BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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(Bonta) 0
As Amended: May 8, 2014
Hearing date: May 13, 2014
Penal Code
MK:sl
MATERIAL WITNESSES: HUMAN TRAFFICKING
HISTORY
Source: Alameda County District Attorney
Prior Legislation: SB 197 (Pavley) Ch. 567, Stats. 2009
AB 1158 (Benoit) - Ch. 14, Stats. 2008
AB 620 (Negrete McLeod) - Ch. 305, Stats. 2005
AB 1891 (Lowenthal) - Ch. 186; Stats. 2000
AB 526 (Zettel) - Ch. 383, Stats. 1999
Support: California District Attorneys Association; California
Narcotic Officers' Association; California Police
Chiefs Association Inc.; City and County of San
Francisco; Peace Officers Research Association of
California
Opposition:California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety;
California Public Defenders Association
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
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SHOULD THE LAW PROVIDE THAT IF A DEFENDANT HAS BEEN CHARGED WITH
HUMAN TRAFFICKING THE PEOPLE OR THE DEFENDANT MAY SEEK TO HAVE A
WITNESS EXAMINED CONDITIONALLY IF SPECIFIED CONDITIONS ARE MET?
PURPOSE
The purpose of this bill is to provide that if a defendant has
been charged with human trafficking, as specified, the people or
the defendant, if the defendant has been fully informed of his
or her right to counsel as provided by law, may have a witness
examined conditionally.
Existing law provides that when a defendant has been charged
with any crime, 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 right to counsel,
have witnesses examined conditionally in his or her or their
behalf, as prescribed. (Penal Code § 1335(a).)
Existing law states that when a defendant has been charged with
a serious felony, as defined, or in a case of domestic violence,
the people or the defendant may, if the defendant has been fully
informed of his right to counsel, as provided by law, have a
witness conditionally examined if there is evidence that life of
the witness is in jeopardy. (Penal Code § 1335 (b).)
Existing law states that 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 is a dependent
adult, the defendant or the people may apply for an order that a
witness be examined conditionally. (Penal Code § 1336(a).)
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Existing law provides that when there is evidence that the life
of a witness is in jeopardy, the defendant or the people may
apply for an order that the witness be examined conditionally.
(Penal Code § 1336 (b).)
Existing law provides that if the court or judge is satisfied
that the examination of the witness is necessary, an order must
be made that the witness be examined conditionally, at a
specified time and place, before a designated magistrate. (Penal
Code § 1339.)
Existing law states that the defendant has the right to be
present in person and with counsel at the examination, and if
the defendant is in custody, the officer in whose custody he is,
must take the defendant to the deposition and keep him in the
presence and hearing of the witness during the examination, and
if the court determines that the witness to be examined is so
sick or infirm as to be unable to participate in the examination
in person, the court may allow the examination to be conducted
by a contemporaneous, two-way video conference system in which
the parties and the witness can see and hear each other via
electronic communication. (Penal Code § 1340 (a) and (b).)
Existing law provides that the testimony given by the witness
shall be reduced to writing and authenticated, as specified.
Additionally, the testimony may be video-recorded. (Penal Code §
1343.)
Existing law provides that, after a deposition is taken, if the
court finds witness is unavailable at trial, as specified, the
deposition may be read into the record, or if video-taped, that
tape may be played at trial by either party and the same
objections may be taken to a question or answer contained in the
deposition or video-recording as if the witness had been
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examined orally in court. (Penal Code § 1345.)
This bill provides that if a defendant has been charged with
human trafficking, 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 if any
of the following apply:
There is evidence that the life of the witness is in
jeopardy;
There is evidence that the witness has been threatened
or dissuaded from testifying at eth trial; or,
The court finds that there is a reasonable basis to
believe that the witness will not attend the trial.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
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following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed, the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
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1. Need for the Bill
According to the author:
Recently in Orange County, at least one victim of human
trafficking was murdered and multiple juvenile victims
received implicit threats from people inside the
community, all while the defendants remained behind
bars.
AB 1610 allows for a conditional examination when a
material witness is a victim of, or witness to, a
felony prosecution involving human trafficking,
commercial sex acts, or forced labor or services. In
much the same way that the elderly, infirm, and
transitory populations are afforded the opportunity to
testify early in case their status renders them
unavailable at the time of trial, AB 1610 does the same
for victims of human trafficking by giving the people
and defendant the opportunity to conditionally examine
the witness in order to preserve his or her testimony.
The bill provides that the examination will only apply
under the following conditions:
1. There is evidence that the life of the
witness is in jeopardy.
2. There is evidence that the witness has
been threatened or dissuaded
from testifying.
3. The court finds that the there is a
reasonable basis to believe that the
witness will not attend the trial.
Once a victim of human trafficking is threatened
pre-trial or moved outside the local jurisdiction, it
could be too late to capture his or her testimony,
resulting in cases being dismissed for lack of evidence
and offenders getting away with abuse simply because
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the testimony of the witness was not obtained soon
enough.
Existing law provides that, after a conditional
examination is conducted, if the court finds the
witness is unavailable at trial, the deposition may be
read into the record or, if video-taped, that tape may
be played at trial by either party and the same
objections may be taken to a question or answer
contained in the deposition or video-recording as if
the witness had been examined orally in court. (Penal
Code § 1345.) Therefore, this law is not intended to
replace the court examination; it's simply a "back up"
of sorts to ensure the preservation of testimony in
cases where the victim-witness later becomes
unavailable.
The conditional exam is more important than ever
because it provides the only avenue to preserve
important testimony that may not be available at the
time a criminal case finally goes to trial.
2. Conditional Examinations
As a general rule, state and federal constitutional law requires
every defendant on trial be allowed to see, confront and
meaningfully cross-examine all the witnesses against him or her.
(U.S. Const., 6th Amend; Cal. Const, art. I, §15.) Under
certain circumstances, if the witness is about to leave
California, or is so sick or infirm that there is reasonable
grounds to believe the witness will be unable to testify at
trial, a conditional examination may be conducted in order to
preserve the witness's testimony. (Penal Code § 1336.)
Conditional examinations are usually videotaped before trial and
subsequently played for the jury. The defendant is still
entitled to cross-examination and confrontation at the time of
videotaping thus preserving his or her right to confront and
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cross-examine the witness. (People vs. Rojas (1975) 15 Cal.3rd
540.)
Penal Code Section 1336 explicitly lists the instances in which
conditional examinations may be ordered. Those instances
include: when a material witness for the defendant, or for the
people, is about to leave California, or is so sick or infirm as
to afford reasonable grounds to believe he or she will be unable
to attend the trial, or is a person 65 years of age or older.
When the defendant is charged with a serious felony, a
conditional examination may be ordered when there is evidence
that the life of a witness is in jeopardy. (Penal Code Section
1336(a) and (b).) Penal Code Section 1339 provides that "[i]f
the court or judge is satisfied that the examination of the
witness is necessary, an order must be made that the witness be
examined conditionally, at a specified time and place, and
before a magistrate designated therein." Usually, the
prosecution submits affidavits showing some threat to the
witness and the court decides whether to order the conditional
examination; although there is no requirement the witness be
directly threatened or intimidated. (People vs. Jurado (2006) 38
Cal.4th 72, 114.)
Sixth Amendment case law requires that the defendant have a
"meaningful" cross examination of the witness. (Chambers vs.
Mississippi (1973) 410 U.S. 284, 295; People vs. Patino (1994)
26 Cal.App.4th 1737, 1746.) If the witness states a refusal to
testify three weeks after the arrest and a conditional
examination is scheduled several months before the trial, the
defense attorney may not be fully prepared to cross-examine.
Investigation conducted prior to trial may reveal more facts not
addressed at the initial recording. Although this is true in
all cases of conditional examination, cross-examination is
critical at trial because even more than the witness's words,
his or her demeanor may significantly impact the jury.
Therefore, historically conditional examinations have been used
only sparingly and when absolutely necessary in order to protect
the integrity of a jury trial.
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3. Unavailability and Evidence Code Section 240
Conditional examinations may not be introduced into evidence
unless the witness meets the legal definition of "unavailable."
Generally, out-of-court statements offered for the truth of the
matter asserted are inadmissible as hearsay. However, if the
declarant is "unavailable," his or her statement may be admitted
as an exception to the hearsay rule. Under existing law,
"unavailability" has a specific definition. Evidence Code
Section 240 lists several instances in which a declarant may be
legally "unavailable."
The following grounds create lawful "unavailability": an
assertion of the declarant's Fifth Amendment right against
self-incrimination, the declarant is disqualified from
testifying to the matter, the declarant is dead or unable to
attend or testify due to physical or mental illness or
infirmity, or the declarant is absent from the hearing and the
court or the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure his or her
attendance by the court's process. (Evidence Code Section
240(a)(1) to (5).)
However, existing law also states the declarant is not
considered "unavailable" if the grounds for absence are brought
about by the procurement or wrongdoing of the proponent for the
purposes of preventing the declarant from attending or
testifying. (Evidence Code Section 240(b)). This means a
defendant on trial may not "arrange" for a person to be
unavailable and then claim that his or her statements are
admissible under the hearsay rule. This is referred to as
"forfeiture by wrongdoing," meaning the defendant forfeits his
or her right to confrontation as to that witness. The California
Appellate Court in People vs. Allen further explained this
exception to the doctrine of unavailability: "[Section 240 was
not intended to apply] when the party, for his or her own
supposed advantage, creates the witnesses' or his or her own
legal unavailability or is somehow responsible for allowing the
unavailability to occur. This distinction has long been
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acknowledged. [citations omitted] It was a principal concern of
the Law Revision Commission, as it had been of the Commission on
the Uniform Evidence Code, to safeguard against 'sharp
practices' in order to assure ''that unavailability is honest
and not planned in order to gain an advantage'." (People vs.
Allen (1989) 215 Cal.App. 3rd 392, 411.)
Courts have long held that "unavailability" should not be the
preferred form of evidence. The California Supreme Court
stated, "The fundamental purpose of the unavailability
requirement is to ensure that prior testimony is substituted for
live testimony, the generally preferred form of evidence, only
when necessary. Former testimony often is only a weaker
substitute for live testimony. . . . If the declarant is
available and the same information can be presented to the trier
of fact in the form of live testimony, with full
cross-examination and the opportunity to view the demeanor of
the declarant, there is little justification for relying on the
weaker version. When two versions of the same evidence are
available, long standing principles of the law of hearsay,
applicable as well to Confrontation Clause analysis, favor the
better evidence. But if the declarant is unavailable, no
'better' version of the evidence exists, and the former
testimony may be admitted as a substitute for live testimony on
the same point.' (citation omitted). As this court, quoting
Wigmore's treatise, has observed, "[t]he general principle upon
which depositions and former testimony should be resorted to is
the simple principle of necessity, - i.e., the absence of any
other means of utilizing the witness' knowledge.' (citation
omitted)." (People vs. Reed (1996) 13 Cal.4th 219, 225)
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4. Conditional Statement for Witness in Human Trafficking
This bill provides that if a defendant has been charged with
human trafficking, 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 if any
of the following apply:
There is evidence that the life of the witness is in
jeopardy;
There is evidence that the witness has been threatened
or dissuaded from testifying at eth trial; or,
The court finds that there is a reasonable basis to
believe that the witness will not attend the trial.
As discussed in the comments above, the conditional statement
would later only be admissible if the witness were found to be
unavailable.
5. Opposition
CACJ opposes this bill stating:
[C]urrent California law completely provides for the
use of conditional examination when a proper showing
can be made that such procedure is necessary to
preserve the witness' testimony. AB 1610 seeks to
create a new exception to in-court testimony based
solely on the nature of the case being prosecuted.
Conditional examination exists to accommodate a
particular situation involving the circumstances
surrounding a given witness. AB 1610 would ignore the
very reason why the conditional examination exceptions
exist.
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