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SB-1320 Death penalty: appeals.(2007-2008)

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SB1320:v98#DOCUMENT

Amended  IN  Senate  April 02, 2008

CALIFORNIA LEGISLATURE— 2007–2008 REGULAR SESSION

Senate Bill
No. 1320

Introduced  by  Senator Dutton

February 20, 2008

An act to amend Section 190.3 of 190.8 of, and to add Section 190.81 to, the Penal Code, relating to the death penalty.


LEGISLATIVE COUNSEL'S DIGEST


SB 1320, as amended, Dutton. Death penalty. penalty: appeals.
Under existing law, for all cases in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997, the record on appeal must be certified in 2 stages, one for completeness and one for accuracy, as specified. Existing law provides time limitations for both stages of certification, as specified. Under existing law, trial counsel is required to notify the court of any errors in the transcript he or she incidentally discovers while reviewing the transcript in the ordinary course of trial preparation.
This bill would, instead, require that the record be completely certified within 90 days after entry of the imposition of the death sentence, unless the record exceeds a certain page limit or good cause is shown, as specified. The bill would require trial counsel to alert the court as to any errors in the transcript of the proceedings, as specified. This bill would require the clerk of the court to keep a comprehensive journal of proceedings on a form developed by the Judicial Council which would include specified information related to all proceedings culminating in the imposition of the death sentence, as specified. This bill would require that the journal, the clerk’s transcript, and the court reporter’s transcript be delivered to the court and trial counsel within 30 days of the imposition of the death sentence. Following the imposition of the death sentence and prior to the 90-day deadline to certify the record, this bill would require the court to hold one or more hearings with counsel to address the completeness and the accuracy of the record, as specified. This bill would provide that once the record has been certified, appellate counsel could bring a motion for reference to the trial court during the appeal process for correcting the record, as specified.
Because this bill would impose additional duties on local officials, it would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law, as added by the Briggs Initiative, approved by the voters at the November 7, 1978, statewide general election, provides the procedure for the trier of fact to determine whether the penalty for a person convicted of murder in the first degree with one or more special circumstances shall be death or imprisonment in the state prison without the possibility of parole, as specified.

This bill would make technical, nonsubstantive changes to that provision.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 190.8 of the Penal Code is amended to read:

190.8.
 (a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified in two stages, the first for completeness and the second for accuracy, as provided by this section. The trial court may use all reasonable means to ensure compliance with all applicable statutes and rules of court pertaining to record certification in capital appeals, including, but not limited to, the imposition of sanctions.
(b) Within 30 days of the imposition of the death sentence, the clerk of the superior court shall provide to trial counsel copies of the clerk’s transcript and shall deliver the transcript as provided by the court reporter. Trial counsel shall promptly notify the court if he or she has not received the transcript within 30 days.
(c) During the course of a trial in which the death penalty is being sought, trial counsel shall alert the court’s attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the ordinary course of trial preparation. The court shall periodically request that trial counsel provide a list of errors in the trial transcript during the course of trial and may hold hearings in connection therewith.
Corrections to the record shall not be required to include immaterial typographical errors that cannot conceivably cause confusion.
(d) The trial court shall certify the record for completeness and for incorporation of all corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition of the death sentence unless good cause is shown. However, this time period may be extended for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of court adopted by the Judicial Council.
(e) Following the imposition of the death sentence and prior to the deadline set forth in subdivision (d), the trial court shall hold one or more hearings for trial counsel to address the completeness of the record and any outstanding errors that have come to their attention and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported and that have occurred in the course of the case in any court, as well as all documents required by this code and the rules adopted by the Judicial Council.
(f) The clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel when the clerk receives notice of counsel’s appointment or retention, or when the record is certified for completeness under subdivision (d), whichever is later.
(g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council.
(h) The Supreme Court shall identify in writing to the Judicial Council any case that has not met the time limit for certification of the record for completeness under subdivision (d) or for accuracy under subdivision (g), and shall identify those cases, and its reasons, for which it has granted an extension of time. The Judicial Council shall include this information in its annual report to the Legislature.
(i) As used in this section, “trial counsel” means both the prosecution and the defense counsel in the trial in which the sentence of death has been imposed.
(j) This section shall be implemented pursuant to rules of court adopted by the Judicial Council.
(k) This section shall only apply to those proceedings in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997 and before June 30, 2007.

SEC. 2.

 Section 190.81 is added to the Penal Code, to read:

190.81.
 (a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified. The trial court may use all reasonable means to ensure the 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 deliver to trial counsel copies of the clerk’s transcript, the reporter’s transcript, and a comprehensive journal of proceedings, prepared by the clerk 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 these materials within 30 days.
(c) 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 of, any errors in the transcript of proceedings. The court shall periodically require that trial counsel provide a list of any proposed corrections to the trial transcript during the course of the trial and may hold hearings in connection therewith. Corrections to the record shall not be required to include immaterial typographical errors that cannot conceivably cause confusion.
(d) Following the imposition of the death sentence and prior to the deadline set forth in subdivision (e), the trial court shall hold one or more hearings for trial counsel to address the completeness of the record and any proposed corrections, and to certify that the they have reviewed the comprehensive journal of proceedings prepared by the clerk and all docket sheets to ensure that the record contains complete and correct transcripts for all proceedings, hearings, 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.
(e) The trial court shall ensure that the requirements of subdivisions (c) and (d) have been met and shall certify the record on appeal 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.
(f) The clerk of the trial court shall deliver a copy of the record on appeal to the Attorney General and appellant’s appellate counsel when the clerk receives notice of appellate counsel’s appointment or retention, or when the record is certified under subdivision (e), whichever is later.
(g) After the record is certified as provided in subdivision (e), no additional motions for correcting the record shall be entertained except as provided in subdivisions (h), (i),and (j).
(h) Not later than 5 days after filing the appellant’s opening brief, appellant may file in the Supreme Court a motion for reference to the trial court for correction of a material error in the record. The motion must do all of the following:
(1) Specify the particular correction sought.
(2) Identify the basis for appellant’s belief that the proposed correction will accurately reflect what transpired at trial.
(3) Explain both how the proposed correction will materially affect the disposition of the pending appeal and why the existence of the asserted error requiring correction could not reasonably have been discovered within the period prescribed in subdivision (e).
(i) Not later than 5 days after filing the respondent’s brief, respondent may file in the Supreme Court a motion for reference to the trial court for correction of material error in the record. The motion must do all of the following:
(1) Specify the particular correction sought.
(2) Identify the basis for the respondent’s belief that the proposed correction will accurately reflect what transpired at trial.
(3) Explain both how the proposed correction will materially affect the rights of any party and why the existence of the asserted error requiring correction could not reasonably have been discovered within the period prescribed in subdivision (e).
(j) At any time when necessary to avoid a grave and manifest miscarriage of justice, either party may file in the Supreme Court a motion for reference to the trial court for correction of material error in the record. The motion must do all of the following:
(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.
(3) Explain both how the proposed correction will materially affect the rights of any party and why the existence of the asserted error requiring correction could not reasonably have been discovered within the period prescribed in subdivision (d).
(4) Demonstrate by clear and convincing evidence that failure to effect the correction will result in a grave and manifest miscarriage of justice.
(k) The Supreme Court shall rule on any motion for reference under subdivision (h), (i), or (j) not later than 21 days after the motion is filed. No motion for reference shall be granted except for good cause. If the motion for reference is granted, the Supreme Court shall specify the proposed corrections that merit consideration 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 correction referred for is consideration.
(l) The Supreme Court shall identify in writing to the Judicial Council any case that has not met the time limit for certification under subdivision (e), or for disposition of requested reference or proposed correction under subdivision (k). The Supreme Court shall also identify those cases, and the reasons, for which it has granted any extension of time to comply with the requirements set forth in subdivision (e). The Judicial Council shall include the foregoing information in its annual report to the Legislature.
(m) 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.
(n) This section shall be implemented pursuant to rules of court adopted by the Judicial Council.
(o) 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 July 1, 2007.

SEC. 3.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.Section 190.3 of the Penal Code is amended to read:
190.3.

If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant that involved the use or attempted use of force or violence or that involved the express or implied threat to use force or violence, and the defendant’s character, background, history, mental condition and physical condition.

However, no evidence shall be admitted regarding other criminal activity by the defendant that did not involve the use or attempted use of force or violence or that did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

Except for evidence in proof of the offense or special circumstances that subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California.

In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(a)The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.

(b)The presence or absence of criminal activity by the defendant that involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(c)The presence or absence of any prior felony conviction.

(d)Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e)Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.

(f)Whether or not the offense was committed under circumstances that the defendant reasonably believed to be a moral justification or extenuation for his conduct.

(g)Whether or not defendant acted under extreme duress or under the substantial domination of another person.

(h)Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.

(i)The age of the defendant at the time of the crime.

(j)Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

(k)Any other circumstance that extenuates the gravity of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.