BILL NUMBER: AB 2829	CHAPTERED  06/24/04

	CHAPTER  61
	FILED WITH SECRETARY OF STATE  JUNE 24, 2004
	APPROVED BY GOVERNOR  JUNE 23, 2004
	PASSED THE SENATE  JUNE 14, 2004
	PASSED THE ASSEMBLY  MAY 17, 2004
	AMENDED IN ASSEMBLY  APRIL 29, 2004

INTRODUCED BY   Assembly Member Bogh

                        FEBRUARY 20, 2004

   An act to amend Section 782 of the Evidence Code, relating to
rape.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2829, Bogh.  Rape:  evidence:  sexual conduct.
   Existing law sets forth the procedure required in any prosecution
for rape or other specified offenses, with certain exceptions, if
evidence of sexual conduct of the complaining witness is offered to
attack the credibility of the complaining witness.  This procedure
involves, among other things, the filing of a written motion by the
defendant, accompanied by an affidavit stating an offer of proof,
and, if the court determines that the offer is sufficient, a hearing
out of the presence of the jury regarding the offer of proof.
Existing law allows the court, at the conclusion of the hearing, to
make an order stating what evidence may be introduced by the
defendant.
   This bill would require that the affidavit filed with the court in
connection with the offer of proof be kept under seal and only
unsealed by the court to determine whether the offer of proof is
sufficient.  The bill would require the affidavit to be resealed
after that determination, and would provide specified persons access
to that affidavit only if the defendant raises an issue on appeal or
collateral review regarding the offer of proof.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 782 of the Evidence Code is amended to read:
   782.  (a) In any prosecution under Section 261, 262, 264.1, 286,
288, 288a, 288.5, or 289 of the Penal Code, or for assault with
intent to commit, attempt to commit, or conspiracy to commit any
crime defined in any of those sections, except where the crime is
alleged to have occurred in a local detention facility, as defined in
Section 6031.4, or in a state prison, as defined in Section 4504, if
evidence of sexual conduct of the complaining witness is offered to
attack the credibility of the complaining witness under Section 780,
the following procedure shall be followed:
   (1) A written motion shall be made by the defendant to the court
and prosecutor stating that the defense has an offer of proof of the
relevancy of evidence of the sexual conduct of the complaining
witness proposed to be presented and its relevancy in attacking the
credibility of the complaining witness.
   (2) The written motion shall be accompanied by an affidavit in
which the offer of proof shall be stated.  The affidavit shall be
filed under seal and only unsealed by the court to determine if the
offer of proof is sufficient to order a hearing pursuant to paragraph
(3). After that determination, the affidavit shall be resealed by
the court.
   (3) If the court finds that the offer of proof is sufficient, the
court shall order a hearing out of the presence of the jury, if any,
and at the hearing allow the questioning of the complaining witness
regarding the offer of proof made by the defendant.
   (4) At the conclusion of the hearing, if the court finds that
evidence proposed to be offered by the defendant regarding the sexual
conduct of the complaining witness is relevant pursuant to Section
780, and is not inadmissible pursuant to Section 352 of this code,
the court may make an order stating what evidence may be introduced
by the defendant, and the nature of the questions to be permitted.
The defendant may then offer evidence pursuant to the order of the
court.
   (5) An affidavit resealed by the court pursuant to paragraph (2)
shall remain sealed, unless the defendant raises an issue on appeal
or collateral review relating to the offer of proof contained in the
sealed document. If the defendant raises that issue on appeal, the
court shall allow the Attorney General and appellate counsel for the
defendant access to the sealed affidavit.  If the issue is raised on
collateral review, the court shall allow the district attorney and
defendant's counsel access to the sealed affidavit.  The use of the
information contained in the affidavit shall be limited solely to the
pending proceeding.
   (b) As used in this section, "complaining witness" means the
alleged victim of the crime charged, the prosecution of which is
subject to this section.