BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 176|
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                                   THIRD READING 


          Bill No:  SB 176
          Author:   Mitchell (D) and Anderson (R), et al.
          Amended:  3/18/15  
          Vote:     21  

          SENATE PUBLIC SAFETY COMMITTEE:  7-0, 4/7/15
          AYES:  Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

           SUBJECT:   Examining children as witnesses


          SOURCE:    Author

          DIGEST:    

          This bill authorizes a minor 13 years of age or younger who is a  
          witness but not a victim to testify by contemporaneous  
          examination and cross-examination under specified circumstances.

          ANALYSIS:

          Existing law:

          1)Provides that in all criminal prosecutions, the accused shall  
            enjoy the right ... to be confronted by the witnesses against  
            him ? . (U.S. Constitution, Amendment VI.)
           
           2)Provides that when a defendant is charged with specified sex  
            offenses, child abuse, lewd and lascivious acts on a child,  
            and the victim either is a person 15 years of age or less or  
            is developmentally disabled as a result of an intellectual  
            disability, as specified, the people may apply for an order  
            that the victim's testimony at the preliminary hearing, in  
            addition to being stenographically recorded, be recorded and  
            preserved on videotape. (Penal Code, § 1346(a).) 








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          3)States that at the time of trial, if the court finds that  
            further testimony in any of the qualifying cases would cause  
            the victim emotional trauma so that the victim is medically  
            unavailable or otherwise unavailable within the statutory  
            definition of unavailability, the court may admit the  
            videotape of the victim's testimony at the preliminary  
            hearing, as specified. (Penal Code, § 1346(d).) 

          4)Establishes that a videotape prepared for court testimony is  
            subject to a protective order of the court to protect the  
            privacy of the victim and must be made available to the  
            prosecuting attorney, the defendant, and his/her attorney for  
            viewing during business hours.  The videotape is to be  
            destroyed five years from the date of judgment, unless an  
            appeal is filed. (Penal Code, § 1346(e), (f), and (g).)    

          5)Provides that when a defendant is charged with spousal rape or  
            infliction of corporal injury resulting in a traumatic injury  
            to a spouse, former spouse, or domestic partner, the people  
            may apply for an order that the victim's testimony at the  
            preliminary hearing, in addition to being stenographically  
            recorded, be recorded and preserved on videotape.  If the  
            victim's testimony at the preliminary hearing is admissible,  
            the videotape recording may be introduced as evidence at  
            trial. (Penal Code, § 1346.1(a) and (d).) 

          6)Allows, in cases where a minor, 13 years or younger, will  
            testify that a sexual offense was committed against or with  
            the minor, or that the minor was a victim of a violent felony,  
            as defined, that the minor may testify by way of  
            contemporaneous examination and cross examination in another  
            location and communicated to the courtroom by closed-circuit  
            television if the court finds that the impact on the minor of  
            one or more of the following is shown by clear and convincing  
            evidence to make the minor unavailable as a witness unless  
            closed-circuit television 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  








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               witness; 

             b)   The defendant used a deadly weapon in the commission of  
               the offense;
           
             c)   Threats of serious bodily injury to be inflicted on the  
               minor or a family member, of incarceration or deportation  
               of the minor or a family member, or of removal of the minor  
               from the family or dissolution of the 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 the prosecution; 

             d)   The defendant inflicted great bodily injury upon the  
               child in the commission of the offense; or,
                
             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. (Penal Code §  
               1347(b).)

          This bill:

          1)Allows a child witness to a violent crime to also testify by  
            contemporaneous examination and cross examination of the  
            witness when the factors are met.

          Background

          Under existing law, a child victim of a violent felony can  
          testify by closed circuit television if the court finds by clear  
          and convincing evidence that the impact on the minor is so  
          substantial as to make the minor unavailable and one or more  
          factors exist.  Courts have found that this section does not  
          violate the confrontation clause. (see for example  People v.  
          Powell (2011) 194 Cal App. 4th 1268)

          This bill extends this law to include a child witness who is not  
          the victim of a violent crime.

          Please see policy committee analysis for full discussion of this  








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            bill.
          
          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified4/8/15)


          California District Attorneys Association
          Californians for Safety and Justice
          National Association of Social Workers, California


          Opposition:  (Verified 4/8/15)




          California Public Defenders Association




          Prepared by:Mary Kennedy / PUB. S. / 
          4/8/15 15:13:17


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