AB 1276, as amended, Santiago. Child witnesses: human trafficking.
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.
This bill wouldbegin delete authorizeend deletebegin insert authorize, under specified conditions,end insert a minor 17 years of age or younger to testify by contemporaneous examination and cross-examinationbegin insert in another place and out of the presence of the judge, jury, defendant or defendants, and attorneysend insert if the testimony will involve the recitation of the facts of an alleged offense of human trafficking.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
begin insertSection 1347.1 is added to the end insertbegin insertPenal Codeend insertbegin insert, to
2read:end insert
(a) In any criminal proceeding in which a defendant
4is charged with a violation of Section 236.1, upon written notice
5by the prosecutor made at least three days prior to the date of the
6preliminary hearing or trial date on which the testimony of the
7minor is scheduled, or during the course of the proceeding on the
8court’s own motion, may order that the testimony of a minor 17
9years of age or younger at the time of the motion be taken by
10contemporaneous examination and cross-examination in another
11place and out of the presence of the judge, jury, defendant or
12defendants, and attorneys, and communicated to the courtroom
13by means of closed-circuit television, if the court makes all of the
14following findings:
15(1) The minor’s testimony will
involve a recitation of the facts
16of an alleged offense of human trafficking, as defined in Section
17236.1.
18(2) The impact on the minor of one or more of the factors
19enumerated in subparagraphs (A) to (E), inclusive, is shown by
20clear and convincing evidence to be so substantial as to make the
21minor unavailable as a witness unless closed-circuit testimony is
22used.
23(A) Testimony by the minor in the presence of the defendant
24would result in the minor suffering serious emotional distress so
25that the minor would be unavailable as a witness.
26(B) The defendant used a deadly weapon in the commission of
27the offense.
28(C) The defendant threatened serious bodily injury to the minor
29or the minor’s family, threatened incarceration or deportation of
30the minor or a
member of the minor’s family, threatened removal
31of the minor from the minor’s family, or threatened the dissolution
32of the minor’s family in order to prevent or dissuade the minor
33from attending or giving testimony at any trial or court proceeding,
P3 1or to prevent the minor from reporting the alleged sexual offense,
2or from assisting in criminal prosecution.
3(D) The defendant inflicted great bodily injury upon the minor
4in the commission of the offense.
5(E) The defendant or his or her counsel behaved during the
6hearing or trial in a way that caused the minor to be unable to
7continue his or her testimony.
8In making the determination required by this section, the court
9shall consider the age of the minor, the relationship between the
10minor and the defendant or defendants, any handicap or disability
11of the minor, and the nature of the acts
charged. The minor’s
12refusal to testify shall not alone constitute sufficient evidence that
13the special procedure described in this section is necessary to
14obtain the minor’s testimony.
15(3) The equipment available for use of closed-circuit television
16would accurately communicate the image and demeanor of the
17minor to the judge, jury, defendant or defendants, and attorneys.
18(b) If the court orders the use of closed-circuit television,
19two-way closed-circuit television shall be used, except that if the
20impact on the minor of one or more of the factors enumerated in
21 subparagraphs (A) to (E), inclusive, of paragraph (2) of subdivision
22(a), is shown by clear and convincing evidence to be so substantial
23as to make the minor unavailable as a witness even if two-way
24closed-circuit television is used, one-way closed-circuit television
25may be used. The prosecution shall give the defendant
or
26defendants at least 30 days’ written notice of the prosecution’s
27intent to seek the use of one-way closed-circuit television, unless
28good cause is shown to the court why this 30-day notice
29requirement should not apply.
30(c) (1) The hearing on a motion brought pursuant to this section
31shall be conducted out of the presence of the jury.
32(2) Notwithstanding Section 804 of the Evidence Code or any
33other law, the court, in determining the merits of the motion, shall
34not compel the minor to testify at the hearing, nor shall the court
35deny the motion on the ground that the minor has not testified.
36(3) In determining whether the impact on an individual minor
37of one or more of the five factors enumerated in subparagraph (A)
38to (E) inclusive, of paragraph (2) of subdivision (a) is so substantial
39that
the minor is unavailable as a witness unless two-way or
40one-way closed-circuit television is used, the court may question
P4 1the minor in chambers, or at some other comfortable place other
2than the courtroom, on the record for a reasonable period of time
3with the support person, the prosecutor, and defense counsel
4present. The defendant or defendants shall not be present. The
5court shall conduct the questioning of the minor and shall not
6permit the prosecutor or defense counsel to examine the minor.
7The prosecutor and defense counsel shall be permitted to submit
8proposed questions to the court prior to the session in chambers.
9Defense counsel shall be afforded a reasonable opportunity to
10consult with the defendant or defendants prior to the conclusion
11of the session in chambers.
12(d) When the court orders the testimony of a minor to be taken
13in another place outside of the courtroom, the court shall do all
14of the following:
15(1) Make a brief statement on the record, outside of the presence
16of the jury, of the reasons in support of its order. While the
17statement need not include traditional findings of fact, the reasons
18shall be set forth with sufficient specificity to permit meaningful
19review and to demonstrate that discretion was exercised in a
20careful, reasonable, and equitable manner.
21(2) Instruct the members of the jury that they are to draw no
22inferences from the use of closed-circuit television as a means of
23facilitating the testimony of the minor.
24(3) Instruct respective counsel, outside of the presence of the
25jury, that they are to make no comment during the course of the
26trial on the use of closed-circuit television procedures.
27(4) Instruct the support witness,
outside of the presence of the
28jury, that he or she is not to coach, cue, or in any way influence
29or attempt to influence the testimony of the minor.
30(5) Order that a complete record of the examination of the
31minor, including the images and voices of all persons who in any
32way participate in the examination, be made and preserved as a
33video recording in addition to being stenographically recorded.
34The video recording shall be transmitted to the clerk of the court
35in which the action is pending and shall be made available for
36viewing to the prosecuting attorney, the defendant or defendants,
37and his or her attorney during ordinary business hours. The video
38recording shall be destroyed after five years have elapsed from
39the date of entry of judgment. If an appeal is filed, the video
40recording shall not be destroyed until a final judgment on appeal
P5 1has been ordered. A video recording that is taken pursuant to this
2section is subject to a protective
order of the court for the purpose
3of protecting the privacy of the witness. This subdivision does not
4affect the provisions of subdivision (b) of Section 868.7.
5(e) When the court orders the testimony of a minor to be taken
6in another place outside the courtroom, only the minor, a support
7person designated pursuant to Section 868.5, a nonuniformed
8bailiff, any technicians necessary to operate the closed-circuit
9equipment, and, after consultation with the prosecution and the
10defense, a representative appointed by the court, shall be physically
11present for the testimony. A video recording device shall record
12the image of the minor and his or her testimony, and a separate
13video recording device shall record the image of the support
14person.
15(f) When the court orders the testimony of a minor to be taken
16in another place outside the courtroom, the minor shall be brought
17into the
judge’s chambers prior to the taking of his or her testimony
18to meet for a reasonable period of time with the judge, the
19prosecutor, and defense counsel. A support person for the minor
20shall also be present. This meeting shall be for the purpose of
21explaining the court process to the minor and to allow the attorneys
22an opportunity to establish rapport with the minor to facilitate
23later questioning by closed-circuit television. No participant shall
24discuss the defendant or defendants or any of the facts of the case
25with the minor during this meeting.
26(g) When the court orders the testimony of a minor to be taken
27in another place outside the courtroom, nothing in this section
28prohibits the court from ordering the minor to be brought into the
29courtroom for a limited purpose, including the identification of
30the defendant or defendants as the court deems necessary.
31(h) The examination
shall be under oath, and the defendant or
32defendants shall be able to see and hear the minor witness, and if
33two-way closed-circuit television is used, the defendant’s image
34shall be transmitted live to the witness.
35(i) Nothing in this section affects the disqualification of witnesses
36pursuant to Section 701 of the Evidence Code.
37(j) The cost of examination by contemporaneous closed-circuit
38television ordered pursuant to this section shall be borne by the
39court out of its existing budget.
P6 1(k) Nothing in this section shall be construed to prohibit a
2defendant from being represented by counsel during any
3closed-circuit testimony.
Section 1347 of the Penal Code is amended to
5read:
(a) It is the intent of the Legislature in enacting this
7section to provide the court with discretion to employ alternative
8court procedures to protect the rights of a child witness, the rights
9of the defendant, and the integrity of the judicial process. In
10exercising its discretion, the court necessarily will be required to
11balance the rights of the defendant or defendants against the need
12to protect a child witness and to preserve the integrity of the court’s
13truthfinding function. This discretion is intended to be used
14selectively when the facts and circumstances in the individual case
15present compelling evidence of the need to use these alternative
16procedures.
17(b) Notwithstanding any other law, the court in any criminal
18proceeding, upon written notice by the
prosecutor made at least
19three days prior to the date of the preliminary hearing or trial date
20on which the testimony of the minor is scheduled, or during the
21course of the proceeding on the court’s own motion, may order
22that the testimony of a minor 17 years of age or younger at the
23time of the motion be taken by contemporaneous examination and
24cross-examination in another place and out of the presence of the
25judge, jury, defendant or defendants, and attorneys, and
26communicated to the courtroom by means of closed-circuit
27television, if the court makes all of the following findings:
28(1) The minor’s testimony will involve a recitation of the facts
29of any of the following:
30(A) An alleged sexual offense committed on or with the minor.
31(B) An alleged violent felony, as defined in subdivision (c) of
32Section 667.5, of which the minor is a victim.
33(C) An alleged felony offense specified in Section 273a or 273d
34of which the minor is a victim.
35(D) An alleged offense of human trafficking, as defined in
36Section 236.1.
37(2) The impact on the minor of one or more of the factors
38enumerated in subparagraphs (A) to (E), inclusive, is shown by
39clear and convincing evidence to be so substantial as to make the
P7 1minor unavailable as a witness unless closed-circuit testimony is
2used.
3(A) Testimony by the minor in the presence of the defendant
4would result in the child suffering serious emotional distress so
5that the child would be unavailable as a witness.
6(B) The defendant used a deadly weapon in the commission of
7the offense.
8(C) The defendant threatened serious bodily injury to the child
9or the child’s family, threatened incarceration or deportation of
10the child or a member of the child’s family, threatened removal
11of the child from the child’s family, or threatened the dissolution
12of the child’s family in order to prevent or dissuade the minor from
13attending or giving testimony at any trial or court proceeding, or
14to prevent the minor from reporting the alleged sexual offense, or
15from assisting in criminal prosecution.
16(D) The defendant inflicted great bodily injury upon the
child
17in the commission of the offense.
18(E) The defendant or his or her counsel behaved during the
19hearing or trial in a way that caused the minor to be unable to
20continue his or her testimony.
21In making the determination required by this section, the court
22shall consider the age of the minor, the relationship between the
23minor and the defendant or defendants, any handicap or disability
24of the minor, and the nature of the acts charged. The minor’s refusal
25to testify shall not alone constitute sufficient evidence that the
26special procedure described in this section is necessary to obtain
27the minor’s testimony.
28(3) The equipment available for use of closed-circuit television
29would accurately communicate the image and demeanor of the
30minor to the judge, jury, defendant or defendants, and attorneys.
31(c) If the court orders the use of closed-circuit television,
32two-way closed-circuit television shall be used, except that if the
33impact on the minor of one or more of the factors enumerated in
34subparagraphs (A) to (E), inclusive, of paragraph (2) of subdivision
35(b), is shown by clear and convincing evidence to be so substantial
36as to make the minor unavailable as a witness even if two-way
37closed-circuit television is used, one-way closed-circuit television
38may be used. The prosecution shall give the defendant or
39defendants at least 30 days’ written notice of the prosecution’s
40intent to seek the use of one-way closed-circuit television, unless
P8 1good cause is shown to the court why this 30-day notice
2requirement should not apply.
3(d) (1) The hearing on a motion brought pursuant to this section
4shall be conducted out of the presence of the jury.
5(2) Notwithstanding Section 804 of the Evidence Code or any
6other law, the court, in determining the merits of the motion, shall
7not compel the minor to testify at the hearing, nor shall the court
8deny the motion on the ground that the minor has not testified.
9(3) In determining whether the impact on an individual child of
10one or more of the five factors enumerated in paragraph (2) of
11subdivision (b) is so substantial that the minor is unavailable as a
12witness unless two-way or one-way closed-circuit television is
13used, the court may question the minor in chambers, or at some
14other comfortable place other than the courtroom, on the record
15for a reasonable period of time with the support person, the
16prosecutor, and defense counsel present. The defendant or
17defendants shall not be present. The court shall conduct the
18questioning of the minor and shall not permit the prosecutor or
19
defense counsel to examine the minor. The prosecutor and defense
20counsel shall be permitted to submit proposed questions to the
21court prior to the session in chambers. Defense counsel shall be
22afforded a reasonable opportunity to consult with the defendant
23or defendants prior to the conclusion of the session in chambers.
24(e) When the court orders the testimony of a minor to be taken
25in another place outside of the courtroom, the court shall do all of
26the following:
27(1) Make a brief statement on the record, outside of the presence
28of the jury, of the reasons in support of its order. While the
29statement need not include traditional findings of fact, the reasons
30shall be set forth with sufficient specificity to permit meaningful
31review and to demonstrate that discretion was exercised in a
32careful, reasonable, and equitable manner.
33(2) Instruct the members of the jury that they are to draw no
34inferences from the use of closed-circuit television as a means of
35facilitating the testimony of the minor.
36(3) Instruct respective counsel, outside of the presence of the
37jury, that they are to make no comment during the course of the
38trial on the use of closed-circuit television procedures.
P9 1(4) Instruct the support witness, outside of the presence of the
2jury, that he or she is not to coach, cue, or in any way influence
3or attempt to influence the testimony of the minor.
4(5) Order that a complete record of the examination of the minor,
5including the images and voices of all persons who in any way
6participate in the examination, be made and preserved as a video
7recording in addition to being stenographically recorded. The video
8recording
shall be transmitted to the clerk of the court in which
9the action is pending and shall be made available for viewing to
10the prosecuting attorney, the defendant or defendants, and his or
11her attorney during ordinary business hours. The video recording
12shall be destroyed after five years have elapsed from the date of
13entry of judgment. If an appeal is filed, the video recording shall
14not be destroyed until a final judgment on appeal has been ordered.
15A video recording that is taken pursuant to this section is subject
16to a protective order of the court for the purpose of protecting the
17privacy of the witness. This subdivision does not affect the
18provisions of subdivision (b) of Section 868.7.
19(f) When the court orders the testimony of a minor to be taken
20in another place outside the courtroom, only the minor, a support
21person designated pursuant to Section 868.5, a nonuniformed
22bailiff, any technicians necessary to operate the closed-circuit
23
equipment, and, after consultation with the prosecution and the
24defense, a representative appointed by the court, shall be physically
25present for the testimony. A video recording device shall record
26the image of the minor and his or her testimony, and a separate
27video recording device shall record the image of the support person.
28(g) When the court orders the testimony of a minor to be taken
29in another place outside the courtroom, the minor shall be brought
30into the judge’s chambers prior to the taking of his or her testimony
31to meet for a reasonable period of time with the judge, the
32prosecutor, and defense counsel. A support person for the minor
33shall also be present. This meeting shall be for the purpose of
34explaining the court process to the child and to allow the attorneys
35an opportunity to establish rapport with the child to facilitate later
36questioning by closed-circuit television. No participant shall discuss
37the defendant or defendants
or any of the facts of the case with the
38minor during this meeting.
39(h) When the court orders the testimony of a minor to be taken
40in another place outside the courtroom, nothing in this section
P10 1prohibits the court from ordering the minor to be brought into the
2courtroom for a limited purpose, including the identification of
3the defendant or defendants as the court deems necessary.
4(i) The examination shall be under oath, and the defendant or
5defendants shall be able to see and hear the minor witness, and if
6two-way closed-circuit television is used, the defendant’s image
7shall be transmitted live to the witness.
8(j) Nothing in this section affects the disqualification of
9witnesses pursuant to Section 701 of the Evidence Code.
10(k) The cost of
examination by contemporaneous closed-circuit
11television ordered pursuant to this section shall be borne by the
12court out of its existing budget.
13(l) Nothing in this section shall be construed to prohibit a
14defendant from being represented by counsel during any
15closed-circuit testimony.
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