BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1761| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1761 Author: Weber (D), et al. Amended: 8/19/16 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 6-1, 6/28/16 AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning NOES: Stone SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 ASSEMBLY FLOOR: 69-3, 5/19/16 - See last page for vote SUBJECT: Human trafficking: victims: affirmative defense SOURCE: Coalition to Abolish Slavery and Trafficking National Council of Jewish Women DIGEST: This bill creates a human trafficking affirmative defense applicable to non-violent, non-serious, non-trafficking crimes. Senate Floor Amendments of 8/19/16 provide that the records sealed under this bill may be accessed, inspected or utilized by law enforcement for subsequent investigatory purposes involving persons other than the defendant. ANALYSIS: Existing law: AB 1761 Page 2 1)Guarantees a defendant a meaningful opportunity to present a defense. (U.S. Const., VI Amend., Cal. Const. art. I, §. 15.) 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. (Penal Code, § 26.) 3)States that all relevant evidence is admissible unless it is made inadmissible by some statutory or constitutional provision. (Cal. Const., art. I, § 28(f)(2), Evidence Code, § 351.) 4) 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. (Evidence Code, § 352.) 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. (Evidence Code, § 720.) 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. (Evidence Code, § 801 (a).) 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, 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. (Evidence Code, § 1107 (a).) This bill: AB 1761 Page 3 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 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 AB 1761 Page 4 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. Background 1)Affirmative Defense A victim of trafficking who is charged with a crime may be able to raise the defense of duress. Duress is said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. "if there was a reasonable, legal alternative to violating the law, 'a chance both to refuse to do the criminal act and also to avoid the threatened harm,' the defenses will fail." (People v. Heath (1989) 207 Cal.App.3d 892, 899-900, citations omitted.) "Persons (unless the crime is punishable with death) who commits the act or made the omission charged under threats or menace suffices to show that they had reasonable cause to and did believe their lives would be endangered if they refused" are not guilty of the crime. (Penal Code, § 26.) A court has a duty to give a duress instruction on its own motion if it is supported by substantial evidence and is not inconsistent with the defense theory. (People v. Wilson (2005) 36 Cal.4th 309, 331.) The defendant acted under duress if, because of threat or menace, he or she believed that his or her or someone else's life would be in immediate danger if he or she refused a AB 1761 Page 5 demand or request to commit the crime. The demand or request may have been expressed or implied. The defendant's belief must have been reasonable. When deciding whether the defendant's belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed. CALCRIM 3402. Duress applies if the defendant has been threatened with imminent great bodily harm. (See People v. Otis (1959) 174 Cal.App.2d 119, 124; United States v. Bailey (1980) 444 U.S. 394, 409.) Also, although this is not reflected in the instruction, duress probably applies if the instigator threatens harm to another person. (See Heath, supra, at p. 898, discussing People v. Pena (1983) 149 Cal.App.3d Supp. 14, 21-25 [a necessity defense due to threats to a third party].) The sponsors of this bill believe the duress defense is inadequate for trafficking victims because a victim may not be able to show his or her life was in immediate danger. This bill creates a separate human trafficking affirmative defense. Under the defense created by this bill, the person will be required to show by a preponderance of the evidence, that he or she was coerced to commit the crime as a direct result of being a victim of trafficking at the time of the crime, and of reasonable fear of harm. The coercion requirement will prevent a trafficking victim from raising the defense when he or she commits a crime for personal gain, as opposed to at the behest of his or her trafficker. In addition, the requirement that the person be a victim of trafficking at the time of the offense, will preclude a trafficking survivor from using the defense years later to escape liability for criminal conduct because he or she was a victim in the past. This new defense will not apply to all crimes. A trafficking victim cannot raise the defense when charged with a serious felony as described in Penal Code Section 1192.7, subdivision (c), a violent felony listed in Penal Code Section 667.5, subdivision (c), or with regard to a charge of human trafficking. The latter crime is excluded from application so that a victim of trafficking does not escape liability for becoming a recruiter for his or her trafficker. AB 1761 Page 6 2)Expert Testimony Evidence Code Section 1107 generally makes admissible in a criminal action expert testimony regarding "intimate partner battering and its effects, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence . . . ." As explained by the California Supreme Court: Battered women's syndrome "has been defined as 'a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.'" (State v. Kelly (1984) 97 N.J. 178, 193 [478 A.2d 364, 371]) This bill applies the same principles to expert testimony regarding the effects of human trafficking to its victims. It provides that testimony is admissible by either prosecution or defense regarding the effects of human trafficking victims including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of human trafficking victims. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No SUPPORT: (Verified8/19/16) Coalition to Abolish Slavery and Trafficking (co-source) National Council of Jewish Women (co-source) ACT for Women and Girls American Academy of Pediatrics American Association of University Women Long Beach American Civil Liberties Union California Council of Churches California Public Defenders Association California Women's Law Center CAST Survivor Advisory Caucus City of Los Angeles Clergy and Laity for United for Economic Justice Housing California IMPACT Junior League of San Diego AB 1761 Page 7 Junior Leagues of California Legal Services for Prisoners with Children Planned Parenthood Affiliates of California Religious Action Center of Reform Judaism San Diego Urban League for Young Professional The Los Angeles Alliance for a New Economy OPPOSITION: (Verified8/19/16) California District Attorneys Association California State Sheriffs' Association Los Angeles District Attorneys Association Sacramento County District Attorney's Office ASSEMBLY FLOOR: 69-3, 5/19/16 AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Rendon NOES: Travis Allen, Gatto, Melendez NO VOTE RECORDED: Bigelow, Chang, Beth Gaines, Harper, Mathis, Mayes, McCarty, Williams Prepared by:Mary Kennedy / PUB. S. / 8/23/16 9:52:06 **** END **** AB 1761 Page 8