BILL ANALYSIS Ó
SB 327
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Date of Hearing: June 18, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 327 (Yee) - As Amended: April 2, 2013
SUMMARY : Allows a writ of habeas corpus to be prosecuted when
competent and substantial expert testimony relating to human
trafficking was not presented at trial for a crime in which the
defendant was a victim of human trafficking. Specifically, this
bill :
1)Provides that a showing that expert testimony relating to
human trafficking and its effects was presented to the trier
of fact is not a bar to granting a habeas corpus petition if
that expert testimony was not competent or substantial.
2)Places the burden of proof on the petitioner to establish a
sufficient showing that competent and substantial expert
testimony, of a nature which would be competent using
prevailing understanding of human trafficking and its effects,
was not presented to the trier of fact, and had that evidence
been presented, there is a reasonable probability that the
result of the proceedings would have been different.
3)States if a petitioner for habeas corpus has previously filed
a petition for writ of habeas corpus, it is grounds for denial
of the new petition if a court determined on the merits in the
prior petition that the omission of expert testimony at trial
relating to human trafficking and its effects was not
prejudicial and did not entitle the petitioner to the writ of
habeas corpus.
4)Authorizes the Board of Parole Hearings (BPH) to report to the
Governor, from time to time, the names of any and all persons
imprisoned in any state prison who, in its judgment, ought to
have a commutation of sentence or be pardoned and set at
liberty on account of evidence that the person was a victim of
human trafficking at the time of the offense.
5)Requires BPH in reviewing a prisoner's suitability for parole
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to give great weight to any information or evidence that the
prisoner was a victim of human trafficking at the time of the
offense.
EXISTING LAW :
1)Provides that every person unlawfully imprisoned or restrained
of his or her liberty, under any pretense whatever, may
prosecute a writ of habeas corpus to inquire into the cause of
such imprisonment or restraint. [Penal Code Section 1473(a).]
2)Provides that a writ of habeas corpus may be prosecuted for,
but not limited to, the following reasons:
a) False evidence that is substantially material or
probative on the issue of guilt or punishment was
introduced against a person at any hearing or trial
relating to his incarceration; or,
b) False physical evidence, believed by a person to be
factual, probative, or material on the issue of guilt,
which was known by the person at the time of entering a
plea of guilty, which was a material factor directly
related to the plea of guilty by the person. [Penal Code
Section 1473(b).]
3)States that nothing in the provisions authorizing a writ of
habeas corpus shall be construed as limiting the grounds for
which a writ of habeas corpus may be prosecuted or as
precluding the use of any other remedies. [Penal Code Section
1473(d).]
4)Specifies that a writ of habeas corpus also may be prosecuted
on the basis that competent and substantial expert testimony
relating to intimate partner battering and its effects (IPB),
within the meaning of Section 1107 of the Evidence Code, was
not presented to the trier of fact at the trial court
proceedings and is of such substance that, had the competent
and substantial expert testimony been presented, there is a
reasonable probability, sufficient to undermine confidence in
the judgment of conviction or sentence, that the result of the
proceedings would have been different. [Penal Code Section
1473.5(a).]
5)Makes admissible, in a criminal action, expert testimony by
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either the prosecution or the defense regarding IPB, including
the nature and effect of physical, emotional, or mental abuse
on the beliefs, perceptions, or behavior of victims of
domestic violence, except when offered against a criminal
defendant to prove the occurrence of the act or acts of abuse
which form the basis of the criminal charge. [Evidence Code
Section 1107(a).]
6)Authorizes BPH to report to the Governor, from time to time,
the names of any and all persons imprisoned in any state
prison who, in its judgment, ought to have a commutation of
sentence or be pardoned and set at liberty on account of good
conduct, or unusual term of sentence, or any other cause,
including evidence of intimate partner battering and its
effects. For purposes of this section, "intimate partner
battering and its effects" may include evidence of the nature
and effects of physical, emotional, or mental abuse upon the
beliefs, perceptions, or behavior of victims of domestic
violence where it appears the criminal behavior was the result
of that victimization. [Penal Code Section 4801(a).]
7)Mandates BPH, in reviewing a prisoner's suitability for
parole, to give great weight to any information or evidence
that, at the time of the commission of the crime, the prisoner
had experienced IPB, but was convicted of an offense that
occurred prior to August 29, 1996. The board shall state on
the record the information or evidence that it considered
pursuant to this subdivision, and the reasons for the parole
decision. The board shall annually report to the Legislature
and the Governor on the cases the board considered pursuant to
this subdivision during the previous year, including the
board's decisions and the specific and detailed findings of
its investigations of these cases. [Penal Code Section
4801(b).]
8)Requires all commissioners and deputy commissioners who
conduct hearings for the purpose of considering the parole
suitability of prisoners or the setting of a parole release
date for prisoners to receive initial training on domestic
violence cases and IPB. (Penal Code Section 5075.5.)
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "Human
trafficking is a criminal business that profits from enslaving
people for forced labor or sexual servitude. Human
trafficking is happening in the U.S. where the average age
that a victim is first trafficked for sex trade is 12 to 14
years old. Many victims are runaway girls or children in
foster care who have suffered sexual abuse. According to the
Federal Bureau of Investigations, California harbors three of
the 13 highest child sex trafficking areas in the nation: Los
Angeles, San Francisco and San Diego.
"It is perverse to suggest a child who has been sexually
exploited, physically assaulted and tortured would warrant a
lesser defense than an adult in an abusive dating
relationship. Similar to domestic violence victims, trafficked
victims suffer physical and psychological abuse. A trafficked
victim suffers a combination of Stockholm Syndrome/trauma
bonding, PTSD, ongoing sexual and physical violence. Due to a
lack of awareness and understanding of the abuse, victims of
human trafficking are often not recognized as a victim and
thus evidence surrounding their abuse are often overlooked.
This bill gives victims of human trafficking the same level of
defense as victims of domestic violence."
2)Writ of Habeas Corpus Generally : Habeas corpus, also known as
"the Great Writ", is a process guaranteed by both the federal
and state constitutions to obtain prompt judicial relief from
illegal restraint. The functions of the writ is set forth in
Penal Code Section 1473(a): "Every person unlawfully
imprisoned or restrained of his or her liberty, under any
pretense whatever, may prosecute a writ of habeas corpus, to
inquire into the cause of such imprisonment or restraint."
Penal Code Section 1473(d) specifies that "nothing in this
section shall be construed as limiting the grounds for which a
writ of habeas corpus may be prosecuted." As made clear by
the language in subdivisions (a) and (d) of Penal Code Section
1473, the general writ of habeas corpus is available to "every
person" including the group of persons this bill is intended
to address.
3)Existing Writ of Habeas Based on IPB : In 2001, the
Legislature passed SB 799 (Karnette), Chapter 858, Statutes of
2001, specifically stating that it is grounds for pursuing a
writ of habeas corpus for a person convicted of a violent
offense prior to 1992 where evidence of battered women's
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syndrome (BWS) existed but was not presented. The purpose of
SB 799 was to create a remedy under Penal Code Section 1473.5
for an identified narrow class of people who were convicted of
killing their abusers before the Evidence Code made it clear
that evidence of domestic violence was admissible at trial.
In 2004, SB 1385 (Burton), Chapter 609, Statutes of 2004,
changed references in Evidence Code Section 1107 and Penal
Code Section 1473.5 from BWS to IPB. Penal Code Section
1473.5 originally had a sunset date, which was extended and
then eventually eliminated by AB 593 (Ma), Chapter 803,
Statutes of 2012. AB 593 (Ma) also expanded the writ under
Penal Code Section 1473.5 to include cases where evidence of
IPB was admitted in trial, but it was not competent and
substantial.
This bill applies the provisions of Penal Code Section 1473.5 to
victims of human trafficking who did not have evidence of
human trafficking and its effects presented at trial. Unlike
cases involving domestic violence or IPB, this bill does not
specify what types of offenses would qualify a victim of human
trafficking for this particular relief. A writ of habeas
corpus requires that the petitioner is imprisoned or in
custody, thus Penal Code Section 1473.5 applied to those
defendants convicted of murder and currently serving a life
sentence. There has been no showing that victims of human
trafficking are commonly convicted of murder or other serious
offenses for which they are serving lengthy sentences
requiring a writ of habeas.
4)Admissibility of Expert Testimony : Whether expert testimony
regarding IPB is admissible in a particular case initially
depends on whether that evidence is relevant. The foundation
for admission of such evidence is sufficient if the proponent
of the evidence establishes: (a) its relevancy; and (b) the
proper qualifications of the expert witness. [Penal Code
Section 1107(b).] In making a determination of relevancy, the
court must first decide whether the evidence in the particular
case supports a contention that the petitioner suffered from
IPB. Evidence of IPB is relevant to a claim of self-defense,
specifically whether the defendant honestly believed he or she
needed to defend against imminent death or great bodily injury
and whether the defendant's belief was reasonable. [People v.
Humphreys (1996) 13 Cal.4th 1073, 1088-89.] The jury
instructions on Expert Testimony of Intimate Partner Battering
and its Effects: Offered by the Defense" states:
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"You may consider this evidence only in deciding whether the
defendant actually believed that (he/she) needed to defend
(himself/herself) against an immediate threat of great bodily
injury or death, and whether that belief was reasonable or
unreasonable.
"When deciding whether the defendant's belief was reasonable or
unreasonable, consider all the circumstances as they were
known by or appeared to the defendant. Also consider what
conduct would appear to be necessary to a reasonable person in
a similar situation with similar knowledge." (CALCRIM No.
851.)
In addition to relevance, the proponent of the expert testimony
must also establish the proper qualifications of the expert
witness. A person is qualified to testify as an expert if he
or she has special knowledge, skill, experience, training, or
education sufficient to qualify him or her as an expert on the
subject to which his or her testimony relates. Against the
objection of a party, such special knowledge, skill,
experience, training, or education must be shown before the
witness may testify as an expert. (Evidence Code Section
720.)
This bill authorizes a specific writ of habeas for human
trafficking victims without addressing the admissibility of
expert testimony regarding human trafficking and its effects
during the trial phase. Evidence Code Section 1107 requires
that expert testimony regarding IPB must be both relevant to
the criminal action and the qualifications of the expert
witness must be established prior to its admission as
evidence. At the time that Evidence Code 1107 became law, the
parameters of BWS evidence and its relevance was established
in case law and studies. "Human trafficking and its effects"
does not have a definition based in case law, nor are there
studies or recognized experts in this field. There are no
procedural safeguards provided in this bill requiring
relevance of the evidence or that an expert is qualified to
testify about human trafficking and its effects, yet this bill
allows a writ of habeas and favorable treatment at a BPH
hearing when this evidence was not presented at the
defendant's trial.
5)Practical Considerations : Penal Code Section 5075.5 requires
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all commissioners and deputy commissioners who conduct
hearings for the purpose of considering the parole suitability
of prisoners or the setting of a parole release date for
prisoners to receive initial training on domestic violence
cases and IPB. This bill requires BPH to give great weight to
evidence of human trafficking and its effects during a parole
suitability hearing. Unlike evidence of domestic violence and
IPB, commissioners and deputy commissioners will not be
trained on human trafficking and its effects. If an inmate
brings in evidence of human trafficking and its effects, would
the commissioner or deputy commissioner know how to evaluate
that evidence?
In 2012, Californians voted to pass Proposition 35, which
modified many provisions of California's already tough human
trafficking laws. The new law includes the crime of pimping
and pandering as a violation of human trafficking laws if it
was done with force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim.
[Penal Code Sections 266h and 236.1(b) and (h)(3).] If a
person engaged in prostitution kills his or her pimp, the
current statute authorizing a writ of habeas based on IPB
would arguably already apply. The effects of IPB have been
defined as "a series of common characteristics that appear in
women [or men] who are abused physically and psychologically
over an extended period of time by the dominant male [or
female] figure in their lives." [Humphrey, supra, 13 Cal.4th
at pp. 1083-1084; People v. Romero (1994) 8 Cal.4th 728, 735.]
If a woman or man has been under the control of a pimp and
has had a sexual relationship with the pimp, IPB could be
shown if the person experienced physical and psychological
abuse.
6)Argument in Support : The Coalition to Abolish Slavery and
Trafficking writes, "Victims of human trafficking do not
always self-identify as human trafficking victims and
therefore fail to present relevant evidence at trial or to the
court. Human trafficking victims are often imprisoned for
crimes that they were forced to commit by their traffickers.
"This bill would expand the opportunity to victims of human
trafficking to petition for a writ of habeas corpus to present
substantial evidence which if the evidence would have been
presented it would have made a difference in the judgment or
sentencing of their case."
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7)Argument in Opposition : The California District Attorneys
Association argues, "Existing law, Penal Code Section 1473,
provides that every person unlawfully imprisoned or retrained
of his liberty, under any pretense whatever, may prosecute a
writ of habeas corpus, to inquire into the cause of such
imprisonment or restraint. As such, this bill is unnecessary.
Further, the provision of law that SB 327 amends was created
for a discrete situation unique to the issue of IPB and was
amended in the wake of a statute and case law specifically
allowing the introduction of expert testimony on IPB, then
known as battered women's syndrome. Proponents of this
special writ had identified a finite group of defendants who
had been convicted of serious offenses without the benefit of
expert testimony on IPB and its effects. SB 327 attempts to
shoehorn a solution in search of a problem into an existing
code section that bears little connection to the issue you
have identified.
"SB 327 additionally gives a person who may have previously
filed an unsuccessful writ of habeas corpus based on human
trafficking the ability to use the same evidence to attempt to
gain release room incarceration a second time via parole
proceedings. We feel it is inappropriate to direct BPH
operations legislatively by expressing a bias toward evidence
of human trafficking, especially if such evidence was
unconvincing to a court in a habeas proceeding.
"The bottom line is that this bill is unnecessary and, in fact,
could foster the false notion that a person convicted of an
offense without the benefit of expert testimony of the
mitigating factor of being a human trafficking victim would
not be able to prosecute a writ of habeas corpus under the
existing law."
8)Prior Legislation :
a) AB 593 (Ma), Chapter 803, Statutes of 2012, requires the
BPH, when reviewing a prisoner's suitability for parole, to
give great weight to any information or evidence that, at
the time of the commission of the crime, the prisoner had
experienced IPB.
b) AB 1593 (Ma), Chapter 809, Statutes of 2012, allows a
writ of habeas corpus to be prosecuted if expert testimony
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relating to IPB was received into evidence but was limited
at the trial court proceedings relating to a prisoner's
incarceration for the commission of a violent felony
committed prior to August 29, 1996, and there is a
reasonable probability, sufficient to undermine confidence
in the judgment of conviction, that if the testimony had
not been limited, the result of the proceedings would have
been different.
c) AB 2306 (Karnette), Chapter 146, Statutes of 2008,
extended the sunset date from January 1, 2010 to January 1,
2020 on provisions of law allowing a writ of habeas corpus
to be prosecuted on grounds that evidence relating to BWS
was not introduced at the trial, thereby affecting the
outcome of the trial.
d) AB 220 (Assembly Committee on Public Safety), Chapter
215, Statutes of 2005, changed references in various code
sections from BWS to IPB.
e) SB 1385 (Burton), Chapter 609, Statutes of 2004,
changed references in the statute authorizing a writ of
habeas based on BWS and the Evidence Code from BWS to IPB
and indicated that these amendments are not intended to
impact existing decisional law.
f) SB 784 (Karnette), Chapter 136, Statutes of 2003,
extended from January 1, 2005 to January 1, 2010, the
sunset date of allowing a writ of habeas corpus to be
prosecuted on the grounds that evidence relating to BWS was
not introduced at the trial.
g) SB 799 (Karnette), Chapter 858, Statutes of 2001,
authorized a writ of habeas corpus to be prosecuted on the
grounds that evidence relating to BWS was not introduced at
the trial, thereby affecting the outcome of the case.
h) SB 499 (Burton), Chapter 652, Statutes of 2000, requires
BPH, in reviewing a prisoner's suitability for parole to
consider any information or evidence that, at the time of
the commission of the crime, the prisoner had suffered from
BWS, but was convicted of the offense prior to the
enactment of Evidence Code Section 1107. SB 499 also
requires BPH to state on the record the information or
evidence it considered pursuant to these provisions, and
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the reasons for the parole decision, and report annually to
the Legislature and the Governor.
i) AB 231 (Kuehl), Chapter 905, Statutes of 1995, allows
the BPH to report to the Governor the names of persons
imprisoned in state prison who ought to have their
sentences commuted or be pardoned based on evidence of
experiences of being victims of domestic violence.
j) AB 785 (Eaves), Chapter 812, Statutes of 1991, made
expert testimony regarding BWS admissible in court under
specified conditions.
REGISTERED SUPPORT / OPPOSITION :
Support
California Against Slavery (Sponsor)
Alameda Family Services
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
Bridge Network
California Attorneys for Criminal Justice
California Catholic Conference of Bishops
California Public Defenders Association
Canvass for a Cause
Church State Council
Coalition to Abolish Slavery and Trafficking (CAST)
Convergence Church
Crime Survivors, Inc.
Crisis House
Crittendon Services for Children and Families
Freedom from Exploitation
Generate Hope
Legal Services for Prisoners with Children
Mary Magdalene Project
Motivating, Inspiring, Supporting and Serving Sexually Exploited
Youth
National Association of Social Workers - California Chapter
National Council of Jewish Women - California
Peace Officers Research Association of California
San Francisco Department on the Status of Women
San Francisco Women's Political Committee
Sara Kruzan's I am SJK Campaign
Sara Kruzan's Team Forces for Sara
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Saving Innocence
Survivors for Solutions
Two Worlds Connect
Women's Transitional Living Center
Opposition
California District Attorneys Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744