Amended in Assembly July 2, 2015

Amended in Senate March 18, 2015

Senate Bill No. 176

Introduced by Senators Mitchell and Anderson

(Coauthors: Senators begin delete Hall and Hertzberg end delete begin insert Hall, Hertzberg, Huff, and Stone end insert )

(Coauthors: Assembly Members begin insert Bonilla, end insert Chu, begin insert Cristina Garcia, end insert Gonzalez, Lackey, Maienschein, McCarty, and Waldron)

February 9, 2015

An act to amend Section 1347 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 176, as amended, Mitchell. Examining children as witnesses.

Existing law authorizes a court in a criminal proceeding, upon written notice by the prosecutor made at least 3 days prior to the date of the preliminary hearing or trial date on which the testimony of the minor is scheduled or during the course of the proceeding on the court’s own motion, to order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes specified findings. One of the findings existing law requires is that the minor’s testimony will involve a recitation of the facts of specified crimes, including an alleged violent felony of which the minor is a victim.

This bill would authorize a minor 13 years of age or younger to testify by contemporaneous examination and cross-examination if the testimony will involve the recitation of the facts of an alleged violent felony, whether or not the minor is a victim.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1347 of the Penal Code is amended to
read:

1347.  

(a) It is the intent of the Legislature in enacting this
section to provide the court with discretion to employ alternative
court procedures to protect the rights of a child witness, the rights
of the defendant, and the integrity of the judicial process. In
exercising its discretion, the court necessarily will be required to
balance the rights of the defendant or defendants against the need
to protect a child witness and to preserve the integrity of the court’s
truthfinding function. This discretion is intended to be used
selectively when the facts and circumstances in begin delete the end delete begin insert an end insert individual
case present compelling evidence of the need to use these
alternative procedures.

(b) Notwithstanding any other law, the court in a criminal
proceeding, upon written notice by the prosecutor made at least
three days prior to the date of the preliminary hearing or trial date
on which the testimony of the minor is scheduled, or during the
course of the proceeding on the court’s own motion, may order
that the testimony of a minor 13 years of age or younger at the
time of the motion be taken by contemporaneous examination and
cross-examination in another place and out of the presence of the
judge, jury, defendant or defendants, and attorneys, and
communicated to the courtroom by means of closed-circuit
television, if the court makes all of the following findings:

(1) The minor’s testimony will involve a recitation of the facts
of any of the following:

(A) An alleged sexual offense committed on or with the minor.

(B) An alleged violent felony, as defined in subdivision (c) of
Section 667.5.

(C) An alleged felony offense specified in Section 273a or 273d
of which the minor is a victim.

(2) The impact on the minor of one or more of the factors
enumerated in subparagraphs (A) to (E), inclusive, is shown by
clear and convincing evidence to be so substantial as to make the
minor unavailable as a witness unless closed-circuit testimony is
used.

(A) Testimony by the minor in the presence of the defendant
would result in the child suffering serious emotional distress so
that the child would be unavailable as a witness.

(B) The defendant used a deadly weapon in the commission of
the offense.

(C) The defendant threatened serious bodily injury to the child
or the child’s family, threatened incarceration or deportation of
the child or a member of the child’s family, threatened removal
of the child from the child’s family, or threatened the dissolution
of the child’s family in order to prevent or dissuade the minor from
attending or giving testimony at any trial or court proceeding, or
to prevent the minor from reporting the alleged sexual offense, or
from assisting in criminal prosecution.

(D) The defendant inflicted great bodily injury upon the child
in the commission of the offense.

(E) The defendant or his or her counsel behaved during the
hearing or trial in a way that caused the minor to be unable to
continue his or her testimony.

In making the determination required by this section, the court
shall consider the age of the minor, the relationship between the
minor and the defendant or defendants, any handicap or disability
of the minor, and the nature of the acts charged. The minor’s refusal
to testify shall not alone constitute sufficient evidence that the
special procedure described in this section is necessary to obtain
the minor’s testimony.

(3) The equipment available for use of closed-circuit television
would accurately communicate the image and demeanor of the
minor to the judge, jury, defendant or defendants, and attorneys.

(c) If the court orders the use of closed-circuit television,
two-way closed-circuit television shall be used, except that if the
impact on the minor of one or more of the factors enumerated in
subparagraphs (A) to (E), inclusive, of paragraph (2) of subdivision
(b), is shown by clear and convincing evidence to be so substantial
as to make the minor unavailable as a witness even if two-way
closed-circuit television is used, one-way closed-circuit television
may be used. The prosecution shall give the defendant or
defendants at least 30 days’ written notice of the prosecution’s
intent to seek the use of one-way closed-circuit television, unless
begin insert the prosecution shows end insert good cause begin delete is shown end delete to the court why this
30-day notice requirement should not apply.

(d) (1) The hearing on a motion brought pursuant to this section
shall be conducted out of the presence of the jury.

(2) Notwithstanding Section 804 of the Evidence Code or any
other law, the court, in determining the merits of the motion, shall
not compel the minor to testify at the hearing, nor shall the court
deny the motion on the ground that the minor has not testified.

(3) In determining whether the impact on an individual child of
one or more of the five factors enumerated in paragraph (2) of
subdivision (b) is so substantial that the minor is unavailable as a
witness unless two-way or one-way closed-circuit television is
used, the court may question the minor in chambers, or at some
other comfortable place other than the courtroom, on the record
for a reasonable period of time with the support person, the
prosecutor, and defense counsel present. The defendant or
defendants shall not be present. The court shall conduct the
questioning of the minor and shall not permit the prosecutor or
defense counsel to examine the minor. The prosecutor and defense
counsel shall be permitted to submit proposed questions to the
court prior to the session in chambers. Defense counsel shall be
afforded a reasonable opportunity to consult with the defendant
or defendants prior to the conclusion of the session in chambers.

(e) When the court orders the testimony of a minor to be taken
in another place outside of the courtroom, the court shall do all of
the following:

(1) Make a brief statement on the record, outside of the presence
of the jury, of the reasons in support of its order. While the
statement need not include traditional findings of fact, the reasons
shall be set forth with sufficient specificity to permit meaningful
review and to demonstrate that discretion was exercised in a
careful, reasonable, and equitable manner.

(2) Instruct the members of the jury that they are to draw no
inferences from the use of closed-circuit television as a means of
facilitating the testimony of the minor.

(3) Instruct respective counsel, outside of the presence of the
jury, that they are to make no comment during the course of the
trial on the use of closed-circuit television procedures.

(4) Instruct the support witness, outside of the presence of the
jury, that he or she is not to coach, cue, or in any way influence
or attempt to influence the testimony of the minor.

(5) Order that a complete record of the examination of the minor,
including the images and voices of all persons who in any way
participate in the examination, be made and preserved as a video
recording in addition to being stenographically recorded. The video
recording shall be transmitted to the clerk of the court in which
the action is pending and shall be made available for viewing to
the prosecuting attorney, the defendant or defendants, and his or
her attorney during ordinary business hours. The video recording
shall be destroyed after five years have elapsed from the date of
entry of judgment. If an appeal is filed, the video recording shall
not be destroyed until a final judgment on appeal has been ordered.
A video recording that is taken pursuant to this section is subject
to a protective order of the court for the purpose of protecting the
privacy of the witness. This subdivision does not affect the
provisions of subdivision (b) of Section 868.7.

(f) When the court orders the testimony of a minor to be taken
in another place outside the courtroom, only the minor, a support
person designated pursuant to Section 868.5, a nonuniformed
bailiff, any technicians necessary to operate the closed-circuit
equipment, and, after consultation with the prosecution and the
defense, a representative appointed by the court, shall be physically
present for the testimony. A video recording device shall record
the image of the minor and his or her testimony, and a separate
video recording device shall record the image of the support person.

(g) When the court orders the testimony of a minor to be taken
in another place outside the courtroom, the minor shall be brought
into the judge’s chambers prior to the taking of his or her testimony
to meet for a reasonable period of time with the judge, the
prosecutor, and defense counsel. A support person for the minor
shall also be present. This meeting shall be for the purpose of
explaining the court process to the child and to allow the attorneys
an opportunity to establish rapport with the child to facilitate later
questioning by closed-circuit television. No participant shall discuss
the defendant or defendants or any of the facts of the case with the
minor during this meeting.

(h) When the court orders the testimony of a minor to be taken
in another place outside the courtroom, nothing in this section
prohibits the court from ordering the minor to be brought into the
courtroom for a limited purpose, including the identification of
the defendant or defendants as the court deems necessary.

(i) The examination shall be under oath, and the defendant or
defendants shall be able to see and hear the minor witness, and if
two-way closed-circuit television is used, the defendant’s image
shall be transmitted live to the witness.

(j) Nothing in this section affects the disqualification of
witnesses pursuant to Section 701 of the Evidence Code.

(k) The cost of examination by contemporaneous closed-circuit
television ordered pursuant to this section shall be borne by the
court out of its existing budget.

(l) Nothing in this section shall be construed to prohibit a
defendant from being represented by counsel during any
closed-circuit testimony.