BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1091 (Pavley) 1
As Introduced February 15, 2012
Hearing date: April 17, 2012
Penal Code
MK:dl
WITNESS TESTIMONY: SUPPORT PERSONS
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: SB 1343 (Battin) - Chapter 48, Stats. 2008
AB 2936 (Cunneen) - Chapter 988, Statutes 1996
Support: Crime Victims United of California; California
District Attorneys Association
Junior Leagues of California State Public Affairs
Committee; California Police Chiefs Association
Opposition: None known
KEY ISSUE
SHOULD A NUMBER OF PROVISIONS RELATING TO PROSTITUTION, HUMAN
TRAFFICKING AND PORNOGRAPHY BE ADDED TO THE SECTION THAT ALLOWS A
VICTIM WITNESS TO HAVE A SUPPORT PERSON PRESENT WHILE HE OR SHE
TESTIFIES?
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PURPOSE
The purpose of this bill is to add a number of prostitution,
human trafficking and pornography offenses to the section which
allows a victim witness to have a support person present while
testifying.
Existing law provides that a prosecuting witness in specified
cases may have up to two persons of his or her own choosing for
support at the preliminary hearing and at trial, or at a
juvenile court proceeding, during the testimony of the
prosecuting witness.(Penal Code § 868.5)
Existing law provides that the offenses for which a prosecuting
witness may have up to two support persons are:
Homicide;
Mayhem;
Aggravated mayhem;
Kidnapping;
Robbery;
Carjacking;
Assault with intent to commit mayhem, rape etc.
Assault;
Battery;
Sexual Battery;
Assault with a deadly weapon;
Rape;
Spousal rape;
Willful harm to a child;
Corporal punishment of a child;
Willful infliction of corporal injury;
Violation of a court order;
Kidnap from a lawful custodial caregiver;
Incest;
Sodomy;
Lewd and lascivious acts with a child;
Continual sexual abuse;
Forcible sexual penetration;
Annoying or molesting a child;
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Indecent exposure, and
Specified offenses against and elder or dependent adult.
(Pena Code § 868.5)
This bill would add specified crimes relating to human
trafficking, pandering, procurement, prostitution, aggravated
sexual assault against a child and child pornography to the
crimes for which a prosecuting witness may have up to two
support persons while testifying.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
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the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
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167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Some of the most important cases investigators,
prosecutors and judges will handle during the course of
their careers are those involving child victims and
witnesses. The stakes are incredibly high. What
happens to these children has a significant impact both
on individual children and on the overall safety and
well-being of communities.
While many crime victims and witnesses are entitled to
trial assistance in the form of support persons during
their testimony in certain criminal cases, victims of
child pornography, human trafficking and pimping and
pandering are not permitted this form of assistance.
This lack of support during criminal trials can further
traumatize children and jeopardize prosecution of sex
crimes committed against children.
Being involved in a case as a victim or witness is
intimidating and stressful for adults; children find it
even more terrifying.
Tragically, there has been a significant increase in the
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proliferation of sex crimes, and in particular, child
pornography in California and throughout the nation.
The National Center for Missing and Exploited Children's
Child Victim Identification Program has received over
one million Cyber Tip reports from the public and
electronic service providers since 1998.
This a disturbing trend that must be addressed on a
variety of fronts. Victims in child pornography and
other sex crime cases are in need of protection and the
comfort of a support person. If they are called to
testify, they have to recall horrific experiences.
According to the Los Angeles District Attorney's Office,
SB 1091 could help provide humane support to witnesses
critical in the prosecution of approximately 126
pornography cases, 97 prostitution cases and 3 human
trafficking cases in Los Angeles County alone.
SB 1091 is intended to make the process less traumatic
for children of specified crimes and violence, will
enhance the ability of the child to participate
effectively and will increase the chances of a
successful outcome to the investigation and prosecution.
2. Support Person for Witness
Under existing law, a victim of specified sex crimes, violent
crimes, child abuse crimes, and specified offenses against an
elder or dependent adult, may choose up to two support persons,
one of whom may accompany the witness to the witness stand. The
other may remain in the courtroom. If the person chosen is also
a prosecuting witness, the prosecution shall present evidence
that the person's attendance is both desired by the prosecuting
witness for support and will be helpful to the prosecuting
witness and the testimony of the support person should be taken
before they are in the court room with the prosecuting witness.
This provision has been found not to violate the Confrontation
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Clause of the Constitution. (See People v. Adams (1993) 19 C.A.
4th 412, 437, 444; People v. Johns (1997) 56 C.A. 4th 550, 554,
555; and generally 5 Witkin and Epstein, California Criminal
Law 3rd Edition Section 534).
3. Support Person for Victim of Pandering and Prostitution
Related Offenses
This bill will add the following provisions to those sections
which permits the prosecuting witness to have a support person
while he or she testifies:
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Human trafficking. (Penal Code § 236.1)
Procuring a person under 18 for the purpose of
prostitution. (Penal Code § 266)
Taking a person against his or her consent or by
misrepresentation for the purpose of prostitution. (Penal
Code § 266a)
Taking another person against his or her will and
compelling him to live with another person in an illicit
relation against his or her consent. (Penal Code § 266b)
Inducing the Commission of a sexual act through false
representation creating fear. (Penal Code §266c)
Pandering. (Penal Code § 266d)
Hiring a panderer. (Penal Code § 266e)
Selling a person for illicit use. (Penal Code § 266f)
Prostituting one's wife. (Penal Code § 266g)
Pimping. (Penal Code § 266h)
The punishment provision of pandering. (Penal Code §
266i)
Providing or transporting a child under the age of 16
for the purpose of a lewd or lascivious act. (Penal Code §
266j)
An additional fine for a conviction of pimping,
pandering or supplying a child under 16 for a lewd and
lascivious act. (Penal Code § 266k)
Abduction of a person under the age of 18 for the
purposes of prostitution. (Penal Code § 267)
Aggravated sexual assault of a child. (Penal Code §
269)
Bringing child pornography in to the state. (Penal Code
§ 311.1)
Bringing obscene matter into or distributing it in the
state. (Penal Code § 311.2)
Developing, duplicating, printing or exchanging obscene
matter depicting sexual conduct of a person under 18.
(Penal Code § 311.3)
Using a minor to assist in the distribution of obscene
matter. (Penal Code § 311.4)
Advertising obscene matter. (Penal Code §311.5)
Engaging in obscene live conduct. (Penal Code § 311.6)
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Punishment for distributors of obscene matter depicting
person under age 18. (Penal Code § 311.10)
Possession or control of matter, representation, of
information, data, or image depicting sexual conduct of a
person under age 18. (Penal Code § 311.11)
4. Support Person for Victims of Human Trafficking,
Prostitution and Pornography
This bill adds 22 additional sections to the list of sections
for which a victim may have a support person with him or her
when he or she testifies in a trial. The sections include
crimes relating to human trafficking, pimping, pandering, child
pornography and obscene matter. Are these crimes where the
victim should be allowed a support person when testifying
because of the nature of the crime?
The author's background states that:
The victims in child pornography cases are in need of
the protection and comfort from a support person.
Victims in child pornography cases, if called to
testify have to recount horrific experiences. They may
not have been touched by the charged defendant, but the
circumstances about which they would have to testify
are extremely sensitive and demeaning.
However, the additional sections also include sections regarding
obscene matter, not just child pornography. Does the author
intend to limit the support person to cases where a child is
involved in the pornography?
A few of the sections listed appear to be sentencing and not
charging sections. Are these sections appropriately included
in this list?
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