BILL ANALYSIS Ó
SB 176
Page 1
SENATE THIRD READING
SB
176 (Mitchell and Anderson)
As Amended July 2, 2015
Majority vote
SENATE VOTE: 35-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Public Safety |6-0 |Melendez, | |
| | |Jones-Sawyer, Lackey, | |
| | |Lopez, Low, Santiago | |
| | | | |
| | | | |
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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