BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1276       Hearing Date:    June 14, 2016    
          
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          |Author:    |Santiago                                             |
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          |Version:   |January 4, 2016                                      |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|MK                                                   |
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                    Subject:  Child Witnesses:  Human Trafficking



          HISTORY

          Source:   Author

          Prior Legislation:SB 138 (Maldonado) - Chapter 480, Stats. 2005 
                            AB 2143 (Maldonado) - 2004 failed  
                                          Assembly Committee on Public  
                         Safety
                                        SB 1559 (Figueroa) - Chapter 96,  
                         Stats. 2002
                                             SB 1715 (Ortiz) - Chapter  
                         207, Stats. 2000
                                             AB 1692 (Bowen) - Chapter  
                         670, Stats. 1998
                                             AB 1077 (Cardoza) - Chapter  
                         669, Stats.  1998


           Support:Alameda County District Attorney; California Catholic  
                 Conference;  California District Attorneys Association;  
                 California Peace Officers' Association; California State  
                 Lodge, California Coalition for Youth; Fraternal Order of  
                 Police; CASA of Los Angeles; Children's Law Center of  
                 California; City of Oakland;  Coalition to Abolish  
                 Slavery and Trafficking; Consumer Attorneys of  







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                 California;  Judicial Council;  Junior Leagues of  
                 California State Public Affairs Committee;  League of  
                 California Cities; Long Beach Police Officers  
                 Association; Los Angeles County Professional Peace  
                 Officers Association;  Los Angeles County Sheriffs'  
                 Department;  Mary Magdalene Project, Inc.; National  
                 Council of Jewish Women California; Peace Officers  
                 Research Association of California; San Diego County  
                 District Attorney; Santa Clara University's  Katherine  
                 and George Alexander Community Law Center; Sacramento  
                 County Deputy Sheriffs' Association; Sacramento County  
                 Sheriff's Department; Santa Ana Police Officers  
                 Association;  1 individual

          Opposition:American Civil Liberties Union; California Attorneys  
                    for Criminal Justice; California Public Defenders  
                    Association; Legal Services for Prisoners with  
                    Children

          Assembly Floor Vote:                 77 - 0


          PURPOSE
          
          The purpose of this bill is to 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.  

          Existing law 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 5, 8, or 12 years and a  
          fine of not more than $500,000. (Penal Code § 236.1 (a).) 

          Existing law 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 8, 14 or 20 years and a fine of not more than  
          $500,000. (Penal Code § 236.1 (b).) 

          Existing law specifies that the following penalties for any  








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          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  
          either 5, 8, or 12 years and a fine of not more than $500,000;  
          or, 15-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. (Penal Code § 236.1 (c).)

          Existing law 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. (Penal Code §  
          1347 (a).) 

          Existing law 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; 

             a.   The impact on the minor of one or more of the factors  








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               enumerated in the following paragraphs, inclusive, is shown  
               by clear and convincing evidence to be so substantial as to  
               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.

             a.   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. (Penal Code § 1347 (b).) 

          Existing law 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 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. (Penal Code § 1347 (b)(2)(E).) 

          Existing law 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  








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          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. (Penal Code § 1347  
          (d)(3).) 

          Existing law 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. (Penal Code § 1347 (h).) 

          Existing law states that it is the intent of the Legislature in  
          enacting this section 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 the individual  
          case present compelling evidence of the need to use these  
          alternative procedures. (Penal Code, § 1347 (a).) 





                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  








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          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  








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               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.




          COMMENTS
          
          1. Need for This Bill
          
          According to the author:

          Current law allows minors who are victims of specified  
          crimes, such as sexual assault offense, violent felony,  
          corporal punishment, etc., to testify in court by means of  
          closed-circuit television. However, the crime of human  
          trafficking is not among the listed specified crimes. This  
          leaves many minor victims of human trafficking without the  
          option of testifying by means of closed-circuit television.  


               Furthermore, current age restrictions exclude victims  
               who are between the age of 14 and 17 and have also  
               suffered severe trauma. Although maturity levels are  
               different from a 13 to a 17 year old, a victim of a  
               crime can suffer extreme trauma regardless if they are  
               13, 14, 15, 16, or 17 years of age. In various  
               instances, a minor is defined as a person who is 18  
               years of age or younger in the California penal code.  
               Moreover, both California and the federal government  
               define a "minor" victim of human trafficking as a  
               person who is 18 years of age or younger (Penal Code  
               236.1). AB 1276 seeks to protect all minors who are  
               victims of human trafficking, both sex and labor, from  
               additional trauma and secondary victimization by  
               including an alleged offense of human trafficking and  
               by increasing the age of a minor from 13 to 17 years  








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               of age or younger.
          
          2.  Sixth Amendment Right to Confrontation
          
          The Sixth Amendment of the U.S. Constitution provides, that "in  
          all criminal prosecutions, the accused shall enjoy the right . .  
          . to be confronted with the witnesses against him." (U.S.  
          Const., amend. VI.) The constitutional right of the accused to  
          confront witnesses against him or her is a fundamental right  
          essential to a fair trial. (Pointer v. Texas (1965) 380 U.S.  
          400.) Fundamental rights are the most important rights  
          guaranteed in the Constitution, and the protection of the right  
          to confrontation is as important as the freedom of speech and  
          the freedom of religion. The right guaranteed under the  
          confrontation clause includes the right to face the person's  
          accuser, requiring the witness to make his or her statements  
          under oath, thus impressing upon the witness the seriousness of  
          the matter and guarding against the lie by the possibility of a  
          penalty for perjury; forcing the witness to submit to  
          cross-examination; and permitting the jury to observe the  
          demeanor of the witness in making his or her statement, thus  
          aiding the jury in assessing the witness's credibility.  
          (Maryland v. Craig (1990) 497 U.S. 836, 845-846.) The Sixth  
          Amendment right to confrontation guarantees the defendant a  
          face-to-face meeting with witnesses against him. (Maryland v.  
          Craig, supra, 497 U.S. at p. 855, citing Coy v. Iowa (1988) 487  
          U.S. 1012, 1016.) The purpose of this guarantee originates from  
          the desire to prevent conviction by anonymous accusers and  
          absentee witnesses. (Ibid.) "[F]ace-to-face confrontation  
          enhances the accuracy of factfinding by reducing the risk that a  
          witness will wrongfully implicate an innocent person. . . . ('It  
          is always more difficult to tell a lie about a person "to his  
          face" than "behind his back." . . . That face-to-face presence  
          may, unfortunately, upset the truthful rape victim or abused  
          child; but by the same token it may confound and undo the false  
          accuser, or reveal the child coached by a malevolent adult.')."  
          (Maryland v. Craig (1990) 497 U.S. at pp. 846-847, citing Ohio  
          v. Roberts (1980) 448 U.S. 56, 63.) 

          The right to confront witnesses face-to-face, however, is not an  
          indispensable element of the confrontation clause. (Maryland v.  
          Craig, supra, 497 U.S. 836.) The Maryland v. Craig, supra, case  
          involved sexual abuse of a 6-year-old child.  The prosecutor  
          relied on a state statutory procedure permitting a judge to  








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          receive, by one-way closed circuit television, the testimony of  
          an alleged child abuse victim upon determining that the child's  
          courtroom testimony would result in the child suffering serious  
          emotional distress, such that he or she could not reasonably  
          communicate.  The Supreme Court held that "the state interest in  
          protecting child witnesses from the trauma of testifying in a  
          child abuse case is sufficiently important to justify the use of  
          a special procedure that permits a child witness in such cases  
          to testify at trial against a defendant in the absence of  
          face-to-face confrontation with the defendant." (Maryland v.  
          Craig, supra, 497 U.S. at p. 855.) 

          The Supreme Court cautioned, however, that their ruling "[t]hat  
          the face-to-face confrontation requirement is not absolute does  
          not, of course, mean that it may easily be dispensed with.  As  
          we suggested in Coy, our precedents confirm that a defendant's  
          right to confront accusatory witnesses may be satisfied absent a  
          physical, face-to-face confrontation at trial only where denial  
          of such confrontation is necessary to further an important  
          public policy and only where the reliability of the testimony is  
          otherwise assured. (Maryland v. Craig, supra, 497 U.S. at p.  
          850.) Four Justices dissented in the majority opinion.  Justice  
          Scalia, writing for the dissent, stated "[t]he purpose of  
          enshrining this protection in the Constitution was to assure  
          that none of the many policy interests from time to time pursued  
          by statutory law could overcome a defendant's right to face his  
          or her accusers in court." (Maryland v. Craig, supra, 497 U.S.  
          at p. 861.) 

          In fact, "[i]n recent years, the Supreme Court of the United  
          States's understanding of the meaning of this Clause may well be  
          the single part of constitutional law - certainly of criminal  
          procedure - that has undergone the most radical change. 

          "Two Supreme Court judgments [in recent years] have introduced  
          this change and have greatly expanded the right of the accused  
          in criminal prosecutions to confront the witnesses against  
          them." (See Fenner, Today's Confrontation Clause (After Crawford  
          and MelendezDiaz), (Nov. 2009) 43 Creighton L.Rev. 35, p. 101,  
          (as of May 1, 2015).) 

          3.  Closed Circuit Television in Human Trafficking Cases

          Existing law allows for contemporaneous testimony by closed  








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          circuit television in a case where a child under the age of 14  
          is a victim of a sex or violent offense when specified  
          conditions are met.  This bill takes that existing framework and  
          applied it to victims of human trafficking who are under the age  
          of 18.

          Unlike the trend noted in the discussion of the case law above,  
          this bill appears to further erode a defendant's right to  
          confront his or her accuser. In addition, the human trafficking  
          statute authorizes severe punishments, including substantial  
          terms of imprisonment in state prison.  If the crime involves a  
          minor, a defendant may face up to 20 years in state prison, and  
          in some instances imprisonment for 15-years-to-life. (Penal  
          Code, § 236.1.) 

          Considering how serious the existing punishments are for human  
          trafficking, does an expansion of the circumstances that would  
          allow witnesses to avoid face-to face confrontation with the  
          defendant infringe on the Constitutional right to confrontation?
          

          4.  Contemporaneous Testimony for Child Witnesses: Legislative  
          History
          
          Existing law provides courts with discretion to authorize a  
          child victim under 14 to testify by means of closed-circuit  
          television in specified felony cases. The court must make a  
          finding by clear and convincing evidence that the impact on the  
          minor is so substantial as to make the minor unavailable and one  
          or more of the enumerated factors exist. The court may hear  
          testimony from witnesses such as a social worker or therapist to  
          establish the impact on the minor. A child's refusal to testify  
                                                does constitute sufficient evidence that the contemporaneous  
          testimony is necessary. (Penal Code § 1347.) 

          Prior to 1998, this statute applied to child victims 10 years of  
          age or younger.  This statute was amended by AB 1692 (Bowen),  
          Chapter 670, Statutes of 1998, to apply the procedure to child  
          victims who were 13 years of age or younger.  AB 1692, as  
          amended April 27, 1998, applied these provisions to child  
          witnesses 15 years of age or younger. "Responding to the  
          suggestion that section 1347 should be consistent with the law  
          that punishes more severely lewd acts upon a child 'under the  
          age of 14' (Assem. Com. on Public Safety, Analysis of AB 1692  








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          (1997-1998 Reg. Sess.) as amended Apr. 27, 1998, p. 3; see Sen.  
          Com. on Public Safety, Analysis of AB 1692 (1997-1998 Reg.  
          Sess.) as amended June 23, 1998), the Legislature revised the  
          statute to authorize courts to order the testimony of a minor  
          '13 years of age or younger' to be taken by closed-circuit  
          television." (People v. Cornett (2012) 53 Cal. 4th 1261, 1269.) 

          5.  Enhanced Protections for Children Under 14 Years Old
          
          While a person under the age of 18 is a minor under the law, the  
          statute authorizing contemporaneous testimony is more narrowly  
          tailored to protect young children under the age of 14, not all  
          minors, from the trauma of facing his or her abuser in court.  
          (Penal Code § 1347.) Limiting this enhanced protection to  
          children under 14 years old reflects the state's interest in  
          protecting young children from harm, while still balancing the  
          rights of the defendant and protecting the integrity of the  
          judicial process. (Penal Code § 1347 (a).) The state's  
          deliberate protection of children under 14 is evidenced by the  
          existence of current statutes that punish more harshly an act  
          committed against a child under the age of 14 compared to acts  
          committed against children 14 and over. (Penal Code §§ 264   
          (c)(1); 264.1  (b)(1); 271; 286  (c)(2)(B), 288 (a); 288a  
          (c)(2)(B); 288.5; 289 (a)(1)(B); 667.61 (j)(2); 667.8; 667.85;  
          and 667.9.) Furthermore, the state's juvenile court system also  
          demonstrates this enhanced protection for minors who are under  
          the age of 14 and charged with committing a crime. The statutory  
          framework that authorizes minors to be tried in adult court  
          rather than juvenile court for the commission of serious  
          offenses applies to minors 14 years of age and older. (Welf. &  
          Inst. Code § 707 (b).) Because Penal Code Section 1347  
          interferes with a defendant's constitutional right to  
          confrontation, the statute must be narrowly tailored to serve a  
          compelling state interest (Globe Newspaper Co. v. Superior Court  
          (1982) 457 U.S. 596, 607.) The compelling state interest is the  
          desire to provide children under 14 with more protections than  
          older children.  

          By allowing a witness under the age of 18 to testify through the  
          use of closed-circuit television in human trafficking cases, is  
          this bill narrowly tailored to meet a compelling state interest  
          as required to pass constitutional muster?










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          6.  Support
          
          The San Diego County District Attorney supports this bill  
          stating:

               Testifying in court can be particularly traumatic for  
               minors who are victims of human trafficking. Facing  
               the perpetrator in court and recalling the horrifying  
               and personal details of the abuse forces the victims  
               to relive the crime mentally and emotionally, leading  
               them to feel as though the abuse is recurring and  
               re-experiencing a lack of control and terror.  
               Furthermore, the minor victims' inability to  
               communicate effectively in court or refusal to testify  
               against their trafficker can lead to ineffective  
               prosecution of the case.

               It is important that California protects minors who  
               are victims of human trafficking from additional  
               trauma during criminal proceedings. By allowing  
               victims of human trafficking who are 17 years of age  
               or younger to testify out of the presence of the  
               judge, jury , defendant(s), and attorneys by means of  
               closed-circuit television, AB 1276 will protect minors  
               from suffering additional trauma.

          7.  Opposition 

          The American Civil Liberties Union opposes this bill stating:

               By expanding the use of closed circuit television to  
               teenage witnesses, AB 1276 strays too far from the  
               circumstances in which this procedure has been  
               approved by the U.S. Supreme Court.  AB 1276 is thus  
               likely to lead to violations of the right to confront  
               witnesses, as protected by the Sixth Amendment  
               Confrontation Clause. 

                                           
                                      -- END -









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