BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 176


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          SENATE THIRD READING


          SB  
          176 (Mitchell and Anderson)


          As Amended  July 2, 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:  










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          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  
                 the child or the child's family, threatened incarceration  








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                 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  
            prosecutor and defense counsel shall be permitted to submit  








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            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;










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             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;


             cc)  Attempted murder;








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             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  
               that another person other than an accomplice, was present  








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               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."









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          Analysis Prepared by:                                             
                          Gregory Pagan / PUB. S. / (916) 319-3744  FN:  
          0001104