BRIGGS v. BROWN

Amicus Curiae Brief of Crime Victims United of California

Cal.March 30, 2017

$238309 SUPREME COURT FILED MAR 3 0 2017 IN THE SUPREME COURT, orge Navarrete Clerk OF THE STATE OF CALIFORNIA Deputy RON BRIGGS AND JOHN VAN DE KAMP, Petitioners, vs. JERRY BROWN,in his official capacity as the Governor of California; XAVIER BECERRA,in his official capacity as the Attorney General of California; CALIFORNIA’S JUDICIAL COUNCIL; and DOES I THROUGH XX, Respondents, APPLICATION FOR PERMISSION TO FILE AND BRIEFAMICUS CURIAE OF CRIME VICTIMS UNITED OF CALIFORNIA IN SUPPORT OF RESPONDENTS Nina Salarno Besselman SBN 160749 Crime Victims United of California E-mail: nina@salarnolaw.com 11400 Atwood Road. + Auburn, California 95603 » Telephone: (530) 885-9584 Fax: (530) 885-4608 Attorneyfor Amicus Curiae “ CRIME VICTIMS UNITED OF CALIFORNIA a RECEIVED MAR 30 2017 CLERK SUPREME COURT IN THE SUPREME COURT OF THE STATE OF CALIFORNIA RON BRIGGSand JOHN VAN DE KAMP, Petitioners, VS. JERRY BROWN,IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF CALIFORNIA; KAMALA HARRIS, IN HER OFFICIAL CAPACITY AS THE ATTORNEY GENERAL OF CALIFORNIA; CALIFORNIA JUDICIAL COUNCIL; and DOES | THROUGH XxX, Respondents. APPLICATION FOR PERMISSION TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF RESPONDENTS To the Honorable Justices of the Supreme Court of the State of California Crime Victims United of California (CVUC) respectfully applies for permissiontofile a brief amicus curiae in support of Respondents, the People of the State of California, pursuant to rule 8.520(f) of the California Rules of Court. 1 1 No party or counsel for a party authored this brief in whole or in part, and no counselor party made a monetary contribution intendedto fund the preparation or submission ofthis brief. No person other than amicus curiae CVUC made a monetary contribution to is preparation or submission. 2 Applicant’s Interest CVUCis a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CVUCseeks to bring the constitutional protection of the accused into balance with therights of the victim and of society to rapid, efficient and reliable determination of guilt and swift execution of punishment. In the present case, the defendant seeks to create a rule of automatic reversal, without regard for the justice of the case or actual prejudice to the defendant, in a defined class of cases. Such a rule would be contrary to the interests CVUC was formedto protect. Need for Further Argument Amicusis familiar with the arguments presented on both sides ofthis issue and believe that further argumentis necessary. Thebrief is submitted with this application and ready for immediate filing. The attachedbriefbringsto the attention of the court additional United States Supreme Court precedent, not previously briefed, regarding the harmless-error procedure it permits that is consistent with the federal constitutional right of due process of law that underlies the admonition requirements of both federal andstate law. March 29, 2017 R ubmitted, ) / Ed f BESS Attorneyfor Amicus Curiae Crime Victims United of California TABLE OF CONTENTS Application for Permission to File...eeeeesneteeeeieeneeneereernnene 2 Table of Authorities .....0....ccccceeccseeneeteeeetererreetseeeeneeeeneeeeeeteesesesseeseeeene 5 Summary Of Facts ....cccccceseecssececececeeeeeeesneeeesneeeeessseeeeessesssecseeeesessneneess 6 Summary Of APQUMENL....... cee eeeeenceteeeeeeeteeeetneeseaeeeenrerseensecetneeeeeatenaas 6 ASSUMEEL... ccccccceneceeencneeeeteeeeeseeceereeeeseneaeeeeteneseneeeeeteeeeseesasereenenneeees 7 I. Specific Rights of Crime Victims Have Enumeratedin the California Constitution... cceceeeeeeneesseeneesseesseeseetsasenaees 7 Il. Restitution and Crime Victims............c:ccceeceeeeeeseeeeenteeeees 8 UI. Crime Victims’ Right to Due Process and Finality............ 9 IV. Crime Victims Have the Right to be Heard Before Any Material Change in Sentencing ............ceeeeeeeeereeeeeereereens 10 CONCIUSION ........ccccccscccneecececceccencceecsseesecccccueceanccecevecsuseueceeeeueeussecsunseneees 11 TABLE OFAUTHORITIES Cases McVeigh v. United States (March 8, 1999) 526 U.S. 1007 occ15 Muhammad v, Commonwealth (2005) 269 Va. 451, 477, 619 S.E.2d 16, 30 oc iccccccccscesreeeeeeceeeneeceseerssessaaeersenseesssssseessaseseseesens 14 Muhammad v. Warden (2007) 274 Va. 3, 646 S.E.2d 182 oes14 United States v. McVeigh (D.C.Colo. Oct. 12, 2000) 118 F.Supp.2d L137, 1139 ceecscccscessecseseessseceeseereceseeeneesrersseeeseisnneisesiesseeeeeeseeseeens 15 United States v. McVeigh (10Cir. 1998) 153 F.3d 1166, 1176, 1179, 1222 oo cccecccccssessesseesceseccseneeeeeeeteeeerseteeceeseeneenesessesseeseeenes 14, 15 State Constitutions Cal. Const., art. [, § 28, subd. (D)(13) ooo.eeec eceecseteeneeneeeeeeeceeneenes 14 Cal. Const., art. XXVIIL, § Loceeeeecneeceeeeeeenetessseseeneeseessesaeees ll Cal. Const., art. XXVIII, § 3occceccceceeeeseeeeeeeeeesessseeeeeessesesseeeeeees 12 Cal. Const., art. XXVIII, § 13, subd. (a)(D) 0. eeeeeeeeeeeesteeeeenereeenees 13 Secondary Authorities Ballot Pamp., Prop. 66, General Elec. (Nov. 8, 2016)...eens 12, 13 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA RON BRIGGS AND JOHN VAN DE KAMP, Petitioners, VS. JERRY BROWN,in his official capacity as the Governor of California; XAVIER BECERRA,in his official capacity as the Attorney General of California; CALIFORNIA’S JUDICIAL COUNCIL; and DOES I THROUGH XX, Respondents, BRIEF AMICUS CURIAE OF CRIME VICTIMS UNITED OF CALIFORNIA IN SUPPORT OF RESPONDENTS SUMMARYOF FACTS Weagree with thebrief filed by Respondents in this case on the procedural background. SUMMARY OF ARGUMENT Victims havea rightto restitution. Victims have a right to due process andfinality. Victims have a right to be heard before any material change in sentencing. Crimevictims have a standing and interest in the above-entitled case before the court. Specific facts are delineated in the attached declaration of Nina Salarno Besselman. ARGUMENT I. Specific Rights of Crime Victims Have Enumeratedin the California Constitution. In 2009, the People of the State of California voted overwhelming to amend the California Constitution to provide for tangible and enforceable rights for victims of crime. Explicitly the people of the State of California found, but did not limit to it, the fact that victims of crime havethe right to due process andjustice, restitution from the wrongdoer, and finality to their case. (See Cal. Const., art. XXVIII, § 1.) Crime victims have an absolute right to be heard before any material change in the sentence of their wrongdoer andto a truth in sentencing. Inherent in these rights of crime victims is the right to see that the death penalty is carried out in a judicious and efficient manner. Thisis a right that has been deniedin the archaic and broken system that plagues the California death penalty system. Victims of crime are entitled to finality of their criminal case. Lengthy appeals and other post-judgment proceedings that challenge criminal convictions frequently, and lengthy parole hearings that threaten to release criminal offenders, and the ongoing threat that the sentences of the wrongdoers will be reduced, prolong the suffering of crime victims and their families. (See Cal. Const., art. XXVIII, § 3.) The current system denied the crime victim this right. To that end, Proposition 66 and the People of the State of California seek to enforce the right of the crime victims. II. Restitution and Crime Victims. The Petitioners wish to challenge the provision which provides for victim restitution, along with the requirement that death-sentenced prisoners workif they are determined by CDCRto be able to do so (Prop 66, § 8, adding Pen. Code, § 2700.) Petitioners’ challenge fails to recognize the constitutional right of the crimevictim or receiverestitution. It is the unequivocalintention of the People of the State of California that all persons whosufferlosses as a result of criminalactivity shall have the right to seek and securerestitution from the persons convicted of the crimes causing the losses they suffer. Restitution shall be ordered from the convicted wrongdoerin every case regardless of the sentence or the disposition that is imposed in which a crime victim suffers a loss (Cal. Const., art. XXVIII, § 13, subd. (a)(b).) Herein it is very clear that the crime victims of those sentenced to death have the constitutional right to demand andreceiverestitution from their wrongdoers. For years, the status quo and broken system has not just ignored this right but has turned its back on the crime victim completely. Proposition 66, remedies this injustice. The People of the State of California sought to right this injustice when they voted for Proposition 66. Petitioners’ challenge is meritless. Providing for victim restitution associated with the requirement that eligible death-sentenced prisoners work (Prop. 66, § 8, adding Pen. Code, § 2700.1) implements Declaration #5 and is directly related to enforcing imprisonment and the restitution portions of the judgment in criminal cases. Imprisonment until execution is part of the judgment, and a requirementto work has long beenpart of imprisonment under California law. (See Pen. Code, § 2700.) A requirement that death row inmates not be exempt by reason of their sentence alone is contrary to existing policies and procedures. The Marcy’s Lawinitiative (Prop. 9, 2008: Cal. Const., art. I, § 28, subd. (b)(13)) and presently requires restitution awards, but they are unenforceable unless the inmate has some assets. The work requirement provides a method of enforcing at least some of the restitution portion of the judgment. IfI. Crime Victim’s Right to Due Process andFinality. Petitioner’s argument against the time adjudication provision of Proposition 66 once again completely ignores the crime victim’s right to due process and justice. The current status quo provides norelief for the crimevictims. Proposition 66 directs the courts to complete the direct appeal and first habeas corpus petition within five years of sentence. Experience in other jurisdictions indicates that this is sufficient time even in the most complex cases whenthosecasesare given the priority that they deserve. John Allen Muhammad, the notorious “D.C. Sniper,” was sentenced to death on March29, 2004. (See Muhammad v. Commonwealth (2005) 269 Va. 451, 477, 619 S.E.2d 16, 30.) His direct appeal and initial state habeas petition were completed a little over three years later. (See Muhammad v. Warden (2007) 274 Va. 3, 646 S.E.2d 182.) Timothy McVeigh was sentenced to death on August 14, 1997 for the bombing of the federal courthouse in Oklahoma City, which killed 168 people. (See United States v. McVeigh (10" Cir. 1998) 153 F.3d 1166, 1176, 1179.) Direct appeal took 19 monthsin total. (See id. At p. 1222 (affirmed),cert. den. McVeigh v. United States (March 8, 1999) 526 U.S. 1007.) The district court completed collateral review six months after filing, three years and two months after sentencing. (See United States v. McVeigh (D.C.Colo. Oct. 12, 2000) 118 F.Supp.2d 1137, 1139.) Although McVeighdid not appeal from this judgment, there is no reasonto believe that the Court of Appeals could not have handled an appeal from the collateral review with the same dispatch as the direct appeal from the judgment. The full standard review of direct appeal and first collateral review could have been completed within five years even without the waiver. Furthermore the California Constitution provides the crimevictim is entitled to finality. Under the current broken system, the only time the crime victim receives finality is when the condemned inmate dies from old age. Proposition 66 seeks to enforce the rights of the victims while preserving the rights of the wrongdoer and ensuring justice. IV. Crime Victims Have the Right to be Heard Before Any Material Changein Sentencing. Crime victims and the People of the State of California have overwhelmingly voiced twice throughthe initiative process that the death penalty is the appropriate punishment reserved for the worst criminal 10 wrongdoers. The victims associated with the cases of the condemned have enumerated and collective rights to be heard before there is any substantial change to the sentences. This challenge absolutely ignores that right and attempts in a broad stroke of the pen to delete that right. This is a violation of the California Constitution. CONCLUSION CrimeVictims United of California, on behalfofall California crime victims for the aforementioned reasons respectfully requests that the court deny Petitioners’ Petition for Extraordinary Relief. March 29, 2017 Respectfully Submitted, [Vs NINA SALARNO BESSELMAN Attorneyfor Amicus Curiae CRIME VICTIMS UNITED OF CALIFORNIA 11 DECLARATION OF NINA SALARNO BESSELMAN I, NINA SALARNO BESSELMANdohereby declare that [ am an attorney duly licensedto practice law in the State of California. I am currently the President of Crime Victims United. Crime Victims United is the leading victims rights organization in the State of California. Crime Victims United has been granted standing in the courts on behalf of crime victims. Crime Victims United was actively involved in the passage of Proposition 9 in 2008, which amendedthe California Constitution to give crime victims specific rights in the criminal justice system. Crime Victims United was active in the passage of Proposition 66. I served as prosecutor for Tulare, Placer and Sacramento Counties. From 1999-2002 I opened and directed the first Office of Victims of Crime for the State of California. In my capacity as director for the Office of Victims of Crime, I implemented the death penalty notification project and authored the death penalty handbook. In these capacities,I have had numerous contacts with victims of crime associated with cases of the condemned inmates. I was intimately involved in the execution process of Richard Allen Davis, Darrel Keith Rich, Robert Lee Massie and Stanley “Tookie” Williams. In all of these cases, the victims were actively involved and part of the process. All of them supported the process and desired to see justice implemented as decided bythe jury. In all ofmy contacts, which were over 100, with crimevictims,all were supportive of the death penalty as the punishment for the crime committed. All expressed dissatisfaction for the archaic and slow system of justice. All of the victims who were able to have justice served ultimately were able to find peace. As a victim ofcrime whose case was not punished and whose case is ongoing in the criminaljustice system, I can first-hand attest to the toll it takes uponvictims of not having finality in the system. The victims in the abovecase are entitled to finality and to denyit would be a cruel injustice. I declare under penalty of perjury of the lawsof the State of California that the foregoing is true andcorrect. Date: March 29, 2017 4, Feo NINASALARNO BESSELMAN Attorneyfor Amicus Curiae CRIME VICTIMS UNITED OF CALIFORNIA APPENDIX VICTIMS’ BILL OF RIGHTS ACT OF 2008: MARSY’S LAW December21, 2007 INITIATIVE MEASURETO BE SUBMITTED DIRECTLY TO THE VOTERS TO THE HONORABLE SECRETARYOF THE STATE OF CALIFORNIA: We, the undersigned, registered, qualified voters of California, residents of the afore-described County (or City and County), on the signature pageofthis petition section, hereby propose additions and amendmentsto the California Constitution and to the California Penal Code,relating to the rights of victims of crime, and petition the Secretary of State to submit the sameto the voters of California for their adoption or rejection at the next succeeding general election or at any special statewide election held prior to that general eldction or otherwise provided by law. The proposed constitutional and statutory additions and amendments(full title and text of the measure) read asfollows: (Additions to text are denoted in italics and deletions are denoted in strikeout type) SECTION 1. TITLE This act shall be known, and maybecited as, the "Victims’ Bill of Rights Act of 2008: Marsy’s Law.” SECTION 2. FINDINGS AND DECLARATIONS The People of the State of California hereby find and declareall of the following: 1. Crime victims are entitled to justice and due process. Their rights include, but are not limited to, the right to notice and to be heard during critical stages of the justice system; the right to receiverestitution from the criminal wrongdoer; the right to be reasonably safe throughoutthe justice process; the right to expect the governmentto properly fund the criminal justice system,so that the rights of crime victims stated in these Findings and Declarations andjustice itself are not eroded by inadequate resources; and, aboveall, the right to an expeditious and just punishmentof the criminal wrongdoer. 2. The People of the State of California declare that the “Victims’ Bill of Rights Act of 2008: Marsy'’s Law” is needed to remedy a justice system thatfails to fully recognize and adequately enforce the rights ofvictims of crime. It is named after Marsy, a 21-year-old college senior at U.C. Santa Barbara who was preparing to pursue a career in special education for handicapped children and had her wholelife ahead of her. She was murdered on November30, 1983. Marsy’s Law is written on behalf of her mother, father, and brother, who were often treated as though they had norights, and inspired by hundredsof thousandsofvictims of crime who have experienced the additional pain and frustration of a criminal justice system that too oftenfails to afford victims even the most basic ofrights. 3. The People of the State of California find that the “broad reform”of the criminaljustice system intended to grant these basic rights mandatedin the Victims’ Bill of Rights initiative measure passed by the electorate as Proposition 8 in 1982 has not occurred as envisioned by the People. Victims of crime continue to be denied rights to justice and due process. 4, Aninefficient, overcrowded, and arcanecriminal justice system hasfailed to build adequatejails and prisons,hasfailed to efficiently conduct court proceedings, and hasfailed to expeditiously finalize the sentences and punishmentsof criminal wrongdoers. Those criminal wrongdoersare being released from custody after serving aslittle as 10 percent of the sentences imposed and determined to be appropriate by judges. 5. Each year hundredsof convicted murderers sentencedto servelife in prison seek release on parole from our state prisons. California's “release from prison parole procedures”torture the families of murdered victims and waste millions of dollars each year. In California convicted murderers are appointed attorneys paid bythe tax dollars ofits citizens, and these convicted murderers are often given parole hearings every year. The families of murdered victims are never able to escape the seemingly unending torture and fear that the murdererof their loved one will be once again free to murder. 6. “Helter Skelter’ inmates Bruce Davis and Leslie Van Houghton, two followers of Charles Manson convicted of multiple brutal murders, have had 38 parole hearings during the past 30 years. 7. Like mostvictims of murder, Marsy wasneitherrich nor famous when she was murdered by a former boyfriend who lured her from her parents’ home by threatening to kill himself. Instead he used a shotgunto brutally end herlife whenshe entered his homein an effort to stop him from killing himself. Following her murderer’s arrest, Marsy's mother was shocked to meethim at a local supermarket, learning that he had been released on bail without any notice to Marsy’s family and without any opportunity for her family to state their opposition to his release. 8. Several years after his conviction and sentenceto “life in prison,” the parole hearingsfor his release began. In thefirst parole hearing, Marsy’s mother suffered a heart attack fighting against his release. Since then Marsy’s family has endured the trauma of frequent parole hearings and constant anxiety that Marsy’s killer would be released. 9. The experiences of Marsy’s family are not unique. Thousandsofother crime victims have shared the experiences of Marsy’s family, caused by the failure of our criminal justice system to notify them of their rights, failure to give them notice of important hearings in the prosecutionsof their criminal wrongdoers,failure to provide them with an opportunity to speak and participate, failure to impose actual and just punishment upon their wrongdoers,andfailure to extend to them some measureoffinality to the traumainflicted upon them by their wrongdoers. wig oa tp ii ar bi ng ag en ea t kP a tt y oh ri en R e E E SECTION 3. STATEMENT OF PURPOSESANDINTENT It is the purpose of the People of the State of California in enacting this initiative measureto: 1. Provide victims with rights to justice and due process. 2. Invoke the rights of families of homicide victims to be spared the ordeal of prolonged and unnecessary suffering, and to stop the waste of millions of taxpayerdollars, by eliminating parole hearings in which thereis no likelihood a murdererwill be paroled, and to provide that a convicted murderer can receive a parole hearing no more frequently than every three years, and can be denied a follow-up parole hearing for as long as 15 years. SECTION 4. VICTIMS’ BILL OF RIGHTS Section 28 of Article | of the California Constitution is amended to read: SEC. 28. (a) The People of the State of California find and declare all of the following: (1) thatCriminal activity has a serious impact on the citizens of California. The rights of victims of crime and their families in criminal prosecutions are a subject of grave statewide concern. (2) Victims of crime are entitled to have the criminal justice system view criminal acts as serious threats to the safety and welfare of the people of California. thattheThe enactment of comprehensiveprovisions and laws ensuring a bill of rights for victims of crime, including safeguardsin the criminal justice system te-fully protecting those rights and ensuring that crime victims are treated with respect and dignity, is a matter of grave-statewide-concerp-high public importance. California’s victims of crime are largely dependent upon the proper functioning of government, upon the criminaljustice system and upon the expeditious enforcementof the rights of victims of crime described herein,in order to protect the public safety and to secure justice when the public safety has been compromisedbycriminalactivity. (3) Therights of victims pervadethe criminal justice system,encompassing result-oferiminal-acte-but-aleothe more basic expectation, These rights include personally held and enforceable rights described in paragraphs (1) through (17) of subdivision (b). (4) The rights of victims also include broader shared collective rights that are held in commonwith all of the People of the State of California and that are enforceable through the enactmentof laws and through good-faith efforts and actions of California’s elected, appointed, and publicly employedofficials. These rights encompass the expectation sharedwith all of the people of California that persons who commit felonious acts causinginjury to innocentvictims will be appropriately and thoroughly investigated, appropriately detained in custody, brought before the courts of California even if arrested outside the state, tried by the courts in a timely manner, sentenced, and sufficiently punished so that the public safety is protected and encouraged as a goal ofhighest importance. (5) Victims of crime have a collectively sharedright to expect that persons convicted of committing criminal acts are sufficiently punished in both the manner and the length of the sentences imposedby the courtsof the State of California. This right includes the right to expectthat the punitive and deterrenteffect of custodial sentences imposed by the courts will not be undercut or diminished by the granting of rights and privileges to prisoners that are not required by any provision of the United States Constitution or by the lawsofthis state to be granted to any person incarceratedin a penal or other custodialfacility in this state as a punishmentor correction for the commission ofa crime. (6) Victims ofcrime are entitled to finality in their criminal cases. Lengthy appeals and other post-judgment proceedings that challenge criminal convictions, frequent and difficult parole hearings that threaten to release criminal offenders, and the ongoing threat that the sentencesof criminal wrongdoerswill be reduced, prolong the suffering of crime victims for many yearsafter the crimes themselves have been perpetrated. This prolonged suffering of crime victims and their families must cometo an end. (7) Suek-Finally, the People find and declare that the right to public safety extends to public and private primary, elementary, junior high, and senior high school, and community college, California State University, University of California, and private college and university campuses, where students andstaff have the right to be safe and securein their persons. (8) To accomplish these the goals it is necessary that the laws of California relating to the criminaljustice process be amendedin orderto protect the legitimate rights of victimsof erc ime. bread reforms in theprosadlifaltre tment (b) In order to preserve andprotecta victim’s rights to justice and due process, a victim shall be entitled to the following rights: (1) To be treated with fairness and respectfor his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughoutthe criminal orjuvenile justice process. (2) To be reasonably protected from the defendant and persons acting on behalf of the defendant. (3) To have the safety ofthe victim and the victim’s family consideredin fixing the amountof bail and release conditions for the defendant. (4) To preventthe disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalfof the defendant, which could be usedto locate or harass the victim or the victim's family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law. (5) To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents. (6) To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendantif known by the prosecutor, the chargesfiled, the determination whetherto extradite the defendant, and, upon request, to be notified of and informed before anypretrial disposition of the case. (7) To reasonable notice ofall public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present andofall parole or other post-conviction release proceedings, and to be presentat all such proceedings. (8) To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post- conviction release decision, or any proceeding in whicha right of the victim is at issue. (9) To a speedytrial and a prompt andfinal conclusion of the case and any related post-judgment proceedings. (10) To provide information to a probation departmentofficial conducting a pre- sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant. (11) To receive, upon request, the pre-sentence report when available to the defendant, except for those portions madeconfidential by law. (12) To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendantfrom custody. (13) To Rrestitution. (A) It is the unequivocalintention of the People of the State of California thatall persons whosuffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes fer causing the lossesthey suffer. (B) Restitution shall be ordered from the convicted persers wrongdoerin every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a lossunless-compelling-andextraerdinaryreasons-existie (C) All monetary payments, monies, and property collected from any person who has been ordered to makerestitution shall be first applied to pay the amounts orderedasrestitution to the victim. (14) To the prompt return of property when no longer neededas evidence. (15) To be informedofall parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other releaseof the offender. (16) To have the safety ofthe victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made. (17) To be informedof the rights enumerated in paragraphs(1) through (16). (c) (1) A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon requestofthe victim, may enforce the rights enumeratedin subdivision (b) in anytrial or appellate court with jurisdiction over the case as a matterofright. The court shall act promptly on such a request. (2) This section does not create any cause of action for compensation or damages againstthe state, any political subdivision of the state, any officer, employee, or agent ofthe state or of any ofits political subdivisions, or any officer or employee of the court. (d) The granting of these rights to victims shall not be construed to deny or disparage other rights possessed by victims. The court in its discretion may extend the right to be heard at sentencing to any person harmedby the defendant. The parole authority shall extend the right to be heard at a parole hearing to any person harmedbythe offender. (e) As usedin this section, a “victim” is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim whois deceased, a minor, or physically or psychologically incapacitated. The term “victim” does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minorvictim. (f) In addition to the enumeratedrights provided in subdivision (b) that are personally enforceable by victims as provided in subdivision (c), victims of crime have additional rights that are shared with all of the People of the State of California. These collectively held rights include, but are notlimited to, the following: (1) Right to Safe Schools. All students and staff of public primary, elementary, junior high, and senior high schools, and community colleges, colleges, and universities have the inalienable right to attend campuses which are safe, secure and peaceful. ¢(d) (2) Right to Truth-in-Evidence. Except as provided bystatute hereafter enacted by a two-thirds vote of the membership in each houseof the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, orin anytrial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidencerelating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press. {e) (3) Public Safety Bail. A person maybe released on bail by sufficient sureties, exceptfor capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousnessof the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations. A person maybe released on his or her own recognizancein the court's discretion, subject to the same factors consideredin setting bail. However-ne Before any person arrested for a serious felony may be released onbail, a hearing may be held before the magistrate or judge, and the prosecuting attorney and the victim shall be given notice and reasonable opportunity to be heard on the matter. Whena judge or magistrate grants or denies bail or release on a person's own recognizance,the reasonsfor that decision shall be stated in the record and included in the court's minutes. 4) (4) Use of Prior Convictions. Any prior felony conviction oflany person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentencein any criminal proceeding. Whena prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court. (5) Truth in Sentencing. Sentences that are individually imposed upon convicted criminal wrongdoers based upon the facts and circumstances surrounding their cases shall be carried out in compliance with the courts’ sentencing orders, and shall not be substantially diminished by early release policies intended to alleviate overcrowding in custodialfacilities. The legislative branch shall ensure sufficient funding to adequately house inmatesfor the full terms of their sentences, except for statutorily authorized credits which reduce those sentences. (6) Reform of the parole process. The current process for parole hearings is excessive, especially in cases in which the defendant has been convicted of murder. The parole hearing process must be reformedfor the benefit of crime victims. (g) As usedin this article, the term "serious felony" is any crime defined in Penal Code, Section 1192.7(c) or any successorstatute. SECTION 5. VICTIMS’ RIGHTS IN PAROLE PROCEEDINGS Section 3041.5 of Article 3 of Chapter8 of Title 1 of Part 3 of the Penal Codeis amendedto read: §3041.5(a) At all hearings for the purpose of reviewing a prisoner's parole suitability, or the setting, postponing, or rescinding of parole dates, the following shall apply: (1) At least 10 days prior to any hearing by the Board of Prisen—terms Parole Hearings, the prisoner shall be permitted to review his or herfile which will be examined by the board and shall have the opportunity to enter a written responseto any material containedin thefile. (2) The prisonershall be permitted to be present, to ask and answer questions, and to speak on his or her own behalf. Neither the prisoner nor the attorney for the prisoner shall be entitled to ask questions of any person appearing at the hearing pursuant to subdivision (b) of Section 3043. (3) Unless legal counsel is required by someotherprovisionof law, a person designated by the Departmentof Corrections shall be presentto insure that all facts relevant to the decision be presented, including, if necessary, contradictory assertions as to matters of fact that have not been resolved by departmental or other procedures. (4) The prisoner and any person described in subdivision (b) of Section 3043 shall be permitted to request and receive a stenographic record ofall proceedings. (5) If the hearing is for the purpose of postponing or rescinding of parole dates,the prisoner shall haverights set forth in paragraphs (3) and (4)of subdivision (c) of Section 2932. (6) The board shall set a date to reconsider whether an inmate should be released on parole that ensures a meaningful consideration whetherthe inmate is suitable for release on parole. (b)(1) Within 10 days following any meeting where a parole date has been set, the board shall send the prisoner a written statementsetting forth his or her parole date, the conditions he or she must meetin order to be released on the date set, and the consequencesoffailure to meet those conditions. (2) Within 20 daysfollowing any meeting where a parole date has not been set reasons-statedin-subdivisionSection 3044, the board shall send the prisonera written statementsetting forth the reason or reasonsfor refusal to set a parole date, and suggest activities in which he or she might participate that will benefit him or her while he orshe is incarcerated. (3) The board shall-heareach-case-annuallythereafter,-exceptthe raay schedule the next hearing-netaterthanthe-follewing, after considering the views andinterests of ine victim, as follows: . Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidencethat the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim’s safety does not require a more lengthy period of incarceration for the prisoner than ten additional years. A wo-andfive years. Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence thatthe criteria relevant to the setting of parole release dates enumeratedin subdivision (a) of Section 3041 are such that consideration of the public and victim’s safety does not require a more lengthy period of incarceration for the prisoner than seven additional years. (C) Three years, five years, or seven years after any hearing at which parole is denied, becausethe criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim’s safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years. (4) The board mayin its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim’s safety does not require the additional period of incarceration of the prisoner providedin paragraph (3). £3} (5) Within 10 days of any board action resulting in the postponementof a previously set parole date, the board shall send the prisoner a written statement setting forth a new date and the reason or reasonsfor that action and shall offer the prisoner an opportunity for review of that action. {4) (6) Within 10 days of any board action resulting in the rescinding of a previously set parole date, the board shall send the prisoner a written statement setting forth the reason or reasonsfor that action, and shall schedule the prisoner's next hearing menths-and in accordance with paragraph @} (3). (c) The board shall conduct a parole hearing pursuantto this section as a de novo hearing. Findings made and conclusions reachedin a prior parole hearing shall be considered in but shall not be deemed to be binding upon subsequent parole hearings for an inmate, but shall be subject to reconsideration based upon changed facts and circumstances. When conducting a hearing, the board shall admit the prior recorded or memorialized testimony or statement of a victim or witness, upon requestofthe victim orif the victim or witness has died or become unavailable. At each hearing the board shall determine the appropriate action to be taken basedonthe criteria set forth in paragraph (3) of subdivision (a) of section 3041, (d)(1) An inmate may request that the board exercise its discretion to advance a hearing set pursuant to paragraph (3) of subdivision (b) to an earlier date, by submitting a written request to the board, with notice, upon request, and a copy to the victim which shall set forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate. (2) The board shall have sole jurisdiction, after considering the views and interests of the victim to determine whether to grant or deny a written request made pursuantto paragraph (1), and its decision shall be subject to review by a court or magistrate only for a manifest abuse ofdiscretion by the board. The board shall have the power to summarily deny a request that does not comply with the provisions of this subdivision or that does notset forth a changein circumstances or new information as required in paragraph (1) that in the judgmentof the boardis sufficient to justify the action described in paragraph (4) of subdivision (b). (3) An inmate may makeonly one written request as providedin paragraph (1) during each three year period. Following either a summary denial of a request made pursuantto paragraph (1), or the decision of the board after a hearing described in subdivision (a) to not set a parole date, the inmate shall not be entitled to submit another request for a hearing pursuant to subdivision (a) until a three-year period of time has elapsed from the summary denial or decision of the board. Section 3043 of Article 3 of Chapter8 of Title 1 of Part 3 of the Penal Codeis amended to read: § 3043(a)(1) Upon request, notice of any hearing to review or considerthe parole suitability or the setting of a parole date for any prisonerin a state prison shall be sent by the Board of Prison Parole Hearings at least 30 90 days before the hearing to any victim of a any crime committed by the prisoner, orto the next of kin of the victim if the victim has died, fo include the commitmentcrimes, determinate term commitment crimes for which the prisoner has been paroled, and any otherfelony crimes or crimes against the person for which the prisoner has been convicted. The requesting party shall keep the board apprised of his or her current mailing address. (2) No later than 30 daysprior to the date selected for the hearing, any person, other than the victim, entitled to attend the hearing shall inform the board of his or her intention to attend the hearing and the name andidentifying information of any other person entitled to attend the hearing who will accompany him or her. (3) No later than 14 daysprior to the date selectedfor the hearing, the board shall notify every person entitled to attend the hearing confirming the date, time, and place of the hearing. (b)(1)The victim, nextof kin, #e membersofthe victim's immediate family, OF and two representatives designated fora particularheaf ng-by-the in-writing_ptior hearing as provided in paragraph (2) of this subdivision have the right to appear, personally or by counsel, at the hearing and to adequately and reasonably expresshis, her, or their views concerning the prisoner and the case, including, but notlimited to the commitmentcrimes, determinate term commitmentcrimes for which the prisoner has been paroled, any other felony crimes or crimes against the person for which the prisoner has been convicted, the effect of the enumerated crimes on the victim and the family 10 of the victim, erirAe-and the person responsible for these enumerated crimes, and the suitability of the prisoner for parole. -exceptthat (2) aAny statement provided by a representative designated by the victim or next of kin may cover any subject about which the victim or next of kin have the right to be heard including any recommendation regarding the» granting of parole. victim. The representatives shall be designated by the victim or, in the eventthat the victim is deceased or incapacitated, by the next of kin. They shall be designatedin writing for the particular hearing prior to the hearing. (c) A representative designated by the victim or the victim's next of kin for purposesof this section may be any adult person selected bythe victim or the family of the victim mustbe-eitherafamilyerhouseheldvictim. The board maynet shall permit a representative designated by the victim or the victim's next of kin to attend a particular hearing, to provide testimonyat a hearing, ef and to submit a statement to be included in the hearing as provided in Section 3043.2, even thoughi the victim, next of kin, or a memberof the victim's immediate family is present at the hearing, er and even though the victim, next of kin, or a memberofthe victim's immediate family has submitted a statement as described in Section 3043.2. deciding whether to release the person on parole, shall consider the entire and uninterrupted statements of the victim or victims, next of kin, immediate family membersofthevictim, and the designated representatives of the victim or next of kin, if applicable, made pursuantto this section and shall include in its report a statement ef whether the person would pose a threat to public safety if released on parole. (e) In those cases where there are more than two immediate family membersofthe victim who wish to attend any hearing coveredin this section, the board mayn-its-diseretion; shall allow attendance of additional immediate family members ortimitfollowingto include the following: spouse, children, parents, siblings, grandchildren, and grandparents. Section 3044 is addedto Article 3 of Chapter 8 of Title 1 of Part 3 of the Penal Codeto read: §3044(a) Notwithstanding any other law, the Board of Parole Hearings orits successorin interest shall be the state’s parole authority and shall be responsible 11 for protecting victims’ rights in the parole process. Accordingly, to protect a victim from harassment and abuse during the parole process, no person paroled from a California correctionalfacility following incarceration for an offense committed on or after the effective date of this act shall, in the event his or her parole is revoked, be entitled to procedural rights other than the following: (1) A parolee shall be entitled to a probable cause hearing nolater than 15 days following his or her arrest for violation of parole. (2) A parolee shall be entitled to an evidentiary revocation hearing nolater than 45 days following his or her arrest for violation of parole. (3) A parolee shall, upon request, be entitled to counselat state expense only if, considering the request on a case-by-case basis, the boardorits hearing officers determine: (A) The parolee is indigent; and (B) Considering the complexity of the charges, the defense, or because the parolee’s mental or educational capacity, he or she appears incapable of speaking effectively in his or her own defense. (4) In the event the parolee’s request for counsel, which shall be considered on a case-by-case basis, is denied, the grounds for denial shall be stated succinctly in the record. (5) Parole revocation determinations shall be based upon a preponderanceof evidence admitted at hearings including documentary evidence, direct testimony, or hearsay evidence offered by parole agents, peace Officers, or a victim. (6) Admission of the recorded or hearsay statementof a victim or percipient witness shall not be construedto create a right to confront the witness at the hearing. (b) The board is entrusted with the safety of victims and the public and shall make its determinationfairly, independently, without bias and shall not be influenced by or weigh the state cost or burden associated with just decisions. The board must accordingly enjoy sufficient autonomy to conduct unbiased hearings, and maintain an independentlegal and administrative staff. The board shall report to the Governor. SECTION 6. NOTICE OF VICTIMS’ BILL OF RIGHTS Section 679.026 is added to Title 17 of Part 1 of the Penal Code to read: Sec. 679.026.(a) It is the intent of the People of the State of California in enacting this section to implementthe rights of victims of crime established in Section 28 of Article | of the California Constitution to be informedofthe rights of crime victims enumeratedin the Constitution and in the statutes of this state. (b) Every victim of crime hasthe right to receive without cost or charge a list of the rights of victims of crime recognized in Section 28ofArticle | of the California Constitution. These rights shall be known as “Marsy Rights.” (c)(1) Every law enforcementagencyinvestigating a criminal act and every agencyprosecuting a criminal act shall, as provided herein, at the time of 12 S H A D AO Wap aan o initial contact with a crime victim, during follow-up investigation, or as soon thereafter as deemed appropriate by investigating officers or prosecuting attorneys, provide or make available to each victim of the criminal act without charge or cost a “Marsy Rights” card described in paragraphs (3) and (4). (2) The victim disclosures required underthis section shall be available to the public at a state funded and maintained website authorized pursuant to Penal Code Section 14260 to be known as “Marsy's Page.” (3) The Attorney General shall design and make available in “pdf” or other imaging format to every agencylisted in paragraph (1) a “Marsy Rights”card, which shall contain the rights of crime victims described in subdivision (b) of Section 28 of Article | of the California Constitution, information on the means by which a crime victim can access the web page described in paragraph (2), and a toll-free telephone numberto enable a crime victim to contacta local victim’s assistance office. (4) Every law enforcement agency which investigates criminal activity shall, if provided without cost to the agency by any organization classified as a nonprofit organization under paragraph (3) of subdivision (c) of Section 501 of the Internal Revenue Code, make available and provide to every crime victim a “Victims’ Survival and Resource Guide” pamphlet and/or video that has been approved by the Attorney General. The “Victims’ Survival and Resource Guide” and video shall include an approved “Marsy Rights” card, a list of government agencies, nonprofit victims’ rights groups, Support groups, and local resources that assist crime victims, and any other information which the Attorney General determines might be helpful to victims of crime. (5) Any agency described in paragraph (1) mayin its discretion design and distribute to each victim of a criminal act its own Victims’ Survival and Resource Guide and video, the contents of which have been approvedby the Attorney General, in addition to orin lieu of the materials described in paragraph (4). SECTION 7. CONFLICTS WITH EXISTING LAW It is the intent of the People of the State of California in enacting this Act that if any provision in this Act conflicts with an existing provision of law which provides for greater rights of victims of crime, the latter provision shall apply. SECTION 8. SEVERABILITY If any provision of this Act, or part thereof, or the application thereof to any person orcircumstanceis for any reason held to be invalid or unconstitutional, the remaining provisions which can be given effect without the invalid or unconstitutional provision or application shall not be affected, but shall remain in full force and effect, and to this end the provisions of this Act are severable. SECTION 9. AMENDMENTS 13 The statutory provisions of this Act shall not be amended by the Legislature except by a statute passed in each housebyroll-call vote entered in the journal, three-fourths of the membership of each house concurring, or by a statute that becomeseffective only when approved by the voters. However, the Legislature may amendthe statutory provisions of this Act to expand the scopeof their application, to recognize additional rights of victims of crime, or to further the rights of victims of crime by a statute passed by a majority vote of the membership of each house. SECTION10. RETROACTIVITY The provisionsof this Act shall apply in all matters which arise andto all proceedingsheld after the effective date of this Act. 14 CERTIFICATE OF COMPLIANCE Pursuant to California Rules of Court, Rule 8.520, subd. (c)(1) I, Nina Salarno Besselman, hereby certify that the attached brief amicus curiae contains 1983 words, as indicated by the computer program usedto prepare the brief, Microsoft Word. Date: March 29, 2017 ly— ARNO BESSELMAN Attorneyfor Amicus Curiae CRIME VICTIMS UNITED OF CALIFORNI DECLARATION OF SERVICE BY U.S. MAIL The undersigneddeclares under penalty of perjury that the following is true and correct: I am over eighteen years of age, not a party to the within cause, and employed by Law Office of Nina Salarno Besselman, located at 11400 Atwood Road, Auburn, California 95603. On the date below I served the attached document(1) by electronic mail, sending true copies of the PDFs to the addresses listed below, and (2) by depositing true copies of it enclosed in sealed envelopes with postage fully prepaid, in the United States mail in the County of Placer, California, addressed as follows: Christina Von der Ahe Rayburn, SBN 255467 2050 Main Street, Suite 1100 Irvine, CA 92614 Email: cvonderahe@orrick.com Lillian J. Mao, SBN 267410 1000 Marsh Road Menlo Park, CA 94025 Email: Imao@orrick.com Attorneysfor Petitioners Ron Briggs and John Van de Kamp Xavier Becerra, Attorney General Jose Zelidon-Zepeda, Deputy Attorney General Office of the Attorney General 455 Golden Gate, Suite 11000 San Francisco, CA 94102-7004 Email: Jose.ZelidonZepeda@do}j.ca.gov Attorneysfor Respondents Governor Jerry Brown, Attorney General Kamala Harris, and the California Judicial Council Executed on March 30, 2017, at Sacramento, California. (Ve Melissa Morgan