BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 130 (Corbett)
As Introduced January 23, 2013
Hearing date: April 9, 2013
Penal Code
MK:mc
WITNESSES
HISTORY
Source: Alameda County District Attorney
San Diego County District Attorney
Prior Legislation: SB 1091 (Pavley) - Chapter 148, Stats. 2012
SB 1343 (Battin) - Chapter 48, Stats. 2008
AB 77 (Havice) - Chapter 62, Stats. 2001
AB 2936 (Cunneen) - Chapter 988, Stats.
1996
AB 2212 (Speier) - Chapter 1402, Stats. 1989
AB 1359 (Clute) - Chapter 1418, Stats.
1987
AB 3849 (Margolin) - Chapter 1051,
Stats. 1986
AB 3319 (Mojonnier) - Chapter 273,
Stats. 1986
AB 32 (Mojonnier) - Chapter 1174,
Stats. 1985
Support: The Child Abuse Prevention Center; California
Probation, Parole and Correctional Association;
California Partnership to End Domestic Violence; Chief
Probation Officers of California; Alameda County Board
of Supervisors; California Coalition Against Sexual
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Assault
Opposition:California Public Defenders Association (unless
amended)
KEY ISSUES
SHOULD SPECIFIED OFFENSES BE ADDED TO THE PROVISION THAT PERMITS
A PERSON WHO IS A VICTIM OF A SPECIFIED SEX OFFENSE HAVE UP TO
TWO SUPPORT PEOPLE WHEN HE OR SHE TESTIFIES?
(CONTINUED)
SHOULD A PERSON ALSO BE ABLE TO HAVE UP TO TWO SUPPORT PEOPLE WHEN
HE OR SHE IS THE VICTIM OF AN ATTEMPT OF ONE OF THE SPECIFIED
OFFENSES?
SHOULD SPECIFIED OFFENSES BE ADDED TO THE PROVISION WHICH PERMITS
THE COURT TO TAKE PRECAUTIONS WHEN A PERSON WITH A DISABILITY OR WHO
IS UNDER 11 YEARS OF AGE IS THE VICTIM OF A SPECIFIED SEX OFFENSE?
SHOULD THE COURT ALSO BE PERMITTED TO TAKE SPECIAL PRECAUTIONS WHEN
A VICTIM WHO HAS A DISABILITY OR IS UNDER THE AGE OF 11 IS THE
VICTIM OF AN ATTEMPT OF ONE OF THE SPECIFIED OFFENSES?
PURPOSE
The purpose of this bill is to expand provisions allowing
support to victims of specified sex offenses when they testify
in court to include more crimes and to include attempts of the
listed crimes.
Existing law provides that a prosecuting witness in specified
cases to have up to two persons of his or her own choosing for
support at the preliminary hearing and at trial, or at a
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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;
human trafficking;
procuring a person under 18 for the purpose of
prostitution;
taking a person against his or her consent or by
misrepresentation for the purpose of prostitution;
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;
inducing the commission of a sexual act through false
representation creating fear;
pandering;
hiring a panderer;
selling a person for illicit use;
prostituting one's wife;
pimping;
the punishment provision of pandering;
providing or transporting a child under the age of 16
for the purpose of a lewd or lascivious act;
an additional fine for a conviction of pimping,
pandering or supplying a child under 16 for a lewd and
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lascivious act;
abduction of a person under the age of 18 for the
purposes of prostitution;
aggravated sexual assault of a child;
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;
indecent exposure;
specified offenses against and elder or dependent adult;
brining child pornography in to the state;
bringing obscene matter into or distributing it in the
state;
developing, duplicating, printing or exchanging obscene
matter depicting sexual conduct of a person under 18;
using a minor to assist in the distribution of obscene
matter;
advertising obscene matter;
engaging in obscene live conduct;
punishment for distributors of obscene matter depicting
person under age 18;
possession or control of matter, representation, of
information, data, or image depicting sexual conduct of a
person under age 18. (Penal Code § 868.5.)
This bill adds kidnapping to commit a robbery or to commit a
robbery or a sex crime; sexual acts with a child under 10;
criminal threat; and stalking to the crimes for which a
prosecuting witness may have a support person.
This bill also expands this law to apply to cases where the
person is charged with an attempt to commit any of the listed
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crimes.
Existing law provides that in any criminal proceeding in which
the defendant is charged with specific violations committed with
or upon a minor under the age of 11 or a person with a
disability, the court will take special precautions to provide
for the comfort and support of the minor and to protect the
minor from coercion, intimidation or undue influence as a
witness including, but not limited to, any of the following:
In the court's discretion, the witness may be allowed
reasonable periods of relief from examination or
cross-examination during which he or she may retire from
the courtroom;
Notwithstanding other provisions of law, the judge may
remove his or her robe if the judge believes that his or
her formal attire intimidates the witness;
In the court's discretion the judge, parties, witnesses,
support persons, and court personnel may be relocated
within the courtroom to facilitate a more comfortable and
personal environment for the child witness; and
In the court's discretion, the taking of the child's
testimony may be limited to the hours during which the
child is normally in school if there is no good cause to
take the child's testimony during other hours. (Penal Code
§ 868.8.)
This bill adds kidnapping to commit a robbery or to commit a
robbery or a sex crime; assault with intent to commit mayhem,
rape, sodomy or oral copulation; human trafficking; sexual acts
with a child under 10; criminal threat; and stalking to the
crimes for which the above accommodations may apply.
This bill also provides that the court may use accommodations to
apply to cases where the person is charged with an attempt to
commit any of the listed crimes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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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 which 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. ROCA necessitated many hard and
difficult decisions for the Committee.
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 to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
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, who oppose the state's
motion, argue in part 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."
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In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
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
1. Need for This Bill
According to the author:
SB 310 will amend Penal Code Sections 868.5 and 868.8
to provide for the inclusion of both the attempts of
all the crimes enumerated therein and add the crimes
and attempted crimes enumerated above to those
proceedings during which a prosecution witness may have
up to two support persons in the courtroom while
testifying at a preliminary hearing, jury trial or
juvenile court proceeding.
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Many times in the aforementioned types of cases, when a
victim testifies in court it is the first time they
have seen the attacker since the crime. This
experience can be terrifying and traumatic for the
victim. Having a support person sitting with the
victim while she or he testifies can help lessen the
trauma of the victim's courtroom experience. Amending
Penal Code sections 868.5 and 868.8 as mentioned above
will ensure that victims of these crimes will be
supported through the criminal justice system.
2. Support Person for Witness
Under existing law, a victim of specified sex crimes, violent
crimes, child abuse crimes, and specified offenses against and
elder or dependent adult, the victim 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 courtroom
with the prosecuting witness. This provision has been found not
to violate the Confrontation 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.)
A. New offenses.
This bill will add the following offenses to those sections
which permits the prosecuting witness to have a support
person while he or she testifies:
Kidnapping to commit a robbery or to commit a robbery or
a sex crime. (Penal Code § 209(b).)
Sexual acts with a child under 10. (Penal Code §
288.7.)
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Criminal threat. (Penal Code § 422.)
Stalking. (Penal Code § 646.9.)
A. Attempted violations.
This bill would also allow for support people for the
victim when the defendant is charged with an attempted
violation of any of the listed offenses.
3. Support and Accommodations for a Victim Who is a Child or
Has Disabilities
Existing law provides that when a victim of specified sex
offenses is disabled or is under the age of 11, the court may
take specific precautions to "protect the victim from coercion,
intimidation or undue witness" including but not limited to the
following:
In the court's discretion, the witness may be allowed
reasonable periods of relief from examination or
cross-examination during which he or she may retire from
the courtroom;
Notwithstanding other provisions of law, the judge may
remove his or her robe if the judge believes that his or
her formal attire intimidates the witness;
In the court's discretion the judge, parties, witnesses,
support persons, and court personnel may be relocated
within the courtroom to facilitate a more comfortable and
personal environment for the child witness; and
In the court's discretion, the taking of the child's
testimony may be limited to the hours during which the
child is normally in school if there is no good cause to
take the child's testimony during other hours.
A. Additional offenses.
This bill would add the following offenses to those
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sections which would allow a court when the victim is
disabled or child to take those precautions:
Kidnapping to commit a robbery or to commit a robbery or
a sex crime. (Penal Code
§ 209(b).)
Assault with intent to commit mayhem, rape, sodomy or
oral copulation. (Penal Code
§ 220.)
Human trafficking. (Penal Code § 236.1.)
Sexual acts with a child under 10. (Penal Code §
288.7.)
Criminal threat. (Penal Code § 422.)
Stalking. (Penal Code § 646.9.)
A. Attempted offenses.
This bill would also allow the court to take special
precautions when a victim has a disability or is under 11
years of age and when the defendant is charged with an
attempted violation of any of the listed offenses.
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