
pursuant to this section shall conform to the requirements of
subdivision (c) of Section 269 of the Code of Civil Procedure.
SEC. 5. Section 1240.1 of the Penal Code is amended to read:
1240.1. (a) In any noncapital criminal, juvenile court, or civil
commitment case wherein the defendant would be entitled to the
appointment of counsel on appeal if indigent, it shall be the duty of
the attorney who represented the person at trial to provide counsel
and advice as to whether arguably meritorious grounds exist for
reversal or modification of the judgment on appeal. The attorney
shall admonish the defendant that he or she is not able to provide
advice concerning his or her own competency, and that the State
Public Defender or other counsel should be consulted for advice as to
whether an issue regarding the competency of counsel should be
raised on appeal. The trial court may require trial counsel to
certify that he or she has counseled the defendant as to whether
arguably meritorious grounds for appeal exist at the time a notice of
appeal is filed. Nothing in this section shall be construed to
prevent any person having a right to appeal from doing so.
(b) It shall be the duty of every attorney representing an
indigent defendant in any criminal, juvenile court, or civil
commitment case to execute and file on his or her client's behalf a
timely notice of appeal when the attorney is of the opinion that
arguably meritorious grounds exist for a reversal or modification of
the judgment or orders to be appealed from, and where, in the
attorney's judgment, it is in the defendant's interest to pursue any
relief that may be available to him or her on appeal; or when
directed to do so by a defendant having a right to appeal.
With the notice of appeal the attorney shall file a brief
statement of the points to be raised on appeal and a designation of
any document, paper, pleading, or transcript of oral proceedings
necessary to properly present those points on appeal when the
document, paper, pleading or transcript of oral proceedings would not
be included in the normal record on appeal according to the
applicable provisions of the California Rules of Court. The
executing of the notice of appeal by the defendant's attorney shall
not constitute an undertaking to represent the defendant on appeal
unless the undertaking is expressly stated in the notice of appeal.
If the defendant was represented by appointed counsel on the trial
level, or if it appears that the defendant will request the
appointment of counsel on appeal by reason of indigency, the trial
attorney shall also assist the defendant in preparing and submitting
a motion for the appointment of counsel and any supporting
declaration or affidavit as to the defendant's financial condition.
These documents shall be filed with the trial court at the time of
filing a notice of appeal, and shall be transmitted by the clerk of
the trial court to the clerk of the appellate court within three
judicial days of their receipt. The appellate court shall act upon
that motion without unnecessary delay. An attorney's failure to file
a motion for the appointment of counsel with the notice of appeal
shall not foreclose the defendant from filing a motion at any time it
becomes known to him or her that the attorney has failed to do so,
or at any time he or she shall become indigent if he or she was not
previously indigent.
(c) The State Public Defender shall, at the request of any
attorney representing a prospective indigent appellant or at the
request of the prospective indigent appellant himself or herself,
provide counsel and advice to the prospective indigent appellant or
attorney as to whether arguably meritorious grounds exist on which
the judgment or order to be appealed from would be reversed or
modified on appeal.
(d) The failure of a trial attorney to perform any duty prescribed
in this section, assign any particular point or error in the notice
of appeal, or designate any particular thing for inclusion in the
record on appeal shall not foreclose any defendant from filing a
notice of appeal on his or her own behalf or from raising any point
or argument on appeal; nor shall it foreclose the defendant or his or
her counsel on appeal from requesting the augmentation or correction
of the record on appeal in the reviewing court.
(e) (1) In order to expedite certification of the entire record on
appeal in all capital cases, the defendant's trial counsel, whether
retained by the defendant or court-appointed, and the prosecutor
shall continue to represent the respective parties. Each counsel's
obligations extend to taking all steps necessary to facilitate the
preparation and timely certification of the record of both municipal
and superior court proceedings.
(2) The duties imposed on trial counsel in paragraph (1) shall 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 rules of court
adopted by the Judicial Council.
(f) The court shall assign a court reporter who uses
computer-aided transcription equipment to report all proceedings
under this section. Failure to comply with the requirements of this
section relating to the assignment of court reporters who use
computer-aided transcription equipment shall not be a ground for
reversal.
(g) Any computer-readable transcript produced by court reporters
pursuant to this section shall conform to the requirements of
subdivision (c) of Section 269 of the Code of Civil Procedure.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because any
costs mandated by the state under this act are funded out of the
trial court funding apportioned pursuant to Chapter 13 (commencing
with Section 77000) of Title 8 of the Government Code.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.