BILL ANALYSIS Ó
AB 1761
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CONCURRENCE IN SENATE AMENDMENTS
AB
1761 (Weber)
As Amended August 19, 2016
Majority vote
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|ASSEMBLY: |69-3 |(May 19, 2016) |SENATE: |36-1 |(August 23, |
| | | | | |2016) |
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Original Committee Reference: PUB. S.
SUMMARY: Creates a human trafficking affirmative defense
applicable to non-violent, non-serious, non-trafficking crimes.
The Senate amendments provide that records sealed after
prevailing on the human trafficking affirmative defense may
still be accessed by law enforcement for subsequent
investigatory purposes involving persons other than the
defendant.
AS PASSED BY THE ASSEMBLY, this bill:
1)Stated 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
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victim at the time of the offense and of reasonable fear of
harm.
2)Stated that this affirmative defense does not apply to a
serious felony, a violent felony, or the offense of human
trafficking, as specified.
3)Established the standard of proof for the human trafficking
affirmative defense as the preponderance of evidence standard.
4)Stated 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)Provided 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)Entitled 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)Stated 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
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dismiss the case and automatically seal the case records.
8)Stated that the person may not be thereafter charged with
perjury or otherwise giving a false statement based on the
above relief.
9)Stated 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)Provided 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)Stated 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:
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
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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,
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 Senate Appropriations Committee,
pursuant to Senate Rule 28.8, negligible state costs.
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
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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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by:
Sandy Uribe / PUB. S. / (916) 319-3744 FN:
0004866