BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1514 (Anderson) 4
As Introduced February 24, 2012
Hearing date: April 17, 2012
Penal Code
MK:mc
DEATH SENTENCES: AUTOMATIC APPEAL
HISTORY
Source: Author
Prior Legislation: SCA 27 (Harman) - failed Senate Public
Safety, 2010
SB 1025 (Harman) - failed Senate Public Safety,
2010
SB 636 (Harman) - failed Senate Public Safety, 2008
SB 1558 (Morrow) - not heard Senate
Public Safety, 2006
SB 378 (Morrow) - failed Senate
Public Safety, 2005
SB 513 (Lockyer) - Ch. 869,
Stats. 1997
SB 1088 (Lockyer) - from
Conference 1997, content placed in
SB 513 (Lockyer) on
9-10-97
SB 911 (Calderon) - held in
Senate Approps., 1997
AB 1471 (Pacheco) - held in
Assembly Approps., 1997
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SB 1533 (Calderon) - failed in
Senate Criminal Procedure, 1996
AB 195 (Morrow) - Ch. 1086,
Stats. 1996
AB 2008 (K. Murray) - vetoed,
1996
AB 1508 (Bowler) - held in
Assembly Public Safety, 1993
AB 2196 (Bentley) - failed in Assembly Public
Safety, 1991
Support: KLAAS Kids
Opposition:California District Attorneys Association; Los
Angeles District Attorney; Crime Victims Action
Alliance; American Civil Liberties Union; Friends
Committee on Legislation of California; California
Public Defenders Association; California Attorneys for
Criminal Justice
KEY ISSUES
SHOULD THE AUTOMATIC APPEAL OF A DEATH PENALTY CASE BE REMOVED?
SHOULD AN APPEAL FROM A DEATH PENALTY CASE FIRST GO TO THE APPELLATE
COURT, NOT TO THE SUPREME COURT?
SHOULD THE APPELLATE COURTS BE RESPONSIBLE FOR THE APPOINTMENT OF
COUNSEL IN DEATH PENALTY APPEALS?
PURPOSE
The purpose of this bill is to move death penalty appeals to the
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appellate courts and to remove the right to an automatic appeal.
Existing law provides that the Supreme Court has appellate
jurisdiction when judgment of death has been pronounced. With
that exception, courts of appeal have appellate jurisdiction
when superior courts have original jurisdiction and in other
causes prescribed by statute. (CA. Const. Article IV � 11.)
Existing Rules of Court state that if a judge imposes a sentence
of death, an appeal by the defendant is automatically taken by
the Supreme Court. (California Rule of Court 34.)
Existing law provides that the Supreme Court may, before
decision, transfer to itself a cause in a court of appeal. It
may before decision, transfer a cause from itself to a court of
appeal, or from one court of appeal or division to another. The
court to which a cause is transferred has jurisdiction. The
Supreme Court may review the decision of a court of appeal in
any case. However, it specifically provides that this authority
to transfer a case shall not apply to a judgment of death. (CA.
Const. Article IV, � 12.)
Existing law provides that when upon any plea a judgment of
death is rendered, an appeal is automatically taken by the
defendant without any action by him or her, or his or her
counsel. (Penal Code � 1239.)
This bill provides instead that when a judgment of death is
rendered, an appeal may be taken to an appellate court in the
same manner as an appeal where a judgment of death is not
rendered, except as provided in this chapter for the expeditious
resolution of capital cases.
Under existing law , generally the State Public Defender is
appointed to represent a person in a case where the sentence of
death has been rendered. However, the Supreme Court may, in its
discretion, appoint other counsel than the State Public Defender
to represent a defendant in a case where the judgment of death
has been rendered. (Penal Code � 1240.)
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This bill would provide that the appellate court may, in its
discretion, appoint counsel other than the State Public defender
to represent a defendant in a case where the judgment of death
has been rendered.
Existing law provides that person who was convicted of a felony
and is currently serving a term of imprisonment may make a
written motion before the trial court that entered the judgment
in the case to seek DNA testing of evidence. An order granting
or denying a motion for DNA testing shall be subject to review
only through a petition of a writ of mandate or prohibition. In
a noncapital case, the petition for writ of mandate or
prohibition shall be filed in the court of appeal. In capital
cases the petition shall be filed by the Supreme Court. (Penal
Code � 1405.)
This bill would provide that a writ of mandate or prohibition
after a motion for DNA testing was denied or granted in capital,
as well as noncapital cases, shall be filed with the appellate
court.
This bill makes a number of other technical changes to make the
law consistent with the appellate courts' hearing death penalty
cases.
This bill makes a number of legislative findings and
declarations.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
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"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
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California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
As currently implemented, with over 25 years from
conviction to execution, California's death penalty is
broken. Opponents of the death penalty claim that
abolishing the death penalty and replacing it with a
lifetime prison term will save California money while
adequately punishing those convicted of committing
society's most heinous crimes.
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Common sense substantiates none of these claims. How
much money will be saved by incarcerating a murderer
for the remainder of their lives when according to the
LAO, the average annual cost of incarceration in
California is more than $47,000 per inmate? By
streamlining the appeals process for special
circumstance murderers, California will ensure justice
is not unnecessarily delayed or denied. It will also
strengthen the death penalty's deterrent value.
Critics say the death penalty is too costly, the
appeals process is too long, and justice isn't fast
enough. I agree, but why are other states capable of
bringing much swifter justice than California? For
example, it took two states, Maryland and Virginia,
with separate judicial systems less than seven years to
convict, sentence and execute John Allen Muhammad, the
D.C. "Beltway Sniper." Moreover, in the past three
decades Texas has executed 479 of their most ruthless
convicted criminals while California has executed only
13 of the 709 on its death row.
California Chief Justice Tani Cantil-Sakauye said, "If
the death penalty remains the will of the people, we
need to talk about priorities and costs, and if it
still is the will of the people, then it is clear
restructuring is needed." In 1986 California voters
tossed three State Supreme Court Justices out of office
when they refused to enforce the death penalty. More
recently, a 2011 Field Poll showed 68% of Californians
still favored keeping the death penalty. Since
enforcing the death penalty is clearly still the will
of the people, until they vote otherwise, I agree with
the Chief Justice, it's time to restructure it.
That is why I've introduced legislation which aims to
streamline the lengthy appeals process for those who
commit murder under special circumstances . Special
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circumstances are limited to heinous acts such as:
committing murder by means of a destructive device,
bomb, or planted explosive, the killing of a peace
officer or firefighter, lying in wait to commit murder
or the victim was intentionally killed because of his
or her race, color, religion, nationality, or country
of origin. While protecting the appeals process for
legitimate appeals, Senate Bill 1514 would remove the
automatic appeal to the California Supreme Court for
those sentenced to death. Senate Constitutional
Amendment 20 would amend the California Constitution so
that appeals of death penalty cases would go to the
California Court of Appeals instead of the California
Supreme Court.
By reforming the appeals process for those murder cases
with special circumstances, California will ensure
justice is not unnecessarily delayed. It will take the
strain off victims' families who've had to relive the
tragedy they suffer year after year in onerous
technical appeals. Additionally, it will prevent those
whose guilt is certain from receiving de-facto retrials
at the state's highest level of justice. By
strengthening the process, SB 1514 will ensure justice
for the families of crime victims.
No one believes we should punish those that don't
deserve it. Under SB 1514 and SCA 20 those seeking
appeals will get them in the Court of Appeals based on
the merit of the evidence they present, just as any
other criminal would. Moreover, the convicted
convinced of their innocence can always appeal to the
U.S. 9th Circuit Court of Appeals.
Justice delayed is justice denied. There is no greater
threat to a free society than the weakening of its
criminal laws. The most heinous murderers should not
be afforded special appeal rights beyond those of other
convicted criminals. If anything, the sooner these
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violent murderers are executed the safer it will be for
law abiding citizens.
2. History of Similar Proposals
This bill removes the automatic appeal to the Supreme Court in
death penalty cases and removes the right to an automatic appeal
and places the jurisdiction for death penalty cases in the
appellate courts.
The idea of allowing the appellate courts to hear death penalty
appeals was initially proposed by former Chief Justice Ron
George. His proposal was to give the Supreme Court the
authority to transfer some of the appeals to the appellate
courts. He brought his idea before the California Commission on
the Fair Administration of Justice, which also believed that the
idea was worth exploring provided there was funding for court
personnel and the appointment and training of attorneys. (The
California Commission on the Fair Administration of Justice
Report and Recommendations on the Administration of the Death
Penalty in California, June 30, 2008 p.47 final report available
at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf .)
However, the Former Chief Justice later withdrew his proposal to
allow a transfer of some death penalty cases because he believed
the additional cost needed for court staff and counsel might
"overburden the limited financial resources of the court of
appeals. (Pantenesco, Joshua "California Supreme Court
withdraws proposal to ease death penalty backlog.
http://jurist.org/paperchase/2008/02/california-supreme-court-wit
hdraws.php )
SCA 27 (Harman), which failed Senate Public Safety in 2010, also
proposed to give the Supreme Court the right to transfer death
penalty cases to the appellate court.
The current Chief Justice Tani Cantil-Sakauye, in a recent
discussion with the LA Times editorial board, also suggested
that more resources are needed in order to discuss sending cases
to the court of appeal.
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(http://opinion.latimes.com/opinionla/2012/01/california-death-pe
nalty.html)
3. Removal of Automatic Appeal
Existing law provides for the automatic appeal of a death
penalty case:
A defendant sentenced to death may not voluntarily
dismiss the automatic appeal. C.R.C., Rule 38,
permitting voluntary dismissal of an appeal by a
defendant, has no application to death penalty
automatic appeals. P.C. 1239(b) not only gives the
defendant the right to an appeal but also imposes a
duty on the Supreme Court to review the record, and
this duty cannot be avoided or abdicated simply because
the defendant desires to waive the right. (People v.
Stanworth (1969) 71 C.2d 820, 80 C.R. 49, 457 P.2d 889;
People v. Sheldon (1994) 7 C.4th 1136, 1139, 31 C.R.2d
368, 875 P.2d 83.) (3 Witkin Cal. Crim. Law Punishment
� 500.)
This bill removes that right to automatic appeal, which means
that a person can voluntarily dismiss an appeal and thus no
court will review the sentence of death.
Prior to 1935 there was no right to automatic appeal. If an
appeal was filed, the Supreme Court would notify the warden that
the execution was in effect stayed until the appeal. In 1935 a
transcript from a trial and a notice of appeal was delivered to
the Supreme Court days after an inmate Rush Griffin was
executed. The fact that he was executed before his appeal could
be heard caused "outrage" and the legislature held hearings on
the matter. This lead to the passage of an automatic appeal in
all death penalty cases in July of 1935. (Rasmussen, Celia, Los
Angeles Times "Oversight led to automatic appeals in death row
cases" June 17, 2007;
http://articles.latimes.com/2007/jun/17/local/me-then17 )
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If the automatic appeal is removed, what safeguards are there to
assure that the State has not erroneously or improperly ordered
an execution?
The bill does not set forth any guidelines for a waiver of
appeal so what assurances would the people of California have
that a waiver is voluntary, made knowingly and made competently?
4. Appeal in the Appellate Courts
Currently death penalty appeals go directly to the Supreme
Court. This bill would instead place those appeals in the
appellate courts.
a. Resources.
As noted in Comment 2, when changing death penalty appeals to
the appellate court, the issue of resources has arisen. The
Supreme Court has staff that is trained and experienced in
handling death penalty cases, which can have voluminous
transcripts and complex evidentiary issues. Each of the
appellate courts would need to have extra staff to handle the
addition of these cases. However, since ultimately many of
the cases will also eventually be heard by the Supreme Court,
the Supreme Court would have to retain some staff to also hear
the cases.
b. Consistency.
One of the reasons to have all cases heard by the Supreme
Court is to have consistent holdings in cases where the
ultimate punishment is being imposed. If six different Courts
of Appeal hear death penalty cases, it will certainly lead to
at least some inconsistencies in holdings on similar issues.
The Supreme Court will be required to resolve the
inconsistencies thus requiring a second hearing in the Supreme
Court.
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According to the American Civil Liberties Union:
Every state but Alabama requires the highest court in
the state to review every death penalty case for a
reason: to ensure that the state does not make a
mistake. Death penalty cases are unique. They are
more complicated and the stakes are higher than any
other type of case. Requiring the most skilled and
heavily resourced judges in the state review each death
penalty case is the best way to ensure that the state
does not execute an innocent person, or execute someone
with a severe mental illness, or execute someone
sentenced to die because of poor lawyering.
California, with the largest death row in the country,
should not sacrifice justice in the name of expediency.
5. Appointment of Counsel by the Appellate Court
Death penalty appellate lawyers are appointed by the Supreme
Court when the State Public Defender is not available. The
Supreme Court has had years of experience appointing counsel in
death penalty cases. If this responsibility is divided among
the six Courts of Appeals, it would mean that each of those
courts would have to become familiar with the qualifications of
appointment of counsel. Additional funding would also be
necessary for the courts in order to ensure consistency in the
competent appointment of counsel and to ensure there is not a
delay in the appointment. As one of the ongoing "delays" in
death penalty cases is that there is a limited number of
attorneys in California qualified and willing to take on a death
penalty appeal, it is unclear how having six different Courts of
Appeal trying to recruit from the same pool of qualified
attorneys would assist in making appointments faster, if the
requirements for competency were to remain consistent.
6. Opposition
The California District Attorneys Association opposes this bill
stating:
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Under current law, the direct appeal is automatic
(Penal Code section 1239(b)), and a defendant may not
choose to forego or abandon the automatic direct
appeal. People v. Massie (1998) 19 Cal.4th 550,
566-568. In defending California's death penalty, CDAA
has asserted that the automatic appeal helps to ensure
the accuracy and fairness of death judgments. Given
the finality of the sentence, we agree that the
mandatory direct appeal is a beneficial check on the
death penalty system.
We unequivocally share your frustration that the
administration of the death penalty takes far too long.
For years, CDAA has sponsored and supported various
measures to streamline death penalty processes that
serve no purpose toward ensuring justice. While there
are certainly issues surrounding the direct appeal that
could be addressed that would remove unnecessary delays
in executing condemned inmates, California's thorough
appeals process is one of the reasons that our death
penalty has survived legal scrutiny and ensured that no
innocent person has been executed.
The Los Angeles District Attorney opposes this bill stating:
Under current law the direct appeal to the California
Supreme Court is automatic and may not be waived by the
defendant. California's prosecutors believe that the
automatic appeal helps ensure the accuracy and fairness
of our death judgments. However, under the provisions
of SB 1514 a defendant sentenced to death could choose
to forego or abandon the direct appeal of their death
judgment.
Our office is very concerned that there will be
defendants with mental health issues that do not
preclude imposing the death penalty, but who will
insist on their execution even when there are were
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potentially serious errors committed in the trial.
Given the finality of a death judgment our office
believes that a mandatory direct appeal is a necessary
check and balance on the use of the death penalty in
California.
Our office also does not believe that transferring the
jurisdiction of the direct appeal from the California
Supreme Court to the Court of Appeal will result in any
meaningful reduction in the review process in the
absence of other changes to California's death penalty
law.
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