BILL ANALYSIS Ó
SB 130
Page 1
Date of Hearing: June 11, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 130 (Corbett) - As Amended: April 24, 2013
SUMMARY : Expands provisions allowing support persons while
testifying to victims of specified sex offenses when they
testify in court to include more crimes and to include attempts
of the listed crimes. Specifically, this bill :
1)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.
2)Expands current law allowing support persons to apply to cases
where the person is charged with an attempt to commit any of
the listed crimes.
3)Expands existing provisions for minor victims under the age of
11 or persons with a disability which permit these witnesses
specified comfort and support and protect them from coercion
or undue influence. Specifically 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
specified 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.
EXISTING LAW :
1)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 juvenile court
proceeding, during the testimony of the prosecuting witness.
(Penal Code Section 868.5.)
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2)Provides that the offenses for which a prosecuting witness may
have up to two support persons are: (Penal Code Section
868.5.)
a) Homicide;
b) Mayhem;
c) Aggravated mayhem;
d) Kidnapping;
e) Robbery;
f) Carjacking;
g) Assault with intent to commit mayhem, rape, etc.;
h) Assault;
i) Battery;
j) Sexual battery;
aa) Assault with a deadly weapon;
bb) Rape;
cc) Spousal rape;
dd) Human trafficking;
ee) Procuring a person under 18 for the purpose of
prostitution;
ff) Taking a person against his or her consent or by
misrepresentation for the purpose of prostitution;
gg) 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;
hh) Inducing the commission of a sexual act through false
representation creating fear;
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ii) Pandering;
jj) Hiring a panderer;
aaa) Selling a person for illicit use;
bbb) Prostituting one's wife;
ccc) Pimping;
ddd) The punishment provision of pandering;
eee) Providing or transporting a child under the age of 16
for the purpose of a lewd or lascivious act;
fff) An additional fine for a conviction of pimping,
pandering or supplying a child under 16 for a lewd and
lascivious act;
ggg) Abduction of a person under the age of 18 for the
purposes of prostitution;
hhh) Aggravated sexual assault of a child;
iii) Willful harm to a child;
jjj) Corporal punishment of a child;
aaaa)Willful infliction of corporal injury;
bbbb)Violation of a court order;
cccc)Kidnap from a lawful custodial caregiver;
dddd)Incest;
eeee)Sodomy;
ffff)Lewd and lascivious acts with a child;
gggg)Continual sexual abuse;
hhhh)Forcible sexual penetration;
iiii)Annoying or molesting a child;
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jjjj)Indecent exposure;
aaaaa)Specified offenses against and elder or dependent
adult;
bbbbb)Bringing child pornography in to the state;
ccccc)Bringing obscene matter into or distributing it in the
state;
ddddd)Developing, duplicating, printing or exchanging obscene
matter depicting sexual conduct of a person under 18;
eeeee)Using a minor to assist in the distribution of obscene
matter;
fffff)Advertising obscene matter;
ggggg)Engaging in obscene live conduct;
hhhhh)Punishment for distributors of obscene matter depicting
person under age 18; or
iiiii)Possession or control of matter, representation, of
information, data, or image depicting sexual conduct of a
person under age 18.
3)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:
(Penal Code Section 868.8.)
a) 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.
b) 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.
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c) 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.
d) 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.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "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 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
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 and Accommodations for a Victim Who is a Child or Has
Disabilities : Existing law provides that when a victim of
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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.
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.
This bill adds additional offenses . This bill would add the
following offenses to those sections which would allow a court
when the victim is disabled or child to take those
precautions:
a) Kidnapping to commit a robbery or to commit a robbery or
a sex crime.
b) Assault with intent to commit mayhem, rape, sodomy or
oral copulation.
c) Human trafficking.
d) Sexual acts with a child under 10.
e) Criminal threat.
f) Stalking. (Penal Code § 646.9.)
4)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.
5)Argument in Support : According to the San Diego District
Attorney's Office , "Penal Code Section 868.5 allows
prosecution witnesses in the prosecution of a case enumerated
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in Section 868.5 to have up to two support persons in the
courtroom while testifying at the preliminary hearing, jury
trial, or juvenile court proceeding. Section 868.5 includes
the same protections for elders or dependent adults and allows
the support person to remain in court even if he or she is a
witness in the proceeding.
"Penal code Section 868.8 also allows a prosecution witness in
the prosecution of a case enumerated in Section 868.8 to have
up to two support persons in the courtroom while testifying at
the preliminary hearing, jury trial, or juvenile court
proceeding. Section 868.8 includes the same protections for a
minor under 11 years of age and allows the support person to
remain in court even if he or she is a witness in the
proceeding.
"Senate Bill 130 expands the list of charges that a
prosecuting witness may have a support person present while
testifying. SB 130 will reaffirm California's commitment to
protecting victims' rights, and endure that victims are being
supported through the criminal justice system. This expansion
of victims' protections also enhances the spirit of Marsy's
Law, known as the Victims Bill of Rights."
6)Argument in Opposition: According to the California Attorneys
for Criminal Justice, "This bill expands the list of cases in
which the prosecuting witness may be entitled to enlist the
assistance of support persons during testimony. This
legislation is unnecessary, costly, and negates the
constitutional guarantees of equal protection and fundamental
fairness.
"CACJ opposes the expansion of crimes where the prosecuting
witness is entitled to 'support persons' during testimony to
include stalking, criminal threats, and kidnapping to commit a
robbery or sexual act. Currently Penal Code Section 868.5(a)
applies to crimes which are essentially violent in nature
(murder, kidnapping, robbery, carjacking, battery, assault
with deadly weapons, rape, domestic violence, child sexual
abuse), while this new proposed legislation expands that list
to crimes which, although occasionally involving a degree of
coerciveness, are essentially non-violent in nature. It is
submitted that the only rational justification for providing a
prosecuting witness with support persons is the idea that they
were at least allegedly the victim of a violent assault, who
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may therefore find some degree of 'support' useful during the
difficult testimony. To expand that entitlement to
non-violent crimes contravenes that rational and encroaches
upon constitutionally guaranteed notions of equal protection
and fundamental fairness.
"The presence of 'support persons', particularly the one
allowed to sit with the prosecuting witness on the witness
stand during his/her testimony at preliminary hearings and
jury trials, tends to paint the witness with a veneer of
vulnerability suggesting that the witness is indeed a 'victim'
before that determination has been made by the judge or jury.
It also goes without saying that the presence of support
persons tends to invoke feelings in the minds of jurors that
this witness somehow has an enhanced credibility or
believability because they are allowed to be bolstered by this
support system. To level the playing field in the interest of
fairness and equality, might it also be prudent to allow a
testifying Defendant his/her choice of support persons?"
7)Prior Legislation :
a) SB 1091 (Pavley), Chapter 148, Statutes of 2012, added
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.
b) SB 1343 (Battin), Chapter 48, Statutes of 2008, added
specified crimes against elder and dependent adults to the
list of offenses for which a prosecuting witness who is an
elder or dependent adult, may have up to two support
persons during the witness testimony.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County Board of Supervisors
Alameda County District Attorney's Office
California Coalition Against Sexual Assault
California District Attorneys Association
California Partnership to End Domestic Violence
California Probation, Parole and Correctional Association
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Chief Probation Officers of California
Child Abuse Prevention Center
Crime Victims United
San Diego District Attorney's Office
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744