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.
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