BILL ANALYSIS Ó AB 1276 Page 1 ASSEMBLY THIRD READING AB 1276 (Santiago) As Amended January 4, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Public Safety |6-0 |Quirk, Melendez, | | | | | | | | | | | | | | |Jones-Sawyer, Lackey, | | | | |Low, Santiago | | | | | | | | | | | | ------------------------------------------------------------------ SUMMARY: Authorizes a minor, 17 years of age or younger, to testify at trial out of the presence of the defendant and jury by way of closed-circuit television in human trafficking cases. Applies the same procedures as currently permitted for allowing a minor, 13 years of age or younger, to testify by means of closed-circuit television in specified cases provided the court makes certain findings. EXISTING LAW: AB 1276 Page 2 1)States that it is the intent of the Legislature to provide the court with discretion to employ alternative court procedures to protect the rights of a child witness, the rights of the defendant, and the integrity of the judicial process. In exercising its discretion, the court necessarily will be required to balance the rights of the defendant or defendants against the need to protect a child witness and to preserve the integrity of the court's truthfinding function. This discretion is intended to be used selectively when the facts and circumstances in an individual case present compelling evidence of the need to use these alternative procedures. 2)Authorizes a court in a criminal proceeding, upon written notice by the prosecutor made at least three 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, may 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 all of the following findings: a) The minor's testimony will involve a recitation of the facts of any of the following: i) An alleged sexual offense committed on or with the minor; ii) An alleged violent felony, as defined; or iii) An alleged felony offense of willful harm or injury to a child or corporal punishment of a child of which the minor is a victim. b) The impact on the minor of one or more of the factors enumerated in the following paragraphs, inclusive, is shown by clear and convincing evidence to be so substantial as to AB 1276 Page 3 make the minor unavailable as a witness unless closed-circuit testimony is used: i) Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness. ii) The defendant used a deadly weapon in the commission of the offense. iii) The defendant threatened serious bodily injury to the child or the child's family, threatened incarceration or deportation of the child or a member of the child's family, threatened removal of the child from the child's family, or threatened the dissolution of the child's family in order to prevent or dissuade the minor from attending or giving testimony at any trial or court proceeding, or to prevent the minor from reporting the alleged sexual offense, or from assisting in criminal prosecution. iv) The defendant inflicted great bodily injury upon the child in the commission of the offense. v) The defendant or his or her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony. c) The equipment available for use of closed-circuit television would accurately communicate the image and demeanor of the minor to the judge, jury, defendant or defendants, and attorneys. 3)Directs the court, in making the determination required by this section, to consider the age of the minor, the relationship between the minor and the defendant or defendants, any handicap or disability of the minor, and the AB 1276 Page 4 nature of the acts charged. The minor's refusal to testify shall not alone constitute sufficient evidence that the special procedure described in this section is necessary to obtain the minor's testimony. 4)Allows the court to question the minor in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the support person, the prosecutor, and defense counsel present. The defendant or defendants shall not be present. The court shall conduct the questioning of the minor and shall not permit the prosecutor or defense counsel to examine the minor. The prosecutor and defense counsel shall be permitted to submit proposed questions to the court prior to the session in chambers. Defense counsel shall be afforded a reasonable opportunity to consult with the defendant or defendants prior to the conclusion of the session in chambers. 5)Provides that when a court orders the testimony of a minor to be taken in another place outside the courtroom, nothing in this section prohibits the court from ordering the minor to be brought into the courtroom for a limited purpose, including the identification of the defendant or defendants as the court deems necessary. 6)Provides that any person who deprives or violates the personal liberty of any other with the intent to obtain forced labor or services is guilty of human trafficking and shall be punished in state prison for five, eight, or 12 years and a fine of not more than $500,000. 7)States that any person who deprives or violates the personal liberty of any other with the intent to effect or maintain a violation of specified offenses related to sexual conduct, obscene matter or extortion is guilty of human trafficking and shall be punished by imprisonment in the state prison for eight, 14 or 20 years and a fine of not more than $500,000. AB 1276 Page 5 8)Specifies the following penalties for any person who causes, induces, or persuades, or attempts to cause, induce, persuade, a person who is minor at the time of commission of the offense to engage in a commercial sex act, as provided: a) Five, eight, or 12 years and a fine of not more than $500,000; or, b) Fifteen-years-to-life and a fine of not more than $500,000 when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person. FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS: According to the author, "Testifying in court can be traumatic for victims of human trafficking who are minors. Facing the perpetrator in court and being asked to recall horrifying details of the crime can cause severe emotional distress. When personally facing the perpetrator makes effective communication in court difficult or leads a minor fearing retaliation to refuse to testify, the result is often ineffective prosecution. AB 1276 will ensure that minors 17 years and younger who are victims of human trafficking are protected from experiencing additional trauma by allowing them to testify in court via closed-circuit television, while preserving the integrity of the court's truthfinding function." Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0002545 AB 1276 Page 6