BILL ANALYSIS �
AB 886
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Date of Hearing: April 12, 2011
Consultant: Stefani Salt
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 886 (Cook) - As Introduced: February 17, 2011
SUMMARY : Prohibits a court from releasing statements from a
crime victim, as specified, to the public prior to being heard
in court.
EXISTING LAW :
1)Provides that it is the right of a crime victim, as specified,
to be notified of all sentencing proceedings, and of the right
to appear, to reasonably express his or her views, have those
views preserved by audio or video means, as specified, and to
have the court consider his or her statements, as specified.
�Penal Code Section 679.02(a)(3)].
2)States that it is the right of a crime victim, as specified,
to be notified of all juvenile disposition hearings in which
the alleged act would have been a felony if committed by an
adult, and of the right to attend and to express his or her
views, as specified. �Penal Code Section 679.02(a)(4)].
3)Declares that a victim of any crime, as specified, has the
right to attend all sentencing proceedings under this chapter
and shall be given adequate notice by the probation officer of
all sentencing proceedings concerning the person who committed
the crime. Provides that the victim, as specified, has the
right to appear, personally or by counsel, at the sentencing
proceeding and to reasonably express his, her, or their views
concerning the crime, the person responsible and the need for
restitution. States that the court in imposing sentence shall
consider the statements of victims, parents or guardians, and
next of kin made pursuant to this section and shall state on
the record its conclusion concerning whether the person would
pose a threat to public safety if granted probation. (Penal
Code 1191.1.)
FISCAL EFFECT : Unknown
AB 886
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COMMENTS :
1)Author's Statement : According to the author, "The victim
impact statement is often the only opportunity that victims
have to confront the defendants directly and let them know how
they feel. This bill will ensure that it is first read in
open court, not in the morning newspaper."
2)Background : According to the information provided by the
author, "Under current California law, a victim must submit a
victim impact statement in writing to the court before
sentencing. This allows the court to review the statement to
ensure that it complies with state law. It also allows
defendants the chance to review the statement in accordance
with their right to refute materials used against them at
trial.
"When the victim impact statement is submitted in writing to the
court, it becomes a public document. This means that the
media is able to request and gain access to it. This has led
to situations where the victim impact statement ends up being
published in the newspaper before the victim has the
opportunity to read it in court. This can diminish the power
of the statement when read in court, which undermines the
rights of the victim.
"This bill would change the California Public Records Law to
prevent the release of a victim impact statement to the public
before it is read in court. This change would prevent the
release of victim impact statements to the public before they
are read in court, while still guaranteeing the court's right
to review the statement in advance. This will not infringe
upon the defendant's right to have access to materials used
against them in court."
3)Media Access to Judicial Proceedings : The Supreme Court has
consistently recognized a broad First Amendment right of
access for the public to attend judicial proceedings. This
right extends to the media. In Richmond Newspapers v.
Virginia (1980) 448 U.S. 555, the preeminent case on the First
Amendment right of access to court proceedings, the Court held
that there is a First Amendment right for the public and the
press to attend criminal trials. In writing for the
plurality, Chief Justice Burger stated, "�t]he Bill of Rights
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was enacted against a backdrop of the long history of trials
being presumptively open. . . . In guaranteeing freedoms
such as those of speech and the press, the First Amendment can
be read as protecting the right of everyone to attend trials
so as to give meaning to those explicit guarantees." (Id. at
575.) The plurality concluded that "the right to attend
criminal trials is implicit in the guarantees of the First
Amendment; without the freedom to attend such trials, which
people have exercised for centuries, important aspects of
freedom of speech and the press could be eviscerated." (Id.
at 580.) Although this right of access is not absolute, the
plurality explained that there would need to be "an overriding
interest articulated in findings" to justify closure. (Id.)
4)Sentencing Hearings and Victim Impact Statements : A
sentencing hearing is less formal than a trial. The court may
consider "the testimony of witnesses examined in open court"
(Penal Code Section 1204) and any facts supplied by the trial
record. The victim of any crime, the parents or guardians of
the victim if the victim is a minor, or the next of kin of the
victim if the victim has died have the right to be notified of
the sentencing hearing and to appear and be heard concerning
the crime, the defendant and the need for restitution. (Penal
Code Section 1191.1.) The court must consider these
statements when imposing sentence. (Penal Code Section
1191.1.) Statements can be made in writing or on a recording
medium accepted by the court. Victims who give statements at
sentencing do not need to take an oath, are not subject to
cross-examination and are permitted to relate hearsay
information. �People v. Birmingham (1990) 217 Cal.App.3d 180,
184.]
When the victim submits a letter to the court, instead of
testifying, due process requires that the defendant be
permitted to read the letter in advance and respond to that
letter at the sentencing hearing. �People v. Mockel (1990)
226 Cal.App.3d 581, 587; See generally Penal Code Sections
1191.1 to 1191.3; See also Penal Code Section 1204 (testimony
in aggravation or mitigation must usually be in person).]
REGISTERED SUPPORT / OPPOSITION :
Support
AB 886
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California State Sheriffs' Association
Crime Victims United of California
Opposition
None
Analysis Prepared by : Stefani Salt / PUB. S. / (916) 319-3744