Existing law authorizes a court in a criminal proceeding, upon written notice by the prosecutor made at least 3 days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled or during the course of the proceeding on the courts own motion, to order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes specified findings. One of the findings existing law requires is that the minors testimony will involve a recitation of the facts of specified crimes, including an alleged violent felony of which the minor is a victim.

This bill would authorize a minor 13 years of age or younger to testify by contemporaneous examination and cross-examination if the testimony will involve the recitation of the facts of an alleged violent felony, whether or not the minor is a victim.

Existing law authorizes a court in a criminal proceeding, upon written notice by the prosecutor made at least 3 days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled or during the course of the proceeding on the courts own motion, to order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes specified findings. One of the findings existing law requires is that the minors testimony will involve a recitation of the facts of specified crimes, including an alleged violent felony of which the minor is a victim.

This bill would authorize a minor 13 years of age or younger to testify by contemporaneous examination and cross-examination if the testimony will involve the recitation of the facts of an alleged violent felony, whether or not the minor is a victim.

Existing law authorizes a court in a criminal proceeding, upon written notice by the prosecutor made at least 3 days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled or during the course of the proceeding on the courts own motion, to order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes specified findings. One of the findings existing law requires is that the minors testimony will involve a recitation of the facts of specified crimes, including an alleged violent felony of which the minor is a victim.

This bill would authorize a minor 13 years of age or younger to testify by contemporaneous examination and cross-examination if the testimony will involve the recitation of the facts of an alleged violent felony, whether or not the minor is a victim.

Existing law authorizes a court in a criminal proceeding, upon written notice by the prosecutor made at least 3 days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled or during the course of the proceeding on the courts own motion, to order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes specified findings. One of the findings existing law requires is that the minors testimony will involve a recitation of the facts of specified crimes, including an alleged violent felony of which the minor is a victim. Under existing law, in making the determination as to whether to authorize contemporary examination and cross-examination of the minor, the court is required to consider the age of the minor, the relationship between the minor and the defendant, any handicap or disability of the minor, and the nature of the acts charged.

This bill would authorize a minor 13 years of age or younger to testify by contemporaneous examination and cross-examination if the testimony will involve the recitation of the facts of an alleged violent felony, whether or not the minor is a victim. The bill would also require the court, in making the determination to authorize contemporaneous examination or cross-examination, to consider the wishes of the parent or guardian of the minor.

Existing law authorizes a court in a criminal proceeding, upon written notice by the prosecutor made at least 3 days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled or during the course of the proceeding on the courts own motion, to order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes specified findings. One of the findings existing law requires is that the minors testimony will involve a recitation of the facts of specified crimes, including an alleged violent felony of which the minor is a victim. Under existing law, in making the determination as to whether to authorize contemporary examination and cross-examination of the minor, the court is required to consider the age of the minor, the relationship between the minor and the defendant, any handicap or disability of the minor, and the nature of the acts charged.

This bill would authorize a minor 13 years of age or younger to testify by contemporaneous examination and cross-examination if the testimony will involve the recitation of the facts of an alleged violent felony, whether or not the minor is a victim. The bill would also require the court, in making the determination to authorize contemporaneous examination or cross-examination, to consider the wishes of the parent or guardian of the minor.

 UNFINISHED BUSINESS 

Bill No: SB 176

Author: Mitchell (D) and Anderson (R), et al.

Amended: 7/2/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/7/15

AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

SENATE FLOOR: 35-0, 4/13/15

AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Galgiani, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Roth, Stone, Vidak, Wieckowski, Wolk

NO VOTE RECORDED: Gaines, Liu, Pavley, Runner

ASSEMBLY FLOOR: 78-0, 7/6/15 - See last page for vote

SUBJECT: Examining children as witnesses

SOURCE: Californians for Safety and Justice

DIGEST: This bill authorizes a minor 13 years of age or younger who is a witness but not a victim to testify by contemporaneous examination and cross-examination under specified circumstances.

Assembly Amendments make clarifying changes and add co-authors.

ANALYSIS:

Existing law:

1. Provides that in all criminal prosecutions, the accused shall enjoy the right ... to be confronted by the witnesses against him … . (U.S. Constitution, Amendment VI.)

2. Provides that when a defendant is charged with specified sex offenses, child abuse, lewd and lascivious acts on a child, and the victim either is a person 15 years of age or less or is developmentally disabled as a result of an intellectual disability, as specified, the people may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. (Penal Code, § 1346(a).)

3. States that at the time of trial, if the court finds that further testimony in any of the qualifying cases would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the statutory definition of unavailability, the court may admit the videotape of the victim's testimony at the preliminary hearing, as specified. (Penal Code, § 1346(d).)

4. Establishes that a videotape prepared for court testimony is subject to a protective order of the court to protect the privacy of the victim and must be made available to the prosecuting attorney, the defendant, and his/her attorney for viewing during business hours. The videotape is to be destroyed five years from the date of judgment, unless an appeal is filed. (Penal Code, § 1346(e), (f), and (g).)

5. Provides that when a defendant is charged with spousal rape or infliction of corporal injury resulting in a traumatic injury to a spouse, former spouse, or domestic partner, the people may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. If the victim’s testimony at the preliminary hearing is admissible, the videotape recording may be introduced as evidence at trial (Penal Code, § 1346.1(a) and (d).)

6. Allows, in cases where a minor, 13 years or younger, will testify that a sexual offense was committed against or with the minor, or that the minor was a victim of a violent felony, as defined, that the minor may testify by way of contemporaneous examination and cross examination in another location and communicated to the courtroom by closed-circuit television if the court finds that the impact on the minor of one or more of the following is shown by clear and convincing evidence to make the minor unavailable as a witness unless closed-circuit television is used:

1. Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness;

2. The defendant used a deadly weapon in the commission of the offense;

3. Threats of serious bodily injury to be inflicted on the minor or a family member, of incarceration or deportation of the minor or a family member, or of removal of the minor from the family or dissolution of the family in order to prevent or dissuade the minor from attending or giving testimony at any trial or court proceeding or to prevent the minor from reporting the alleged sexual offense or from assisting in the prosecution;

4. The defendant inflicted great bodily injury upon the child in the commission of the offense; or,

5. The defendant or his or her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony. (Penal Code § 1347(b).)

This bill allows a child witness to a violent crime to also testify by contemporaneous examination and cross examination of the witness when the factors are met.

Background

Under existing law, a child victim of a violent felony can testify by closed circuit television if the court finds by clear and convincing evidence that the impact on the minor is so substantial as to make the minor unavailable and one or more factors exist. Courts have found that this section does not violate the confrontation clause. (see for example People v. Powell (2011) 194 Cal App. 4th 1268)

This bill extends this law to include a child witness who is not the victim of a violent crime.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 7/7/15)

Californians for Safety and Justice (source)

California District Attorneys Association

National Association of Social Workers, California

OPPOSITION: (Verified 7/7/15)

California Public Defenders Association

ASSEMBLY FLOOR: 78-0, 7/6/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Gordon, Roger Hernández

Prepared by: Mary Kennedy / PUB. S. /

7/9/15 8:24:46

**** END ****

SENATE THIRD READING

STR Bill Id:SB 176

Author:(Mitchell and Anderson)

As Amended Ver:July 2, 2015

Majority vote

SENATE VOTE: 35-0

SUMMARY: Authorizes a minor 13 years of age or younger who is a witness to a "violent" felony, but not a victim, to testify by contemporaneous examination and cross examination by closed-circuit television, as specified.

EXISTING LAW:

1. Authorizes a court in any criminal proceeding, upon written notice by the prosecutor made at least three days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled, or during the course of the proceeding on the court's own motion, may order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes all of the following findings:

   1. The minor's testimony will involve a recitation of the facts of any of the following:

      1. An alleged sexual offense committed on or with the minor;

      2. An alleged violent felony, as defined, of which the minor is a victim; or

      3. An alleged felony offense of willful harm or injury to a child or corporal punishment of a child of which the minor is a victim;

   2. The impact on the minor of one or more of the factors enumerated in the following paragraphs, inclusive, is shown by clear and convincing evidence to be so substantial as to make the minor unavailable as a witness unless closed-circuit testimony is used:

      1. Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness.

      2. The defendant used a deadly weapon in the commission of the offense.

      3. The defendant threatened serious bodily injury to the child or the child's family, threatened incarceration or deportation of the child or a member of the child's family, threatened removal of the child from the child's family, or threatened the dissolution of the child's family in order to prevent or dissuade the minor from attending or giving testimony at any trial or court proceeding, or to prevent the minor from reporting the alleged sexual offense, or from assisting in criminal prosecution.

      4. The defendant inflicted great bodily injury upon the child in the commission of the offense.

      5. The defendant or his or her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony.

   3. The equipment available for use of closed-circuit television would accurately communicate the image and demeanor of the minor to the judge, jury, defendant or defendants, and attorneys.

2. Directs the court, in making the determination required by this section, to consider the age of the minor, the relationship between the minor and the defendant or defendants, any handicap or disability of the minor, and the nature of the acts charged. The minor's refusal to testify shall not alone constitute sufficient evidence that the special procedure described in this section is necessary to obtain the minor's testimony.

3. Allows the court to question the minor in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the support person, the prosecutor, and defense counsel present. The defendant or defendants shall not be present. The court shall conduct the questioning of the minor and shall not permit the prosecutor or defense counsel to examine the minor. The prosecutor and defense counsel shall be permitted to submit proposed questions to the court prior to the session in chambers. Defense counsel shall be afforded a reasonable opportunity to consult with the defendant or defendants prior to the conclusion of the session in chambers.

4. Provides that when a court orders the testimony of a minor to be taken in another place outside the courtroom, nothing in this section prohibits the court from ordering the minor to be brought into the courtroom for a limited purpose, including the identification of the defendant or defendants as the court deems necessary.

5. States that it is the intent of the Legislature in enacting this section to provide the court with discretion to employ alternative court procedures to protect the rights of a child witness, the rights of the defendant, and the integrity of the judicial process. In exercising its discretion, the court necessarily will be required to balance the rights of the defendant or defendants against the need to protect a child witness and to preserve the integrity of the court's truth finding function. This discretion 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.

6. Defines a "violent felony" as any of the following:

   1. Murder or voluntary manslaughter;

   2. Mayhem;

   3. Rape or spousal rape accomplished by means of force or threats of retaliation;

   4. Sodomy by force or fear of immediate bodily injury on the victim or another person;

   5. Oral copulation by force or fear of immediate bodily injury on the victim or another person;

   6. Lewd acts on a child under the age of 14 years, as defined;

   7. Any felony punishable by death or imprisonment in the state prison for life;

   8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or any felony in which the defendant has used a firearm, as specified;

   9. Any robbery;

   10. Arson of a structure, forest land, or property that causes great bodily injury;

   11. Arson that causes an inhabited structure or property to burn;

   12. Sexual penetration accomplished against the victim's will by means of force, menace or fear of immediate bodily injury on the victim or another person;

   13. Attempted murder;

   14. Explosion or attempted explosion of a destructive device with the intent to commit murder;

   15. Explosion or ignition of any destructive device or any explosive which causes bodily injury to any person;

   16. Explosion of a destructive device which causes death or great bodily injury;

   17. Kidnapping;

   18. Assault with intent to commit mayhem, rape, sodomy or oral copulation;

   19. Continuous sexual abuse of a child;

   20. Carjacking, as defined;

   21. Rape or penetration of genital or anal openings by a foreign object;

   22. Felony extortion;

   23. Threats to victims or witnesses, as specified;

   24. First degree burglary, as defined, where it is proved that another person other than an accomplice, was present in the residence during the burglary;

   25. Use of a firearm during the commission of specified crimes; and

   26. Possession, development, production, and transfers of weapons of mass destruction.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "Under current law a minor, 13 years of age or younger, who is a victim of a violent or sexual crime can testify via closed-circuit television. This allows the child victim to testify without being subjected to being in the same room as the accused perpetrator, a person who may have caused physical or mental distress to the child.

"SB 176 would expand upon that law by protecting child witnesses, 13 years of age or under, by allowing them to testify on closed-circuit television with a judge's permission.

"A court should not be the place a child is forced to face a defendant, for which a child was a witness to a violent or sexual offense of the accused, solely to draw an emotional response from the child to play to the jury."

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0001104

SENATE THIRD READING

STR Bill Id:SB 176

Author:(Mitchell and Anderson)

As Amended Ver:March 18, 2015

Majority vote

SENATE VOTE: 35-0

SUMMARY: Authorizes a minor 13 years of age or younger who is a witness to a "violent" felony, but not a victim, to testify by contemporaneous examination and cross examination by closed-circuit television, as specified.

EXISTING LAW:

1. Authorizes a court in any criminal proceeding, upon written notice by the prosecutor made at least three days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled, or during the course of the proceeding on the court’s own motion, may order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes all of the following findings:

   1. The minor's testimony will involve a recitation of the facts of any of the following:

      1. An alleged sexual offense committed on or with the minor;

      2. An alleged violent felony, as defined, of which the minor is a victim; or

      3. An alleged felony offense of willful harm or injury to a child or corporal punishment of a child of which the minor is a victim;

   2. The impact on the minor of one or more of the factors enumerated in the following paragraphs, inclusive, is shown by clear and convincing evidence to be so substantial as to make the minor unavailable as a witness unless closed-circuit testimony is used:

      1. Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness.

      2. The defendant used a deadly weapon in the commission of the offense.

      3. The defendant threatened serious bodily injury to the child or the child's family, threatened incarceration or deportation of the child or a member of the child's family, threatened removal of the child from the child's family, or threatened the dissolution of the child's family in order to prevent or dissuade the minor from attending or giving testimony at any trial or court proceeding, or to prevent the minor from reporting the alleged sexual offense, or from assisting in criminal prosecution.

      4. The defendant inflicted great bodily injury upon the child in the commission of the offense.

      5. The defendant or his or her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony.

   3. The equipment available for use of closed-circuit television would accurately communicate the image and demeanor of the minor to the judge, jury, defendant or defendants, and attorneys.

2. Directs the court, in making the determination required by this section, to consider the age of the minor, the relationship between the minor and the defendant or defendants, any handicap or disability of the minor, and the nature of the acts charged. The minor's refusal to testify shall not alone constitute sufficient evidence that the special procedure described in this section is necessary to obtain the minor's testimony.

3. Allows the court to question the minor in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the support person, the prosecutor, and defense counsel present. The defendant or defendants shall not be present. The court shall conduct the questioning of the minor and shall not permit the prosecutor or defense counsel to examine the minor. The prosecutor and defense counsel shall be permitted to submit proposed questions to the court prior to the session in chambers. Defense counsel shall be afforded a reasonable opportunity to consult with the defendant or defendants prior to the conclusion of the session in chambers.

4. Provides that when a court orders the testimony of a minor to be taken in another place outside the courtroom, nothing in this section prohibits the court from ordering the minor to be brought into the courtroom for a limited purpose, including the identification of the defendant or defendants as the court deems necessary.

5. States that it is the intent of the Legislature in enacting this section to provide the court with discretion to employ alternative court procedures to protect the rights of a child witness, the rights of the defendant, and the integrity of the judicial process. In exercising its discretion, the court necessarily will be required to balance the rights of the defendant or defendants against the need to protect a child witness and to preserve the integrity of the court's truth finding function. This discretion 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.

6. Defines a "violent felony" as any of the following:

   1. Murder or voluntary manslaughter;

   2. Mayhem;

   3. Rape or spousal rape accomplished by means of force or threats of retaliation;

   4. Sodomy by force or fear of immediate bodily injury on the victim or another person;

   5. Oral copulation by force or fear of immediate bodily injury on the victim or another person;

   6. Lewd acts on a child under the age of 14 years, as defined;

   7. Any felony punishable by death or imprisonment in the state prison for life;

   8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or any felony in which the defendant has used a firearm, as specified;

   9. Any robbery;

   10. Arson of a structure, forest land, or property that causes great bodily injury;

   11. Arson that causes an inhabited structure or property to burn;

   12. Sexual penetration accomplished against the victim's will by means of force, menace or fear of immediate bodily injury on the victim or another person;

   13. Attempted murder;

   14. Explosion or attempted explosion of a destructive device with the intent to commit murder;

   15. Explosion or ignition of any destructive device or any explosive which causes bodily injury to any person;

   16. Explosion of a destructive device which causes death or great bodily injury;

   17. Kidnapping;

   18. Assault with intent to commit mayhem, rape, sodomy, or oral copulation;

   19. Continuous sexual abuse of a child;

   20. Carjacking, as defined;

   21. Rape or penetration of genital or anal openings by a foreign object;

   22. Felony extortion;

   23. Threats to victims or witnesses, as specified;

   24. First degree burglary, as defined, where it is proved that another person other than an accomplice, was present in the residence during the burglary;

   25. Use of a firearm during the commission of specified crimes; and

   26. Possession, development, production, and transfers of weapons of mass destruction.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "Under current law a minor, 13 years of age or younger, who is a victim of a violent or sexual crime can testify via closed-circuit television. This allows the child victim to testify without being subjected to being in the same room as the accused perpetrator, a person who may have caused physical or mental distress to the child.

"SB 176 would expand upon that law by protecting child witnesses, 13 years of age or under, by allowing them to testify on closed-circuit television with a judge's permission.

"A court should not be the place a child is forced to face a defendant, for which a child was a witness to a violent or sexual offense of the accused, solely to draw an emotional response from the child to play to the jury."

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0000956

Date of Hearing: June 16, 2015

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

SBPCA Bill Id:SB 176

Author:(Mitchell) – As Amended Ver:March 18, 2015

SUMMARY: Authorizes a minor 13 years of age or younger who is a witness to a "violent" felony, but not a victim, to testify by contemporaneous examination and cross examination by closed-circuit television, as specified.

EXISTING LAW:

1. Authorizes a court in any criminal proceeding, upon written notice by the prosecutor made at least three days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled, or during the course of the proceeding on the court’s own motion, may order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes all of the following findings:
   
   

   1. The minor’s testimony will involve a recitation of the facts of any of the following:
      
      

      1. An alleged sexual offense committed on or with the minor;
         
         

      2. An alleged violent felony, as defined, of which the minor is a victim; or
         
         

      3. An alleged felony offense of willful harm or injury to a child or corporal punishment of a child of which the minor is a victim;
         
         

   2. The impact on the minor of one or more of the factors enumerated in the following paragraphs, inclusive, is shown by clear and convincing evidence to be so substantial as to make the minor unavailable as a witness unless closed-circuit testimony is used:
      
      

      1. Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness.

2. The defendant used a deadly weapon in the commission of the offense.

3. The defendant threatened serious bodily injury to the child or the child’s family, threatened incarceration or deportation of the child or a member of the child’s family, threatened removal of the child from the child’s family, or threatened the dissolution of the child’s family in order to prevent or dissuade the minor from attending or giving testimony at any trial or court proceeding, or to prevent the minor from reporting the alleged sexual offense, or from assisting in criminal prosecution.
   
   

4. The defendant inflicted great bodily injury upon the child in the commission of the offense.
   
   

5. The defendant or his or her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony.
   
   

1. The equipment available for use of closed-circuit television would accurately communicate the image and demeanor of the minor to the judge, jury, defendant or defendants, and attorneys. (Pen. Code, § 1347, subd. (b).)
   
   

1. Directs the court, in making the determination required by this section, to consider the age of the minor, the relationship between the minor and the defendant or defendants, any handicap or disability of the minor, and the nature of the acts charged. The minor’s refusal to testify shall not alone constitute sufficient evidence that the special procedure described in this section is necessary to obtain the minor’s testimony. (Pen. Code, § 1347, subd. (b)(2)(E).)
   
   

2. Allows the court to question the minor in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the support person, the prosecutor, and defense counsel present. The defendant or defendants shall not be present. The court shall conduct the questioning of the minor and shall not permit the prosecutor or defense counsel to examine the minor. The prosecutor and defense counsel shall be permitted to submit proposed questions to the court prior to the session in chambers. Defense counsel shall be afforded a reasonable opportunity to consult with the defendant or defendants prior to the conclusion of the session in chambers. (Pen. Code, § 1347, subd. (d)(3).)
   
   

3. Provides that when a court orders the testimony of a minor to be taken in another place outside the courtroom, nothing in this section prohibits the court from ordering the minor to be brought into the courtroom for a limited purpose, including the identification of the defendant or defendants as the court deems necessary. (Pen. Code, § 1347, subd. (h).)
   
   

4. States that it is the intent of the Legislature in enacting this section to provide the court with discretion to employ alternative court procedures to protect the rights of a child witness, the rights of the defendant, and the integrity of the judicial process. In exercising its discretion, the court necessarily will be required to balance the rights of the defendant or defendants against the need to protect a child witness and to preserve the integrity of the court’s truth finding function. This discretion 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. (Pen. Code, § 1347, subd. (a).)
   
   

5. Defines a "violent felony" as any of the following:
   
   

   1. Murder or voluntary manslaughter;
      
      

   2. Mayhem;
      
      

   3. Rape or spousal rape accomplished by means of force or threats of retaliation;
      
      

   4. Sodomy by force or fear of immediate bodily injury on the victim or another person;
      
      

   5. Oral copulation by force or fear of immediate bodily injury on the victim or another person;
      
      

   6. Lewd acts on a child under the age of 14 years, as defined;
      
      

   7. Any felony punishable by death or imprisonment in the state prison for life;
      
      

   8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or any felony in which the defendant has used a firearm, as specified;
      
      

   9. Any robbery;
      
      

   10. Arson of a structure, forest land, or property that causes great bodily injury;
       
       

   11. Arson that causes an inhabited structure or property to burn;
       
       

   12. Sexual penetration accomplished against the victim's will by means of force, menace or fear of immediate bodily injury on the victim or another person;
       
       

   13. Attempted murder;
       
       

   14. Explosion or attempted explosion of a destructive device with the intent to commit murder;
       
       

   15. Explosion or ignition of any destructive device or any explosive which causes bodily injury to any person;
       
       

   16. Explosion of a destructive device which causes death or great bodily injury;
       
       

   17. Kidnapping;
       
       

   18. Assault with intent to commit mayhem, rape, sodomy or oral copulation;
       
       

   19. Continuous sexual abuse of a child;
       
       

   20. Carjacking, as defined;
       
       

   21. Rape or penetration of genital or anal openings by a foreign object;
       
       

   22. Felony extortion;
       
       

   23. Threats to victims or witnesses, as specified;
       
       

   24. First degree burglary, as defined, where it is proved that another person other than an accomplice, was present in the residence during the burglary;
       
       

   25. Use of a firearm during the commission of specified crimes; and
       
       

   26. Possession, development, production, and transfers of weapons of mass destruction. (Pen. Code § 667.5, subd. (c).)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, "Under current law a minor, 13 years of age or younger, who is a victim of a violent or sexual crime can testify via closed-circuit television. This allows the child victim to testify without being subjected to being in the same room as the accused perpetrator, a person who may have caused physical or mental distress to the child.
   
   "SB 176 would expand upon that law by protecting child witnesses, 13 years of age or under, by allowing them to testify on closed-circuit television with a judge's permission.
   
   "A court should not be the place a child is forced to face a defendant, for which a child was a witness to a violent or sexual offense of the accused, solely to draw an emotional response from the child to play to the jury."
   
   

2. Argument in Support: The Californians for Safety and Justice state, "We are proud to sponsor SB 176, a bill to clarify that protections for child victims 13 years of age or younger also applies to child witnesses who will testify about a violent crime. This clarification is consistent with case law, but is not clearly specified in statute."
   
   "For a younger child, the pressures associated with testifying in a court room can severely limit their ability at accurately testify. This is especially true in cases involving a criminal defendant with whom the child witness has a violent, abusive, or otherwise scarring relationship or interaction. In recognition of the potentially traumatizing effect testifying can have on a young child, and to ensure accurate testimony, California law created protections for child victims of specific crimes, including violent crimes in Penal Code § 1347. Although the opening language of that section refers to child witnesses, the section itself does not provide protection to children who are witnesses to violent crimes. SB 176 provides this protection for all children 13 years old or younger who will testify regarding an alleged violent felony."
   
   

3. Argument in Opposition: The California Public Defenders Association argue, "SB 176 seeks to amend Penal Code § 1347 to expand the provision to allowing child victims to testify by means of closed-circuit television, or one-way closed circuit television to child witnesses 13 years of age or younger."
   
   "Although the desire to protect child witnesses from the rigors is laudable, expanding Penal Code § 1347 to include child witnesses impinges on a defendant's right to confrontation.
   
   "California courts already have the discretion to take into account the potential trauma to a child witness and balance it against the defendant's right to confront and cross examine. People v. Lujan 211 Cal. App. 4^th1499 (2012).
   
   "It is extremely difficult to cross-examine a child witness. For the jury watching on a closed-circuit television, it is more difficult to evaluate the subtle changes in a child's demeanor and determine the veracity of a child's testimony. This proposed legislation, by expanding Lujan, will make it almost impossible to adequately represent a defendant with child witnesses."

REGISTERED SUPPORT / OPPOSITION:

Support

Californians for Safety and Justice (Sponsor)
California District Attorneys Association
California Coalition for Youth
National Association of Social Workers, California Chapter

Opposition

California Public Defenders Association

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 176

Author: Mitchell (D) and Anderson (R), et al.

Amended: 3/18/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/7/15

AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

SUBJECT: Examining children as witnesses

SOURCE: Author

DIGEST:

This bill authorizes a minor 13 years of age or younger who is a witness but not a victim to testify by contemporaneous examination and cross-examination under specified circumstances.

ANALYSIS:

Existing law:

1. Provides that in all criminal prosecutions, the accused shall enjoy the right ... to be confronted by the witnesses against him … . (U.S. Constitution, Amendment VI.)

2. Provides that when a defendant is charged with specified sex offenses, child abuse, lewd and lascivious acts on a child, and the victim either is a person 15 years of age or less or is developmentally disabled as a result of an intellectual disability, as specified, the people may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. (Penal Code, § 1346(a).)

3. States that at the time of trial, if the court finds that further testimony in any of the qualifying cases would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the statutory definition of unavailability, the court may admit the videotape of the victim's testimony at the preliminary hearing, as specified. (Penal Code, § 1346(d).)

4. Establishes that a videotape prepared for court testimony is subject to a protective order of the court to protect the privacy of the victim and must be made available to the prosecuting attorney, the defendant, and his/her attorney for viewing during business hours. The videotape is to be destroyed five years from the date of judgment, unless an appeal is filed. (Penal Code, § 1346(e), (f), and (g).)

5. Provides that when a defendant is charged with spousal rape or infliction of corporal injury resulting in a traumatic injury to a spouse, former spouse, or domestic partner, the people may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. If the victim’s testimony at the preliminary hearing is admissible, the videotape recording may be introduced as evidence at trial. (Penal Code, § 1346.1(a) and (d).)

6. Allows, in cases where a minor, 13 years or younger, will testify that a sexual offense was committed against or with the minor, or that the minor was a victim of a violent felony, as defined, that the minor may testify by way of contemporaneous examination and cross examination in another location and communicated to the courtroom by closed-circuit television if the court finds that the impact on the minor of one or more of the following is shown by clear and convincing evidence to make the minor unavailable as a witness unless closed-circuit television is used:

1. Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness;

2. The defendant used a deadly weapon in the commission of the offense;

3. Threats of serious bodily injury to be inflicted on the minor or a family member, of incarceration or deportation of the minor or a family member, or of removal of the minor from the family or dissolution of the family in order to prevent or dissuade the minor from attending or giving testimony at any trial or court proceeding or to prevent the minor from reporting the alleged sexual offense or from assisting in the prosecution;

4. The defendant inflicted great bodily injury upon the child in the commission of the offense; or,

5. The defendant or his or her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony. (Penal Code § 1347(b).)

This bill:

1. Allows a child witness to a violent crime to also testify by contemporaneous examination and cross examination of the witness when the factors are met.

Background

Under existing law, a child victim of a violent felony can testify by closed circuit television if the court finds by clear and convincing evidence that the impact on the minor is so substantial as to make the minor unavailable and one or more factors exist. Courts have found that this section does not violate the confrontation clause. (see for example People v. Powell (2011) 194 Cal App. 4^th 1268)

This bill extends this law to include a child witness who is not the victim of a violent crime.

Please see policy committee analysis for full discussion of this bill.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 4/8/15)

California District Attorneys Association

Californians for Safety and Justice

National Association of Social Workers, California

Opposition: (Verified 4/8/15)

California Public Defenders Association

Prepared by: Mary Kennedy / PUB. S. /

4/8/15 15:13:17

**** END ****

 THIRD READING  

Bill No: SB 176

Author: Mitchell (D) and Anderson (R), et al.

Amended: 3/18/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/7/15

AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

SUBJECT: Examining children as witnesses

SOURCE: Author

DIGEST:

This bill authorizes a minor 13 years of age or younger who is a witness but not a victim to testify by contemporaneous examination and cross-examination under specified circumstances.

ANALYSIS:

Existing law:

1. Provides that in all criminal prosecutions, the accused shall enjoy the right ... to be confronted by the witnesses against him … . (U.S. Constitution, Amendment VI.)

2. Provides that when a defendant is charged with specified sex offenses, child abuse, lewd and lascivious acts on a child, and the victim either is a person 15 years of age or less or is developmentally disabled as a result of an intellectual disability, as specified, the people may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. (Penal Code, § 1346(a).)

3. States that at the time of trial, if the court finds that further testimony in any of the qualifying cases would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the statutory definition of unavailability, the court may admit the videotape of the victim's testimony at the preliminary hearing, as specified. (Penal Code, § 1346(d).)

4. Establishes that a videotape prepared for court testimony is subject to a protective order of the court to protect the privacy of the victim and must be made available to the prosecuting attorney, the defendant, and his/her attorney for viewing during business hours. The videotape is to be destroyed five years from the date of judgment, unless an appeal is filed. (Penal Code, § 1346(e), (f), and (g).)

5. Provides that when a defendant is charged with spousal rape or infliction of corporal injury resulting in a traumatic injury to a spouse, former spouse, or domestic partner, the people may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. If the victim’s testimony at the preliminary hearing is admissible, the videotape recording may be introduced as evidence at trial. (Penal Code, § 1346.1(a) and (d).)

6. Allows, in cases where a minor, 13 years or younger, will testify that a sexual offense was committed against or with the minor, or that the minor was a victim of a violent felony, as defined, that the minor may testify by way of contemporaneous examination and cross examination in another location and communicated to the courtroom by closed-circuit television if the court finds that the impact on the minor of one or more of the following is shown by clear and convincing evidence to make the minor unavailable as a witness unless closed-circuit television is used:

1. Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness;

2. The defendant used a deadly weapon in the commission of the offense;

3. Threats of serious bodily injury to be inflicted on the minor or a family member, of incarceration or deportation of the minor or a family member, or of removal of the minor from the family or dissolution of the family in order to prevent or dissuade the minor from attending or giving testimony at any trial or court proceeding or to prevent the minor from reporting the alleged sexual offense or from assisting in the prosecution;

4. The defendant inflicted great bodily injury upon the child in the commission of the offense; or,

5. The defendant or his or her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony. (Penal Code § 1347(b).)

This bill:

1. Allows a child witness to a violent crime to also testify by contemporaneous examination and cross examination of the witness when the factors are met.

Background

Under existing law, a child victim of a violent felony can testify by closed circuit television if the court finds by clear and convincing evidence that the impact on the minor is so substantial as to make the minor unavailable and one or more factors exist. Courts have found that this section does not violate the confrontation clause. (see for example People v. Powell (2011) 194 Cal App. 4^th 1268)

This bill extends this law to include a child witness who is not the victim of a violent crime.

Please see policy committee analysis for full discussion of this bill.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 4/8/15)

California District Attorneys Association

Californians for Safety and Justice

National Association of Social Workers, California

Opposition: (Verified 4/8/15)

California Public Defenders Association

Prepared by: Mary Kennedy / PUB. S. /

4/8/15 16:17:50

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 176 Hearing Date: April 7, 2015

Subject: Examining Children as Witnesses

HISTORY

Source: Californians for Safety and Justice

Prior Legislation: AB 1900 (Quirk) – Ch. 160, Stats. of 2014

SB 138 (Maldonado) – Ch. 480, Stats. of 2005

AB 20 (Lieber) – Ch. 823, Stats. of 2004

AB 2143 (Maldonado) – 2004, failed passage, Assembly Committee on

Public Safety

SB 1559 (Figueroa) – Chapter 96, Stats. of 2002

SB 1715 (Ortiz) – Chapter 207, Stats. of 2000

AB 1692 (Bowen) – Chapter 670, Stats. of 1998

AB 1077 (Cardoza) – Chapter 669, Stats. of 1998

Support: California District Attorneys Association

Opposition: California Public Defenders Association

PURPOSE

The purpose of this bill is to allow a child witness to a violent felony to testify by contemporaneous examination and cross-examination through closed-circuit television, as specified, whether or not the minor is a victim.

Existing law provides that in all criminal prosecutions, the accused shall enjoy the right ... to be confronted by the witnesses against him … (U.S. Constitution, Amendment VI.)

Existing law provides that when a defendant is charged with specified sex offenses, child abuse, lewd and lascivious acts on a child, and the victim either is a person 15 years of age or less or is developmentally disabled as a result of an intellectual disability, as specified, the people may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. (Penal Code, § 1346(a).)

Existing law states that at the time of trial, if the court finds that further testimony in any of the qualifying cases would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the statutory definition of unavailability, the court may admit the videotape of the victim's testimony at the preliminary hearing, as specified. (Penal Code, § 1346(d).)

Existing law establishes that a videotape prepared for court testimony is subject to a protective order of the court to protect the privacy of the victim and must be made available to the prosecuting attorney, the defendant, and his/her attorney for viewing during business hours. The videotape is to be destroyed five years from the date of judgment, unless an appeal is filed. (Penal Code, § 1346(e), (f), and (g).)

Existing law provides that when a defendant is charged with spousal rape or infliction of corporal injury resulting in a traumatic injury to a spouse, former spouse, or domestic partner, the people may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. If the victim’s testimony at the preliminary hearing is admissible, the videotape recording may be introduced as evidence at trial (Penal Code, § 1346.1(a) and (d).)

Existing law allows, in cases where a minor, 13 years or younger, will testify that a sexual offense was committed against or with the minor, or that the minor was a victim of a violent felony, as defined, that the minor may testify by way of contemporaneous examination and cross examination in another location and communicated to the courtroom by closed-circuit television if the court finds that the impact on the minor of one or more of the following is shown by clear and convincing evidence to make the minor unavailable as a witness unless closed-circuit television is used:

1. Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness;

2. The defendant used a deadly weapon in the commission of the offense;

3. Threats of serious bodily injury to be inflicted on the minor or a family member, of incarceration or deportation of the minor or a family member, or of removal of the minor from the family or dissolution of the family in order to prevent or dissuade the minor from attending or giving testimony at any trial or court proceeding or to prevent the minor from reporting the alleged sexual offense or from assisting in the prosecution;

4. The defendant inflicted great bodily injury upon the child in the commission of the offense; or,

5. The defendant or his or her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony. (Penal Code § 1347(b).)

This bill would allow a child witness to a violent crime to also testify by contemporaneous examination and cross examination in another location communicated to the courtroom by closed-circuit television when the factors are met.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;

• 141.5% of design bed capacity by February 28, 2015; and,

• 137.5% of design bed capacity by February 28, 2016.

In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;

• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;

• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;

• Whether a proposal corrects a constitutional problem or legislative drafting error; and

• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

Across the United States, thousands of children testify each year as both witnesses and victims in a variety of legal settings, from family court proceedings to serious criminal cases. The number of children called to testify has increased steadily since the 1990’s, especially as new research emerged indicating that memory accuracy in minors is better than previously thought. However, even though children are capable of accurately reporting past events, for many, the pressures associated with testifying in a courtroom can severely limit their ability to

accurately testify. This is especially true in cases involving a criminal defendant with whom the child witness has had a violent, abusive, or otherwise scarring relationship or interaction.

In an attempt to protect child witnesses from such traumatizing experiences, many states have enacted statutes that allow the judges to employ alternative witness examination procedures. These alternative procedures include the use of two-way closed-circuit television to receive child witness testimony, the provision of “comfort items” for the child, the provision of a physical partition between the child and defendant, and the relocation of certain parties within the courtroom to make the child more comfortable. Unfortunately, many of these state statutes suffer from a crucial deficit with regard to child witnesses in criminal cases: they only explicitly provide protections for child witnesses who are the direct victims of the alleged crime. California law suffers from this shortcoming.

This bill would remedy that deficiency by expressly extending to non-victim child witnesses specific protections available to victim child witnesses under California Penal Code § 1347. Additionally, it would give extra weight to the interests of the child witness—victim or non-victim—in any court determination regarding whether these protections should be provided in a given case.

2. Child Witnesses

Under existing law, a child victim of a violent felony can testify by closed circuit television if the court finds by clear and convincing evidence that the impact on the minor is so substantial as to make the minor unavailable and one or more factors exist. Courts have found that this section does not violate the confrontation clause. (See for example People v. Powell (2011) 194 Cal App. 4^th 1268.)

This bill would extend this law to include a child witness who is not the victim of a violent crime. At least one trial court applied this section to a child witness and an appellate court upheld the court’s ability to do so:

We hold that the trial court possessed the inherent authority to permit the use of two-way, closed-circuit TV for a child witness after the necessity for that procedure was demonstrated, even though she was not a victim. In light of this holding, we need not address the State's alternative argument that Vanessa was a “victim,” within the meaning of section 1347, subdivision (b), of various uncharged crimes. (People v. Lujan (2012) 211 Cal. App. 4th 1499, 1508)

The author believes this bill will “establish much-needed support systems for non-victim minors who testify in criminal court proceedings.”

-- END --