BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 176|
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UNFINISHED BUSINESS
Bill No: SB 176
Author: Mitchell (D) and Anderson (R), et al.
Amended: 7/2/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/7/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone
SENATE FLOOR: 35-0, 4/13/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Fuller, Galgiani, Hall, Hancock, Hernandez,
Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva,
McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell,
Nguyen, Nielsen, Pan, Roth, Stone, Vidak, Wieckowski, Wolk
NO VOTE RECORDED: Gaines, Liu, Pavley, Runner
ASSEMBLY FLOOR: 78-0, 7/6/15 - See last page for vote
SUBJECT: Examining children as witnesses
SOURCE: Californians for Safety and Justice
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.
Assembly Amendments make clarifying changes and add co-authors.
ANALYSIS:
Existing law:
1)Provides that in all criminal prosecutions, the accused shall
enjoy the right ... to be confronted by the witnesses against
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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).)
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
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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
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 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
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified 7/7/15)
Californians for Safety and Justice (source)
California District Attorneys Association
National Association of Social Workers, California
OPPOSITION: (Verified 7/7/15)
California Public Defenders Association
ASSEMBLY FLOOR: 78-0, 7/6/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gray,
Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer,
Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,
Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,
Wood, Atkins
NO VOTE RECORDED: Gordon, Roger Hernández
Prepared by:Mary Kennedy / PUB. S. /
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7/9/15 8:24:46
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