BILL ANALYSIS Ó
AB 1761
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ASSEMBLY THIRD READING
AB
1761 (Weber)
As Amended April 14, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Public Safety |6-0 |Jones-Sawyer, Lackey, | |
| | |Lopez, Low, Quirk, | |
| | |Santiago | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |19-1 |Gonzalez, Bloom, |Bigelow |
| | |Bonilla, Bonta, | |
| | |Calderon, Chang, | |
| | |McCarty, Eggman, | |
| | |Gallagher, Eduardo | |
| | |Garcia, Chau, Holden, | |
| | |Jones, Obernolte, | |
| | |Quirk, Santiago, | |
| | |Wagner, Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Creates a human trafficking affirmative defense
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applicable to non-violent, non-serious, non-trafficking crimes.
Specifically, this bill:
1)States that, in addition to any other affirmative defense, it
is a defense to a crime that the person was coerced to commit
the offense as a direct result of being a human trafficking
victim at the time of the offense and of reasonable fear of
harm.
2)States that this affirmative defense does not apply to a
serious felony, a violent felony, or the offense of human
trafficking, as specified.
3)Establishes the standard of proof for the human trafficking
affirmative defense as the preponderance of evidence standard.
4)States that certifying records from federal, state, tribal, or
local court or government certifying agencies for documents
such as U or T visas, may be presented to establish the
affirmative defense.
5)Provides that the human trafficking affirmative defense can be
asserted at any time before entry of plea or before the end of
a trial. The defense can also be determined at the
preliminary hearing.
6)Entitles a person who successfully raises the human
trafficking affirmative defense to the following relief:
a) Sealing of all court records in the case;
b) Release from all penalties and disabilities resulting
from the charge, and all actions that led to the charge
shall be deemed not to have occurred; and
c) Permission to attest in all circumstances that he or she
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has never been arrested for, or charged with the subject
crime, including in financial aid, housing, employment, and
loan applications.
7)States that, in any juvenile delinquency proceeding, if the
court finds that the alleged offense was committed as a direct
result of being a victim of human trafficking then it shall
dismiss the case and automatically seal the case records.
8)States that the person may not be thereafter charged with
perjury or otherwise giving a false statement based on the
above relief.
9)States that in a juvenile delinquency proceeding, if the court
finds that the offense charged in the proceedings was
committed as a direct result of the minor being a victim of
human trafficking, and the affirmative defense was established
by a preponderance of the evidence, then the court shall
dismiss the proceedings and order automatic record sealing.
10)Provides that in a criminal action expert testimony is
admissible by either the prosecution or defense regarding the
effects of human trafficking on its victims, including, but
not limited to the nature and effect of physical, emotional,
or mental abuse on the beliefs, perceptions, or behavior of
human trafficking victims.
11)States that the requisite foundation for the introduction of
this expert testimony will be established if the proponent of
the evidence shows its relevance and the proper qualifications
of the expert witness.
EXISTING LAW:
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1)Guarantees a defendant a meaningful opportunity to present a
defense.
2)Provides that all persons are capable of committing crimes
except those belonging to specified classes, including person
who committed the act or made the omission charged under
threats or menaces sufficient to show that they had reasonable
cause to and did believe their lives would be endangered if
they refused.
3)States that all relevant evidence is admissible unless it is
made inadmissible by some statutory or constitutional
provision.
4)Provides that the court in its discretion may exclude evidence
if its probative value is substantially outweighed by the
probability that its admission will necessitate undue
consumption of time or create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
5)States that a person is qualified to testify as an expert if
he or she has special knowledge, skill, experience, training,
or education sufficient for the court to deem the person
qualified on a subject about which he or she is asked to
express an opinion.
6)Limits expert testimony to a subject that is sufficiently
beyond common experience that the opinion of that expert would
assist the trier of fact to understand the evidence or
determine a fact in issue.
7)Authorizes expert testimony in criminal cases by either the
prosecution or defense regarding intimate partner battering
and its effects, including the nature and effect of physical,
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emotional, or mental abuse on the beliefs, perceptions, or
behavior of victims of domestic violence, except when offered
against a defendant to prove the occurrence of the act or acts
of abuse which form the basis of a criminal charge.
FISCAL EFFECT: According to Assembly Appropriations Committee,
no cost to the state, and some savings to counties for reduced
incarceration, if the defendant prevails in misdemeanor or
non-serious felony charges.
COMMENTS: According to the author, "Too often our survivors of human
trafficking are forced to commit crimes under threat (directly
and indirectly) from their traffickers. The trauma of being a
victim of human trafficking is untold. In addition to sexual,
emotional, and physical abuse, human trafficking victims are
arrested and convicted for crimes they were forced to take part
in by their traffickers. For too long, we have compounded this
trauma by arresting and charging victims of human trafficking
for crimes they committed directly related to their time spent
as a trafficking victim. These victims are charged with crimes,
while their traffickers are shielded. This bill seeks to remedy
this situation and create avenues for victims to be identified
and the traffickers prosecuted."
Analysis Prepared by:
Sandy Uribe/ PUB. S. / (916) 319-3744 FN:
0002945
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