BILL ANALYSIS Ó AB 1761 Page 1 ASSEMBLY THIRD READING AB 1761 (Weber) As Amended April 14, 2016 Majority vote ------------------------------------------------------------------ |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 | | | | | | | | | | | | ------------------------------------------------------------------ SUMMARY: Creates a human trafficking affirmative defense AB 1761 Page 2 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 AB 1761 Page 3 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: AB 1761 Page 4 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, AB 1761 Page 5 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 AB 1761 Page 6