Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1276


Introduced by Assembly Member Santiago

February 27, 2015


An act to amend Sectionbegin delete 261end deletebegin insert 1347end insert of the Penal Code, relating tobegin delete sexual assaultend deletebegin insert criminal procedureend insert.

LEGISLATIVE COUNSEL’S DIGEST

AB 1276, as amended, Santiago. begin deleteSexual assault. end deletebegin insertChild witnesses: human trafficking.end insert

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Existing law authorizes a court in a criminal proceeding, upon written notice by the prosecutor made at least 3 days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled or during the course of the proceeding on the court’s own motion, to order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes specified findings. One of the findings required by existing law requires is that the minor’s testimony will involve a recitation of the facts of specified crimes, including an alleged violent felony of which the minor is a victim.

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This bill would authorize a minor 17 years of age or younger to testify by contemporaneous examination and cross-examination if the testimony will involve the recitation of the facts of an alleged offense of human trafficking.

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Existing law establishes various sexual assault offenses, including the offense of rape. Under existing law, rape is defined as an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, under certain circumstances, including where the act is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

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This bill would make technical, nonsubstantive changes to the these provisions.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 1347 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert

3

1347.  

(a) It is the intent of the Legislature in enacting this
4section to provide the court with discretion to employ alternative
5court procedures to protect the rights of a child witness, the rights
6of the defendant, and the integrity of the judicial process. In
7exercising its discretion, the court necessarily will be required to
8balance the rights of the defendant or defendants against the need
9to protect a child witness and to preserve the integrity of the court’s
10truthfinding function. This discretion is intended to be used
11selectively when the facts and circumstances in the individual case
12present compelling evidence of the need to use these alternative
13procedures.

14(b) Notwithstanding any other law, the court in any criminal
15proceeding, upon written notice by the prosecutor made at least
16three days prior to the date of the preliminary hearing or trial date
17on which the testimony of the minor is scheduled, or during the
18course of the proceeding on the court’s own motion, may order
19that the testimony of a minorbegin delete 13end deletebegin insert 17end insert years of age or younger at the
20time of the motion be taken by contemporaneous examination and
21cross-examination in another place and out of the presence of the
22judge, jury, defendant or defendants, and attorneys, and
23communicated to the courtroom by means of closed-circuit
24television, if the court makes all of the following findings:

25(1) The minor’s testimony will involve a recitation of the facts
26of any of the following:

P3    1(A) An alleged sexual offense committed on or with the minor.

2(B) An alleged violent felony, as defined in subdivision (c) of
3Section 667.5, of which the minor is a victim.

4(C) An alleged felony offense specified in Section 273a or 273d
5of which the minor is a victim.

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6(D) An alleged offense of human trafficking, as defined in
7Section 236.1.

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8(2) The impact on the minor of one or more of the factors
9enumerated in subparagraphs (A) to (E), inclusive, is shown by
10clear and convincing evidence to be so substantial as to make the
11minor unavailable as a witness unless closed-circuit testimony is
12used.

13(A) Testimony by the minor in the presence of the defendant
14would result in the child suffering serious emotional distress so
15that the child would be unavailable as a witness.

16(B) The defendant used a deadly weapon in the commission of
17the offense.

18(C) The defendant threatened serious bodily injury to the child
19or the child’s family, threatened incarceration or deportation of
20the child or a member of the child’s family, threatened removal
21of the child from the child’s family, or threatened the dissolution
22of the child’s family in order to prevent or dissuade the minor from
23attending or giving testimony at any trial or court proceeding, or
24to prevent the minor from reporting the alleged sexual offense, or
25from assisting in criminal prosecution.

26(D) The defendant inflicted great bodily injury upon the child
27in the commission of the offense.

28(E) The defendant or his or her counsel behaved during the
29hearing or trial in a way that caused the minor to be unable to
30continue his or her testimony.

31In making the determination required by this section, the court
32shall consider the age of the minor, the relationship between the
33minor and the defendant or defendants, any handicap or disability
34of the minor, and the nature of the acts charged. The minor’s refusal
35to testify shall not alone constitute sufficient evidence that the
36special procedure described in this section is necessary to obtain
37the minor’s testimony.

38(3) The equipment available for use of closed-circuit television
39would accurately communicate the image and demeanor of the
40minor to the judge, jury, defendant or defendants, and attorneys.

P4    1(c) If the court orders the use of closed-circuit television,
2two-way closed-circuit television shall be used, except that if the
3impact on the minor of one or more of the factors enumerated in
4subparagraphs (A) to (E), inclusive, of paragraph (2) of subdivision
5(b), is shown by clear and convincing evidence to be so substantial
6as to make the minor unavailable as a witness even if two-way
7closed-circuit television is used, one-way closed-circuit television
8may be used. The prosecution shall give the defendant or
9defendants at least 30 days’ written notice of the prosecution’s
10intent to seek the use of one-way closed-circuit television, unless
11good cause is shown to the court why this 30-day notice
12requirement should not apply.

13(d) (1) The hearing on a motion brought pursuant to this section
14shall be conducted out of the presence of the jury.

15(2) Notwithstanding Section 804 of the Evidence Code or any
16other law, the court, in determining the merits of the motion, shall
17not compel the minor to testify at the hearing, nor shall the court
18deny the motion on the ground that the minor has not testified.

19(3) In determining whether the impact on an individual child of
20one or more of the five factors enumerated in paragraph (2) of
21subdivision (b) is so substantial that the minor is unavailable as a
22witness unless two-way or one-way closed-circuit television is
23used, the court may question the minor in chambers, or at some
24other comfortable place other than the courtroom, on the record
25for a reasonable period of time with the support person, the
26prosecutor, and defense counsel present. The defendant or
27defendants shall not be present. The court shall conduct the
28questioning of the minor and shall not permit the prosecutor or
29 defense counsel to examine the minor. The prosecutor and defense
30counsel shall be permitted to submit proposed questions to the
31court prior to the session in chambers. Defense counsel shall be
32afforded a reasonable opportunity to consult with the defendant
33or defendants prior to the conclusion of the session in chambers.

34(e) When the court orders the testimony of a minor to be taken
35in another place outside of the courtroom, the court shall do all of
36the following:

37(1) Make a brief statement on the record, outside of the presence
38of the jury, of the reasons in support of its order. While the
39statement need not include traditional findings of fact, the reasons
40shall be set forth with sufficient specificity to permit meaningful
P5    1review and to demonstrate that discretion was exercised in a
2careful, reasonable, and equitable manner.

3(2) Instruct the members of the jury that they are to draw no
4inferences from the use of closed-circuit television as a means of
5facilitating the testimony of the minor.

6(3) Instruct respective counsel, outside of the presence of the
7jury, that they are to make no comment during the course of the
8trial on the use of closed-circuit television procedures.

9(4) Instruct the support witness, outside of the presence of the
10jury, that he or she is not to coach, cue, or in any way influence
11or attempt to influence the testimony of the minor.

12(5) Order that a complete record of the examination of the minor,
13including the images and voices of all persons who in any way
14participate in the examination, be made and preserved as a video
15recording in addition to being stenographically recorded. The video
16recording shall be transmitted to the clerk of the court in which
17the action is pending and shall be made available for viewing to
18the prosecuting attorney, the defendant or defendants, and his or
19her attorney during ordinary business hours. The video recording
20shall be destroyed after five years have elapsed from the date of
21entry of judgment. If an appeal is filed, the video recording shall
22not be destroyed until a final judgment on appeal has been ordered.
23A video recording that is taken pursuant to this section is subject
24to a protective order of the court for the purpose of protecting the
25privacy of the witness. This subdivision does not affect the
26provisions of subdivision (b) of Section 868.7.

27(f) When the court orders the testimony of a minor to be taken
28in another place outside the courtroom, only the minor, a support
29person designated pursuant to Section 868.5, a nonuniformed
30bailiff, any technicians necessary to operate the closed-circuit
31 equipment, and, after consultation with the prosecution and the
32defense, a representative appointed by the court, shall be physically
33present for the testimony. A video recording device shall record
34the image of the minor and his or her testimony, and a separate
35video recording device shall record the image of the support person.

36(g) When the court orders the testimony of a minor to be taken
37in another place outside the courtroom, the minor shall be brought
38into the judge’s chambers prior to the taking of his or her testimony
39to meet for a reasonable period of time with the judge, the
40prosecutor, and defense counsel. A support person for the minor
P6    1shall also be present. This meeting shall be for the purpose of
2explaining the court process to the child and to allow the attorneys
3an opportunity to establish rapport with the child to facilitate later
4questioning by closed-circuit television. No participant shall discuss
5the defendant or defendants or any of the facts of the case with the
6minor during this meeting.

7(h) When the court orders the testimony of a minor to be taken
8in another place outside the courtroom, nothing in this section
9prohibits the court from ordering the minor to be brought into the
10courtroom for a limited purpose, including the identification of
11the defendant or defendants as the court deems necessary.

12(i) The examination shall be under oath, and the defendant or
13defendants shall be able to see and hear the minor witness, and if
14two-way closed-circuit television is used, the defendant’s image
15shall be transmitted live to the witness.

16(j) Nothing in this section affects the disqualification of
17witnesses pursuant to Section 701 of the Evidence Code.

18(k) The cost of examination by contemporaneous closed-circuit
19television ordered pursuant to this section shall be borne by the
20court out of its existing budget.

21(l) Nothing in this section shall be construed to prohibit a
22defendant from being represented by counsel during any
23closed-circuit testimony.

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SECTION 1.  

Section 261 of the Penal Code is amended to
25read:

26

261.  

(a) Rape is an act of sexual intercourse accomplished
27with a person who is not the spouse of the perpetrator, under any
28of the following circumstances:

29(1) Where a person is incapable, because of a mental disorder
30or developmental or physical disability, of giving legal consent,
31and this is known or reasonably should be known to the person
32committing the act. Notwithstanding the existence of a
33conservatorship pursuant to the provisions of the
34Lanterman-Petris-Short Act (Part 1 (commencing with Section
355000) of Division 5 of the Welfare and Institutions Code), the
36prosecuting attorney shall prove, as an element of the crime, that
37a mental disorder or developmental or physical disability rendered
38the alleged victim incapable of giving consent.

P7    1(2) Where it is accomplished against a person’s will by means
2of force, violence, duress, menace, or fear of immediate and
3unlawful bodily injury on the person or another.

4(3) Where a person is prevented from resisting by any
5intoxicating or anesthetic substance, or any controlled substance,
6and this condition was known, or reasonably should have been
7known by the accused.

8(4) Where a person is at the time unconscious of the nature of
9the act, and this is known to the accused. As used in this paragraph,
10“unconscious of the nature of the act” means incapable of resisting
11because the victim meets any one of the following conditions:

12(A) Was unconscious or asleep.

13(B) Was not aware, knowing, perceiving, or cognizant that the
14act occurred.

15(C) Was not aware, knowing, perceiving, or cognizant of the
16essential characteristics of the act due to the perpetrator’s fraud in
17fact.

18(D) Was not aware, knowing, perceiving, or cognizant of the
19essential characteristics of the act due to the perpetrator’s fraudulent
20representation that the sexual penetration served a professional
21purpose when it served no professional purpose.

22(5) Where a person submits under the belief that the person
23committing the act is someone known to the victim other than the
24accused, and this belief is induced by any artifice, pretense, or
25concealment practiced by the accused, with intent to induce the
26belief.

27(6) Where the act is accomplished against the victim’s will by
28threatening to retaliate in the future against the victim or any other
29person, and there is a reasonable possibility that the perpetrator
30will execute the threat. As used in this paragraph, “threatening to
31retaliate” means a threat to kidnap, falsely imprison, or inflict
32extreme pain, serious bodily injury, or death.

33(7) Where the act is accomplished against the victim’s will by
34threatening to use the authority of a public official to incarcerate,
35arrest, or deport the victim or another, and the victim has a
36reasonable belief that the perpetrator is a public official. As used
37in this paragraph, “public official” means a person employed by
38a governmental agency who has the authority, as part of that
39position, to incarcerate, arrest, or deport another. The perpetrator
40does not actually have to be a public official.

P8    1(b) As used in this section, “duress” means a direct or implied
2threat of force, violence, danger, or retribution sufficient to coerce
3a reasonable person of ordinary susceptibilities to perform an act
4 that otherwise would not have been performed, or acquiesce in an
5act to which one otherwise would not have submitted. The total
6circumstances, including the age of the victim, and his or her
7relationship to the defendant, are factors to consider in appraising
8the existence of duress.

9(c) As used in this section, “menace” means any threat,
10declaration, or act which shows an intention to inflict an injury
11upon another.

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