BILL NUMBER: SB 1026 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 12, 2010
AMENDED IN SENATE MARCH 24, 2010
INTRODUCED BY Senator Wyland
FEBRUARY 12, 2010
An act to add Section 1347.3 to amend
Section 1347 of the Penal Code, relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
SB 1026, as amended, Wyland. Sex offenses: conditional exam of
minor victims.
Existing law provides for the examination of witnesses
conditionally under certain circumstances, including 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. Existing law provides for the contemporaneous
examination and cross-examination by closed-circuit television of
minor witnesses 13 years of age or younger if the court makes
specified findings.
This bill would provide that when a defendant has been
charged with a sex offense for which registration as a sex offender
is required, the alleged victim, if he or she is under 18 years of
age, may be examined conditionally, for any evidentiary proceeding in
the case and without the presence of the defendant, upon a finding
by the court that emotional trauma to the alleged victim would result
if the defendant is present during the examination, as specified
remove the requirement that a witness be a minor 13
years of age or younger .
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1347 of the Penal
Code is amended to read:
1347. (a) 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 truthfinding
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.
(b) Notwithstanding any other law, the 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 witness
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 a witness 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:
(1) The minor's witness' testimony
will involve a recitation of the facts of any of the following:
(A) An alleged sexual offense committed on or with the
minor witness .
(B) An alleged violent felony, as defined in subdivision (c) of
Section 667.5, of which the minor witness
is a victim.
(C) An alleged felony offense specified in Section 273a or 273d of
which the minor witness is a victim.
(2) The impact on the minor witness
of one or more of the factors enumerated in subparagraphs (A) to (E),
inclusive, is shown by clear and convincing evidence to be so
substantial as to make the minor witness
unavailable as a witness unless
closed-circuit testimony is used.
(A) Testimony by the minor witness
in the presence of the defendant would result in the child
witness suffering serious emotional distress so
that the child witness would be
unavailable as a witness .
(B) The defendant used a deadly weapon in the commission of the
offense.
(C) The defendant threatened serious bodily injury to the
child witness or the child's
witness' family, threatened incarceration or deportation
of the child witness or a member of the
child's witness' family, threatened
removal of the child witness from the
child's witness' family, or threatened
the dissolution of the child's witness'
family in order to prevent or dissuade the minor
witness from attending or giving testimony at any trial or
court proceeding, or to prevent the minor
witness from reporting the alleged sexual offense, or from
assisting in criminal prosecution.
(D) The defendant inflicted great bodily injury upon the
child witness in the commission of the offense.
(E) The defendant or his or her counsel behaved during the hearing
or trial in a way that caused the minor
witness to be unable to continue his or her testimony.
In making the determination required by this section, the court
shall consider the age of the minor witness
, the relationship between the minor
witness and the defendant or defendants, any handicap or
disability of the minor witness , and
the nature of the acts charged. The minor's
witness' refusal to testify shall not alone constitute
sufficient evidence that the special procedure described in this
section is necessary to obtain the minor's
witness' testimony.
(3) The equipment available for use of closed-circuit television
would accurately communicate the image and demeanor of the
minor witness to the judge, jury, defendant or
defendants, and attorneys.
(c) If the court orders the use of closed-circuit television,
two-way closed-circuit television shall be used, except that if the
impact on the minor witness of one or
more of the factors enumerated in subparagraphs (A) to (E),
inclusive, of paragraph (2) of subdivision (b), is shown by clear and
convincing evidence to be so substantial as to make the
minor witness unavailable as a witness
even if two-way closed-circuit television is used, one-way
closed-circuit television may be used. The prosecution shall give the
defendant or defendants at least 30 days' written notice of the
prosecution's intent to seek the use of one-way closed-circuit
television, unless good cause is shown to the court why this 30-day
notice requirement should not apply.
(d) (1) The hearing on a motion brought pursuant to this section
shall be conducted out of the presence of the jury.
(2) Notwithstanding Section 804 of the Evidence Code or any other
law, the court, in determining the merits of the motion, shall not
compel the minor to testify at the hearing; nor shall the court deny
the motion on the ground that the minor
witness has not testified.
(3) In determining whether the impact on an individual
child witness of one or more of the five factors
enumerated in paragraph (2) of subdivision (b) is so substantial
that the minor witness is unavailable
as a witness unless two-way or one-way
closed-circuit television is used, the court may question the
minor witness 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 witness and shall not permit the prosecutor
or defense counsel to examine the minor
witness . The prosecutor and defense counsel shall be permitted
to submit 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.
(e) When the court orders the testimony of a minor
witness to be taken in another place outside of
the courtroom, the court shall do all of the following:
(1) Make a brief statement on the record, outside of the presence
of the jury, of the reasons in support of its order. While the
statement need not include traditional findings of fact, the reasons
shall be set forth with sufficient specificity to permit meaningful
review and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.
(2) Instruct the members of the jury that they are to draw no
inferences from the use of closed-circuit television as a means of
facilitating the testimony of the minor
witness .
(3) Instruct respective counsel, outside of the presence of the
jury, that they are to make no comment during the course of the trial
on the use of closed-circuit television procedures.
(4) Instruct the support witness, outside of the presence of the
jury, that he or she is not to coach, cue, or in any way influence or
attempt to influence the testimony of the minor
witness .
(5) Order that a complete record of the examination of the
minor witness , including the images
and voices of all persons who in any way participate in the
examination, be made and preserved on videotape in addition to being
stenographically recorded. The videotape shall be transmitted to the
clerk of the court in which the action is pending and shall be made
available for viewing to the prosecuting attorney, the defendant or
defendants, and his or her attorney during ordinary business hours.
The videotape shall be destroyed after five years have elapsed from
the date of entry of judgment. If an appeal is filed, the tape shall
not be destroyed until a final judgment on appeal has been ordered.
Any videotape that is taken pursuant to this section is subject to a
protective order of the court for the purpose of protecting the
privacy of the witness. This subdivision does not affect the
provisions of subdivision (b) of Section 868.7.
(f) When the court orders the testimony of a minor
witness to be taken in another place outside the
courtroom, only the minor witness , a
support person designated pursuant to Section 868.5, a nonuniformed
bailiff any technicians necessary to operate the closed-circuit
equipment, and, after consultation with the prosecution and the
defense, a representative appointed by the court, shall be physically
present for the testimony. A videotape shall record the image of the
minor witness and his or her
testimony, and a separate videotape shall record the image of the
support person.
(g) When the court orders the testimony of a minor
witness to be taken in another place outside the
courtroom, the minor witness shall be
brought into the judge's chambers prior to the taking of his or her
testimony to meet for a reasonable period of time with the judge, the
prosecutor, and defense counsel. A support person for the
minor witness shall also be present. This
meeting shall be for the purpose of explaining the court process to
the child witness and to allow the
attorneys an opportunity to establish rapport with the child
witness to facilitate later questioning by
closed-circuit television. No participant shall discuss the defendant
or defendants or any of the facts of the case with the
minor witness during this meeting.
(h) When the court orders the testimony of a minor
witness to be taken in another place outside the
courtroom, nothing in this section prohibits the court from ordering
the minor witness to be brought into
the courtroom for a limited purpose, including the identification of
the defendant or defendants as the court deems necessary.
(i) The examination shall be under oath, and the defendant or
defendants shall be able to see and hear the minor
witness, and if two-way closed-circuit television is used, the
defendant's image shall be transmitted live to the witness.
(j) Nothing in this section affects the disqualification of
witnesses pursuant to Section 701 of the Evidence Code.
(k) The cost of examination by contemporaneous closed-circuit
television ordered pursuant to this section shall be borne by the
court out of its existing budget.
(l) Nothing in this section shall be construed to prohibit a
defendant from being represented by counsel during any closed-circuit
testimony.
SECTION 1. Section 1347.3 is added to the Penal
Code, to read:
1347.3. Notwithstanding any other law, when a defendant has been
charged with an offense specified in subdivision (c) of Section 290,
the alleged victim, if he or she is under 18 years of age, may be
examined conditionally, for any evidentiary proceeding in the case
and without the presence of the defendant, upon a finding by the
court, supported by an examination and report of a qualified
psychologist or psychiatrist, that emotional trauma to the alleged
victim would result if the defendant is present during the
examination.