Amended in Senate August 2, 2016

Amended in Assembly January 4, 2016

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1276


Introduced by Assembly Member Santiago

begin insert

(Coauthors: Senators Anderson, Block, Cannella, Glazer, Hall, Hertzberg, Huff, and Mitchell)

end insert

February 27, 2015


An act to add Section 1347.1 to the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

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 would authorize, under specified conditions, a minorbegin delete 17end deletebegin insert 15end insert years of age or younger to testify by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys 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:

P2    1

SECTION 1.  

Section 1347.1 is added to the Penal Code, to
2read:

3

1347.1.  

(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 minorbegin delete 17end delete
9begin insert 15end insert years 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 by
13means 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) begin insert(A)end insertbegin insertend insert The impact on the minor of one or more of the factors
19enumerated inbegin delete subparagraphs (A) to (E),end deletebegin insert clauses (i) to (v),end insert inclusive,
20is shown by clear and convincing evidence to be so substantial as
21to make the minor unavailable as a witness unless closed-circuit
22testimony is used.

begin delete

23(A)

end delete

24begin insert(i)end insert Testimony by the minor in the presence of the defendant
25would result in the minor suffering serious emotional distress so
26that the minor would be unavailable as a witness.

begin delete

27(B)

end delete

28begin insert(ii)end insert The defendant used a deadly weapon in the commission of
29the offense.

begin delete

30(C)

end delete

P3    1begin insert(iii)end insert The defendant threatened serious bodily injury to the minor
2or the minor’s family, threatened incarceration or deportation of
3the minor or a member of the minor’s family, threatened removal
4of the minor from the minor’s family, or threatened the dissolution
5of the minor’s family in order to prevent or dissuade the minor
6from attending or giving testimony at any trial or court proceeding,
7or to prevent the minor from reporting the alleged sexual offense,
8or from assisting in criminal prosecution.

begin delete

9(D)

end delete

10begin insert(iv)end insert The defendant inflicted great bodily injury upon the minor
11in the commission of the offense.

begin delete

12(E)

end delete

13begin insert(v)end insert The defendant or his or her counsel behaved during the
14hearing or trial in a way that caused the minor to be unable to
15continue his or her testimony.

begin delete

16In

end delete

17begin insert(B)end insertbegin insertend insertbegin insertInend insert making the determination required by thisbegin delete section,end delete
18begin insert paragraph,end insert the court shall consider the age of the minor, the
19relationship between the minor and the defendant or defendants,
20any handicap or disability of the minor, and the nature of the acts
21charged. The minor’s refusal to testify shall not alone constitute
22sufficient evidence that the special procedure described in this
23section is necessary to obtain the minor’s testimony.

24(3) The equipment available for use of closed-circuit television
25would accurately communicate the image and demeanor of the
26minor to the judge, jury, defendant or defendants, and attorneys.

27(b) If the court orders the use of closed-circuit television,
28two-way closed-circuit television shall be used, except that if the
29impact on the minor of one or more of the factors enumerated in
30begin delete subparagraphs (A) to (E), inclusive,end deletebegin insert clauses (i) to (v), inclusive,
31of subparagraph (A)end insert
of paragraph (2) of subdivision (a), is shown
32by clear and convincing evidence to be so substantial as to make
33the minor unavailable as a witness even if two-way closed-circuit
34television is used, one-way closed-circuit television may be used.
35The prosecution shall give the defendant or defendants at least 30
36days’ written notice of the prosecution’s intent to seek the use of
37one-way closed-circuit television, unlessbegin delete good cause is shownend deletebegin insert the
38prosecution shows good causeend insert
to the court why this 30-day notice
39requirement should not apply.

P4    1(c) (1) The hearing on a motion brought pursuant to this section
2shall be conducted out of the presence of the jury.

3(2) Notwithstanding Section 804 of the Evidence Code or any
4other law, the court, in determining the merits of the motion, shall
5not compel the minor to testify at the hearing, nor shall the court
6deny the motion on the ground that the minor has not testified.

7(3) In determining whether the impact on an individual minor
8of one or more of the five factors enumerated inbegin delete subparagraph (A)
9to (E) inclusive,end delete
begin insert clauses (i) to (v), inclusive, of subparagraph (A)end insert
10 of paragraph (2) of subdivision (a) is so substantial that the minor
11is unavailable as a witness unless two-way or one-way
12closed-circuit television is used, the court may question the minor
13in chambers, or at some other comfortable place other than the
14courtroom, on the record for a reasonable period of time with the
15support person, the prosecutor, and defense counsel present. The
16defendant or defendants shall not be present. The court shall
17conduct the questioning of the minor and shall not permit the
18prosecutor or defense counsel to examine the minor. The prosecutor
19and defense counsel shall be permitted to submit proposed
20questions to the court prior to the session in chambers. Defense
21counsel shall be afforded a reasonable opportunity to consult with
22the defendant or defendants prior to the conclusion of the session
23in chambers.

24(d) 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.

P5    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(e) 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
23equipment, 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(f) 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 minor and to allow the attorneys
35an opportunity to establish rapport with the minor to facilitate later
36questioning by closed-circuit television.begin delete No participant shallend deletebegin insert A
37participant shall notend insert
discuss the defendant or defendants or any
38of the facts of the case with the minor during this meeting.

39(g) When the court orders the testimony of a minor to be taken
40in another place outside the courtroom,begin delete nothing in this section
P6    1prohibitsend delete
begin insert this section does not prohibitend insert the court from ordering the
2minor to be brought into the courtroom for a limited purpose,
3including the identification of the defendant or defendants as the
4court deems necessary.

5(h) The examination shall be under oath, and the defendant or
6defendants shall be able to see and hear the minor witness, and if
7two-way closed-circuit television is used, the defendant’s image
8shall be transmitted live to the witness.

9(i) begin deleteNothing in this section affects end deletebegin insertThis section does not affect end insert
10the disqualification of witnesses pursuant to Section 701 of the
11Evidence Code.

12(j) The cost of examination by contemporaneous closed-circuit
13television ordered pursuant to this section shall be borne by the
14court out of its existing budget.

15(k) begin deleteNothing in this section shall end deletebegin insertThis section shall not end insertbe
16construed to prohibit a defendant from being represented by
17counsel during any closed-circuit testimony.



O

    96