Chapter 2 - Suspension of Execution of Death Penalty: Insanity: Pregnancy

Sections (6)

Added by renumbering Section 3700.5 by Stats. 2022, Ch. 795, Sec. 3. (AB 2657) Effective January 1, 2023.

When a court enters an order appointing a day upon which a judgment of death shall be executed upon an incarcerated person, the warden of the state prison to whom the incarcerated person has been delivered for execution or, if the incarcerated person is housed at the Central California Women’s Facility, the warden of that facility, shall notify the Secretary of the Department of Corrections and Rehabilitation who shall then select and appoint three psychiatrists or licensed psychologists, all of whom must be from the medical staffs of the Department of Corrections and Rehabilitation to examine the incarcerated person under the judgment of death, and investigate the incarcerated person’s competence to be executed. It is the duty

of the psychiatrists or licensed psychologists so selected and appointed to examine the incarcerated person and investigate the incarcerated person’s competence to be executed, and to report their opinions and conclusions in writing to the warden of the prison at which the execution is to take place, or, if the incarcerated person is housed there, the warden of the Central California Women’s Facility, at least 20 days prior to the day appointed for the execution of the judgment of death upon the incarcerated person. Upon receipt, the warden shall serve a copy of the report to counsel for the

incarcerated person, to the Attorney General, to the district attorney of the county in which the person was sentenced, and to the Governor.

§ 3701

Repealed and added by Stats. 2022, Ch. 795, Sec. 5. (AB 2657) Effective January 1, 2023.

(a)If, after an execution date has been set, there is good reason to believe that an incarcerated person under judgment of death has become incompetent to be executed, the warden shall call that fact to the attention of the district attorney of the county in which the incarcerated person was sentenced, the Attorney General, and the incarcerated person’s counsel. If counsel for the incarcerated person has reason to believe that the incarcerated person is incompetent to be executed, counsel for the incarcerated person has a duty to file within 48 hours

in the superior court of the county from which the incarcerated person’s judgment and sentence of death arises, a petition that identifies the conviction and judgment, alleges that the incarcerated person is believed to be incompetent to be executed, and asks that the question of the incarcerated person’s competence to be executed be inquired into. If counsel for the incarcerated person does not file that petition, or the incarcerated person does not have counsel, and the warden has notified the district attorney and the Attorney General that there is reason to believe that the incarcerated person is incompetent to be executed, the Attorney General shall file the petition. During the course of these proceedings, the court shall also consider whether the petitioner is permanently incompetent to be executed within the meaning of subdivision (e). The incarcerated person’s execution may

not proceed until the court’s inquiry into the incarcerated person’s competence to be executed is complete.

(b)At any time prior to the setting of an execution date, an incarcerated person whose judgment and sentence of death has been affirmed on direct appeal may file a petition alleging the incarcerated person’s permanent incompetence to be executed. The petition must be verified and supported by either the opinion of a qualified expert that the incarcerated person is permanently incompetent within the meaning of subdivision

(e)or medical evidence that the incarcerated person has one or more medical or mental health conditions that would support a finding that the incarcerated person is permanently incompetent within the meaning of subdivision (e).

(c)An incarcerated person who has submitted a petition pursuant to subdivision (b) that did not result in a determination that the incarcerated person is permanently incompetent to be executed may submit a renewed petition. A renewed petition must identify with specificity a change in the incarcerated person’s diagnosis or prognosis or change in the law that arose after the determination of the prior request that supports the renewed petition.

(d)For purposes of this section, “incompetent to be executed” means that, due to mental illness or

disorder, an incarcerated person is unable to rationally understand either the punishment the incarcerated person is about to suffer or why the incarcerated person is to suffer it.

(e)For purposes of this section, “permanent incompetence to be executed” means that the incarcerated person meets both of the following criteria:

(1)The incarcerated person is presently incompetent to be executed.

(2)The nature of the mental illness or disorder giving rise to incompetence is such that the incarcerated person’s competence to be executed is unlikely to ever be restored.

(f)Following the filing of the petition specified in subdivisions (a), (b), or (c), the

court shall hold a hearing if there is reason to believe the incarcerated person is presently incompetent to be executed, as specified in subdivision (a), or there is reason to believe the incarcerated person is permanently incompetent to be executed, as specified in subdivision (b) and (c). The court may decline to hold a hearing if the parties stipulate that no hearing is necessary.

(g)When an incarcerated person proffers an expert opinion that the incarcerated person is incompetent to be executed, another expert’s opinion that concludes otherwise is an insufficient basis to deny a hearing.

(h)For purposes of this section, a claim in a petition for writ of habeas corpus alleging permanent incompetence to be executed that was filed before January 1, 2023, and that is still

pending, shall be treated as a petition filed pursuant to subdivision (b). In those cases, if the court has already concluded that the petitioner made a prima facie showing of entitlement to relief, it shall proceed to a hearing pursuant to this section and Sections 3702 and 3703, unless the parties stipulate otherwise.

(i)A petition filed under this section by an incarcerated person under sentence of death constitutes a petition for writ of habeas corpus within the meaning of subdivision (a) of Section 1509 of the Penal Code and is subject to the requirements of that section. A petition filed by an incarcerated person under this chapter constitutes a claim that the petitioner is ineligible for a sentence of death within the meaning of subdivision (d) of Section 1509 of the Penal Code. No provision of this chapter alters,

changes, or amends any of the statutory provisions contained in the Death Penalty Reform and Savings Act of 2016 enacted by the voters in the November 2016 election within the meaning of Section 20 of that act.

(j)An attorney acting on behalf of the incarcerated person who suspects that the incarcerated person may be incompetent to be executed may obtain an order from the superior court from which the incarcerated person’s conviction and sentence arises directing the Department of Corrections and Rehabilitation to release the incarcerated person’s medical and psychiatric records to the attorney

or the attorney’s representative for use under this section.

(k)This section shall apply retroactively.

§ 3702

Repealed and added by Stats. 2022, Ch. 795, Sec. 7. (AB 2657) Effective January 1, 2023.

(a)The prosecuting agency and the incarcerated person under sentence of death may produce witnesses at any hearing held regarding a petition filed pursuant to Section 3701.

(b)When the court concludes that there is reason to believe the incarcerated person is presently or permanently incompetent to be executed, the court shall hear proof produced by either party. The court may compel the attendance of witnesses, by process of subpoena and attachment, and to perform all other acts necessary to a full and fair hearing and determination of the case.

§ 3703

Repealed and added by Stats. 2022, Ch. 795, Sec. 9. (AB 2657) Effective January 1, 2023.

(a)On decision of a petition filed pursuant to Section 3701, the court shall issue a statement explaining the legal and factual basis for the decision.

(b)If the court finds by a preponderance of the evidence that the incarcerated person is competent to be executed, the court shall deny the petition.

(c)If the court finds by a preponderance of the evidence that the incarcerated person is permanently incompetent to be executed within the meaning of subdivision (e) of Section 3701, the court shall vacate the sentence or sentences of death and resentence the incarcerated person to life without the

possibility of parole.

(d)In a proceeding under subdivision (a) of Section 3701, if the court finds that the incarcerated person is incompetent to be executed, but does not find by a preponderance of the evidence that competence is unlikely to be restored, the court shall order the warden to suspend the execution and order that the incarcerated person be taken to a medical facility of the Department of Corrections and Rehabilitation, and be kept in safe confinement until their competence to be executed is restored. If the prosecuting agency alerts the court that it believes the incarcerated person’s competence has been restored, the court shall again initiate the procedure set forth in Section 3700 and hold a hearing. In that hearing, the prosecution bears the burden of proving by a preponderance of the evidence that the incarcerated person

is competent to be executed.

(e)The decision denying or granting the petition will be subject to review under Section 1509.1. An appeal from a decision under this chapter shall not be considered successive, nor shall it render any subsequent appeals successive within the meaning of Section 1509.1.

§ 3705

Amended by Stats. 1941, Ch. 1192.

If there is good reason to believe that a female against whom a judgment of death is rendered is pregnant, such proceedings must be had as are provided in Section 3701, except that instead of a jury, as therein provided, the court may summon three disinterested physicians, of good standing in their profession, to inquire into the supposed pregnancy, who shall, in the presence of the court, but with closed doors, if requested by the defendant, examine the defendant and hear any evidence that may be produced, and make a written finding and certificate of their conclusion, to be approved by the court and spread upon the minutes. The provisions of Section 3702 apply to the proceedings upon such inquiry.

§ 3706

Added by Stats. 1941, Ch. 106.

If it is found that the female is not pregnant, the warden must execute the judgment; if it is found that she is pregnant the warden must suspend the execution of the judgment, and transmit a certified copy of the finding and certificate to the Governor. When the Governor receives from the warden a certificate that the defendant is no longer pregnant, he must issue to the warden this warrant appointing a day for the execution of the judgment.