BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  AB 886
                                                                  Page  1

          Date of Hearing:   April 12, 2011
          Consultant:            Stefani Salt


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 886 (Cook) - As Introduced:  February 17, 2011
           

          SUMMARY  :   Prohibits a court from releasing statements from a 
          crime victim, as specified, to the public prior to being heard 
          in court.

           EXISTING LAW  :

          1)Provides that it is the right of a crime victim, as specified, 
            to be notified of all sentencing proceedings, and of the right 
            to appear, to reasonably express his or her views, have those 
            views preserved by audio or video means, as specified, and to 
            have the court consider his or her statements, as specified.  
            ›Penal Code Section 679.02(a)(3)]. 

          2)States that it is the right of a crime victim, as specified, 
            to be notified of all juvenile disposition hearings in which 
            the alleged act would have been a felony if committed by an 
            adult, and of the right to attend and to express his or her 
            views, as specified.  ›Penal Code Section 679.02(a)(4)]. 

          3)Declares that a victim of any crime, as specified, has the 
            right to attend all sentencing proceedings under this chapter 
            and shall be given adequate notice by the probation officer of 
            all sentencing proceedings concerning the person who committed 
            the crime.  Provides that the victim, as specified, has the 
            right to appear, personally or by counsel, at the sentencing 
            proceeding and to reasonably express his, her, or their views 
            concerning the crime, the person responsible and the need for 
            restitution.  States that the court in imposing sentence shall 
            consider the statements of victims, parents or guardians, and 
            next of kin made pursuant to this section and shall state on 
            the record its conclusion concerning whether the person would 
            pose a threat to public safety if granted probation.  (Penal 
            Code 1191.1.)

           FISCAL EFFECT  :   Unknown








                                                                  AB 886
                                                                  Page  2


           COMMENTS  :   

           1)Author's Statement  :  According to the author, "The victim 
            impact statement is often the only opportunity that victims 
            have to confront the defendants directly and let them know how 
            they feel.  This bill will ensure that it is first read in 
            open court, not in the morning newspaper."

           2)Background  :  According to the information provided by the 
            author, "Under current California law, a victim must submit a 
            victim impact statement in writing to the court before 
            sentencing. This allows the court to review the statement to 
            ensure that it complies with state law.  It also allows 
            defendants the chance to review the statement in accordance 
            with their right to refute materials used against them at 
            trial.

          "When the victim impact statement is submitted in writing to the 
            court, it becomes a public document.  This means that the 
            media is able to request and gain access to it.  This has led 
            to situations where the victim impact statement ends up being 
            published in the newspaper before the victim has the 
            opportunity to read it in court.  This can diminish the power 
            of the statement when read in court, which undermines the 
            rights of the victim.

          "This bill would change the California Public Records Law to 
            prevent the release of a victim impact statement to the public 
            before it is read in court.  This change would prevent the 
            release of victim impact statements to the public before they 
            are read in court, while still guaranteeing the court's right 
            to review the statement in advance.  This will not infringe 
            upon the defendant's right to have access to materials used 
            against them in court."

           3)Media Access to Judicial Proceedings  :  The Supreme Court has 
            consistently recognized a broad First Amendment right of 
            access for the public to attend judicial proceedings.  This 
            right extends to the media.  In Richmond Newspapers v. 
            Virginia (1980) 448 U.S. 555, the preeminent case on the First 
            Amendment right of access to court proceedings, the Court held 
            that there is a First Amendment right for the public and the 
            press to attend criminal trials.  In writing for the 
            plurality, Chief Justice Burger stated, "›t]he Bill of Rights 








                                                                  AB 886
                                                                  Page  3

            was enacted against a backdrop of the long history of trials 
            being presumptively open.  . . .  In guaranteeing freedoms 
            such as those of speech and the press, the First Amendment can 
            be read as protecting the right of everyone to attend trials 
            so as to give meaning to those explicit guarantees."  (Id. at 
            575.)   The plurality concluded that "the right to attend 
            criminal trials is implicit in the guarantees of the First 
            Amendment; without the freedom to attend such trials, which 
            people have exercised for centuries, important aspects of 
            freedom of speech and the press could be eviscerated."  (Id. 
            at 580.)   Although this right of access is not absolute, the 
            plurality explained that there would need to be "an overriding 
            interest articulated in findings" to justify closure.  (Id.)   


           4)Sentencing Hearings and Victim Impact Statements  :  A 
            sentencing hearing is less formal than a trial.  The court may 
            consider "the testimony of witnesses examined in open court" 
            (Penal Code Section 1204) and any facts supplied by the trial 
            record.  The victim of any crime, the parents or guardians of 
            the victim if the victim is a minor, or the next of kin of the 
            victim if the victim has died have the right to be notified of 
            the sentencing hearing and to appear and be heard concerning 
            the crime, the defendant and the need for restitution.  (Penal 
            Code Section 1191.1.)  The court must consider these 
            statements when imposing sentence.  (Penal Code Section 
            1191.1.)  Statements can be made in writing or on a recording 
            medium accepted by the court.  Victims who give statements at 
            sentencing do not need to take an oath, are not subject to 
            cross-examination and are permitted to relate hearsay 
            information.  ›People v. Birmingham (1990) 217 Cal.App.3d 180, 
            184.]

          When the victim submits a letter to the court, instead of 
            testifying, due process requires that the defendant be 
            permitted to read the letter in advance and respond to that 
            letter at the sentencing hearing.  ›People v. Mockel (1990) 
            226 Cal.App.3d 581, 587; See generally Penal Code Sections 
            1191.1 to 1191.3; See also Penal Code Section 1204 (testimony 
            in aggravation or mitigation must usually be in person).]

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           








                                                                  AB 886
                                                                  Page  4

          California State Sheriffs' Association
          Crime Victims United of California

           Opposition 
           
          None
           

          Analysis Prepared by  :    Stefani Salt / PUB. S. / (916) 319-3744