BILL ANALYSIS Ó
SB 1248
Page 1
Date of Hearing: June 26, 2012
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1248 (Alquist) - As Amended: May 29, 2012
SUMMARY : Requires a minor under 16 years of age who refuses to
testify in a court proceeding to meet with a victims advocate,
as defined, unless the court finds, for good cause that it is
not in the best interest of the victim.
EXISTING LAW :
1)Provides that in any case in which a contempt consists of a
minor under 16 years of age to take the oath or to testify,
before imposing any sanction for the contempt, the court shall
first refer the matter to the probation officer in charge of
matters coming before the juvenile court for a report and
recommendation as to the appropriateness of the imposition of
a sanction. The probation officer shall prepare and file the
report and recommendation within the time directed by the
court. In making the report and recommendation, the probation
officer shall consider factors such as the maturity of the
minor, the reasons for the minor's refusal to take the oath or
to testify, the probability that available sanctions will
affect the decision of the minor not to take the oath or not
to testify, the potential impact on the minor of his or her
testimony, the potential impact on the pending litigation of
the minor's unavailability as a witness, and the
appropriateness of the various available sanctions in the
minor's case. The court shall consider the report and
recommendation in imposing a sanction in the case. ÝCode of
Civil Procedure Section 1219.5(a).]
2)States that, except as specified, when a person is found in
contempt for not performing an act which is in that person's
power to perform, he or she may be imprisoned until he or she
has performed that act. ÝCode of Civil Procedure Section
1219(a).]
3)Prohibits courts from imprisoning the victim of a sexual
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assault for contempt when the contempt consists of refusing to
testify concerning the sexual assault. ÝCode of Civil
Procedure Section 1219(b).]
4)Proscribes that upon finding a victim of domestic violence in
contempt for failing to testify, the court shall not
incarcerate the victim, but may require the victim to attend
up to 72 hours of a domestic violence program for victims or
require the victim to perform up to 72 hours of appropriate
community service, provided that in a subsequent finding of
contempt for refusing to testify arising out of the same case,
the court shall have the option of incarceration. ÝCode of
Civil Procedure Section 1219(c).]
5)Provides that the following acts or omissions in respect to a
court of justice, or proceedings therein, are contempts of
authority of the court:
a) Disorderly, contemptuous, or insolent behavior toward
the judge while holding the court, tending to interrupt the
due course of a trial or other judicial proceeding;
b) A breach of the peace, boisterous conduct, or violent
disturbance, tending to interrupt the due course of a trial
or other judicial proceeding;
c) Misbehavior in office, or other willful neglect or
violation of duty by an attorney, counsel, clerk, sheriff,
coroner, or other person, appointed or elected to perform a
judicial or ministerial service;
d) Abuse of the process or proceedings of the court, or
falsely pretending to act under authority of an order or
process of the court;
e) Disobedience of any lawful judgment, order, or process
of the court;
f) Rescuing any person or property in the custody of an
officer by virtue of an order or process of such court;
g) Unlawfully detaining a witness, or party to an action
while going to, remaining at, or returning from the court
where the action is on the calendar for trial;
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h) Any other unlawful interference with the process or
proceedings of a court;
i) Disobedience of a subpoena duly served, or refusing to
be sworn or answer as a witness;
j) When summoned as a juror in a court, neglecting to
attend or serve as such, or improperly conversing with a
party to an action, to be tried at such court, or with any
other person, in relation to the merits of such action, or
receiving a communication from a party or other person in
respect to it, without immediately disclosing the same to
the court; and,
aa) Disobedience by an inferior tribunal, magistrate, or
officer, of the lawful judgment, order, or process of a
superior court, or proceeding in an action or special
proceeding contrary to law, after such action or special
proceeding is removed from the jurisdiction of such
inferior tribunal, magistrate, or officer:
i) No speech or publication reflecting upon or
concerning any court or any officer thereof shall be
treated or punished as a contempt of such court unless
made in the immediate presence of such court while in
session and in such a manner as to actually interfere
with its proceedings.
ii) Notwithstanding any other provision of law, if an
order of contempt is made affecting an attorney, his
agent, investigator, or any person acting under the
attorney's direction, in the preparation and conduct of
any action or proceeding, the execution of any sentence
shall be stayed pending the filing within three judicial
days of a petition for extraordinary relief testing the
lawfulness of the court's order, the violation of which
is the basis of the contempt, except for such conduct as
may be proscribed by Business and Professions Code
Section 6068(b), relating to an attorney's duty to
maintain respect due to the courts and judicial officers.
iii) Notwithstanding any other provision of law, if an
order of contempt is made affecting a public safety
employee acting within the scope of employment for reason
of the employee's failure to comply with a duly issued
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subpoena or subpoena duces tecum, the execution of any
sentence shall be stayed pending the filing within three
judicial days of a petition for extraordinary relief
testing the lawfulness of the court's order, a violation
of which is the basis for the contempt. (Code of Civil
Procedure Section 1209.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In child sex
assault cases, all too often a combination of factors - the
loss of a breadwinner's income and fear of financial
instability, denial, misconceptions of how a molested child
will act - can lead to a hostile environment for the victim.
These factors can make clear to the victim, a child, that the
family's finances and relationships are in ruin because of her
allegations.
"The victim, who initially wanted the abuse to stop, now wants
the legal process to stop. In some cases, leading them to
recant their initial statements or refuse to participate in
the legal proceeding. Without their testimony, they're told,
the case will go away and the family can return to how it was
before the allegations were made.
"Sponsored by the Santa Clara County District Attorney, SB 1248
seeks to protect child victims of sex crimes from being
coerced into not testifying against their abusers by requiring
when there is a case of juvenile contempt in these cases, the
child victim be required to meet with a sex assault victim
advocate."
2)Related Legislation : AB 2051 (Campos) authorizes courts to
refer victims of domestic violence cases to a domestic
violence counselor when they refuse to testify and permits
prosecutors to re-file charges when they dismiss cases due to
a domestic violence victim's failure to testify within six
months of the dismissal. AB 2051 is pending a vote on the
Senate Floor.
3)Prior Legislation : SB 1356 (Yee), Chapter 49, Statutes of
2008, eliminated the court's discretion to imprison or
otherwise confine in custody a victim of a domestic violence
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crime for contempt when the contempt consists of refusing to
testify concerning that domestic violence crime.
REGISTERED SUPPORT / OPPOSITION :
Support
California Communities United Institute
California District Attorneys Association
Los Angeles County District Attorney's Office
Santa Clara County District Attorney
Opposition
None
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744