BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1610
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 1610 (Bonta)
          As Amended  August 18, 2014
          Majority vote
           
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          |ASSEMBLY:  |75-0 |(April 24,      |SENATE: |32-0 |(August 21,    |
          |           |     |2014)           |        |     |2014)          |
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           Original Committee Reference:    PUB. S.  
           
          SUMMARY  :  Provides that if a defendant has been charged with  
          human trafficking, and there is evidence that the victim or a  
          material witness is being dissuaded from testifying at trial, 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.

           The Senate amendments  :  

           1)Provide that if there is a reasonable basis to believe that a  
            material witness will not attend the trial because he or she  
            is under the direct control of the defendant or another person  
            involved in human trafficking and, by virtue of this  
            relationship, the defendant or other person seeks to prevent  
            the witness from testifying, and if the defendant is fully  
            informed of his or her right to counsel, the court may have  
            the witness examined conditionally.  

           2)Delete the circumstance where there is evidence that the life  
            of the witness is in jeopardy as grounds for the ordering of a  
            conditional examination.

          3)Recast the Assembly version of the bill.

           EXISTING LAW :

          1)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, may  
            have witnesses examined conditionally in his or her or their  
            behalf, as prescribed.  









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          2)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.  

          3)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.  

          4)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.  

          5)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.  

          6)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.  

          7)Provides that the testimony given by the witness shall be  
            reduced to writing and authenticated, as specified.   
            Additionally, the testimony may be video-recorded. 

          8)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 videotaped, 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  








                                                                  AB 1610
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            or video-recording as if the witness had been examined orally  
            in court.  

           AS PASSED BY THE ASSEMBLY  , this bill:

          1)Provided 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, have a witness examined  
            conditionally if any of the following apply:
           
              a)   There is evidence that the witness has been threatened  
               or dissuaded from testifying at trial by the defendant or a  
               person acting on behalf of the defendant; and
              
              b)   The court finds there is a reasonable basis to believe  
               that the witness will not attend the trial.  
           
           FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee, unknown, likely minor, trial court costs to the  
          extent conditional examinations require additional court time.  
          (There were 41 commitments to state prison between 2009-2012. )

           COMMENTS  :  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. 

          "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 the testimony of the witness was not obtained  








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          soon enough. 

          "AB 1610 is a fairly simple fix to this potentially enormous  
          problem. The bill simply provides a means to preserve evidence.  
          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 Section 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."

          Please see the policy committee analysis for a full discussion  
          of this bill.
           

          Analysis Prepared by  :    Gregory Pagan / PUB. S. / (916)  
          319-3744 


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