BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 197 (Pavley)
As Introduced February 23, 2009
Hearing date: April 14, 2009
Penal Code
AA:br
CONDITIONAL EXAMINATION OF WITNESSES :
DOMESTIC VIOLENCE
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: AB 1158 (Benoit) - Ch. 14, Stats. 2008
AB 620 (Negrete McLeod) - Ch. 305, Stats. 2005
AB 1891 (Lowenthal) - Ch. 186; Stats. 2000
AB 526 (Zettel) - Ch. 383, Stats. 1999
Support: California Partnership to End Domestic Violence; Peace
Over Violence; California National Organization for
Women; California Communities United Institute;
California District Attorneys Association
Opposition:None known
KEY ISSUE
Should conditional examinations of witnesses AND victims IN
MISDEMEANOR AND FELONY domestic violence prosecutions be authorized
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where 1) the life of the witness is in jeopardy; 2) there is
evidence that criminal charges arising out of the same acts have
been previously dismissed and refiled; or 3) there is evidence that
a victim or material witness has been or is being dissuaded by any
means from cooperating with the prosecution or testifying at trial,
as specified?
PURPOSE
The purpose of this bill is to authorize conditional
examinations of witnesses or victims in misdemeanor and felony
domestic violence prosecutions where 1) the life of the witness
is in jeopardy; 2) there is evidence that criminal charges
arising out of the same acts have been previously dismissed and
refiled; or 3) there is evidence that a victim or material
witness has been or is being dissuaded by any means from
cooperating with the prosecution or testifying at trial, as
specified.
Current law provides that the a "defendant in a criminal cause
has the right to a speedy public trial, to compel attendance
of witnesses in the defendant's behalf, to have the assistance
of counsel for the defendant's defense, to be personally
present with counsel, and to be confronted with the witnesses
against the defendant. The Legislature may provide for the
deposition of a witness in the presence of the defendant and
the defendant's counsel. . . ." (Cal.Const. Art. I 15.)
Current law provides that when a defendant has been charged with
any crime, 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
the following cases:
When a defendant has been charged with a serious
felony , as specified, if there is evidence that the life
of the witness is in jeopardy; (Penal Code 1335)
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When a material witness for the defendant, or for the
people, will be unable to attend the trial for one of
the following reasons:
o The person is about to leave the
state;
o The person is so sick or infirm as
to afford reasonable grounds for
apprehension that he or she will be unable
to attend the trial; or
o The person is 65 years of age or
older, or a dependent adult, as specified
(Penal Code 1336 (a).)
o When there is evidence that the
life of a witness is in jeopardy. (Penal
Code 1336 (b).)
Current law generally requires a noticed application for such an
order and, if the application is granted, that the examination
must occur before a magistrate, as specified. (Penal Code
1338; 1339.) The defendant has the right to be present in
person and with counsel at the examination, as specified.
(Penal Code 1340.) Testimony given by the witness shall be
reduced to writing and authenticated in the same manner as the
testimony of a witness taken in support of an information.
(Penal Code 1343.) The deposition or video-tape may be
entered into evidence, as specified. (Penal Code 1345.)
Current law provides that, if at the examination "it is shown to
the satisfaction of the magistrate that the witness is not about
to leave the state, or is not sick or infirm, or is not a person
65 years of age or older, or a dependent adult, or that the life
of the witness is not in jeopardy, or that the application was
made to avoid the examination of the witness at the trial, the
examination cannot take place." (Penal Code 1341.)
This bill would expand these provisions allowing conditional
exams to authorize a conditional exam in a domestic violence
case as follows:
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If a defendant has been charged in a case of misdemeanor
or felony domestic violence and the life of the witness is
in jeopardy;
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, as specified, 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; or
If a defendant has been charged in a case of domestic
violence and there is evidence that a victim or material
witness has been or is being dissuaded by any means from
cooperating with the prosecution 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.
This bill would define "domestic violence" to mean any public
offense arising from acts of domestic violence as defined in
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Section 13700.<1>
Current law requires that a noticed application for an order
that a witness be examined conditionally be made upon an
affidavit stating all of the following:
(1) The nature of the offense charged.
(2) The state of the proceedings in
the action.
(3) The name and residence of the
witness, and that his or her testimony is
material to the defense or the prosecution of
the action.
(4) 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. (Penal Code
1337.)
This bill would add to this section the provision that "the
witness is a victim or material witness in a domestic violence
case who has been or is being dissuaded by any means from
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<1> "'Domestic violence' means abuse committed against an
adult or a minor who is a spouse, former spouse, cohabitant,
former cohabitant, or person with whom the suspect has had a
child or is having or has had a dating or engagement
relationship. For purposes of this subdivision, 'cohabitant'
means two unrelated adult persons living together for a
substantial period of time, resulting in some permanency of
relationship. Factors that may determine whether persons are
cohabiting include, but are not limited to, (1) sexual relations
between the parties while sharing the same living quarters, (2)
sharing of income or expenses, (3) joint use or ownership of
property, (4) whether the parties hold themselves out as husband
and wife, (5) the continuity of the relationship, and (6) the
length of the relationship." (Penal Code 13700 (b).)
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cooperating with the prosecution 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," as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
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<2> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Stated Need for This Bill
The author states:
Domestic violence continues to be one of the most
devastating issues facing women today, but many cases
are still frequently dismissed, because victims and
witnesses fear to testify against their accuser in
court. Under current law, when the life of a witness
is in jeopardy in a domestic violence case, there is
no procedure to preserve the testimony of that witness
if a witness fails to testify due to threats upon his
or her life. Even if the witness is murdered, prior
statements of the witness cannot be introduced and the
perpetrator can go free. California also lacks a
procedure to preserve the testimony of a witness when
a prior domestic violence case is dismissed and
re-filed due to the unavailability of that witness.
It is estimated that over 2 million acts of domestic
violence take place each year in the United States.
This particular type of violence promotes a culture of
depression, hopelessness and fear within families
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<3> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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because it is an ongoing steady cycle of abuse. It
can be blamed for increased medical care costs,
decreased productivity and increased absences at work.
One incidence of domestic violence can create a cycle
of despair that is difficult for not only the victim,
but also entire families to overcome. We all have
heard the stories of escalating violence within
families that has culminated in the death of the
victim or the victim's children because they were
afraid to come forward out of extreme fear of the
abuser or because they believed the abuser's false
promises to never harm them again.
This bill would create an additional procedural
vehicle to preserve testimony of domestic violence
victims and witnesses so that it can be presented to a
jury and help prevent the dismissal of domestic
violence cases with the perpetrator free to commit the
violence again.
2. What This Bill Would Do
As explained in detail above, current law provides a process for
a deposition to be taken of a material witness for purposes of
reading the deposition into evidence if the witness appears to
be unavailable at the time of trial.<4>
For the purpose of perpetuation of testimony, a
defendant charged with a public offense in any court
(i.e., with felony or misdemeanor), and the state in
all except death cases, may, on application and
court order, take the deposition of a material
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<4> "It generally has been recognized that right to a
deposition in criminal cases did not exist at common law, nor is
it a constitutional right. In criminal cases, the right to a
deposition is governed by the foregoing constitutional and
statutory provisions." (People v. Bowen (1971) 22 Cal.App.3d
267, 278, describing the common law and referencing the
above-cited provision in the California Constitution authorizing
depositions in criminal cases.)
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witness when the latter "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." A witness may
also be examined conditionally where the defendant
has been charged with a serious felony and the state
has evidence that the witness' life is in jeopardy.
The completed deposition is kept by the clerk until
the trial, and may be read in evidence (or a video
recording of the examination shown) by either party
if it appears that the witness is unavailable as a
witness within the meaning of Ev.C. 240.<5>
These provisions also apply to persons 65 years of age or older,
and to a dependent adult, as specified. (Penal Code 1336
(a).)
This bill would expand this process to include both misdemeanor
and felony domestic violence cases where there is evidence that
the life of the witness is in jeopardy; a case previously
dismissed is being refiled; or if a victim or material witness
has been or is being dissuaded by any means from cooperating
with the prosecution or testifying at trial.
3. Proponent's Arguments for This Bill; Counter-Weighing
Considerations
In materials submitted to the Committee, the sponsor submits a
number of reasons this bill is needed. The Los Angeles District
Attorney's Office notes that in 1994 the Legislature amended the
law to allow domestic violence cases to be refiled one extra
time when the victim fails to appear, a change that attempted to
address the problem of victims failing to appear in court
because they were intimidated or because an abuser may have
exerted a subtle influence over them. The district attorney's
office further argues that the Crawford decision, curtailing the
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<5> 5 Witkin Cal. Crim. Law Crim Trial 66 (citations
omitted).
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use of hearsay evidence, has exacerbated this problem.<6> The
sponsor also addresses the effect of victim intimidation or
coercion, particularly in domestic violence cases:
Criminal defendants know that if they can persuade a
victim or witness not to appear for trial, whether by
threats or otherwise, the case will be dismissed.
These abusers, who are already known to be violent,
will sometimes kidnap or even murder the victim to
prevent her from testifying. . . . The California
Supreme Court has recognized that once testimony has
been preserved through a conditional examination, the
potential for violence against victims is lessened:
"[T]he Legislature could reasonably decide to
authorize prosecutorial conditional examinations . . .
to remove the incentive a . . . defendant or his or
her allies might otherwise have to murder prosecution
witnesses to prevent them from testifying."
. . .
. . . During a domestic violence prosecution, a
victim may change her mind more than once about
whether to support prosecution. In particular, it is
known that there is a cycle in which violence is
typically followed by an apology and forgiveness
phase, followed by a honeymoon period and then by new
violence. In particular, if new acts of abuse have
occurred, a victim who previously did not support
prosecution may now support prosecution. This
legislative proposal would enable prosecutors to
preserve testimony whenever a window of opportunity
arose, rather than be tied to a statutory date for a
preliminary hearing. . . . <7>
There is no constitutional infirmity for expanding conditional
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<6> Crawford v. Washington (2004) 541 U.S. 36. The Court held
that the Sixth Amendment bars the admission of testimonial
statements of a witness (for example, hearsay statements made to
law enforcement) who does not testify at trial unless the
witness is unavailable to testify and the defendant had a prior
opportunity for cross-examination.
<7> Materials from the Los Angeles District Attorney's Office,
on file with the Committee.
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examinations in the manner proposed by this bill; in fact, as
noted above California's constitution authorizes depositions in
criminal cases. Members may wish to discuss the impact of
expanding the use of conditional examinations on criminal court
proceedings as a matter of policy. For example, while these
examinations are conducted with a defendant and his or her
counsel present and may be video-recorded, they preclude the
opportunity for a jury to independently make their factual
determination of the testimony as it is presented before them in
live testimony; what is the effect of this change on criminal
court proceedings, and does it promote criminal justice?
In addition, members may wish to discuss domestic violence
crimes compared to other kinds of crimes where witness
dissuasion may be an equally serious problem. The California
Partnership to End Domestic Violence, which supports this bill,
argues that this bill will allow "victims to provide witness
testimony without appearing in court." It may be that many
crime victims, if given the choice, would prefer to testify
without having to go to court. As explained below, however,
recent changes in the law have distinguished domestic violence
victim witnesses from nearly all other victim witnesses.
Conditional testimony is admissible at trial only if a witness
is one of the following:
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(1) Exempted or precluded on the
ground of privilege from testifying
concerning the matter to which his or her
statement is relevant.
(2) Disqualified from testifying to
the matter.
(3) Dead or unable to attend or to
testify at the hearing because of then
existing physical or mental illness or
infirmity.
(4) Absent from the hearing and the
court is unable to compel his or her
attendance by its process .
(5) Absent from the hearing and the
proponent of his or her statement has
exercised reasonable diligence but has been
unable to procure his or her attendance by
the court's process.<8>
The Legislature recently recognized the uniqueness of domestic
violence victim witnesses when it passed SB 1356 (Yee) (Ch. 49,
Stats. 2008). Historically, any person who refused to be sworn
or to testify as a witness has been subject to contempt of court
and a fine or imprisonment. In 1984 an exception to this
general rule was enacted to provide that no sexual assault
victim who refused to testify could be imprisoned for contempt.
Seven years later, a similar provision was enacted for domestic
violence victim witnesses. From 1991 until January 1 of this
year, domestic violence victim witnesses who were found in
contempt of court law for refusing to testify were not initially
subject to incarceration for that contempt. Instead, the court
was authorized to require a victim to attend up to 72 hours of
relevant programming or community service; however, in a
subsequent finding of contempt for refusing to testify arising
out of the same case, the court had the authority to incarcerate
the victim witness for contempt for up to five days. SB 1356 of
last session eliminated this provision, and the law now
prohibits courts from imprisoning these witnesses for contempt
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<8> Evidence Code 240 (a) (emphasis added).)
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when the contempt consists of refusing to testify concerning
that crime.<9>
To the extent this bill is construed to provide an option for
victims who do not want to - and, in the case of domestic
violence victim witnesses cannot be compelled to - testify in
court, members may wish to consider what this bill may mean in
the broader policy context of victim witness testimony and how
it can be introduced as evidence.
WOULD THIS BILL ENHANCE THE ABILITY OF THE STATE TO EFFECTIVELY
PROSECUTE DOMESTIC VIOLENCE CASES?
WOULD THIS BILL ENHANCE THE ABILITY OF THE STATE TO REDUCE THE
INCIDENCE OF DOMESTIC VIOLENCE?
WHAT WOULD BE THE EFFECT OF THIS BILL ON CRIMINAL COURT
PROCEEDINGS WITH RESPECT TO PROSECUTIONS, DEFENSE, AND THE
CRIMINAL JUSTICE SYSTEM AS A WHOLE?
4. Technical, Conforming Author's Amendment
As noted above, current law provides a mechanism for stopping a
conditional examination from occurring if at its time and place
the magistrate determines that the required elements for such an
exam are not shown. (Penal Code 1341.) The author intends to
offer an amendment in Committee to include the elements proposed
by this bill in this section.
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<9> This restriction also applies to victims of sexual assault.
(Code of Civil Procedure 1219 (b).)