BILL ANALYSIS Ó SB 176 Page 1 SENATE THIRD READING SB 176 (Mitchell and Anderson) As Amended March 18, 2015 Majority vote SENATE VOTE: 35-0 ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+---------------------+---------------------| |Public Safety |6-0 |Melendez, | | | | |Jones-Sawyer, | | | | |Lackey, Lopez, Low, | | | | |Santiago | | | | | | | | | | | | ------------------------------------------------------------------ SUMMARY: Authorizes a minor 13 years of age or younger who is a witness to a "violent" felony, but not a victim, to testify by contemporaneous examination and cross examination by closed-circuit television, as specified. EXISTING LAW: SB 176 Page 2 1)Authorizes a court in any 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: a) The minor's testimony will involve a recitation of the facts of any of the following: i) An alleged sexual offense committed on or with the minor; ii) An alleged violent felony, as defined, of which the minor is a victim; or iii) An alleged felony offense of willful harm or injury to a child or corporal punishment of a child of which the minor is a victim; b) The impact on the minor of one or more of the factors enumerated in the following paragraphs, 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: i) 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. ii) The defendant used a deadly weapon in the commission of the offense. iii) The defendant threatened serious bodily injury to SB 176 Page 3 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. iv) The defendant inflicted great bodily injury upon the child in the commission of the offense. v) 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. c) 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. 2)Directs the court, in making the determination required by this section, to 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)Allows the court to 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 SB 176 Page 4 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. 4)Provides that when a 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. 5)States that 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 truth finding function. This discretion is intended to be used selectively when the facts and circumstances in the individual case present compelling evidence of the need to use these alternative procedures. 6)Defines a "violent felony" as any of the following: a) Murder or voluntary manslaughter; b) Mayhem; c) Rape or spousal rape accomplished by means of force or threats of retaliation; SB 176 Page 5 d) Sodomy by force or fear of immediate bodily injury on the victim or another person; e) Oral copulation by force or fear of immediate bodily injury on the victim or another person; f) Lewd acts on a child under the age of 14 years, as defined; g) Any felony punishable by death or imprisonment in the state prison for life; h) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or any felony in which the defendant has used a firearm, as specified; i) Any robbery; j) Arson of a structure, forest land, or property that causes great bodily injury; aa) Arson that causes an inhabited structure or property to burn; bb) Sexual penetration accomplished against the victim's will by means of force, menace or fear of immediate bodily injury on the victim or another person; SB 176 Page 6 cc) Attempted murder; dd) Explosion or attempted explosion of a destructive device with the intent to commit murder; ee) Explosion or ignition of any destructive device or any explosive which causes bodily injury to any person; ff) Explosion of a destructive device which causes death or great bodily injury; gg) Kidnapping; hh) Assault with intent to commit mayhem, rape, sodomy, or oral copulation; ii) Continuous sexual abuse of a child; jj) Carjacking, as defined; aaa) Rape or penetration of genital or anal openings by a foreign object; bbb) Felony extortion; ccc) Threats to victims or witnesses, as specified; ddd) First degree burglary, as defined, where it is proved SB 176 Page 7 that another person other than an accomplice, was present in the residence during the burglary; eee) Use of a firearm during the commission of specified crimes; and fff) Possession, development, production, and transfers of weapons of mass destruction. FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS: According to the author, "Under current law a minor, 13 years of age or younger, who is a victim of a violent or sexual crime can testify via closed-circuit television. This allows the child victim to testify without being subjected to being in the same room as the accused perpetrator, a person who may have caused physical or mental distress to the child. "SB 176 would expand upon that law by protecting child witnesses, 13 years of age or under, by allowing them to testify on closed-circuit television with a judge's permission. "A court should not be the place a child is forced to face a defendant, for which a child was a witness to a violent or sexual offense of the accused, solely to draw an emotional response from the child to play to the jury." Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: SB 176 Page 8 0000956