BILL NUMBER: SB 636 INTRODUCED
BILL TEXT
INTRODUCED BY Senators Harman, Cogdill, and Runner
(Coauthor: Assembly Member Spitzer)
FEBRUARY 22, 2007
An act to amend Sections 15402, 68511.5, 68664, and 68665 of the
Government Code, and to add Chapter 1.5 (commencing with Section
1509.1) to Title 12 of Part 2 of the Penal Code, relating to death
penalty appeals.
LEGISLATIVE COUNSEL'S DIGEST
SB 636, as introduced, Harman. Death penalty appeals: appointment
of counsel.
Existing law provides for the creation of the Habeas Corpus
Resource Center to provide counsel for persons convicted and
sentenced to death, who are without counsel and determined to be
indigent.
Existing law requires the Judicial Council and the Supreme Court
to adopt, by rule of court, binding and mandatory competency
standards for the appointment of counsel in death penalty direct
appeals and habeas corpus proceedings.
This bill would provide that these standards shall require
appointed counsel to be a member in good standing of the State Bar
for a total of 5 years and have at least 3 years' experience in
handling appeals or postconviction felony proceedings. The court may,
for good cause, appoint an attorney not meeting these requirements.
Existing law provides that the executive director of the Habeas
Corpus Resource Center be chosen by a 5 member board and confirmed by
the Senate. The board members are appointed by various Appellate
Projects.
This bill would require each Justice of the Supreme Court to
appoint a board member, and the board would be increased to 7
members.
Existing law provides for the employment and supervision of the
attorneys of the State Public Defender, as specified. This bill would
provide that the State Public Defender shall maintain no less than
127 funded positions, including 67 attorney positions.
Existing law establishes the procedures for the appointment of
counsel in indigent criminal appeals when it is other than the State
Public Defender.
This bill would provide that in noncapital cases the appointee
must apply to the Supreme Court within 6 months of meeting competency
standards, or in capital cases, to have been appointed by the
Supreme Court.
This bill would further provide an expedited system of reviewing
cases in which a death sentence is imposed. These provisions would be
the only procedures for challenging a conviction that resulted in a
sentence of death, except as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 15402 of the Government Code is amended to
read:
15402. The State Public Defender may employ deputies and other
employees, and establish and operate offices, as he or she may need
for the proper performance of his or her duties. The State Public
Defender may contract with county public defenders, private
attorneys, and nonprofit corporations organized to furnish legal
services to persons who are not financially able to employ counsel
and pay a reasonable sum for those services pursuant to the
contracts. He or she may provide for participation by those attorneys
and organizations in his or her representation of eligible persons.
The attorneys and organizations shall serve under the supervision and
control of the State Public Defender and shall be compensated for
their services either under those contracts or in the manner provided
in Section 1241 of the Penal Code.
The State Public Defender may also enter into reciprocal or mutual
assistance agreements with the board of supervisors of one or more
counties to provide for exchange of personnel for the purposes set
forth in Section 27707.1.
The
In order to ensure indigent defendants the effective
assistance of counsel in the implementation of Section 15421, the
office of the State Public Defender may hire 15
additional staff attorneys and the support staff necessary for proper
implementation of Section 15421 shall maintain no
less than 127 funded positions, including 67 attorney positions
.
SEC. 2 Section 68511.5 of the Government Code is amended to read:
68511.5. Not later than January 1, 1985, the
The Judicial Council shall adopt rules of court regulating
the selection of appointed counsel, other than the State Public
Defender, to handle criminal appeals by indigent defendants. These
rules shall establish procedures for the appointment of counsel in
all appellate districts , and require appointees to noncapital
cases to have either applied to the Supreme Court within six months
of meeting the court's competency standards or been appointed by the
Supreme Court to represent an indigent defendant in a
death penalty appeal or postconviction review appeal . In
developing these rules, the Judicial Council shall consider the need
to include screening of eligible appointees, the need to match the
skills and experience of the attorney with the demands of the case
and the process by which this might be done, and the need or
desirability of evaluating an attorney's performance before assigning
the attorney to another case. Further, in developing these rules,
the Judicial Council shall consult with local bar associations and
the Office of the State Public Defender.
SEC. 3 Section 68664 of the Government Code is amended to read:
68664. (a) The center shall be managed by an executive director
who shall be responsible for the day-to-day operations of the center.
(b) The executive director shall be chosen by a
five-member seven-member board of directors and
confirmed by the Senate. Each Appellate Project
Justice of the Supreme Court shall appoint one board
member, all of whom shall be attorneys. However, no attorney who is
employed as a judge, prosecutor, or in a law enforcement capacity
shall be eligible to serve on the board. The executive director shall
serve at the will of the board.
(c) Each member of the board shall be appointed to serve a
four-year term, and vacancies shall be filled in the same manner as
the original appointment. Members of the board shall receive no
compensation, but shall be reimbursed for all reasonable and
necessary expenses incidental to their duties. The first members of
the board shall be appointed no later than February 1, 1998.
(d) The executive director shall meet the appointment
qualifications of the State Public Defender as specified in Section
15400.
(e) The executive director shall receive the salary that shall be
specified for the executive director in Chapter 6 (commencing with
Section 11550) of Part 1 of Division 3 of Title 2.
SEC. 4. Section 68665 of the Government Code is amended to read:
68665. The Judicial Council and the Supreme Court shall adopt, by
rule of court, the following binding and mandatory
competency standards for the appointment of lead counsel
in death penalty direct appeals and habeas corpus
proceedings. postconviction review appeals:
(a) The attorney must have been admitted to practice in California
or another state for a total of five years and have at least three
years experience in the handling of appeals or postconviction
proceedings in felony cases. The court shall consider experience in
defense and prosecution equally for this purpose.
(b) The court, for good cause, may appoint an attorney not meeting
the requirements of subdivision (a) whose background, knowledge, or
experience would otherwise enable him or her to properly represent
the defendant, with due consideration to the seriousness of the
possible penalty and to the unique and complex nature of the
litigation.
SEC. 5. Chapter 1.5 (commencing with Section 1509.1) is added to
Title 12 of Part 2 of the Penal Code, to read:
CHAPTER 1.5. DEATH PENALTY APPEALS
1509.1. The purpose of this chapter is to establish an expedited
system of review of cases in which a death sentence is imposed, in
order to achieve the following goals:
(a) Comply with the requirements Chapter 154, Title 28, United
States Code in order to obtain the benefit of expedited federal
habeas proceedings under that chapter.
(b) Improve the accuracy, completeness, and justice of review
proceedings by requiring that postconviction review commence
immediately after the imposition of a sentence of death and that
factual questions be resolved in the forum best suited to resolve
them.
(c) Allow for the full and fair examination of all legally
cognizable postconviction issues by the trial court and the
California Supreme Court.
(d) Eliminate, to the fullest extent possible, unreasonable and
unjust delays in the resolution of postconviction issues by reducing
the number of proceedings in capital cases.
1509.2. (a) Notwithstanding any other statute or rule, a motion
under this chapter and the direct appeal are the only procedures for
challenging a sentence of death or the conviction that resulted in
the sentence of death, except that a claim of ineffective assistance
of appellate counsel may be made in a habeas corpus petition to the
California Supreme Court.
(b) This chapter applies whether the sentence of death was imposed
before or after the effective date of this chapter, except as
provided in subdivision (c) and except as required by the California
Constitution or by the Constitution or laws of the United States.
(c) Notwithstanding subdivision (a), a habeas corpus case in which
the petition was filed before the effective date of this chapter may
continue under prior law, but the court may, for good cause shown,
convert the habeas proceeding into a motion under this chapter and
transfer it to the trial court.
1509.3. As used in this chapter, unless the context otherwise
requires:
(a) "Direct appeal" means the appeal pursuant to Chapter 1
(commencing with Section 1235) to the California Supreme Court of any
issues raised at the entry of a guilty plea, before trial, at trial,
at the penalty phase hearing, or in a motion for new trial.
(b) "Direct appeal counsel" means the attorney retained by the
defendant, or appointed by the Supreme Court for purposes of
representing the defendant in direct appeal proceedings.
(c) "New postconviction counsel" means the attorney retained by
the defendant, or appointed by the trial court to represent an
indigent defendant, for the purposes of representing the defendant in
postconviction review and postconviction review appeal proceedings.
New postconviction counsel cannot have previously represented the
defendant with regard to the capital felony charge.
(d) "Postconviction review" means review as provided in this
chapter by the trial court that occurs after conviction in a capital
felony case in which the death penalty is imposed as punishment.
(e) "Postconviction review appeal" means the appeal to the
California Supreme Court of any issues raised in postconviction
review proceedings.
(f) "Trial counsel" means the attorney who represents the
defendant with regard to the capital felony charge: For the purposes
of any guilty plea; before trial; at trial; at the penalty phase
hearing; for the purposes of a motion for new trial; for the purposes
of postconviction review if the defendant chooses to continue with
trial counsel for purposes of postconviction review; and for the
purposes of direct appeal if the defendant chooses to continue with
trial counsel for purposes of direct appeal. "Trial counsel" does not
include new postconviction counsel appointed pursuant to Section
1509.5 or direct appeal counsel.
1509.4. (a) After imposition of a sentence of death, the trial
court shall order the defendant, trial counsel, and the prosecution
to attend a hearing to be held after the date upon which the sentence
of death is imposed. At the hearing, the trial court shall:
(1) Advise the defendant of the nature of review as provided in
this chapter.
(2) Advise the defendant of the right to direct appeal counsel.
(3) Advise the defendant that the issue of ineffective assistance
of trial counsel before trial, at trial, or during the penalty phase
hearing may only be raised on postconviction review and on
postconviction review appeal.
(4) Advise the defendant that the issue of ineffective assistance
of counsel on direct appeal counsel may only be raised by way of a
petition for a writ of habeas corpus filed in the California Supreme
Court by new postconviction counsel or the defendant.
(5) Determine whether the defendant intends to pursue
postconviction review.
(6) If the defendant intends to pursue postconviction review,
determine whether the defendant intends to proceed with or without
counsel.
(b) After a full discussion on the record, if the defendant
knowingly, voluntarily, and intelligently waives the right to pursue
postconviction review or the right to appointed counsel for
postconviction review, the trial court shall enter an order finding
that the waiver was knowing, voluntary, and intelligent.
1509.5. (a) At or after the hearing held pursuant to Section
1509.4, if the defendant chooses to pursue postconviction review, the
trial court shall enter an order appointing new postconviction
counsel for the defendant if the trial court finds that the defendant
is indigent and either the defendant requests and accepts such
appointment or the trial court finds that the defendant is unable to
competently decide whether to accept or reject the appointment.
However, the trial court shall not appoint new postconviction counsel
if any of the following apply:
(1) The defendant has retained new postconviction counsel.
(2) The defendant has elected to proceed without counsel and the
trial court finds, after a full discussion on the record, that the
defendant's election to proceed without counsel is knowing,
intelligent, and voluntary.
(3) The defendant elects to have trial counsel continue
representing the defendant for purposes of postconviction review and
the trial court finds, after a full discussion on the record, that
all of the following apply:
(A) The defendant understands that new postconviction counsel can
be retained by the defendant for purposes of postconviction review or
appointed by the trial court for the defendant if the defendant is
indigent.
(B) The defendant understands that, by electing to have trial
counsel continue to represent the defendant for purposes of
postconviction review, the defendant waives the right to challenge
the effectiveness of trial counsel's representation at any stage of
the proceedings.
(C) The defendant's election to have trial counsel continue to
represent the defendant for purposes of postconviction review is
knowing, intelligent, and voluntary.
(D) Trial counsel agrees to continue representing the defendant
for purposes of postconviction review.
(b) In appointing new postconviction counsel to represent an
indigent defendant, the trial court shall appoint one or more
attorneys, at least one of whom meets the qualifications provided in
Section 1509.55.
(c) In any case in which the trial court appoints new
postconviction counsel or new postconviction counsel is retained, the
new postconviction counsel shall not be retained or appointed to act
as co counsel with trial counsel and shall not be associated or
affiliated with trial counsel. New postconviction counsel shall
exercise independent judgment and act independently from trial
counsel.
(d) The ineffectiveness of counsel during postconviction review
shall not be a basis for relief.
1509.55. (a) Except as provided in subdivision (b) of this
section, at least one attorney appointed to represent the defendant
in proceedings governed by this chapter shall have been admitted to
practice in California or another state for a total of five years and
have at least three years experience in the handling of appeals or
postconviction proceedings in felony cases. Experience in defense and
prosecution shall be considered equally for this purpose.
(b) The court, for good cause, may appoint an attorney not meeting
the requirements of subdivision (a) whose background, knowledge, or
experience would otherwise enable him or her to properly represent
the defendant, with due consideration to the seriousness of the
possible penalty and to the unique and complex nature of the
litigation.
1509.6. (a) (1) In any case in which a defendant has been
convicted of a capital felony and been sentenced to death, all
motions for postconviction review and all postconviction review
proceedings are governed by this chapter and by the rules adopted to
implement this chapter.
(2) Any motion for postconviction review shall state with
particularity the grounds upon which the defendant intends to rely,
including a statement of the facts and citations of law. A motion for
postconviction review may include only those issues specified in
paragraph (3) of this subdivision. If any claim alleges a crime or
violation of professional duty by any person, the motion shall
include a declaration by counsel that he or she has investigated the
claim and has probable cause to believe the allegation is true.
(3) The claims to be considered on a motion for postconviction
review are limited to claims that would have been proper grounds for
relief from a judgment on a writ of habeas corpus under the law in
effect prior to enactment of this chapter and which either (A) cannot
be made on appeal because they are based on facts outside the
appellate record, (B) allege ineffective assistance of trial counsel,
or (C) meet the criteria for a successive petition under Section
1509.7.
(b) By alleging that trial counsel rendered ineffective
assistance, the defendant automatically waives the attorney client
privilege between the defendant and trial counsel with respect to
information that is related to the defendant's claim of ineffective
assistance.
(c) Neither the defendant nor the prosecution may file a motion
for reconsideration or rehearing of the trial court's ruling on the
motion for postconviction review. The granting or denying of a motion
for postconviction review under this section is a final order
reviewable on appeal by the California Supreme Court.
(d) Unless relieved by the Supreme Court, postconviction counsel
shall continue to represent the defendant on appeal from trial court'
s grant or denial of the motion. If the direct appeal is completed,
postconviction counsel shall concurrently evaluate whether defendant
has a substantial claim of ineffective assistance of appellate
counsel, and, if so, file a habeas corpus petition for that claim in
the Supreme Court.
1509.7. (a) The initial motion for postconviction review shall be
filed within six months of the appointment of counsel or of the
court's decision not to appoint counsel pursuant to Subdivision (a)
of Section 1509.5. An initial motion filed after that date and any
successive motion shall be dismissed unless it contains a claim
meeting the criteria under subdivision (b).
(b) A claim presented in a successive motion or an untimely
initial motion shall be dismissed unless one or more of the following
apply:
(1) The failure to raise the claim in a timely initial motion was
the direct result of interference by government officials with the
presentation of the claim in a manner which violated the constitution
or laws of the United States or California.
(2) The facts upon which the claim are based were unknown to the
defendant and could not have been ascertained by the exercise of due
diligence, and the defendant has a substantial claim that he or she
is actually innocent of the offense.
(3) The right asserted by the defendant is a constitutional right
that was recognized by the supreme court of either the United States
or California, the constitutional right applies retroactively to
defendant's case, and the motion is filed within 90 days of the date
of the decision, or, if retroactivity is not clearly established at
the time the right is recognized, within 90 days of the decision
making it retroactive.
(4) Clear and convincing evidence establishes that the defendant
is actually innocent of the offense.
(c) For the purpose of a claim of actual innocence under paragraph
(2) or (4) of subdivision (b), the court shall consider all
available evidence, regardless of its admissibility at trial. A claim
that goes only to sentence or degree of offense or a claim based on
voluntary intoxication or mental disease or defect is not a claim of
innocence for this purpose.
(d) Before a motion under subdivision (b)is filed in the Superior
Court, the party shall apply in the Supreme Court for an order
authorizing the Superior Court to consider the motion. The Superior
Court shall immediately dismiss any motion filed in violation of this
requirement. The Supreme Court shall grant the application only if
it determines that the application makes a prima facie showing that
the motion satisfies the requirements of subdivision (b). The
determination that a prima facie showing has been made does not
preclude a determination by the Superior Court of whether the
requirements are satisfied, and the Superior Court shall dismiss the
motion if it finds the requirements are not satisfied. The Supreme
Court shall decide an application under this subdivision within 30
days of filing. An application under this subdivision is not an
"application for State postconviction or other collateral review"
within the meaning of 28 U.S.C. Sec. 2244(d)(2), and a delayed or
successive motion filed without authorization is not "properly filed"
within the meaning of that section.
SEC. 6. In addition to all other positions currently provided for,
the Department of Justice shall increase the number of attorney
positions in the Criminal Division by six.