BILL NUMBER: SB 1372 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Runner
FEBRUARY 24, 2012
An act to amend Sections 68661, 68662, 68664, and 68665 of, and to
add Section 68661.1 to, the Government Code, and to amend Sections
190.8, 1054.9, 1240, 1241, 1335, and 3603 of, and to add Sections
679.022, 1239.1, 1509, 1509.5, and 3604.5 to, the Penal Code,
relating to capital cases, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1372, as introduced, Runner. Justice for Murder Victims Act of
2012.
(1) Existing law establishes the California Habeas Corpus Resource
Center in the judicial branch of state government and authorizes it
to employ up to 34 attorneys who may be appointed by the Supreme
Court to represent any person convicted and sentenced to death in
this state, who is without counsel, and who is determined by a court
to be indigent, for the purposes of instituting and prosecuting
postconviction actions in state and federal courts, challenging the
legality of the judgment or sentence imposed against that person, and
preparing petitions for executive clemency. Among other things,
existing law requires the center to establish and periodically update
a roster of attorneys qualified as counsel in postconviction
proceedings in capital cases. Existing law requires the Supreme Court
to offer to appoint counsel to represent all state prisoners subject
to a capital sentence for state postconviction proceedings and enter
an order to appoint one or more counsel to represent the prisoner in
postconviction state proceedings upon a finding that the prisoner is
indigent or unable to completely decide whether to accept or reject
that offer. Existing law grants the center the power to provide legal
or other advice or, to the extent not otherwise available, any other
assistance to the appointed counsel in postconviction proceedings as
is appropriate.
This bill would provide that the superior court which imposed the
death sentence shall offer to appoint counsel to represent state
prisoners subject to a capital sentence for purposes of state
postconviction proceedings, and would require the superior court to
appoint one or more counsel to represent the prisoner in a state
habeas corpus proceeding. The bill would provide that the center
shall annually recommend attorneys to the Supreme Court for inclusion
in a roster of attorneys qualified as counsel in postconviction
proceedings in capital cases, provided that the final determination
of whether to include an attorney in a roster shall be made by the
Supreme Court and not delegated to the center. This bill would remove
the power of the center to provide assistance other than legal or
other advice.
The bill would provide that the center may only represent a person
sentenced to death on one federal habeas corpus petition, and only
if certain requirements are met, as specified. The bill would require
that every attorney or organization receiving appointments or a
contract to represent indigent defendants in criminal cases in the
superior court accept appointments if qualified to do so as a
condition of receiving the appointments or contract, as provided.
(2) Existing law requires that the executive director of the
California Habeas Corpus Resource Center be chosen by a 5-member
board of directors and confirmed by the Senate, as provided.
This bill would eliminate the provisions regarding the 5-member
board of directors and instead require the executive director to be
appointed by the Supreme Court. The bill would provide that the
executive director shall receive the salary that is specified in
existing law for the State Public Defender and would require all
other attorneys employed by the center to be compensated at the same
level as comparable positions in the office of the State Public
Defender.
(3) Existing law requires the Judicial Counsel and the Supreme
Court to adopt binding and mandatory competency standards for the
appointment of counsel in death penalty direct appeals and habeas
corpus proceedings.
This bill would require the Judicial Counsel and the Supreme
Court, in establishing the standards, to consider the qualifications
needed to achieve competent representation and would provide that
experience requirements shall not be limited to defense experience.
If the standards promulgated include the completion of approved
training, the bill would require that the entity providing the
training make the training available to any member of the State Bar
who is not currently a prosecutor, and make a copy of all written
materials and any audio or video recordings available to the State
Law Library. The bill would require the Judicial Council to
reconsider its rule regarding the minimum qualifications for
attorneys appointed by the Supreme Court in death penalty appeals and
habeas corpus proceedings related to sentences of death and to
promulgate an amendment to that rule within 6 months.
(4) Existing law requires the California Habeas Corpus Resource
Center to report annually to the Legislature, the Governor, and the
Supreme Court on the status of appointment of counsel for indigent
persons in postconviction capital cases, and on the operations of the
center.
This bill would require the report to list all cases in which the
center is providing representation. For each case that has been
pending for more than one year in any court, the bill would require
the report to state the reason for the delay and actions the center
is taking to bring the case to completion. The bill would require the
report to be made permanently available on the center's Internet Web
site or by another medium providing equal or better access to the
public.
(5) Existing law requires the record on appeal to be expeditiously
certified in 2 stages, first for completeness and 2nd for accuracy,
in any case in which the death sentence has been imposed. Existing
law requires the clerk of the superior court to provide trial counsel
copies of the clerk's transcript within 30 days of the imposition of
the death sentence. Existing law requires trial counsel to alert the
court's attention to any errors in the transcripts incidentally
discovered by counsel while reviewing them in the normal course of
trial preparation. Existing law requires the trial court to certify
the record for completeness and for incorporation of all corrections
no later than 90 days after entry of the imposition of the death
sentence unless good cause is shown, except that existing law
provides this time period may be extended if the trial transcript
exceeds 10,000 pages.
Existing law requires the trial court to 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. Existing law requires the trial
court to certify the record for accuracy no later than 120 days after
the record has been delivered to appellate counsel, except that
existing law provides that this time may be extended, as provided.
This bill would delete the requirement that the record be
certified in 2 stages for completeness and accuracy. The bill would
require the superior court to provide trial counsel with copies of
the clerk's transcript, the reporter's transcript, and a
comprehensive journal of proceedings, as provided. The bill would
require trial counsel to undertake to identify and promptly alert the
court's attention to any errors in the transcript of proceedings and
to provide a list of any proposed corrections to the reporter's
transcript. The bill would remove the exception to the 90-day
certification requirement for proceedings in which the trial
transcript exceeds 10,000 pages. The bill would require the clerk of
the trial court to deliver a copy of the record on appeal to the
Attorney General.
The bill would provide that no additional motion for correcting
the record may be entertained after the record is certified, except
that either party may file in the Supreme Court a motion for referral
to the trial court for correction of a material error in the record,
as provided. The bill would require the Supreme Court to rule on the
motion not later than 21 days after it is filed.
The bill would specify certain rights that the victim in a capital
crime shall have, including the right not to be excluded from public
court proceedings, the right to a prompt completion of all
postconviction proceedings, the right to be treated with fairness and
respect, and the right to notice of certain hearings, among others,
as specified. The bill would specify that a prompt completion of
postconviction proceedings is completion within 3 years from the date
of judgment in a typical capital case, with exceptions, as provided.
The bill would specify how the capital crime victim may assert his
or her rights.
(6) Existing law authorizes the Supreme Court to appoint counsel
other than the State Public Defender in cases where a judgment of
death has been rendered.
This bill would instead prohibit the State Public Defender from
being appointed in a noncapital case at any time when there is a
backlog of capital cases awaiting appointment of more than 3 months
and the State Public Defender is unable to take all of the cases for
which the State Public Defender would otherwise be appointed. The
bill would require the clerk of the court appointing counsel to
notify the State Public Defender of a case promptly upon docketing,
and would require the State Public Defender to notify the court if
the office is unable to represent the appellant within 30 days. The
bill would require the court to promptly issue an order appointing
the State Public Defender as counsel for the appellant if notice is
not received within the 30 days. The bill would require any attorney
who is qualified for appointment in capital appeals to agree to
accept any appointments as a condition of remaining on the list of
attorneys for appointment by a court of appeals in noncapital cases,
as provided.
(7) Existing law provides that when counsel other than the public
defender has been appointed by the Supreme Court or by a court of
appeal to represent a party to any appeal or proceeding the counsel
shall receive a reasonable sum for compensation and necessary
expenses, as provided.
This bill would provide that in capital appeals the Supreme Court
may pay a bonus of up to 15% of the compensation if counsel has filed
all pleadings within the time limits specified in the rules of court
without extensions, and may reduce compensation up to 15% if counsel
fails to file pleadings on time or requires excessive extensions of
time.
(8) Existing law authorizes the conditional examination of
material witnesses for the defendant or the people when the witness
is about to leave the state, is so sick or infirm that he or she will
be unable to attend the trial, or is a person 65 years of age or
older, or a dependent adult, or when there is evidence that the life
of the witness is in jeopardy. Existing law states that the
provisions of law regarding conditional examination apply in all
cases other than those for which the punishment may be death.
This bill would remove the limitation in cases for which the
punishment may be death in regard to having witnesses examined
conditionally.
(9) Existing law provides that every person unlawfully imprisoned
or restrained of liberty may prosecute a writ of habeas corpus to
inquire into the cause of the imprisonment or restraint. Existing law
requires that the person upon whom the writ is served to file a
return. Existing law requires that if the party is held under illegal
restraint or custody, he or she must be discharged, and if not, he
or she must be restored to the care or custody of the person entitled
thereto. Existing law provides that an appeal may be taken from a
final order of a superior court upon the return of a writ of habeas
corpus discharging the defendant to the court of appeal in all
criminal cases, except that existing law requires the appeal to be to
the Supreme Court in cases where judgment of death has been
rendered.
This bill would provide the exclusive procedure for collateral
attack on a judgment of death. The bill would require any petition
for writ of habeas corpus filed by a person in custody pursuant to a
judgment of death to be filed in, or transferred to, the court that
imposed the sentence unless good cause is shown for the petition to
be heard by another court. The bill would require that the prisoner
be offered counsel, and that either party may appeal the decision on
the petition to the Supreme Court. The bill would prohibit a
successive petition to be used as a means of reviewing a denial of
habeas relief. The bill would require the initial petition to be
filed within one year of appointing counsel or of the defendant's
rejecting of counsel, unless the court finds, by a preponderance of
all available evidence that the defendant is actually innocent of the
crime. The bill would require that a successive petition claiming
innocence to disclose all material information relating to guilt in
possession of the petitioner. The bill would provide that counsel
shall not raise frivolous issues.
(10) Existing law requires, on a prosecution of a postconviction
writ of habeas corpus or motion to vacate a judgment in a case in
which a sentence of death or of life in prison without the
possibility of parole has been imposed, that the court order the
defendant challenging the judgment to be provided reasonable access
to any discovery materials in the possession of the prosecution and
law enforcement to which the defendant would have been entitled to at
the time of trial.
This bill would revise and recast this provision to require that
upon the appointment of counsel or upon the filing of a
postconviction writ of habeas corpus or a motion to vacate a judgment
in a case in which a sentence of death or life in prison without the
possibility of parole has been imposed, the court which made the
appointment or in which the proceeding is pending may order that the
defendant challenging the judgment to be provided reasonable access
to any discovery materials in the current possession of the
prosecution and law enforcement authorities that the defendant
actually received prior to or during trial. The bill would state that
these provisions do not relieve the prosecution of any ethical
obligation to inform the appropriate authority of information that
casts doubt upon the correctness of the judgment and conviction.
The bill would require that, in any postconviction proceeding in
which the court requests any pleading in response to a claim alleging
that a defendant was denied his or her right to effective assistance
of counsel, that the respondent is entitled to discovery of the
defendant's records relevant to the claim of ineffective assistance
of counsel, and would provide that an attorney-client privilege of
confidential communications would not prevent disclosure of
communications relevant to the issue of ineffective assistance of
counsel. The bill would provide that no work product privilege exists
if the work product is relevant to an issue of ineffective
assistance of counsel, but would allow the holder of a privilege to
request an in-camera hearing to determine whether the defendant's
records are subject to discovery.
(11) Existing law requires a judgment of death to be executed
within the walls of the California State Prison at San Quentin.
This bill would instead require the judgment of death to be
executed within the walls of a state prison to be determined by the
Secretary of the Department of Corrections and Rehabilitation. The
bill would provide that this determination, and any standards,
procedures, or regulations promulgated by the department in regard to
the administration of the penalty of death, would not be subject to
review by the Office of Administrative Law, as provided.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
Justice for Murder Victims Act of 2012.
SEC. 2. The Legislature of California finds and declares that the
review of capital cases in this state is taking far longer than is
needed for a fair adjudication of the claims, that the delay is
contrary to the right of victims and their families to a prompt
conclusion of the case, that the delay impairs the deterrent effect
of capital punishment, costing innocent lives, and that the delay
constitutes a denial of justice in the worse criminal cases. The
length and number of reviews and the cost of incarceration during the
needlessly extended review process impose unnecessary costs on the
incarceration during the extended review process and impose
unnecessary costs on the state. Reforms in the review process are
needed to bring these cases to a prompt, fair conclusion.
SEC. 3. Section 68661 of the Government Code is amended to read:
68661. There is hereby created in the judicial branch of state
government the California Habeas Corpus Resource Center, which shall
have all of the following general powers and duties:
(a) To employ up to 34 attorneys who may be appointed by
the Supreme Court pursuant to Section 68662 to
represent any person convicted and sentenced to death in this state
who is without counsel, and who is determined by a court of competent
jurisdiction to be indigent, for the purpose of instituting and
prosecuting postconviction actions in the state and federal courts,
challenging the legality of the judgment or sentence imposed against
that person , subject to the limitations specified in Section
68661.1 , and preparing petitions for executive clemency. An
appointment may be concurrent with the appointment of the State
Public Defender or other counsel for purposes of direct appeal under
Section 11 of Article VI of the California Constitution.
(b) To seek reimbursement for representation and expenses pursuant
to Section 3006A of Title 18 of the United States Code when
providing representation to indigent persons in the federal courts
and process those payments via the Federal Trust Fund.
(c) To work with the Supreme Court in recruiting members of the
private bar to accept death penalty habeas corpus case appointments.
(d) To establish and periodically update
recommend attorneys on an annual basis to the Supreme Court for
inclusion in a roster of attorneys qualified as counsel in
postconviction proceedings in capital cases , provided that the
fi nal determination of whether to include an attorney in
the roster shall be made by the Supreme Court and not delegated to
the center .
(e) To establish and periodically update a roster of experienced
investigators and experts who are qualified to assist counsel in
postconviction proceedings in capital cases.
(f) To employ investigators and experts as staff to provide
services to appointed counsel upon request of counsel, provided that
when the provision of those services is to private counsel under
appointment by the Supreme Court , those services
shall be pursuant to contract between appointed counsel and the
center.
(g) To provide legal or other advice or, to the extent
not otherwise available, any other assistance to appointed
counsel in postconviction proceedings as is appropriate when not
prohibited by law.
(h) To develop a brief bank of pleadings and related materials on
significant, recurring issues that arise in postconviction
proceedings in capital cases and to make those briefs available to
appointed counsel.
(i) To evaluate cases and recommend assignment by the court of
appropriate attorneys.
(j) To provide assistance and case progress monitoring as needed.
(k) To timely review case billings and recommend compensation of
members of the private bar to the court.
(l) The center shall report annually to the people, by way of
its Internet Web site or other medium providing equal or better
public access, the Legislature, the Governor, and the Supreme
Court on the status of the appointment of counsel for indigent
persons in postconviction capital cases, and on the operations of the
center. On or before January 1, 2000, the Legislative
Analyst's Office shall evaluate the available reports.
The report shall list all cases in which the center is providing
representation. For each case that has been pending for more than one
year in any court, the report shall state the reason for the delay
and the actions the center is taking to bring the case to completion.
The center shall make the report permanently available to the public
on its Internet Web site or by another medium providing equal or
better public access.
SEC. 4. Section 68661.1 is added to the Government Code, to read:
68661.1. (a) The center may represent a person sentenced to death
on one federal habeas corpus petition if, and only if, all of the
following requirements are met:
(1) The center was appointed to represent that person on a state
petition for habeas corpus.
(2) The center is appointed for that purpose by the federal court.
(3) The executive director determines and certifies to the Supreme
Court that compensation from the federal court will fully cover the
cost of representation.
(b) Neither the center nor any other person or entity receiving
state funds shall use state resources to attack any judgment by a
state court in a capital case in a federal court, other than review
in the United States Supreme Court pursuant to Section 1257 of Title
28 of the United States Code.
(c) The center is not authorized to represent any person on
successive habeas corpus petitions or in any action other than habeas
corpus that constitutes a collateral attack on the judgment or seeks
to delay or prevent its execution. The center shall not engage in
any other litigation or expend funds in any form of advocacy other
than as expressly authorized by this section or Section 68661.
SEC. 5. Section 68662 of the Government Code is amended to read:
68662. (a) The Supreme Court
superior court that imposed the sentence shall
offer to appoint counsel to represent all state prisoners subject to
a capital sentence for purposes of state postconviction proceedings,
and shall enter an order containing one of the following:
(a)
(1) The appointment of one or more counsel to represent
the prisoner in postconviction state proceedings
pursuant to Section 1509 of the Penal Code upon a finding
that the person is indigent and has accepted the offer to appoint
counsel or is unable to competently decide whether to accept or
reject that offer.
(b)
(2) A finding, after a hearing if necessary, that the
prisoner rejected the offer to appoint counsel and made that decision
with full understanding of the legal consequences of the decision.
(c)
(3) The denial to appoint counsel upon a finding that
the person is not indigent.
(b) Every attorney or organization receiving appointments or a
contract to represent indigent defendants in criminal cases pursuant
to this section shall, as a condition of the appointments or
contract, accept any appointment if qualified to do so. The superior
court may suspend operation of this requirement if it finds that
there is no more than a six-month delay in the appointment of counsel
in any capital case within its jurisdiction, but shall lift the
suspension if a delay of six-months or more develops. The county
public defender may be appointed pursuant to this section.
SEC. 6. 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 board of directors and confirmed by the Senate. Each
Appellate Project 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 the Supreme Court and shall serve at the
will of the Supreme Court .
(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)
(c) The executive director shall meet the appointment
qualifications of the State Public Defender as specified in Section
15400.
(d) The executive director shall ensure that all matters in which
the center provides representation are completed as expeditiously as
possible, consistent with providing effective representation. All
representation by the center and all assistance provided to other
counsel shall be consistent with the requirements of subdivision (g)
of Section 1509 of the Penal Code.
(e) The executive director shall receive the salary that shall be
specified for the executive director State
Public Defender in Chapter 6 (commencing with Section 11550) of
Part 1 of Division 3 of Title 2. All attorneys employed by the
center shall be compensated at the same level as positions with the
same or similar experience requirements in the office of the State
Public Defender.
SEC. 7. Section 68665 of the Government Code is amended to read:
68665. (a) The Judicial Council and the
Supreme Court shall adopt, by rule of court, binding and mandatory
competency standards for the appointment of counsel in death penalty
direct appeals and habeas corpus proceedings. In establishing
the standards, the Judicial Council and the Supreme Court shall
consider the qualifications needed to achieve competent
representation, the need to avoid unduly restricting the available
pool of attorneys in order to provide a timely appointment, and the
standards needed to qualify pursuant to Chapter 154 (commencing with
Section 2261) of Part VI of Title 28 of the United States
Code. Experience requirements shall not be limited to defense
experience.
(b) If the standards promulgated pursuant to subdivision (a)
include completion of approved training, the Judicial Counsel or
Supreme Court, as the case may be, shall require, as a condition of
approval, that the entity providing the training agree to all of the
following:
(1) The training shall be open to any member of the State Bar who
is not presently employed as a prosecutor.
(2) All instructions regarding the duties of counsel shall be
consistent with subdivision (g) of Section 1509 of the Penal Code and
subdivision (c) of Section 1239.1 of the Penal Code.
(3) Within 30 days of the completion of training, a copy of all
written materials and any audio or video recordings will be delivered
to the State Law Library where they may be viewed by any person.
(c) Immediately upon enactment of this act amending this
subdivision, the Judicial Counsel shall begin reconsideration of Rule
8.605 of the Rules of Court, and the council shall promulgate an
amendment to that rule in accordance with subdivisions (a) and (b)
within six months.
SEC. 8. 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 shall 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 , the reporter's
transcript, and a comprehensive journal of proceedings, prepared on a
form approved by the Judicial Council, listing every date on which
proceedings culminating in the judgment occurred and noting the
duration and nature of each session, the names of the court reporters
present at each session, and the page length and volume designation
of all transcriptions prepared in connection with each session
. Trial counsel shall promptly notify the court if he or she has not
received the transcript within 30 days.
(c) (1) During the course of a trial in
which the death penalty is being sought, trial counsel shall
undertake to identify and promptly 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 transcripts of the proceedings . The
court shall periodically request that trial counsel provide a list
of errors in the trial any proposed
corrections to the reporter's transcript during the course of
trial and may hold hearings in connection therewith.
Corrections
(2) 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 proposed corrections, and to
certify that they have reviewed all docket sheets to ensure that the
record contains complete and correct transcripts for
any all proceedings, hearings,
or and 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 the Attorney General and the appellant
's 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.
(g) After the record is certified as provided in subdivision (d),
no additional motions for correcting the record shall be entertained
except as provided in subdivision (h).
(h) Either party may file a motion in the Supreme Court for
referral to the trial court for correction of a material error in the
record. The motion shall (1) specify the particular correction
sought, (2) identify the basis for the moving party's belief that the
proposed correction will accurately reflect what transpired at
trial, and (3) explain both how and why the existence of the asserted
error requiring correction could not reasonably have been discovered
within the period prescribed in subdivision (d). The motion shall be
made no later than five days after filing the moving party's
principal brief, except that a motion may be made later if the moving
party demonstrates by clear and convincing evidence that failure to
effect the corrections will result in a miscarriage of justice.
(i) The Supreme Court shall rule on any motion under subdivision
(h) not later than 21 days after it is filed. That motion may be
granted only upon a showing of good cause. If the motion is granted,
the Supreme Court shall specify the proposed corrections that shall
be considered by the trial court. The trial court shall, within 30
days, or any shorter period specified by the Supreme Court, issue an
order granting or denying the proposed corrections referred for the
trail court's consideration.
(h)
(j) 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)
(k) 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)
(l) This section shall be implemented pursuant to rules
of court adopted by the Judicial Council.
(k)
(m) 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.
(n) The amendments made to this section by the act adding this
subdivision shall apply only to cases in which the trial commenced on
or after the effective date of the act amending this section.
SEC. 9. Section 679.022 is added to the Penal Code, to read:
679.022. (a) In addition to the rights otherwise provided by law,
a capital crime victim shall have the following rights:
(1) The right not to be excluded from any public court proceedings
in any capital postconviction proceeding, unless the court, after
receiving clear and convincing evidence, determines the proposed
testimony by the capital crime victim would be materially altered if
the capital crime victim heard other testimony at that proceeding.
(2) The right to prompt completion of all postconviction
proceedings, and, if the judgment is affirmed, execution of the
judgment within a reasonable time.
(3) The right to be treated with fairness and respect for the
capital crime victim's dignity and privacy.
(4) The right to accurate and timely notice of any public capital
postconviction proceedings involving a defendant who injured the
victim.
(5) The right to accurate and timely notice of the initiation of
any capital postconviction proceedings involving a defendant who
injured the victim.
(b) For purposes of this section, a "capital crime victim" means
any person within the definition of a victim in subdivision (e) of
Section 28 of Article I of the California Constitution with regard to
the crime for which a sentence of death has been imposed, any other
crime which was jointly tried in conjunction with the trail of a
capital case, or of any other crime which was alleged as a special
circumstance under paragraph (2) or (3) of subdivision (a) of Section
190.2, or introduced as evidence pursuant to subdivision (b) or (c)
of Section 190.3.
(c) For purposes of this section, a "capital case" is a proceeding
in which the defendant was sentenced to death pursuant to Section
190.2 and related sections.
(d) For the purpose of implementing paragraph (2) of subdivision
(a) and paragraph (9) of subdivision (b) of Section 28 of Article I
of the California Constitution, a prompt completion of postconviction
proceedings in state courts, including the appeal pursuant to
Section 1239, the habeas corpus proceeding pursuant to Section 1509,
and the appeal of the habeas proceeding, is completion within three
years from the date of judgment in a typical capital case. Additional
time may be reasonable for this purpose if needed to resolve a
genuine question of guilt of the offense or in other circumstances
which make the case unusual relative to other capital cases, but the
courts shall use all available means to minimize any additional
delay. The Judicial Council shall continuously monitor the processing
of capital cases. Every three years, the Judicial Council shall
report to the people and the Legislature on the status of the
judiciary's compliance with the timeliness requirements and shall
adopt rules and make recommendations for legislation needed to
correct any deficiency.
(e) A capital crime victim may assert his or her rights in any
state court in which a capital postconviction proceeding is pending.
(1) A capital postconviction proceeding is defined as an automatic
appeal pursuant to Section 1239 of the Penal Code, a state habeas
corpus proceeding in which a capital defendant is seeking relief from
a judgment of death, or any other state court postconviction
proceeding relating to a judgment of death.
(2) A capital crime victim may only assert his or her rights in
the court in which a capital postconviction proceeding is pending.
The court shall take up and resolve the victim's matter forthwith. If
relief is denied, the capital crime victim may petition the Supreme
Court for relief.
(3) If the capital postconviction proceeding is pending in the
Supreme Court, the capital crime victim may file a motion asserting
his or her rights. The court shall take up and deal with that motion
forthwith. If the motion is denied, the capital crime victim may file
a complaint with the Commission on Judicial Performance.
(4) A capital crime victim may assert his or her rights in a
capital postconviction proceeding pursuant to Section 190.8 of the
Penal Code in either the court of judgment or the Supreme Court.
(5) All motions and their dispositions filed pursuant to this
section shall be reported to the Judicial Council and the Legislature
on an annual basis. A report to the Legislature shall be submitted
in compliance with Section 9795 of the Government Code.
(f) The Judicial Council may establish necessary rules of court
for implementation of this section.
SEC. 10. Section 1054.9 of the Penal Code is amended to read:
1054.9. (a) Upon the prosecution
Following appointment of counsel pursuant to subdivision (b) of
Section 1509 or after the filing of a postconviction writ of
habeas corpus or a motion to vacate a judgment in a case in which a
sentence of death or of life in prison without the possibility of
parole has been imposed, and on a showing that good faith efforts to
obtain discovery materials from trial counsel were made and were
unsuccessful, the court shall which made the
appointment or in which the proceeding is pending may , except
as provided in subdivision (c), order that the defendant be provided
reasonable access to any of the discovery materials
described in subdivision (b).
(b) For purposes of this section, "discovery materials" means
, and is limited to, materials in the current
possession of the prosecution and law enforcement authorities
to which the same defendant would have
been entitled at time of trial actually received prior
to or during trial .
(c) In response to a writ or motion satisfying the conditions in
subdivision (a), court may order that the defendant be provided
access to physical evidence for the purpose of examination,
including, but not limited to, any physical evidence relating to the
investigation, arrest, and prosecution of the defendant only upon a
showing that there is good cause to believe that access to physical
evidence is reasonably necessary to the defendant's effort to obtain
relief. The procedures for obtaining access to physical evidence for
purposes of postconviction DNA testing are provided in Section 1405,
and nothing in this section shall provide an alternative means of
access to physical evidence for those purposes.
(d) Nothing in this section relieves the prosecution of any
ethical obligation to inform the appropriate authority of information
that casts doubt upon the correctness of the judgment and
conviction.
(e) In any postconviction proceeding in which the court requests
any pleading in response to a claim alleging that a defendant was
denied his or her right to the effective assistance of counsel under
either the United States Constitution or the California Constitution,
the respondent is entitled to discovery of the defendant's records
relevant to the claim of ineffective assistance of counsel. Any
attorney-client privilege of confidential communication shall not
prevent disclosure of communications that are relevant to an issue of
ineffective assistance of counsel by the lawyer or the client. No
work product privilege exists if the work product is relevant to an
issue of ineffective assistance of counsel. The holder of any
privilege may request an in-camera hearing in the court in which a
postconviction proceeding is pending to determine whether the
defendant's records are
subject to discovery pursuant to this subdivision. The court shall
promptly hear and determine whether the documents are privileged.
(d)
(f) The actual costs of examination or copying pursuant
to this section shall be borne or reimbursed by the
defendant party receiving the discovery documents
.
SEC. 11. Section 1239.1 is added to the Penal Code, to read:
1239.1. (a) An appeal pursuant to Section 1239, whether automatic
or by notice, may be voluntarily abandoned by the appellant.
(b) The appellate court may require the appellant to be
represented by counsel, but counsel shall respect the right of the
client to decide the goals of representation. The authority to decide
whether to challenge the guilty verdict, sentence, or both, or
neither, belongs exclusively to the client.
(c) The duty of counsel on appeal is to identify the central issue
or issues and focus on the appeal on those issues. Counsel shall not
raise frivolous issues.
SEC. 12. Section 1240 of the Penal Code is amended to read:
1240. (a) When in a proceeding falling within the provisions of
Section 15421 of the Government Code a person is not represented by a
public defender acting pursuant to Section 27706 of the Government
Code or other counsel and he is unable to afford the services of
counsel, the court shall appoint the State Public Defender to
represent the person except as follows:
(1) The court shall appoint counsel other than the State Public
Defender when the State Public Defender has refused to represent the
person because of conflict of interest or other reason.
(2) The court may, in its discretion, appoint either the State
Public Defender or the attorney who represented the person at his
trial when the person requests the latter to represent him on appeal
and the attorney consents to the appointment. In unusual cases, where
good cause exists, the court may appoint any other attorney.
(3) A court may appoint a county public defender, private
attorney, or nonprofit corporation with which the State Public
Defender has contracted to furnish defense services pursuant to
Government Code Section 15402.
(4) When a judgment of death has been rendered the Supreme Court
may, in its discretion, appoint counsel other than the State Public
Defender or the attorney who represented the person at trial.
(4) The State Public Defender shall not be appointed in a
noncapital case at any time when there is a backlog of capital cases
awaiting appointment of more than three months, and the State Public
Defender is unable, by reason of workload, to take all of the cases
that the State Public Defender would otherwise be appointed as
provided in subdivision (b).
(b) Promptly upon docketing an appeal in a capital case, the clerk
of the court appointing counsel shall notify the State Public
Defender of the case. Within 30 days, the State Public Defender shall
notify the court if the office is unable to represent the appellant
by reason of a conflict, workload, or other good cause. If the court
does not receive such a notice, it shall promptly issue an order
appointing the State Public Defender as counsel for the appellant.
(c) An attorney who is qualified for appointment in a capital
appeal shall accept appointments to capital appeals as a condition of
remaining on the list of attorneys for appointment by the appellate
court in noncapital cases. The attorney shall handle one case every
three years to meet the requirements of this subdivision. An attorney
who is not yet qualified for appointment in capital appeals shall
make good faith efforts to become qualified as a condition of
remaining on the list of attorneys for appointment by the appellate
court in noncapital cases. The Supreme Court may suspend these
requirements if it determines that there is no more than a six-month
delay in the appointment of counsel for capital appeals, on average,
but shall reinstate these requirements if an average delay of six
months or more develops.
(b)
(d) If counsel other than the State Public Defender is
appointed pursuant to this section, he may exercise the same
authority as the State Public Defender pursuant to Chapter 2
(commencing with Section 15420) of Part 7 of Division 3 of Title 2 of
the Government Code.
SEC. 13. Section 1241 of the Penal Code is amended to read:
1241. (a) In any case in which counsel
other than a public defender has been appointed by the Supreme Court
or by a court of appeal to represent a party to any appeal or
proceeding, such counsel shall receive a reasonable sum for
compensation and necessary expenses, the amount of which shall be
determined by the court and paid from any funds appropriated to the
Judicial Council for that purpose. Claim for the payment of such
compensation and expenses shall be made on a form prescribed by the
Judicial Council and presented by counsel to the clerk of the
appointing court. After the court has made its order fixing the
amount to be paid the clerk shall transmit a copy of the order to the
State Controller who shall draw his warrant in payment thereof and
transmit it to the payee.
(b) In capital appeals, the Supreme Court may pay a bonus of up to
15 percent of the compensation if counsel has filed all pleadings
within the time limits specified in the rules of court without
extensions. The court may reduce the compensation by as much as 15
percent if counsel fails to file pleadings on time or requires
excessive extensions of time.
SEC. 14. Section 1335 of the Penal Code is amended to read:
1335. (a) When If a defendant has
been charged with a public offense triable in any court, he or she
in all cases, and the people in cases other than those for
which the punishment may be death, or the people
may, if the defendant has been fully informed of his or her right to
counsel as provided by law, have witnesses examined conditionally in
his or her or their behalf, as prescribed in this chapter.
(b) When a defendant has been charged with a serious felony or in
a case of domestic violence, the people or the defendant may, if the
defendant has been fully informed of his or her right to counsel as
provided by law, have a witness examined conditionally as prescribed
in this chapter, if there is evidence that the life of the witness is
in jeopardy.
(c) As used in this section, "serious felony" means any of the
felonies listed in subdivision (c) of Section 1192.7 or any violation
of Section 11351, 11352, 11378, or 11379 of the Health and Safety
Code.
(d) If a defendant has been charged with a case of domestic
violence and there is evidence that a victim or material witness has
been or is being dissuaded by the defendant or any person acting on
behalf of the defendant, by intimidation or a physical threat, from
cooperating with the prosecutor or testifying at trial, the people or
the defendant may, if the defendant has been fully informed of his
or her right to counsel as provided by law, have a witness examined
conditionally as prescribed in this chapter.
(e) For the purposes of this section, "domestic violence" means
any public offense arising from acts of domestic violence as defined
in Section 13700.
SEC. 15. Section 1509 is added to the Penal Code, to read:
1509. (a) This section applies to any petition for writ of habeas
corpus filed by a person in custody pursuant to a judgment of death.
A writ of habeas corpus made pursuant to this section is the
exclusive procedure for collateral attack on a judgment of death. A
petition filed in any court other than the court which imposed the
sentence shall be transferred to that court unless good cause is
shown for the petition to be heard by another court. A petition to be
filed in or transferred to the court which imposed the sentence
shall be assigned to the original trial judge unless that judge is
unavailable or there is other good cause to assign the case to a
different judge.
(b) After the entry of judgment in the trial court, that court
shall offer counsel to the defendant as provided in Section 68662 of
the Government Code. Counsel's appointment terminates upon the final
disposition of the petition, including appellate review.
(c) Either party may appeal the decision on the petition to the
Supreme Court. A successive petition shall not be used as a means of
reviewing a denial of habeas relief.
(d) Except as provided in subdivisions (e) and (h), the initial
petition shall be filed within one year of the order entered pursuant
to Section 68662 of the Government Code.
(e) An initial petition which is untimely pursuant to subdivision
(d), or a successive petition whenever filed, shall be dismissed
unless the court finds, by a preponderance of all available evidence,
whether or not admissible at trial, that the defendant is actually
innocent of the crime of which he or she was convicted. A stay of
execution shall not be granted for the purpose of considering a
successive or untimely petition and counsel shall not be appointed
for such a petition unless the court finds that the petitioner has a
substantial claim of actual innocence. A claim based on voluntary
intoxication, a claim based on mental disease or defect, or a claim
which goes to the sentence, is not a claim of actual innocence for
the purposes of this section.
(f) A petitioner claiming innocence pursuant to subdivision (e)
shall disclose all material information relating to guilt that is in
the possession of the petitioner or present counsel for the
petitioner. If the petitioner willfully fails to make the disclosure
required by this subdivision to authorize disclosure by counsel, the
petition shall be dismissed.
(g) Proceedings held pursuant to this section shall be conducted
as expeditiously as possible, consistent with a fair adjudication. In
the typical case, the Superior Court shall render a decision on the
petition within one year of filing, and the Supreme Court shall
decide the appeal from the decision of the Superior Court within one
year. All cases shall be decided within two years unless the court
finds that a delay is necessary to resolve a substantial claim of
actual innocence. Filing of pleadings for the sole purpose of delay,
or to increase the expenses of the proceeding, is unethical and is
subject to sanction by the court and discipline by the State Bar. The
duty of counsel for the petitioner is to identify the central issue
or issues and focus the petition on them. Counsel shall not raise
frivolous issues.
(h) This section shall apply to all cases where a judgment of
death is entered after the effective date of the act adding this
section, and to all cases where a judgment was entered earlier but no
application for habeas corpus has been filed as of the effective
date of the act adding this section. If a habeas petition is pending
on the effective date of the act adding this section, the court may
transfer it to the court which imposed the sentence. If no habeas
petition has been filed prior to the effective date of this section,
a motion that would otherwise be barred by subdivision (d) may be
filed within one year of the effective date, or within the time
allowed under law as it existed prior to the effective date of the
act adding this section, whichever is earlier.
SEC. 16. Section 1509.5 is added to the Penal Code, to read:
1509.5. It is the policy of the State of California to qualify
for Chapter 154 (commencing with Section 2261) of Part VI of Title 28
of the United States Code. The Supreme Court and the Judicial
Council shall promulgate rules as necessary to achieve and maintain
qualification under that chapter. No agency of the State of
California shall take any action to oppose qualification.
SEC. 17. Section 3603 of the Penal Code is amended to read:
3603. The judgment of death shall be executed within the walls of
the California State Prison at San Quentin a
state prison facility to be determined by the Secretary of the
Department of Corrections and Rehabilitation .
SEC. 18. Section 3604.5 is added to the Penal Code, to read:
3604.5. The provisions of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code
shall not apply to the standards, procedures, or regulations
promulgated pursuant to Section 3604, or to the secretary's
determination pursuant to Section 3603.
SEC. 19. If any provision of this act, or any part of any
provision, or if its application to any person or circumstance is
held to be invalid or unconstitutional for any reason, the remaining
provisions and application that can be given effect without the
invalid or unconstitutional provisions or application shall not be
affected, but shall remain in full force and effect, and, to this
end, the provisions are severable.
SEC. 20. Except as more specifically provided in this act, all
sections of this act shall take effect immediately upon enactment and
shall apply to all proceedings conducted on or after the effective
date.
SEC. 21. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
Due to the need to provide justice for victims of capital crimes
at the earliest date possible, it is necessary that this act go into
immediate effect.