BILL NUMBER: SB 197 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 15, 2009
AMENDED IN SENATE APRIL 30, 2009
AMENDED IN SENATE APRIL 23, 2009
INTRODUCED BY Senators Pavley and Benoit
FEBRUARY 23, 2009
An act to amend Sections 1335, 1336, 1337, and 1341
1337, 1341, and 1345 of the Penal Code, relating
to domestic violence.
LEGISLATIVE COUNSEL'S DIGEST
SB 197, as amended, Pavley. Domestic violence proceedings:
conditional examination of witnesses.
Existing law provides for the conditional examination of a witness
by the defendant in all cases, and by the people in cases where the
punishment may be other than death, if the defendant is charged with
a serious felony and there is evidence that the life of the witness
is in jeopardy, and in certain other circumstances.
This bill would also provide for the conditional examination of a
witness by the people or the defendant in a case of domestic
violence, as defined, when there is evidence that the life of the
witness is in jeopardy ; when criminal charges arising out
of the same acts have been previously dismissed for specified reasons
and refiled; or when there is evidence that a victim or
material witness has been or is being dissuaded by any means
, as provided, from cooperating with
the prosecution prosecutor or
testifying at trial. The bill would make conforming changes to
related provisions.
Existing law requires the testimony of a witness conditionally
examined to be reduced to writing and authenticated in the same
manner as that taken in support of an information, and also
authorizes the testimony to be video-recorded. Existing law provides
that the deposition or a certified copy may be read in evidence, or
if the examination was video-recorded, that video-recording may be
shown by either party at the trial if the court finds that the
witness is unavailable.
This bill would authorize the court to decline to admit
conditional examination testimony at the trial if the witness
unavailability was caused or procured by the party seeking its
admission. Because the bill would exclude relevant evidence in a
criminal proceeding, this bill would require a 2/3 vote of each house
of the Legislature pursuant to certain provisions of the California
Constitution.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1335 of the Penal Code is amended to read:
1335. (a) When a defendant has been charged with a public offense
triable in any court, he or she in all cases, and the people in
cases other than those for which the punishment may be death, may, if
the defendant has been fully informed of his or her right to counsel
as provided by law, have witnesses examined conditionally in his or
her or their behalf, as prescribed in this chapter.
(b) When a defendant has been charged with a serious felony or in
a case of domestic violence, the people or the defendant may, if the
defendant has been fully informed of his or her right to counsel as
provided by law, have a witness examined conditionally as prescribed
in this chapter, if there is evidence that the life of the witness is
in jeopardy.
(c) As used in this section, "serious felony" means any of the
felonies listed in subdivision (c) of Section 1192.7 or any violation
of Section 11351, 11352, 11378, or 11379 of the Health and Safety
Code.
(d) If a defendant has been charged in a case of domestic violence
and there is evidence that criminal charges arising out of the same
acts have been previously dismissed and refiled pursuant to paragraph
(2) or (3) of subdivision (a), or subdivision (b), of Section 1387,
the people or the defendant may, if the defendant has been fully
informed of his or her right to counsel as provided by law, have a
witness examined conditionally as prescribed in this chapter.
(e)
(d) If a defendant has been charged in
with a case of domestic violence and there is
evidence that a victim or material witness has been or is being
dissuaded by any means the defendant or any
person acting on behalf of the defendant, by intimidation or a
physical threat, from cooperating with the prosecution
prosecutor or testifying at trial, the people
or the defendant may, if the defendant has been fully informed of his
or her right to counsel as provided by law, have a witness examined
conditionally as prescribed in this chapter.
(f)
(e) For the purposes of this section, "domestic
violence" means any public offense arising from acts of domestic
violence as defined in Section 13700.
SEC. 2. Section 1336 of the Penal Code is
amended to read:
1336. (a) When a material witness for the defendant, or for the
people, is about to leave the state, or is so sick or infirm as to
afford reasonable grounds for apprehension that he or she will be
unable to attend the trial, or is a person 65 years of age or older,
or a dependent adult, or is a victim or material witness in a case
charging domestic violence who has been or is being dissuaded by any
means from cooperating with the prosecution or testifying at trial,
the defendant or the people may apply for an order that the witness
be examined conditionally.
(b) When there is evidence that the life of a witness is in
jeopardy, or, in a case of domestic violence, if criminal charges
arising out of the same acts have been previously dismissed and
refiled pursuant to paragraph (2) or (3) of subdivision (a), or
subdivision (b), of Section 1387, the defendant or the people may
apply for an order that the witness be examined conditionally.
(c) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 65, who has physical or mental
limitations which restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 65,
who is admitted as an inpatient to a 24-hour facility, as defined in
Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(d) As used in this section, "domestic violence" means any public
offense arising from acts of domestic violence as defined in Section
13700.
SEC. 3. SEC. 2. Section 1337 of the
Penal Code is amended to read:
1337. The application shall be made upon affidavit stating all of
the following:
(a) The nature of the offense charged.
(b) The state of the proceedings in the action.
(c) The name and residence of the witness, and that his or her
testimony is material to the defense or the prosecution of the
action.
(d) That the witness is about to leave the state, or is so sick or
infirm as to afford reasonable grounds for apprehending that he or
she will not be able to attend the trial, or is a person 65 years of
age or older, or a dependent adult, or that the life of the witness
is in jeopardy, or that the witness is a victim or material witness
in a domestic violence case who has been or is being
dissuaded by any means intimidated or threatened as
described in subdivision (d) of Section 1335 from cooperating
with the prosecution prosecutor or
testifying at trial , or that the witness is a victim or
material witness in a domestic violence case and criminal charges
arising out of the same acts have been previously dismissed and
refiled pursuant to paragraph (2) or (3) of subdivision (a), or
subdivision (b), of Section 1387. .
SEC. 4. SEC. 3. Section 1341 of the
Penal Code is amended to read:
1341. If, at the designated time and place, it is shown to the
satisfaction of the magistrate that the stated ground for conditional
examination is not true or that the application was made to avoid
the examination of the witness at the trial, the examination cannot
take place.
SEC. 4. Section 1345 of the Penal Code
is amended to read:
1345. The deposition, or a certified copy of it, may be read in
evidence, or if the examination was video-recorded, that
video-recording may be shown by either party at the trial if the
court finds that the witness is unavailable as a witness within the
meaning of Section 240 of the Evidence Code. The court may
decline to admit conditional examination testimony at the trial if
the witness unavailability was caused or procured by the party
seeking its admission. The same objections may be taken to a
question or answer contained in the deposition or video-recording as
if the witness had been examined orally in court.