BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1761|
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                                   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:









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          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:








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          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  







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            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  







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            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. 







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          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







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          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  ****


          










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