California Senate Bill SB1514 Latest Draft

 BILL NUMBER: SB 1514INTRODUCED BILL TEXT INTRODUCED BY Senator Anderson FEBRUARY 24, 2012 An act to amend Sections 190.6, 190.8, 1239, 1240, 1405, and 1506 of the Penal Code, relating to death sentences. LEGISLATIVE COUNSEL'S DIGEST SB 1514, as introduced, Anderson. Death sentences: automatic appeal. Existing law provides that an appeal is automatically taken by the defendant in any case where a judgment of death is rendered, without any action by the defendant or his or her counsel. The California Constitution provides that the State Supreme Court has appellate jurisdiction when judgment of death has been pronounced. Existing law states the intention of the Legislature that the sentence in all capital cases should be imposed expeditiously and requires that the record on appeal be expeditiously certified, as provided. Existing law requires that the opening appellate brief in an automatic appeal of a judgment of death to the Supreme Court be filed no later than 7 months after the certification of the record for completeness, unless the transcript exceeds 10,000 pages. Existing law states that it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. This bill would remove the automatic appeal to the State Supreme Court in cases where a judgment of death is rendered and would instead provide that an appeal may be taken to an appellate court in the same manner as an appeal where a judgment of death is not rendered in a murder case, except as required by the above provisions of law pertaining to the expeditious resolution of capital cases. The bill would make conforming changes. The bill would become operative only if Senate Constitutional Amendment ____ of the 2011-12 Regular Session is approved by the voters. Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) During a three-week period in October 2002, a deranged sniper shot and killed 10 people and injured three others along Interstate 95 in Virginia and the Capital Beltway in Washington, D.C. John Allen Muhammad, the "Beltway Sniper," and an accomplice were caught and arrested on October 24, 2002. (b) Muhammad was convicted and sentenced to death in two states, Maryland and Virginia. After six years of legal maneuvering, Muhammad' s last minute appeal to the United States Supreme Court was rejected and he was executed by lethal injection on November 9, 2009. (c) It took two states with separate judicial systems less than seven years to convict, sentence, and execute a murderer. Compare that to California where the average time in death penalty cases from sentencing until punishment is over 25 years. In the last 20 years, California has executed only 13 murderers while Texas has executed over 400. (d) Justice delayed is justice denied. SEC. 2. Section 190.6 of the Penal Code is amended to read: 190.6. (a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously. (b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal  to the State Supreme Court  shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council. (c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition. (d) The failure of the parties or the  Supreme Court   court  to meet or comply with the time limit provided by this section shall not be a ground for granting relief from a judgment of conviction or sentence of death. SEC. 3. Section 190.8 of the Penal Code is amended to read: 190.8. (a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified in two stages, the first for completeness and the second for accuracy, as provided by this section. The trial court may use all reasonable means to ensure compliance with all applicable statutes and rules of court pertaining to record certification in capital appeals, including, but not limited to, the imposition of sanctions. (b) Within 30 days of the imposition of the death sentence, the clerk of the superior court shall provide to trial counsel copies of the clerk's transcript and shall deliver the transcript as provided by the court reporter. Trial counsel shall promptly notify the court if he or she has not received the transcript within 30 days. (c)  (1)   During the course of a trial in which the death penalty is being sought, trial counsel shall alert the court's attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the ordinary course of trial preparation. The court shall periodically request that trial counsel provide a list of errors in the trial transcript during the course of trial and may hold hearings in connection therewith.  Corrections   (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 and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported and that have occurred in the course of the case in any court, as well as all documents required by this code and the rules adopted by the Judicial Council. (f) The clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel when the clerk receives notice of counsel's appointment or retention, or when the record is certified for completeness under subdivision (d), whichever is later. (g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council. (h) The  Supreme Court   appellate court hearing an appeal pursuant to this section  shall identify in writing to the Judicial Council any case that has not met the time limit for certification of the record for completeness under subdivision (d) or for accuracy under subdivision (g), and shall identify those cases, and its reasons, for which it has granted an extension of time. The Judicial Council shall include this information in its annual report to the Legislature. (i) As used in this section, "trial counsel" means both the prosecution and the defense counsel in the trial in which the sentence of death has been imposed. (j) This section shall be implemented pursuant to rules of court adopted by the Judicial Council. (k) This section shall only apply to those proceedings in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997. SEC. 4. Section 1239 of the Penal Code is amended to read: 1239. (a) Where an appeal lies on behalf of the defendant or the people, it may be taken by the defendant or his or her counsel, or by counsel for the people, in the manner provided in rules adopted by the Judicial Council. (b) 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.   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.  The defendant's trial counsel, whether retained by the defendant or court appointed, shall continue to represent the defendant until completing the additional duties set forth in paragraph (1) of subdivision (e) of Section 1240.1. SEC. 5. 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   appellate court  may, in its discretion, appoint counsel other than the State Public Defender or the attorney who represented the person at trial. (b) 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. 6. Section 1405 of the Penal Code is amended to read: 1405. (a) A 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 of conviction in his or her case, for performance of forensic deoxyribonucleic acid (DNA) testing. (b) (1) An indigent convicted person may request appointment of counsel to prepare a motion under this section by sending a written request to the court. The request shall include the person's statement that he or she was not the perpetrator of the crime and that DNA testing is relevant to his or her assertion of innocence. The request also shall include the person's statement as to whether he or she previously has had counsel appointed under this section. (2) If any of the information required in paragraph (1) is missing from the request, the court shall return the request to the convicted person and advise him or her that the matter cannot be considered without the missing information. (3) (A) Upon a finding that the person is indigent, he or she has included the information required in paragraph (1), and counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section and to represent the person solely for the purpose of obtaining DNA testing under this section. (B) Upon a finding that the person is indigent, and counsel previously has been appointed pursuant to this subdivision, the court may, in its discretion, appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section and to represent the person solely for the purpose of obtaining DNA testing under this section. (4) Nothing in this section shall be construed to provide for a right to the appointment of counsel in a postconviction collateral proceeding, or to set a precedent for any such right, in any context other than the representation being provided an indigent convicted person for the limited purpose of filing and litigating a motion for DNA testing pursuant to this section. (c) (1) The motion shall be verified by the convicted person under penalty of perjury and shall do all of the following: (A) Explain why the identity of the perpetrator was, or should have been, a significant issue in the case. (B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability that the convicted person's verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction. (C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought. (D) Reveal the results of any DNA or other biological testing that was conducted previously by either the prosecution or defense, if known. (E) State whether any motion for testing under this section previously has been filed and the results of that motion, if known. (2) Notice of the motion shall be served on the Attorney General, the district attorney in the county of conviction, and, if known, the governmental agency or laboratory holding the evidence sought to be tested. Responses, if any, shall be filed within 60 days of the date on which the Attorney General and the district attorney are served with the motion, unless a continuance is granted for good cause. (d) If the court finds evidence was subjected to DNA or other forensic testing previously by either the prosecution or defense, it shall order the party at whose request the testing was conducted to provide all parties and the court with access to the laboratory reports, underlying data, and laboratory notes prepared in connection with the DNA or other biological evidence testing. (e) The court, in its discretion, may order a hearing on the motion. The motion shall be heard by the judge who conducted the trial, or accepted the convicted person's plea of guilty or nolo contendre, unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion. (f) The court shall grant the motion for DNA testing if it determines all of the following have been established: (1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion. (2) The evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect. (3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case. (4) The convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the perpetrator of, or accomplice to, the crime, special circumstance, or enhancement allegation that resulted in the conviction or sentence. (5) The requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person' s verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction. The court in its discretion may consider any evidence whether or not it was introduced at trial. (6) The evidence sought to be tested meets either of the following conditions: (A) The evidence was not tested previously. (B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results. (7) The testing requested employs a method generally accepted within the relevant scientific community. (8) The motion is not made solely for the purpose of delay. (g) (1) If the court grants the motion for DNA testing, the court order shall identify the specific evidence to be tested and the DNA technology to be used. (2) The testing shall be conducted by a laboratory mutually agreed upon by the district attorney in a noncapital case, or the Attorney General in a capital case, and the person filing the motion. If the parties cannot agree, the court shall designate the laboratory to conduct the testing and shall consider designating a laboratory accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB). (h) The result of any testing ordered under this section shall be fully disclosed to the person filing the motion, the district attorney, and the Attorney General. If requested by any party, the court shall order production of the underlying laboratory data and notes. (i) (1) The cost of DNA testing ordered under this section shall be borne by the state or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the ability to pay. However, the cost of any additional testing to be conducted by the district attorney or Attorney General shall not be borne by the convicted person. (2) In order to pay the state's share of any testing costs, the laboratory designated in subdivision (g) shall present its bill for services to the superior court for approval and payment. It is the intent of the Legislature to appropriate funds for this purpose in the 2000-01 Budget Act. (j) An order granting or denying a motion for DNA testing under this section shall not be appealable, and shall be subject to review only through petition for writ of mandate or prohibition filed by the person seeking DNA testing, the district attorney, or the Attorney General. The petition shall be filed within 20 days after the court's order granting or denying the motion for DNA testing. In  a noncapital   any  case, the petition for writ of mandate or prohibition shall be filed in the court of appeal.  In a capital case, the petition shall be filed in the California Supreme Court.  The court of appeal  or California Supreme Court  shall expedite its review of a petition for writ of mandate or prohibition filed under this subdivision. (k) DNA testing ordered by the court pursuant to this section shall be done as soon as practicable. However, if the court finds that a miscarriage of justice will otherwise occur and that it is necessary in the interests of justice to give priority to the DNA testing, a DNA laboratory shall be required to give priority to the DNA testing ordered pursuant to this section over the laboratory's other pending casework. (  l ) DNA profile information from biological samples taken from a convicted person pursuant to a motion for postconviction DNA testing is exempt from any law requiring disclosure of information to the public. (m) Notwithstanding any other provision of law, the right to file a motion for postconviction DNA testing provided by this section is absolute and shall not be waived. This prohibition applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendre. (n) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. SEC. 7. Section 1506 of the Penal Code is amended to read: 1506. An appeal may be taken to the court of appeal by the people from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought, in all criminal cases  , excepting criminal cases where judgment of death has been rendered, and in such cases to the Supreme Court;   ,  and in all criminal cases where an application for a writ of habeas corpus has been heard and determined in a court of appeal, either the defendant or the people may apply for a hearing in the Supreme Court. Such appeal shall be taken and such application for hearing in the Supreme Court shall be made in accordance with rules to be laid down by the Judicial Council. If the people appeal from an order granting the discharge or release of the defendant, or petition for hearing in either the court of appeal or the Supreme Court, the defendant shall be admitted to bail or released on his own recognizance or any other conditions which the court deems just and reasonable, subject to the same limitations, terms, and conditions which are applicable to, or may be imposed upon, a defendant who is awaiting trial. If the order grants relief other than a discharge or release from custody, the trial court or the court in which the appeal or petition for hearing is pending may, upon application by the people, in its discretion, and upon such conditions as it deems just stay the execution of the order pending final determination of the matter. SEC. 8. This bill shall become operative only if Senate Constitutional Amendment ____ of the 2011-12 Regular Session is approved by the voters.