BILL NUMBER: AB 20 CHAPTERED
BILL TEXT
CHAPTER 823
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 2004
APPROVED BY GOVERNOR SEPTEMBER 28, 2004
PASSED THE ASSEMBLY AUGUST 25, 2004
PASSED THE SENATE AUGUST 23, 2004
AMENDED IN SENATE AUGUST 18, 2004
AMENDED IN SENATE JULY 19, 2004
AMENDED IN SENATE JUNE 16, 2004
AMENDED IN SENATE JUNE 3, 2004
AMENDED IN SENATE JULY 1, 2003
AMENDED IN ASSEMBLY JUNE 2, 2003
AMENDED IN ASSEMBLY APRIL 10, 2003
AMENDED IN ASSEMBLY MARCH 24, 2003
INTRODUCED BY Assembly Member Lieber
(Coauthor: Assembly Member Leno)
DECEMBER 2, 2002
An act to amend Sections 710, 765, 767, and 1109, of, and to add
Section 177 to, the Evidence Code, and to amend Sections 288, 502.9,
515, 525, 859.1, 861.5, 868.7, 939.21, 1347.5, and 11166 of, and to
add Section 1127g to, the Penal Code, and to amend Sections 15610.63
and 15630 of the Welfare and Institutions Code, relating to crime.
LEGISLATIVE COUNSEL'S DIGEST
AB 20, Lieber. Victims of crime.
(1) Existing law provides that every witness testifying before a
court of law take an oath, affirmation, or declaration except that
children under 10 years of age may, in the court's discretion, only
be required to promise to tell the truth.
This bill would expand this exemption to include dependent persons
with a substantial cognitive impairment.
(2) Existing law provides that a leading question may be asked of
a child witness who is under 10 years of age in specified cases
involving prosecution of physical, mental, or sexual abuse.
This bill would expand this provision to provide that leading
questions may be asked of a dependent person with a substantial
cognitive impairment in the same circumstance.
(3) Existing law provides that evidence of a person's character or
of a trait of his or her character is inadmissible when offered to
prove his or her conduct on a specified occasion with certain
exceptions, including when the defendant is accused of an offense
involving abuse of an elder or dependent adult.
This bill would provide that this evidence is admissible when the
offense involves abuse of a dependent person regardless of age.
(4) Existing law provides that it is a crime for any person who is
a caretaker to willfully and lewdly commit any lewd or lascivious
act upon a dependent adult with specified intent punishable by
imprisonment in the state prison for 1, 2, or 3 years or by
imprisonment in a county jail. If the crime is committed by use of
force, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person, the crime is punishable by
imprisonment in the state prison for 3, 6, or 8 years.
This bill would make these provisions applicable to all dependent
persons regardless of age. Because this bill would change the
definition of a crime, this bill would impose a state-mandated local
program.
(5) Existing law provides, upon conviction of a felony violation
of provisions proscribing theft, embezzlement, extortion, or other
property crimes, that the fact that the victim was an elder or
dependent adult shall be considered a circumstance in aggravation
when imposing a term of imprisonment.
This bill would provide that the fact that the victim was a
dependent person, regardless of age, would be considered a
circumstance in aggravation when imposing a term of imprisonment for
a felony violation of the specified provisions.
(6) Existing law provides that examination of a witness shall be
open to the public except that in a criminal proceeding in which the
defendant is charged with certain specified sexual crimes against a
minor under 16 years of age, the court shall, upon motion, conduct a
hearing to determine whether testimony of, and relating to, the minor
shall be closed to the public.
This bill would expand this provision to allow the court to close
the testimony of, and relating to, a dependent person with a
substantial cognitive impairment to the public.
(7) Existing law provides that a magistrate may postpone a
preliminary examination of a child who is 10 years of age or younger
for one court day in order to accommodate his or her needs.
This bill would expand this provision to permit the accommodation
of the needs of a dependent person.
(8) Existing law provides that examination of a witness shall be
open to the public except that a magistrate may, upon motion, close
the examination, as specified, during the testimony of a minor
witness who is the complaining victim of a sex offense if testimony
before the general public would be detrimental and no alternatives
are available to avoid the perceived harm.
This bill would provide for the closure of the examination of a
dependent person with a substantial cognitive impairment under the
same circumstances.
(9) Existing law provides that any prosecution witness before a
grand jury who is a minor, if the case involves a violation of
certain specified sex offenses, may select a support person to attend
his or her testimony, as specified.
This bill would provide a dependent person the opportunity to
select a person to provide support as he or she testifies before the
grand jury under the same circumstances.
(10) Existing law provides that in any criminal trial or
proceeding in which a child who is 10 years of age or younger
testifies, the court shall, upon the request of a party, instruct the
jury concerning their evaluation of that testimony.
This bill would provide that similar instruction concerning
evaluation of testimony shall be given to the jury upon the request
of a party when a person with a developmental disability, or
cognitive, mental, or communication impairment testifies.
(11) Existing law provides that in any criminal proceeding in
which the defendant is charged with any specified offense, or an
attempt to commit that offense, with or upon a person with a
disability, the court may make accommodations to support the person
with a disability, as specified.
This bill would add the offense of elder or dependent adult abuse
to those offenses that, if charged in any criminal proceeding and are
alleged to have been committed with or upon a person with a
disability, allow the court to make accommodations for the person
with a disability.
(12) Existing law, the Child Abuse and Neglect Reporting Act,
requires certain mandated reporters to report, as specified,
incidents of child abuse or neglect of a child within at least 36
hours of receiving information on an incident. A failure to report
as required is a misdemeanor.
This bill would also provide that if a mandated reporter
intentionally conceals his or her failure to report an incident known
by the mandated reporter to be abuse or severe neglect the failure
to report would be a continuing offense until the failure is
discovered by an agency designated to accept reports of abuse.
Because this bill would change the definition of an existing crime,
it would impose a state-mandated local program.
(13) Existing law requires certain mandated reporters to report,
as specified, incidents of abuse or incidents in which he or she has
been told of abuse of an elder or dependent adult. Existing law
defines physical abuse for the purposes of these provisions.
This bill would expand the definition of physical abuse to
include lewd or lascivious acts if committed against an adult. This
bill would also provide that if a mandated reporter knowingly
conceals his or her failure to report an incident known by the
mandated reporter to be abuse or severe neglect the failure to report
would be a continuing offense until the failure is discovered by an
agency designated to accept reports of abuse.
(14) This bill would also state legislative intent to ensure that
people who cannot live independently are treated fairly by the
criminal justice system.
This bill would state legislative intent to protect the rights of
developmentally disabled persons and other dependent persons who are
witnesses in criminal cases and to ensure that they are given equal
access to the criminal justice system.
(15) This bill would incorporate additional changes to Section
1109 of the Evidence Code proposed by AB 141, contingent upon the
prior enactment of that bill.
(16) This bill would incorporate additional changes to Section
11166 of the Penal Code proposed by SB 1313, contingent upon the
prior enactment of that bill.
(17) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature to enact
legislation protecting the rights of developmentally disabled persons
and other dependent persons who are witnesses in criminal cases and
ensuring that they are given equal access to the criminal justice
system.
SEC. 2. Section 177 is added to the Evidence Code, to read:
177. "Dependent person" means any person who has a physical or
mental impairment that substantially restricts his or her ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities have
significantly diminished because of age. "Dependent person"
includes any person who is admitted as an inpatient to a 24-hour
health facility, as defined in Sections 1250, 1250.2, and 1250.3 of
the Health and Safety Code.
SEC. 3. Section 710 of the Evidence Code is amended to read:
710. Every witness before testifying shall take an oath or make
an affirmation or declaration in the form provided by law, except
that a child under the age of 10 or a dependent person with a
substantial cognitive impairment, in the court's discretion, may be
required only to promise to tell the truth.
SEC. 4. Section 765 of the Evidence Code is amended to read:
765. (a) The court shall exercise reasonable control over the
mode of interrogation of a witness so as to make interrogation as
rapid, as distinct, and as effective for the ascertainment of the
truth, as may be, and to protect the witness from undue harassment or
embarrassment.
(b) With a witness under the age of 14 or a dependent person with
a substantial cognitive impairment, the court shall take special care
to protect him or her from undue harassment or embarrassment, and to
restrict the unnecessary repetition of questions. The court shall
also take special care to ensure that questions are stated in a form
which is appropriate to the age or cognitive level of the witness.
The court may, in the interests of justice, on objection by a party,
forbid the asking of a question which is in a form that is not
reasonably likely to be understood by a person of the age or
cognitive level of the witness.
SEC. 5. Section 767 of the Evidence Code is amended to read:
767. (a) Except under special circumstances where the interests
of justice otherwise require:
(1) A leading question may not be asked of a witness on direct or
redirect examination.
(2) A leading question may be asked of a witness on
cross-examination or recross-examination.
(b) The court may, in the interests of justice permit a leading
question to be asked of a child under 10 years of age or a dependent
person with a substantial cognitive impairment in a case involving a
prosecution under Section 273a, 273d, 288.5, 368, or any of the acts
described in Section 11165.1 or 11165.2 of the Penal Code.
SEC. 6. Section 1109 of the Evidence Code is amended to read:
1109. (a) (1) Except as provided in subdivision (e) or (f), in a
criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant's commission
of other domestic violence is not made inadmissible by Section 1101
if the evidence is not inadmissible pursuant to Section 352.
(2) Except as provided in subdivision (e) or (f), in a criminal
action in which the defendant is accused of an offense involving
abuse of an elder or dependent person, evidence of the defendant's
commission of other abuse of an elder or dependent person is not made
inadmissible by Section 1101 if the evidence is not inadmissible
pursuant to Section 352.
(b) In an action in which evidence is to be offered under this
section, the people shall disclose the evidence to the defendant,
including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered, in compliance with the
provisions of Section 1054.7 of the Penal Code.
(c) This section shall not be construed to limit or preclude the
admission or consideration of evidence under any other statute or
case law.
(d) As used in this section, "domestic violence" has the meaning
set forth in Section 13700 of the Penal Code. "Abuse of an elder or
a dependent person" means physical or sexual abuse, neglect,
financial abuse, abandonment, isolation, abduction, or other
treatment that results in physical harm, pain, or mental suffering,
the deprivation of care by a caregiver, or other deprivation by a
custodian or provider of goods or services that are necessary to
avoid physical harm or mental suffering.
(e) Evidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless the court
determines that the admission of this evidence is in the interest of
justice.
(f) Evidence of the findings and determinations of administrative
agencies regulating the conduct of health facilities licensed under
Section 1250 of the Health and Safety Code is inadmissible under this
section.
SEC. 6.5. Section 1109 of the Evidence Code is amended to read:
1109. (a) (1) Except as provided in subdivision (e) or (f), in a
criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant's commission
of other domestic violence is not made inadmissible by Section 1101
if the evidence is not inadmissible pursuant to Section 352.
(2) Except as provided in subdivision (e) or (f), in a criminal
action in which the defendant is accused of an offense involving
abuse of an elder or dependent person, evidence of the defendant's
commission of other abuse of an elder or dependent person is not
made inadmissible by Section 1101 if the evidence is not inadmissible
pursuant to Section 352.
(b) In an action in which evidence is to be offered under this
section, the people shall disclose the evidence to the defendant,
including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered, in compliance with the
provisions of Section 1054.7 of the Penal Code.
(c) This section shall not be construed to limit or preclude the
admission or consideration of evidence under any other statute or
case law.
(d) As used in this section, "domestic violence" has the meaning
set forth in Section 13700 of the Penal Code. "Abuse of an elder or
a dependent person" means physical or sexual abuse, neglect,
financial abuse, abandonment, isolation, abduction, or other
treatment that results in physical harm, pain, or mental suffering,
the deprivation of care by a caregiver, or other deprivation by a
custodian or provider of goods or services that are necessary to
avoid physical harm or mental suffering. Subject to a hearing
conducted pursuant to Section 352, which shall include consideration
of any corroboration and remoteness in time, "domestic violence" has
the further meaning as set forth in Section 6211 of the Family Code
if the act occurred no more than five years before the charged
offense.
(e) Evidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless the court
determines that the admission of this evidence is in the interest of
justice.
(f) Evidence of the findings and determinations of administrative
agencies regulating the conduct of health facilities licensed under
Section 1250 of the Health and Safety Code is inadmissible under this
section.
SEC. 7. Section 288 of the Penal Code is amended to read:
288. (a) Any person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes
provided for in Part 1, upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent
of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three,
six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person, with the intent described in
subdivision (a), is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, with the intent described in
subdivision (a), is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim or dependent person and shall
do whatever is necessary, within existing budgetary resources, and
constitutionally permissible to prevent psychological harm to the
child victim or to prevent psychological harm to the dependent person
victim resulting from participation in the court process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent persons:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent persons,
including, but not limited to, in-home supportive services, as
defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent person" means any person who has a physical or
mental impairment that substantially restricts his or her ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities have
significantly diminished because of age. "Dependent person"
includes any person who is admitted as an inpatient to a 24-hour
health facility, as defined in Sections 1250, 1250.2, and 1250.3 of
the Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.
SEC. 8. Section 502.9 of the Penal Code is amended to read:
502.9. Upon conviction of a felony violation under this chapter,
the fact that the victim was an elder or dependent person, as defined
in Section 288, shall be considered a circumstance in aggravation
when imposing a term under subdivision (b) of Section 1170.
SEC. 9. Section 515 of the Penal Code is amended to read:
515. Upon conviction of a felony violation under this chapter,
the fact that the victim was an elder or dependent person, as defined
in Section 288, shall be considered a circumstance in aggravation
when imposing a term under subdivision (b) of Section 1170.
SEC. 10. Section 525 of the Penal Code is amended to read:
525. Upon conviction of a felony violation under this chapter,
the fact that the victim was an elder or dependent person, as defined
in Section 288, shall be considered a circumstance in aggravation
when imposing a term under subdivision (b) of Section 1170.
SEC. 11. Section 859.1 of the Penal Code is amended to read:
859.1. (a) In any criminal proceeding in which the defendant is
charged with any offense specified in Section 868.8 on a minor under
the age of 16 years, or a dependent person with a substantial
cognitive impairment, as defined in paragraph (3) of subdivision (f)
of Section 288, the court shall, upon motion of the prosecuting
attorney, conduct a hearing to determine whether the testimony of,
and testimony relating to, a minor or dependent person shall be
closed to the public in order to protect the minor's or the dependent
person's reputation.
(b) In making this determination, the court shall consider all of
the following:
(1) The nature and seriousness of the offense.
(2) The age of the minor, or the level of cognitive development of
the dependent person.
(3) The extent to which the size of the community would preclude
the anonymity of the victim.
(4) The likelihood of public opprobrium due to the status of the
victim.
(5) Whether there is an overriding public interest in having an
open hearing.
(6) Whether the prosecution has demonstrated a substantial
probability that the identity of the witness would otherwise be
disclosed to the public during that proceeding, and demonstrated a
substantial probability that the disclosure of his or her identity
would cause serious harm to the witness.
(7) Whether the witness has disclosed information concerning the
case to the public through press conferences, public meetings, or
other means.
(8) Other factors the court may deem necessary to protect the
interests of justice.
SEC. 12. Section 861.5 of the Penal Code is amended to read:
861.5. Notwithstanding subdivision (a) of Section 861, the
magistrate may postpone the preliminary examination for one court day
in order to accommodate the special physical, mental, or emotional
needs of a child witness who is 10 years of age or younger or a
dependent person, as defined in subdivision (h) of Section 288.
The magistrate shall admonish both the prosecution and defense
against coaching the witness prior to the witness' next appearance in
the preliminary examination.
SEC. 13. Section 868.7 of the Penal Code is amended to read:
868.7. (a) Notwithstanding any other provision of law, the
magistrate may, upon motion of the prosecutor, close the examination
in the manner described in Section 868 during the testimony of a
witness:
(1) Who is a minor or a dependent person with a substantial
cognitive impairment, as defined in paragraph (3) of subdivision (f)
of Section 288, and is the complaining victim of a sex offense,
where testimony before the general public would be likely to cause
serious psychological harm to the witness and where no alternative
procedures, including, but not limited to, videotaped deposition or
contemporaneous examination in another place communicated to the
courtroom by means of closed-circuit television, are available to
avoid the perceived harm.
(2) Whose life would be subject to a substantial risk in appearing
before the general public, and where no alternative security
measures, including, but not limited to, efforts to conceal his or
her features or physical description, searches of members of the
public attending the examination, or the temporary exclusion of other
actual or potential witnesses, would be adequate to minimize the
perceived threat.
(b) In any case where public access to the courtroom is restricted
during the examination of a witness pursuant to this section, a
transcript of the testimony of the witness shall be made available to
the public as soon as is practicable.
This section shall become operative on January 1, 1987.
SEC. 14. Section 939.21 of the Penal Code is amended to read:
939.21. (a) Any prosecution witness before the grand jury in a
proceeding involving a violation of Section 243.4, 261, 273a, 273d,
285, 286, 288, 288a, 288.5, or 289, subdivision (1) of Section 314,
Section 368, 647.6, or former Section 647a, who is a minor or a
dependent person, may, at the discretion of the prosecution, select a
person of his or her own choice to attend the testimony of the
prosecution witness for the purpose of providing support. The person
chosen shall not be a witness in the same proceeding, or a person
described in Section 1070 of the Evidence Code.
(b) The grand jury foreperson shall inform any person permitted to
attend the grand jury proceedings pursuant to this section that
grand jury proceedings are confidential and may not be discussed with
anyone not in attendance at the proceedings. The foreperson also
shall admonish that person not to prompt, sway, or influence the
witness in any way. Nothing in this section shall preclude the
presiding judge from exercising his or her discretion to remove a
person from the grand jury proceeding whom the judge believes is
prompting, swaying, or influencing the witness.
SEC. 15. Section 1127g is added to the Penal Code, to read:
1127g. In any criminal trial or proceeding in which a person with
a developmental disability, or cognitive, mental, or communication
impairment testifies as a witness, upon the request of a party, the
court shall instruct the jury, as follows:
In evaluating the testimony of a person with a developmental
disability, or cognitive, mental, or communication impairment, you
should consider all of the factors surrounding the person's
testimony, including their level of cognitive development. Although,
because of his or her level of cognitive development, a person with
a developmental disability, or cognitive, mental, or communication
impairment may perform differently as a witness, that does not mean
that a person with a developmental disability, or cognitive, mental,
or communication impairment is any more or less credible a witness
than another witness. You should not discount or distrust the
testimony of a person with a developmental disability, or cognitive,
mental, or communication impairment solely because he or she is a
person with a developmental disability, or cognitive, mental, or
communication impairment.
SEC. 16. Section 1347.5 of the Penal Code is amended to read:
1347.5. (a) It is the intent of the Legislature, in enacting this
section, to provide the court with discretion to modify court
procedures, as a reasonable accommodation, to assure that adults and
children with disabilities who have been victims of an alleged sexual
or otherwise specified offense are able to participate effectively
in criminal proceedings. In exercising its discretion, the court
shall balance the rights of the defendant against the right of the
victim who has a disability to full access and participation in the
proceedings, while preserving the integrity of the court's
truthfinding function.
(1) For purposes of this section, the term "disability" is defined
in paragraphs (1) and (2) of subdivision (c) of Section 11135 of the
Government Code.
(2) The right of the victim is not to confront the perpetrator,
but derives under both Section 504 of the Rehabilitation Act of 1973
(29 U.S.C. Sec. 794) and the Americans with Disabilities Act of 1990
(42 U.S.C. Sec. 12101 and following) as a right to participate in
or benefit from the same services or services that are equal or as
effective as those enjoyed by persons without disabilities.
(b) Notwithstanding any other law, in any criminal proceeding in
which the defendant is charged with a violation of Section 220,
243.4, 261, 261.5, 264.1, 273a, 273d, 285, 286, 288, 288a, 288.5, or
289, subdivision (1) of Section 314, Section 368, 647.6, or with any
attempt to commit a crime listed in this subdivision, committed with
or upon a person with a disability, the court in its discretion may
make accommodations to support the person with a disability,
including, but not limited to, any of the following:
(1) Allow the person with a disability reasonable periods of
relief from examination and cross-examination during which he or she
may retire from the courtroom. The judge may also allow other
witnesses in the proceeding to be examined when the person with a
disability retires from the courtroom.
(2) Allow the person with a disability to utilize a support person
pursuant to Section 868.5 or a regional center representative
providing services to a developmentally disabled individual pursuant
to Article 1 (commencing with Section 4620) or Article 2 (commencing
with Section 4640) of Chapter 5 of Division 4.5 of the Welfare and
Institutions Code. In addition to, or instead of, allowing the
person with a disability to utilize a support person or regional
center representative pursuant to this paragraph, the court may allow
the person with a disability to utilize a person necessary to
facilitate the communication or physical needs of the person with a
disability.
(3) Notwithstanding Section 68119 of the Government Code, the
judge may remove his or her robe if the judge believes that this
formal attire prevents full participation of the person with a
disability because it is intimidating to him or her.
(4) The judge, parties, witnesses, support persons, and court
personnel may be relocated within the courtroom to facilitate a more
comfortable and personal environment for the person with a disability
as well as accommodating any specific requirements for communication
by that person.
(c) The prosecutor may apply for an order that the testimony of
the person with a disability at the preliminary hearing, in addition
to being stenographically recorded, be recorded and preserved on
videotape.
(1) The application for the order shall be in writing and made
three days prior to the preliminary hearing.
(2) Upon timely receipt of the application, the judge shall order
that the testimony of the person with a disability given at the
preliminary hearing be taken and preserved on videotape. The
videotape shall be transmitted to the clerk of the court in which the
action is pending.
(3) If at the time of trial the court finds that further testimony
would cause the person with a disability emotional trauma so that he
or she is medically unavailable or otherwise unavailable within the
meaning of Section 240 of the Evidence Code, the court may admit the
videotape of his or her testimony at the preliminary hearing as
former testimony under Section 1291 of the Evidence Code.
(4) Any videotape that is taken pursuant to this subdivision is
subject to a protective order of the court for the purpose of
protecting the privacy of the person with a disability. This
subdivision does not affect the provisions of subdivision (b) of
Section 868.7.
(d) Notwithstanding any other law, the court in any criminal
proceeding, upon written notice of the prosecutor made at least three
days prior to the date of the preliminary hearing or trial date on
which the testimony of the person with a disability is scheduled, or
during the course of the proceeding on the court's own motion, may
order that the testimony of the person with a disability be taken by
contemporaneous examination and cross-examination in another place
and out of the presence of the judge, jury, and defendant, and
communicated to the courtroom by means of two-way closed-circuit
television, if the court makes all of the following findings:
(1) The person with a disability will be called on to testify
concerning facts of an alleged sexual offense, or other crime as
specified in subdivision (b), committed on or with that person.
(2) The impact on the person with a disability of one or more of
the factors enumerated in subparagraphs (A) to (D), inclusive, is
shown by clear and convincing evidence to be so substantial as to
make the person with a disability unavailable as a witness unless
closed-circuit television is used. The refusal of the person with a
disability to testify shall not alone constitute sufficient evidence
that the special procedure described in this subdivision is necessary
in order to accommodate the disability. The court may take into
consideration the relationship between the person with a disability
and the defendant or defendants.
(A) Threats of serious bodily injury to be inflicted on the person
with a disability or a family member, of incarceration,
institutionalization, or deportation of the person with a disability
or a family member, or of removal of the person with a disability
from his or her residence by withholding needed services when the
threats come from a service provider, in order to prevent or dissuade
the person with a disability from attending or giving testimony at
any trial or court proceeding or to prevent that person from
reporting the alleged offense or from assisting in criminal
prosecution.
(B) Use of a firearm or any other deadly weapon during the
commission of the crime.
(C) Infliction of great bodily injury upon the person with a
disability during the commission of the crime.
(D) Conduct on the part of the defendant or defense counsel during
the hearing or trial that causes the person with a disability to be
unable to continue his or her testimony.
(e) (1) The hearing on the motion brought pursuant to this
subdivision shall be conducted out of the presence of the jury.
(2) Notwithstanding Section 804 of the Evidence Code or any other
law, the court, in determining the merits of the motion, shall not
compel the person with a disability to testify at the hearing; nor
shall the court deny the motion on the ground that the person with a
disability has not testified.
(3) In determining whether the impact on an individual person with
a disability of one or more of the factors enumerated under
paragraph (2) of subdivision (d) is so substantial that the person is
unavailable as a witness unless the closed-circuit television
procedure is employed, the court may question the person with a
disability 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 described under paragraph (2) of subdivision (b),
the prosecutor, and defense counsel present. At this time the court
shall explain the process to the person with a disability. The
defendant or defendants shall not be present; however, the defendant
or defendants shall have the opportunity to contemporaneously observe
the proceedings by closed-circuit television. Defense counsel shall
be afforded a reasonable opportunity to consult with the defendant
or defendants prior to the conclusion of the session in chambers.
(f) When the court orders the testimony of a victim who is a
person with a disability to be taken in another place outside of the
courtroom, the court shall do all of the following:
(1) Make a brief statement on the record, outside of the presence
of the jury, of the reasons in support of its order. While the
statement need not include traditional findings of fact, the reasons
shall be set forth with sufficient specificity to permit meaningful
review and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.
(2) Instruct the members of the jury that they are to draw no
inferences from the use of closed-circuit television as a means of
assuring the full participation of the victim who is a person with a
disability by accommodating that individual's disability.
(3) Instruct respective counsel, outside of the presence of the
jury, that they are to make no comment during the course of the trial
on the use of closed-circuit television procedures.
(4) Instruct the support person, if the person is part of the
court's accommodation of the disability, outside of the presence of
the jury, that he or she is not to coach, cue, or in any way
influence or attempt to influence the testimony of the person with a
disability.
(5) Order that a complete record of the examination of the person
with a disability, including the images and voices of all persons who
in any way participate in the examination, be made and preserved on
videotape in addition to being stenographically recorded. The
videotape shall be transmitted to the clerk of the court in which the
action is pending and shall be made available for viewing to the
prosecuting attorney, the defendant, and his or her attorney, during
ordinary business hours. The videotape shall be destroyed after five
years have elapsed from the date of entry of judgment. If an appeal
is filed, the tape shall not be destroyed until a final judgment on
appeal has been ordered. Any videotape that is taken pursuant to
this section is subject to a protective order of the court for the
purpose of protecting the privacy of the person with a disability.
This subdivision does not affect the provisions of subdivision (b) of
Section 868.7.
(g) When the court orders the testimony of a victim who is a
person with a disability to be taken in another place outside the
courtroom, nothing in this section shall prohibit the court from
ordering the victim to appear in the courtroom for a limited purpose,
including the identification of the defendant or defendants as the
court deems necessary.
(h) The examination shall be under oath, and the defendant shall
be able to see and hear the person with a disability. If two-way
closed-circuit television is used, the defendant's image shall be
transmitted live to the person with a disability.
(i) Nothing in this section shall affect the disqualification of
witnesses pursuant to Section 701 of the Evidence Code.
(j) The cost of examination by contemporaneous closed-circuit
television ordered pursuant to this section shall be borne by the
court out of its existing budget.
(k) This section shall not be construed to obviate the need to
provide other accommodations necessary to ensure accessibility of
courtrooms to persons with disabilities nor prescribe a lesser
standard of accessibility or usability for persons with disabilities
than that provided by Title II of the Americans with Disabilities Act
of 1990 (42 U.S.C. Sec. 12101 and following) and federal regulations
adopted pursuant to that act.
(l) The Judicial Council shall report to the Legislature, no later
than two years after the enactment of this subdivision, on the
frequency of the use and effectiveness of admitting the videotape of
testimony by means of closed-circuit television.
SEC. 17. Section 11166 of the Penal Code is amended to read:
11166. (a) Except as provided in subdivision (c), a mandated
reporter shall make a report to an agency specified in Section
11165.9 whenever the mandated reporter, in his or her professional
capacity or within the scope of his or her employment, has knowledge
of or observes a child whom the mandated reporter knows or reasonably
suspects has been the victim of child abuse or neglect. The
mandated reporter shall make a report to the agency immediately or as
soon as is practicably possible by telephone, and the mandated
reporter shall prepare and send a written report thereof within 36
hours of receiving the information concerning the incident. The
mandated reporter may include with the report any nonprivileged
documentary evidence the mandated reporter possesses relating to the
incident.
(1) For the purposes of this article, "reasonable suspicion" means
that it is objectively reasonable for a person to entertain a
suspicion, based upon facts that could cause a reasonable person in a
like position, drawing, when appropriate, on his or her training and
experience, to suspect child abuse or neglect. For the purpose of
this article, the pregnancy of a minor does not, in and of itself,
constitute a basis for a reasonable suspicion of sexual abuse.
(2) The agency shall be notified and a report shall be prepared
and sent even if the child has expired, regardless of whether or not
the possible abuse was a factor contributing to the death, and even
if suspected child abuse was discovered during an autopsy.
(3) A report made by a mandated reporter pursuant to this section
shall be known as a mandated report.
(b) Any mandated reporter who fails to report an incident of known
or reasonably suspected child abuse or neglect as required by this
section is guilty of a misdemeanor punishable by up to six months
confinement in a county jail or by a fine of one thousand dollars
($1,000) or by both that fine and punishment. If a mandated reporter
intentionally conceals his or her failure to report an incident
known by the mandated reporter to be abuse or severe neglect under
this section, the failure to report is a continuing offense until an
agency specified in Section 11165.9 discovers the offense.
(c) (1) A clergy member who acquires knowledge or a reasonable
suspicion of child abuse or neglect during a penitential
communication is not subject to subdivision (a). For the purposes of
this subdivision, "penitential communication" means a communication,
intended to be in confidence, including, but not limited to, a
sacramental confession, made to a clergy member who, in the course of
the discipline or practice of his or her church, denomination, or
organization, is authorized or accustomed to hear those
communications, and under the discipline, tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(2) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected child abuse
or neglect when the clergy member is acting in some other capacity
that would otherwise make the clergy member a mandated reporter.
(3) (A) On or before January 1, 2004, a clergy member or any
custodian of records for the clergy member may report to an agency
specified in Section 11165.9 that the clergy member or any custodian
of records for the clergy member, prior to January 1, 1997, in his or
her professional capacity or within the scope of his or her
employment, other than during a penitential communication, acquired
knowledge or had a reasonable suspicion that a child had been the
victim of sexual abuse that the clergy member or any custodian of
records for the clergy member did not previously report the abuse to
an agency specified in Section 11165.9. The provisions of Section
11172 shall apply to all reports made pursuant to this paragraph.
(B) This paragraph shall apply even if the victim of the known or
suspected abuse has reached the age of majority by the time the
required report is made.
(C) The local law enforcement agency shall have jurisdiction to
investigate any report of child abuse made pursuant to this paragraph
even if the report is made after the victim has reached the age of
majority.
(d) Any commercial film and photographic print processor who has
knowledge of or observes, within the scope of his or her professional
capacity or employment, any film, photograph, videotape, negative,
or slide depicting a child under the age of 16 years engaged in an
act of sexual conduct, shall report the instance of suspected child
abuse to the law enforcement agency having jurisdiction over the case
immediately, or as soon as practicably possible, by telephone, and
shall prepare and send a written report of it with a copy of the
film, photograph, videotape, negative, or slide attached within 36
hours of receiving the information concerning the incident. As used
in this subdivision, "sexual conduct" means any of the following:
(1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
(2) Penetration of the vagina or rectum by any object.
(3) Masturbation for the purpose of sexual stimulation of the
viewer.
(4) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
(5) Exhibition of the genitals, pubic, or rectal areas of any
person for the purpose of sexual stimulation of the viewer.
(e) Any other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child
abuse or neglect may report the known or suspected instance of child
abuse or neglect to an agency specified in Section 11165.9.
(f) When two or more persons, who are required to report, jointly
have knowledge of a known or suspected instance of child abuse or
neglect, and when there is agreement among them, the telephone report
may be made by a member of the team selected by mutual agreement and
a single report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make the
report.
(g) (1) The reporting duties under this section are individual,
and no supervisor or administrator may impede or inhibit the
reporting duties, and no person making a report shall be subject to
any sanction for making the report. However, internal procedures to
facilitate reporting and apprise supervisors and administrators of
reports may be established provided that they are not inconsistent
with this article.
(2) The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose his or
her identity to the employer.
(3) Reporting the information regarding a case of possible child
abuse or neglect to an employer, supervisor, school principal, school
counselor, coworker, or other person shall not be a substitute for
making a mandated report to an agency specified in Section 11165.9.
(h) A county probation or welfare department shall immediately, or
as soon as practicably possible, report by telephone, fax, or
electronic transmission to the law enforcement agency having
jurisdiction over the case, to the agency given the responsibility
for investigation of cases under Section 300 of the Welfare and
Institutions Code, and to the district attorney's office every known
or suspected instance of child abuse or neglect, as defined in
Section 11165.6, except acts or omissions coming within subdivision
(b) of Section 11165.2, or reports made pursuant to Section 11165.13
based on risk to a child which relates solely to the inability of the
parent to provide the child with regular care due to the parent's
substance abuse, which shall be reported only to the county welfare
or probation department. A county probation or welfare department
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
(i) A law enforcement agency shall immediately, or as soon as
practicably possible, report by telephone to the agency given
responsibility for investigation of cases under Section 300 of the
Welfare and Institutions Code and to the district attorney's office
every known or suspected instance of child abuse or neglect reported
to it, except acts or omissions coming within subdivision (b) of
Section 11165.2, which shall be reported only to the county welfare
or probation department. A law enforcement agency shall report to
the county welfare or probation department every known or suspected
instance of child abuse or neglect reported to it which is alleged to
have occurred as a result of the action of a person responsible for
the child's welfare, or as the result of the failure of a person
responsible for the child's welfare to adequately protect the minor
from abuse when the person responsible for the child's welfare knew
or reasonably should have known that the minor was in danger of
abuse. A law enforcement agency also shall send, fax, or
electronically transmit a written report thereof within 36 hours of
receiving the information concerning the incident to any agency to
which it makes a telephone report under this subdivision.
SEC. 17.5. Section 11166 of the Penal Code is amended to read:
11166. (a) Except as provided in subdivision (c), a mandated
reporter shall make a report to an agency specified in Section
11165.9 whenever the mandated reporter, in his or her professional
capacity or within the scope of his or her employment, has knowledge
of or observes a child whom the mandated reporter knows or reasonably
suspects has been the victim of child abuse or neglect. The
mandated reporter shall make a report to the agency immediately or as
soon as is practicably possible by telephone, and the mandated
reporter shall prepare and send a written report thereof within 36
hours of receiving the information concerning the incident. The
mandated reporter may include with the report any nonprivileged
documentary evidence the mandated reporter possesses relating to the
incident.
(1) For the purposes of this article, "reasonable suspicion" means
that it is objectively reasonable for a person to entertain a
suspicion, based upon facts that could cause a reasonable person in a
like position, drawing, when appropriate, on his or her training and
experience, to suspect child abuse or neglect. For the purpose of
this article, the pregnancy of a minor does not, in and of itself,
constitute a basis for a reasonable suspicion of sexual abuse.
(2) The agency shall be notified and a report shall be prepared
and sent even if the child has expired, regardless of whether or not
the possible abuse was a factor contributing to the death, and even
if suspected child abuse was discovered during an autopsy.
(3) A mandated reporter shall not make a report if the mandated
reporter has knowledge or suspects that an adult was a victim of
abuse or neglect as a child, unless the mandated reporter knows or
reasonably suspects that a child who is currently under 18 years of
age is being, or has been, abused or neglected by the same individual
that victimized the adult when the adult was a child, or unless the
known or suspected child abuse or neglect took place in a facility
licensed by the Community Care Licensing Division of the State
Department of Social Services, in which case the incident shall be
reported by the mandated reporter.
(4) A report made by a mandated reporter pursuant to this section
shall be known as a mandated report.
(b) Any mandated reporter who fails to report an incident of known
or reasonably suspected child abuse or neglect as required by this
section is guilty of a misdemeanor punishable by up to six months
confinement in a county jail or by a fine of one thousand dollars
($1,000) or by both that imprisonment and fine. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until an agency specified in Section 11165.9 discovers the offense.
(c) (1) A clergy member who acquires knowledge or a reasonable
suspicion of child abuse or neglect during a penitential
communication is not subject to subdivision (a). For the purposes of
this subdivision, "penitential communication" means a communication,
intended to be in confidence, including, but not limited to, a
sacramental confession, made to a clergy member who, in the course of
the discipline or practice of his or her church, denomination, or
organization, is authorized or accustomed to hear those
communications, and under the discipline, tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(2) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected child abuse
or neglect when the clergy member is acting in some other capacity
that would otherwise make the clergy member a mandated reporter.
(3) (A) On or before January 1, 2004, a clergy member or any
custodian of records for the clergy member may report to an agency
specified in Section 11165.9 that the clergy member or any custodian
of records for the clergy member, prior to January 1, 1997, in his or
her professional capacity or within the scope of his or her
employment, other than during a penitential communication, acquired
knowledge or had a reasonable suspicion that a child had been the
victim of sexual abuse that the clergy member or any custodian of
records for the clergy member did not previously report the abuse to
an agency specified in Section 11165.9. The provisions of Section
11172 shall apply to all reports made pursuant to this paragraph.
(B) This paragraph shall apply even if the victim of the known or
suspected abuse has reached the age of majority by the time the
required report is made.
(C) The local law enforcement agency shall have jurisdiction to
investigate any report of child abuse made pursuant to this paragraph
even if the report is made after the victim has reached the age of
majority.
(d) Any commercial film and photographic print processor who has
knowledge of or observes, within the scope of his or her professional
capacity or employment, any film, photograph, videotape, negative,
or slide depicting a child under the age of 16 years engaged in an
act of sexual conduct, shall report the instance of suspected child
abuse to the law enforcement agency having jurisdiction over the case
immediately, or as soon as practicably possible, by telephone, and
shall prepare and send a written report of it with a copy of the
film, photograph, videotape, negative, or slide attached within 36
hours of receiving the information concerning the incident. As used
in this subdivision, "sexual conduct" means any of the following:
(1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
(2) Penetration of the vagina or rectum by any object.
(3) Masturbation for the purpose of sexual stimulation of the
viewer.
(4) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
(5) Exhibition of the genitals, pubic, or rectal areas of any
person for the purpose of sexual stimulation of the viewer.
(e) Any mandated reporter who knows or reasonably suspects that
the home or institution in which a child resides is unsuitable for
the child because of abuse or neglect of the child shall bring the
condition to the attention of the agency to which, and at the same
time as, he or she makes a report of the abuse or neglect pursuant to
subdivision (a).
(f) Any other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child
abuse or neglect may report the known or suspected instance of child
abuse or neglect to an agency specified in Section 11165.9.
(g) When two or more persons, who are required to report, jointly
have knowledge of a known or suspected instance of child abuse or
neglect, and when there is agreement among them, the telephone report
may be made by a member of the team selected by mutual agreement and
a single report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make the
report.
(h) (1) The reporting duties under this section are individual,
and no supervisor or administrator may impede or inhibit the
reporting duties, and no person making a report shall be subject to
any sanction for making the report. However, internal procedures to
facilitate reporting and apprise supervisors and administrators of
reports may be established provided that they are not inconsistent
with this article.
(2) The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose his or
her identity to the employer.
(3) Reporting the information regarding a case of possible child
abuse or neglect to an employer, supervisor, school principal, school
counselor, coworker, or other person shall not be a substitute for
making a mandated report to an agency specified in Section 11165.9.
(i) A county probation or welfare department shall immediately, or
as soon as practicably possible, report by telephone, fax, or
electronic transmission to the law enforcement agency having
jurisdiction over the case, to the agency given the responsibility
for investigation of cases under Section 300 of the Welfare and
Institutions Code, and to the district attorney's office every known
or suspected instance of child abuse or neglect, as defined in
Section 11165.6, except acts or omissions coming within subdivision
(b) of Section 11165.2, or reports made pursuant to Section 11165.13
based on risk to a child which relates solely to the inability of the
parent to provide the child with regular care due to the parent's
substance abuse, which shall be reported only to the county welfare
or probation department. A county probation or welfare department
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
(j) A law enforcement agency shall immediately, or as soon as
practicably possible, report by telephone to the agency given
responsibility for investigation of cases under Section 300 of the
Welfare and Institutions Code and to the district attorney's office
every known or suspected instance of child abuse or neglect reported
to it, except acts or omissions coming within subdivision (b) of
Section 11165.2, which shall be reported only to the county welfare
or probation department. A law enforcement agency shall report to
the county welfare or probation department every known or suspected
instance of child abuse or neglect reported to it which is alleged to
have occurred as a result of the action of a person responsible for
the child's welfare, or as the result of the failure of a person
responsible for the child's welfare to adequately protect the minor
from abuse when the person responsible for the child's
welfare knew or reasonably should have
known that the minor was in danger of abuse. A law enforcement
agency also shall send, fax, or electronically transmit a written
report thereof within 36 hours of receiving the information
concerning the incident to any agency to which it makes a telephone
report under this subdivision.
SEC. 18. Section 15610.63 of the Welfare and Institutions Code is
amended to read:
15610.63. "Physical abuse" means any of the following:
(a) Assault, as defined in Section 240 of the Penal Code.
(b) Battery, as defined in Section 242 of the Penal Code.
(c) Assault with a deadly weapon or force likely to produce great
bodily injury, as defined in Section 245 of the Penal Code.
(d) Unreasonable physical constraint, or prolonged or continual
deprivation of food or water.
(e) Sexual assault, that means any of the following:
(1) Sexual battery, as defined in Section 243.4 of the Penal Code.
(2) Rape, as defined in Section 261 of the Penal Code.
(3) Rape in concert, as described in Section 264.1 of the Penal
Code.
(4) Spousal rape, as defined in Section 262 of the Penal Code.
(5) Incest, as defined in Section 285 of the Penal Code.
(6) Sodomy, as defined in Section 286 of the Penal Code.
(7) Oral copulation, as defined in Section 288a of the Penal Code.
(8) Sexual penetration, as defined in Section 289 of the Penal
Code.
(9) Lewd or lascivious acts as defined in paragraph (2) of
subdivision (b) of Section 288 of the Penal Code.
(f) Use of a physical or chemical restraint or psychotropic
medication under any of the following conditions:
(1) For punishment.
(2) For a period beyond that for which the medication was ordered
pursuant to the instructions of a physician and surgeon licensed in
the State of California, who is providing medical care to the elder
or dependent adult at the time the instructions are given.
(3) For any purpose not authorized by the physician and surgeon.
SEC. 19. Section 15630 of the Welfare and Institutions Code is
amended to read:
15630. (a) Any person who has assumed full or intermittent
responsibility for care or custody of an elder or dependent adult,
whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian,
health practitioner, clergy member, or employee of a county adult
protective services agency or a local law enforcement agency, is a
mandated reporter.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect, or is told by an elder or dependent adult that he
or she has experienced behavior, including an act or omission,
constituting physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect, or reasonably suspects that abuse, shall
report the known or suspected instance of abuse by telephone
immediately or as soon as practicably possible, and by written report
sent within two working days, as follows:
(A) If the abuse has occurred in a long-term care facility, except
a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsperson or the local law
enforcement agency.
Except in an emergency, the local ombudsperson and the local law
enforcement agency shall, as soon as practicable, do all of the
following:
(i) Report to the State Department of Health Services any case of
known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day care facility, as defined in
paragraph (2) of subdivision (a) of Section 1502.
(iii) Report to the State Department of Health Services and the
California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section 1570.7 of the Health and Safety Code.
(iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse any
case of known or suspected criminal activity.
(B) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of Mental Health or
the State Department of Developmental Services, or to the local law
enforcement agency.
Except in an emergency, the local law enforcement agency shall, as
soon as practicable, report any case of known or suspected criminal
activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
(C) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or dependent adult abuse
during a penitential communication is not subject to paragraph (1).
For purposes of this subdivision, "penitential communication" means a
communication that is intended to be in confidence, including, but
not limited to, a sacramental confession made to a clergy member who,
in the course of the discipline or practice of his or her church,
denomination, or organization is authorized or accustomed to hear
those communications and under the discipline tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(B) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected elder and
dependent adult abuse when he or she is acting in the capacity of a
care custodian, health practitioner, or employee of an adult
protective agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or dependent adult shall not be responsible for
reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
(3) (A) A mandated reporter who is a physician and surgeon, a
registered nurse, or a psychotherapist, as defined in Section 1010 of
the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident where all of the following conditions
exist:
(i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63 of the Welfare and Institutions
Code, abandonment, abduction, isolation, financial abuse, or
neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4) (A) In a long-term care facility, a mandated reporter shall
not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident where all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those categories of
mandated reporters that the State Department of Health Services
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care ombudsperson, have access to plans
of care and have the training and experience necessary to determine
whether the conditions specified in this section have been met.
(c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsperson program. Except in an emergency, the local ombudsperson
shall report any case of known or suspected abuse to the State
Department of Health Services and any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as
soon as is practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of Mental
Health or the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsperson. Except in
an emergency, the local ombudsperson and the local law enforcement
agency shall report any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is
practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) When two or more mandated reporters are present and jointly
have knowledge or reasonably suspect that types of abuse of an elder
or a dependent adult for which a report is or is not mandated have
occurred, and when there is agreement among them, the telephone
report may be made by a member of the team selected by mutual
agreement, and a single report may be made and signed by the selected
member of the reporting team. Any member who has knowledge that the
member designated to report has failed to do so shall thereafter
make the report.
(e) A telephone report of a known or suspected instance of elder
or dependent adult abuse shall include, if known, the name of the
person making the report, the name and age of the elder or dependent
adult, the present location of the elder or dependent adult, the
names and addresses of family members or any other adult responsible
for the elder or dependent adult's care, the nature and extent of
the elder or dependent adult's condition, the date of the incident,
and any other information, including information that led that person
to suspect elder or dependent adult abuse, as requested by the
agency receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
(g) (1) Whenever this section requires a county adult protective
services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy of
its investigative report concerning the reported matter to that
county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report physical abuse, as defined in Section
15610.63 of the Welfare and Institutions Code, abandonment,
abduction, isolation, financial abuse, or neglect of an elder or
dependent adult, in violation of this section, is a misdemeanor,
punishable by not more than six months in the county jail, by a fine
of not more than one thousand dollars ($1,000), or by both that fine
and imprisonment. Any mandated reporter who willfully fails to
report physical abuse, as defined in Section 15610.63 of the Welfare
and Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect of an elder or dependent adult, in violation of
this section, where that abuse results in death or great bodily
injury, shall be punished by not more than one year in a county jail,
by a fine of not more than five thousand dollars ($5,000), or by
both that fine and imprisonment. If a mandated reporter
intentionally conceals his or her failure to report an incident known
by the mandated reporter to be abuse or severe neglect under this
section, the failure to report is a continuing offense until a law
enforcement agency specified in paragraph (1) of subdivision (b) of
Section 15630 of the Welfare and Institutions Code discovers the
offense.
(i) For purposes of this section, "dependent adult" shall have
the same meaning as in Section 15610.23.
SEC. 20. Section 6.5 of this bill incorporates amendments to
Section 1109 of the Evidence Code proposed by both this bill and AB
141. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2005, (2) each bill
amends Section 1109 of the Evidence Code, and (3) this bill is
enacted after AB 141, in which case Section 6 of this bill shall not
become operative.
SEC. 21. Section 17.5 of this bill incorporates amendments to
Section 11166 of the Penal Code proposed by both this bill and SB
1313. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2005, (2) each bill
amends Section 11166 of the Penal Code, and (3) this bill is enacted
after SB 1313, in which case Section 17 of this bill shall not become
operative.
SEC. 22. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.