SB 717, as introduced, DeSaulnier. Credibility of witnesses: sexual conduct evidence.
Existing law sets forth the procedure required in any prosecution for rape or other specified offenses, with certain exceptions, if evidence of sexual conduct of the complaining witness, as defined, is offered to attack the credibility of the complaining witness.
This bill would expand the offenses included within the term “sexual conduct” to include commercial sexual conduct, as specified, and would make conforming changes to those provisions.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 782 of the Evidence Code is amended to
2read:
(a) In any of the circumstances described in subdivision
4(c), if evidence of sexual conduct of the complaining witness is
5offered to attack the credibility of the complaining witness under
6Section 780, the following procedure shall be followed:
7(1) A written motion shall be made by thebegin delete defendantend deletebegin insert party
8seeking to introduce the evidenceend insert to the courtbegin delete and prosecutorend deletebegin insert, with
9notice
to all parties,end insert stating that thebegin delete defenseend deletebegin insert
partyend insert has an offer of
P2 1proof of the relevancy ofbegin insert theend insert evidencebegin delete of the sexual conduct of the proposed to be presented
2complaining witnessend deletebegin delete and its relevancyend delete
3 in attacking the credibility of the complaining witness.
4(2) The written motion shall be accompanied by an affidavit in
5which the offer of proof shall be stated. The affidavit shall be filed
6under seal and only unsealed by the court to determine if the offer
7of proof is sufficient to order a hearing pursuant to paragraph (3).
8After that determination, the affidavit shall be resealed by the
9court.
10(3) If the court finds
that the offer of proof is sufficient, the
11court shall order a hearing out of the presence of the jury, if any,
12and at the hearing allow the questioning of the complaining witness
13regarding the offer of proofbegin delete made by the defendantend delete.
14(4) At the conclusion of the hearing, if the court finds thatbegin insert theend insert
15 evidence proposed to be offeredbegin delete by the defendant regarding theend deletebegin insert ofend insert
16 sexual conduct of the complaining witness is relevant pursuant to
17Section 780, and is not inadmissible pursuant to Section 352, the
18court may make an order stating whatbegin insert
part of theend insert evidence may
19be introduced by thebegin delete defendant,end deletebegin insert
proffering party,end insert and the nature
20of the questions to be permitted. Thebegin delete defendantend deletebegin insert proffering partyend insert
21 may then offer evidence pursuant to the order of the court.
22(5) An affidavit resealed by the court pursuant to paragraph (2)
23shall remain sealed, unless thebegin delete defendantend deletebegin insert proffering partyend insert raises
24an issue on appeal or collateral review relating to the offer of proof
25contained in the sealed document. If thebegin delete defendantend deletebegin insert
proffering partyend insert
26 raises that issue on appeal, the court shall allow the Attorney
27General and appellate counsel for the defendant access to the sealed
28affidavit. If the issue is raised on collateral review, the court shall
29allow the district attorney and defendant’s counsel access to the
30sealed affidavit. The use of the information contained in the
31affidavit shall be limited solely to the pending proceeding.
32(b) As used in thisbegin delete section, “complaining witness” means:end delete
33begin insert section:end insert
34(1) “Complaining witness” means either of the following:
end insert35(1)
end delete
36begin insert(A)end insert The alleged victim of the crime charged, the prosecution of
37which is subject to this section, pursuant to paragraph (1) of
38subdivision (c).
39(2)
end delete
P3 1begin insert(B)end insert An alleged victim offering testimony pursuant to paragraph
2(2) or (3) of subdivision (c).
3(2) “Sexual conduct” includes commercial sexual conduct,
4including, but not limited to, that described in subdivisions (b)
and
5(c) of Section 236.1, 266, 266h, 266i, 266j, 267, 311.1, 311.2,
6311.3, 311.4, 311.5, 311.6, 518, or 647 of the Penal Code.
7(c) The procedure provided by subdivision (a) shall apply in
8any of the following circumstances:
9(1) In a prosecution under Sectionbegin insert 236.1,end insert 261, 262, 264.1,begin insert 266,
10266h, 266i, 266j, 267,end insert 286, 288, 288a, 288.5,begin delete or 289end deletebegin insert 289, 311.1,
11311.2, 311.3, 311.4, 311.5, 311.6, 518, or 647end insert of the Penal Code,
12or for assault with intent to commit,
attempt to commit, or
13conspiracy to commit any crime defined in any of those sections,
14except if the crime is alleged to have occurred in a local detention
15facility, as defined in Section 6031.4 of the Penal Code, or in the
16state prison, as defined in Sectionbegin delete 4504.end deletebegin insert 4504 of the Penal Code.end insert
17(2) When an alleged victim testifies pursuant to subdivision (b)
18of Section 1101 as a victim of a crime listed in Sectionbegin insert 236.1,end insert
19 243.4, 261, 261.5,begin insert 266, 266h, 266i, 266j, 267,end insert 269, 285, 286, 288,
20288a, 288.5, 289,begin insert
311.1, 311.2, 311.3, 311.4, 311.5, 311.6,end insert 314,
21begin insert 518, 647,end insert or 647.6 of the Penal Code, except if the crime is alleged
22to have occurred in a local detention facility, as defined in Section
236031.4 of the Penal Code, or in the state prison, as defined in
24Section 4504 of the Penal Code.
25(3) When an alleged victim of a sexual offense testifies pursuant
26to Section 1108, except if the crime is alleged to have occurred in
27a local detention facility, as defined in Section 6031.4 of the Penal
28Code, or in the state prison, as defined in Section 4504 of the Penal
29Code.
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