BILL NUMBER: SB 197	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 23, 2009

INTRODUCED BY   Senator Pavley

                        FEBRUARY 23, 2009

   An act to amend Sections 1335, 1336,  and 1337 
 1337, and 1341  of the Penal Code, relating to domestic
violence.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 197, as amended, Pavley. Domestic violence proceedings:
conditional examination of witnesses.
   Existing law provides for the conditional examination of a witness
by the defendant in all cases  ,  and by the people in
cases where the punishment may be other than death  or
  ,  if the defendant is charged with a serious
felony and there is evidence that the life of the witness is in
jeopardy  , and in certain other circumstances  .
   This bill would also provide for the conditional examination of a
witness by the people or the defendant in a case of domestic
violence, as defined, when there is evidence that the life of the
witness is in jeopardy; when criminal charges arising out of the same
acts have been previously dismissed for specified reasons and
refiled; or when there is evidence that a victim or material witness
has been or is being dissuaded by any means from cooperating with the
prosecution or testifying at trial. The bill would make conforming
changes to related provisions.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


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

  SECTION 1.  Section 1335 of the Penal Code is amended to read:
   1335.  (a) When a defendant has been charged with a public offense
triable in any court, he or she in all cases, and the people in
cases other than those for which the punishment may be death, may, if
the defendant has been fully informed of his or her right to counsel
as provided by law, have witnesses examined conditionally in his or
her or their behalf, as prescribed in this chapter.
   (b) When a defendant has been charged with a serious felony or in
a case of domestic violence, the people or the defendant may, if the
defendant has been fully informed of his or her right to counsel as
provided by law, have a witness examined conditionally as prescribed
in this chapter, if there is evidence that the life of the witness is
in jeopardy.
   (c) As used in this section, "serious felony" means any of the
felonies listed in subdivision (c) of Section 1192.7 or any violation
of Section 11351, 11352, 11378, or 11379 of the Health and Safety
Code.
   (d) If a defendant has been charged in a case of domestic violence
and there is evidence that criminal charges arising out of the same
acts have been previously dismissed and refiled pursuant to paragraph
(2) or (3) of subdivision (a), or subdivision (b), of Section 1387,
the people or the defendant may, if the defendant has been fully
informed of his or her right to counsel as provided by law, have a
witness examined conditionally as prescribed in this chapter.
   (e) If a defendant has been charged in a case of domestic violence
and there is evidence that a victim or material witness has been or
is being dissuaded by any means from cooperating with the prosecution
or testifying at trial, the people or the defendant may, if the
defendant has been fully informed of his or her right to counsel as
provided by law, have a witness examined conditionally as prescribed
in this chapter.
   (f) For the purposes of this section, "domestic violence" means
any public offense arising from acts of domestic violence as defined
in Section 13700.
  SEC. 2.  Section 1336 of the Penal Code is amended to read:
   1336.  (a) When a material witness for the defendant, or for the
people, is about to leave the state, or is so sick or infirm as to
afford reasonable grounds for apprehension that he or she will be
unable to attend the trial, or is a person 65 years of age or older,
or a dependent adult, or is a victim or material witness in a case
charging domestic violence who has been or is being dissuaded by any
means from cooperating with the prosecution or testifying at trial,
the defendant or the people may apply for an order that the witness
be examined conditionally.
   (b) When there is evidence that the life of a witness is in
jeopardy, or, in a case of domestic violence, if criminal charges
arising out of the same acts have been previously dismissed and
refiled pursuant to paragraph (2) or (3) of subdivision (a), or
subdivision (b), of Section 1387, the defendant or the people may
apply for an order that the witness be examined conditionally.
   (c) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 65, who has physical or mental
limitations which restrict 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 diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 65,
who is admitted as an inpatient to a 24-hour facility, as defined in
Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
   (d) As used in this section, "domestic violence" means any public
offense arising from acts of domestic violence as defined in Section
13700.
  SEC. 3.  Section 1337 of the Penal Code is amended to read:
   1337.  The application shall be made upon affidavit stating all of
the following:
   (a) The nature of the offense charged.
   (b) The state of the proceedings in the action.
   (c) The name and residence of the witness, and that his or her
testimony is material to the defense or the prosecution of the
action.
   (d) That the witness is about to leave the state, or is so sick or
infirm as to afford reasonable grounds for apprehending that he or
she will not be able to attend the trial, or is a person 65 years of
age or older, or a dependent adult, or that the life of the witness
is in jeopardy, or that the witness is a victim or material witness
in a domestic violence case who has been or is being dissuaded by any
means from cooperating with the prosecution or testifying at trial,
or that the witness is a victim or material witness in a domestic
violence case and criminal charges arising out of the same acts have
been previously dismissed and refiled pursuant to paragraph (2) or
(3) of subdivision (a), or subdivision (b), of Section 1387.
   SEC. 4.    Section 1341 of the   Penal Code
  is amended to read: 
   1341.  If, at the time and place so designated, it is shown to the
satisfaction of the magistrate that  the witness is not
about to leave the state, or is not sick or infirm, or is not a
person 65 years of age or older, or a dependent adult, or that the
life of the witness is not in jeopardy,   the stated
ground for conditional examination is not true  or that the
application was made to avoid the examination of the witness at the
trial, the examination cannot take place.