Bill Text: CA SB603 | 2015-2016 | Regular Session | Amended
Bill Title: Defendant: acting as his or her own attorney (in pro per).
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-02-01 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB603 Detail]
Download: California-2015-SB603-Amended.html
BILL NUMBER: SB 603 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 4, 2016
AMENDED IN SENATE MAY 4, 2015
INTRODUCED BY Senator Hueso
FEBRUARY 27, 2015
An act to add Section 686.3 to the Penal Code, relating to
criminal proceedings.
LEGISLATIVE COUNSEL'S DIGEST
SB 603, as amended, Hueso. Defendant: acting as his or her own
attorney (in pro per).
The California Constitution provides that a victim of crime is
entitled to be treated with fairness and respect for his or her
privacy and dignity throughout the criminal justice process. Existing
law also provides that in a criminal action the defendant is
entitled to appear and defend in person and with counsel, except as
specified, and to confront the witnesses against him or her.
Existing law makes it a crime for a person to practice law in this
state unless he or she is a member of the State Bar.
This bill would require a court to conduct a hearing to determine
whether intermediary standby counsel or another person
shall be appointed, at county expense, for the limited
purpose of presenting the defendant's examination of the victim, upon
a motion by the prosecutor, prosecutor or
at the request of a victim, or upon the court's own
motion, if a defendant is acting as his or her own attorney
in the proceeding and if the victim's testimony will involve a
recitation of the facts of one of specified alleged felony
offenses committed against the victim, including any
felony offenses offense for which
a convicted defendant is required to register as a sex offender. The
bill would require the hearing on the motion to be conducted outside
the presence of the jury and would provide that the hearing shall
not require the testimony of the victim. The bill would authorize the
court to appoint intermediary standby counsel or, if
intermediary counsel is not available, to conduct the examination or
to appoint any individual the court deems fit to conduct the
examination, if the court makes specified findings,
including that the denial of the defendant's personal examination of
the victim, and the use of another person or the court to present the
defendant's examination of the victim, is necessary to protect the
victim from trauma, as specified. The bill would also exempt
the appointed intermediary standby counsel from sanctions and from
liability in an action for malpractice brought by the defendant
against that counsel for his or her service in that capacity, as
specified. The bill would also exempt a person from criminal
prosecution for the unlawful practice of law for engaging in
activities he or she is authorized to perform pursuant to these
provisions. By imposing a higher level of service on
counties, the bill would impose a state-mandated local program. The
bill would also include legislative findings and declarations and a
statement of legislative intent.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 686.3 is added to the Penal Code, to read:
686.3. (a) The Legislature hereby finds and declares all of the
following:
(1) Sexual abuse, child abuse, stalking, and violent
abuse crimes are some of the most difficult
crimes to detect and prosecute, in large part because there are often
no witnesses except the victim, because of the victim's
reluctance to report, and because of the extreme psychological
harm to the victims. Victims of sex crimes, child abuse,
stalking, and other violent sexual abuse crimes
have a right to be protected from further victimization by the
alleged perpetrator of the crime. These victims have constitutional
rights, as enumerated in Marsy's Law, to be treated with fairness and
respect for their dignity, to be free from intimidation, harassment,
and abuse throughout the criminal justice process, and to be
reasonably protected from the defendant.
(2) A defendant generally has the right to represent himself or
herself in a criminal proceeding, and the right to confront his or
her accusers in court. However, courts have held that this right is
not absolute, and where the reliability of the testimony is otherwise
ensured, the defendant's rights may be outweighed by important
public policy concerns.
(3) Courts are entitled to control the mode of witness
interrogation, so as to more effectively ascertain the truth and
protect the witness from harassment or further trauma. Courts have
held that a state's interest in the physical and psychological
well-being of victims and witnesses may be sufficiently important to
outweigh, in some cases, a defendant's right to face his or her
accuser or accusers in court.
(4) The state has a compelling interest in protecting the physical
and psychological well-being of victims of sex offenses,
child abuse, stalking, and other violent crimes.
offenses.
(b) It is the intent of the Legislature in enacting this section
to provide the court with authority
discretion to employ alternative court procedures to protect
the rights of victims of an alleged sexual assault, child
abuse, stalking, and other crimes assault, as
described in subdivision (c), so the victims are able to participate
truthfully and effectively in criminal proceedings when the alleged
perpetrator is acting as his or her own attorney, which is also
referred to as acting in pro per. In exercising its authority, the
court shall balance the rights of the defendant against the need to
protect victims of those crimes and to preserve the integrity of the
court's truthfinding function. This authority is intended to be used
selectively when the facts and circumstances in the individual case
present compelling evidence of the need to use these alternative
procedures.
(c) Notwithstanding any other law, if the defendant is acting as
his or her own attorney, the court, upon a motion by the
prosecutor, prosecutor or at the request of a
victim, or upon the court's own motion, shall
conduct a hearing to determine whether intermediary standby counsel,
shall be appointed, at county expense, for the limited purpose of
presenting the defendant's examination of the victim. If
intermediary standby counsel is not available, the court may appoint
any individual the court deems fit to conduct the examination, or the
court may conduct the examination. The court may order
intermediary standby counsel or the appointed individual to
conduct the examination, or the court may conduct to
present the examination, if the court makes all of the
following findings:
(1) The victim's testimony will involve a recitation of the facts
of any of the following alleged offenses committed against the
victim:
(A) A felony offense that is subject to sex offender registration
pursuant to Section 290.
(B) Felony stalking pursuant to Section 646.9.
(C) Felony elder abuse pursuant to Section 368.
(D) Felony domestic violence pursuant to Section 273.5.
(E) Felony child abuse pursuant to Section 273a, 273ab, or 273d.
(1) The victim's testimony will involve a recitation of the facts
of any felony offense that is subject to sex offender registration
pursuant to Section 290.
(2) The prospect of the defendant personally presenting the
examination of the victim creates an emotionally traumatic situation
for the victim that is more than de minimis.
would substantially impair the victim's ability to communicate.
(3) The denial of the defendant's personal examination, and the
use of intermediary standby counsel to present the defendant's
examination of the victim, is necessary to protect the victim from
that trauma.
(d) The hearing on the motion pursuant to subdivision (c) shall be
conducted outside the presence of the jury and shall not require the
testimony of the victim. The court's findings pursuant to
subdivision (c) may be established by evidence of the facts of the
underlying incident, the defendant's subsequent behavior, and through
witnesses including, but not limited to, the victim, victim
advocate, therapist, counselor, parent, or family member.
(e) If the victim testifies at the hearing brought pursuant to
subdivision (c), the questioning of the victim shall be conducted by
the court. The prosecutor and defendant shall be permitted to submit
proposed questions to the court prior to the hearing.
(f)
( e) When the court orders intermediary
standby counsel or the appointed individual to
present the examination of the victim pursuant to this section,
or when the court presents the examination, the
court shall do all of the following: make a
brief statement on the record, outside the presence of the jury, of
the reasons i n support of its order. The reasons shall be
set forth with sufficient specificity to permit meaningful review
and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.
(1) Make a brief statement on the record, outside the presence of
the jury, of the reasons in support of its order. The reasons shall
be set forth with sufficient specificity to permit meaningful review
and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.
(2) Instruct the jury that although another person, or the court,
is presenting the defendant's questions of that witness, the
defendant is continuing to represent himself or herself, and that the
jury is to draw no negative inferences against the defendant from
the use of another person or the court to facilitate the examination
of that particular witness or to speculate as to the reasons for
another person's or the court's participation.
(g)
( f) When the court orders the examination
of the victim be presented by another person, or when the
court conducts the examination, the intermediary
standby counsel, the defendant shall submit the entire line of
questioning to the other person or the court, including any
followup questions, and intermediary standby counsel,
with sufficient time for counsel to prepare any followup questions,
and shall have the right to contemporaneously direct the
other person or the court
intermediary standby counsel during the examination to ensure
the defendant maintains control of his or her defense. The defendant
shall remain personally subject to court procedures and the rules of
evidence.
(h) The appointed intermediary standby counsel who performs merely
as the presenter of the defendant's proposed examination of the
victim pursuant to this section shall not be subject to sanctions
imposed by a court or by the State Bar for presenting the defendant's
proposed examination. The appointed intermediary standby counsel
shall not be subject to liability for malpractice for presenting the
defendant's proposed examination in an action brought by the
defendant against that counsel for his or her service in that
capacity. A person who is appointed pursuant to this section shall
not be subject to criminal prosecution pursuant to Section 6126 of
the Business and Professions Code for engaging in activities he or
she is authorized to perform pursuant to this section.
SEC. 2. 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.
