BILL NUMBER: SB 603 AMENDED
BILL TEXT
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, 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 violent
felonies and felony offenses 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
examinati on, if the court makes specified findings,
including that the denial of the defendant's personal examination of
the victim, and the use of intermediary standby counsel
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
stalking, and violent crimes are some of the most difficult
crimes to detect and prosecute, in large part because there are often
no witnesses except the victim, and because of the extreme
psychological harm to the victims. Victims of sex crimes, child
abuse, stalking stalking, and other
violent 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 stalking, and other
violent crimes.
(b) It is the intent of the Legislature in enacting this section
to provide the court with authority to employ alternative court
procedures to protect the rights of victims of an alleged sexual
assault, child abuse, stalking stalking
, and other crimes 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,
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 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) A violent felony, as defined in subdivision (c) of Section
667.5.
(C)
(B) Felony stalking pursuant to Section 646.9.
(D)
( C) Felony elder abuse pursuant to Section
368.
(E)
( D) Felony domestic violence pursuant to
Section 273.5.
(F)
( E) Felony child abuse pursuant to Section
273a, 273ab 273ab, or 273d.
(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.
(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) 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:
(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 intermediary standby
counsel 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
intermediary standby counsel another person
or the court to facilitate the examination of that particular
witness or to speculate as to the reasons for intermediary
standby counsel's another person's or the court's
participation.
(g) When the court orders the examination of the victim be
presented by intermediary standby counsel,
another person, or when the court conducts the examination, the
defendant shall submit the entire line of questioning to
intermediary standby counsel, the other person or the
court, including any followup questions, and have the right to
contemporaneously direct intermediary standby counsel
the other person or the court 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.