California Legislature—2013–14 Regular Session

Assembly Bill No. 1900

Introduced by Assembly Member Quirk

February 19, 2014

An act to amend Sections 1346, 1346.1, 1347, and 1347.5 of the Penal Code, relating to testimony.

LEGISLATIVE COUNSEL’S DIGEST

AB 1900, as introduced, Quirk. Victims of sex crimes: testimony: video-recording.

Existing law provides that when a defendant has been charged with certain sex crimes, including rape and sodomy, and the victim is a person 15 years of age or less or is developmentally disabled as a result of an intellectual disability, when the defendant has been charged with spousal rape or corporal injury resulting in a traumatic condition upon certain persons, or when the defendant is charged with certain sex crimes, including rape and sodomy, that are committed with or upon a person with a disability, the prosecution may apply for an order that the victim’s testimony at the preliminary hearing be recorded and preserved on videotape.

Existing law authorizes the court in any criminal proceeding to order that the testimony of a minor 13 years of age or younger be taken by contemporaneous examination and cross-examination in another place, out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television. Existing law also requires the court, when the court makes that order, to order that a complete record of the examination of the minor be made and preserved on videotape.

This bill would allow a court to use any means of video-recording to comply with these recording and preservation requirements.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1346 of the Penal Code is amended to
read:

1346.  

(a) When a defendant has been charged with a violation
of Section 220, 243.4, 261, 261.5, 264.1, 273a, 273d, 285, 286,
288, 288a, 288.5, 289, or 647.6, 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 in subdivision (a) of
Section 4512 of the Welfare and Institutions Code, the people may
apply for an order that the victim’s testimony at the preliminary
hearing, in addition to being stenographically recorded, be begin delete recorded end delete
begin insert video-recorded end insert and begin delete preserved on videotape. end delete begin insert the video-recording
preserved. end insert

(b) The application for the order shall be in writing and made
three days prior to the preliminary hearing.

(c) Upon timely receipt of the application, the magistrate shall
order that the testimony of the victim given at the preliminary
hearing be taken and preserved begin delete on videotape. end delete begin insert as a video-recording. end insert
The begin delete videotape end delete begin insert video-recording end insert shall be transmitted to the clerk of
the court in which the action is pending.

(d) If at the time of trial the court finds that further testimony
would cause the victim emotional trauma so that the victim is
medically unavailable or otherwise unavailable within the meaning
of Section 240 of the Evidence Code, the court may admit the
begin delete videotape end delete begin insert video-recording end insert of the victim’s testimony at the
preliminary hearing as former testimony under Section 1291 of
the Evidence Code.

(e) A begin delete videotape end delete begin insert video-recording end insert 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 victim. This subdivision does not
affect the provisions of subdivision (b) of Section 868.7.

(f) A begin delete videotape end delete begin insert video-recording end insert made pursuant to this section
shall be made available to the prosecuting attorney, the defendant,
and his or her attorney for viewing during ordinary business hours.
A begin delete videotape end delete begin insert video-recording end insert that is made available pursuant to
this section is subject to a protective order of the court for the
purpose of protecting the privacy of the victim.

(g) The begin delete tape end delete begin insert video-recording end insert shall be destroyed after five years
have elapsed from the date of entry of judgment, except that if an
appeal is filed, the begin delete tape end delete begin insert video-recording end insert shall not be destroyed
until a final judgment on appeal has been rendered.

SEC. 2.  

Section 1346.1 of the Penal Code is amended to read:

1346.1.  

(a) When a defendant has been charged with a violation
of Section 262 or subdivision (a) of Section 273.5, the people may
apply for an order that the victim’s testimony at the preliminary
hearing, in addition to being stenographically recorded, be begin delete recorded end delete
begin insert video-recorded end insert and begin delete preserved on videotape. end delete begin insert the video-recording
preserved. end insert

(b) The application for the order shall be in writing and made
three days prior to the preliminary hearing.

(c) Upon timely receipt of the application, the magistrate shall
order that the testimony of the victim given at the preliminary
hearing be taken and preserved begin delete on videotape. end delete begin insert as a video-recording. end insert
The begin delete videotape end delete begin insert video-recording end insert shall be transmitted to the clerk of
the court in which the action is pending.

(d) If the victim’s prior testimony given at the preliminary
hearing is admissible pursuant to the Evidence Code, then the
begin delete videotape recording end delete begin insert video-recording end insert of that testimony may be
introduced as evidence at trial.

SEC. 3.  

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 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 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 testimony will involve a recitation of the facts
of any of the following:

(A) An alleged sexual offense committed on or with the minor.

(B) An alleged violent felony, as defined in subdivision (c) of
Section 667.5, of which the minor is a victim.

(C) An alleged felony offense specified in Section 273a or 273d
of which the minor is a victim.

(2) The impact on the minor 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 unavailable as a witness unless closed-circuit testimony 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) The defendant threatened serious bodily injury to the child
or the child’s family, threatened incarceration or deportation of
the child or a member of the child’s family, threatened removal
of the child from the child’s family, or threatened the dissolution
of the child’s 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 criminal prosecution.

(D) The defendant inflicted great bodily injury upon the child
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 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, the relationship between the
minor and the defendant or defendants, any handicap or disability
of the minor, and the nature of the acts charged. The minor’s refusal
to testify shall not alone constitute sufficient evidence that the
special procedure described in this section is necessary to obtain
the minor’s testimony.

(3) The equipment available for use of closed-circuit television
would accurately communicate the image and demeanor of the
minor 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 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 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 has not testified.

(3) In determining whether the impact on an individual child of
one or more of the five factors enumerated in paragraph (2) of
subdivision (b) is so substantial that the minor is unavailable as a
witness unless two-way or one-way closed-circuit television is
used, the court may question the minor 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 and shall not permit the prosecutor or
defense counsel to examine the minor. 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 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.

(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.

(5) Order that a complete record of the examination of the minor,
including the images and voices of all persons who in any way
participate in the examination, be made and preserved begin delete on videotape end delete
begin insert as a video-recording end insert in addition to being stenographically recorded.
The begin delete videotape end delete begin insert video-recording end insert 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 begin delete videotape end delete begin insert video-recording end insert shall be destroyed after five years
have elapsed from the date of entry of judgment. If an appeal is
filed, the begin delete tape end delete begin insert video-recording end insert shall not be destroyed until a final
judgment on appeal has been ordered. begin delete Any videotape end delete begin insert A
video-recording end insert 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 to be taken
in another place outside the courtroom, only the minor, 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 begin delete videotape end delete begin insert video-recording device end insert shall record
the image of the minor and his or her testimony, and a separate
begin delete videotape end delete begin insert video-recording device end insert shall record the image of the
support person.

(g) When the court orders the testimony of a minor to be taken
in another place outside the courtroom, the minor 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
shall also be present. This meeting shall be for the purpose of
explaining the court process to the child and to allow the attorneys
an opportunity to establish rapport with the child 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 during this meeting.

(h) When the court orders the testimony of a minor to be taken
in another place outside the courtroom, nothing in this section
prohibits the court from ordering the minor 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.

SEC. 4.  

Section 1347.5 of the Penal Code is amended to read:

1347.5.  

(a) It is the intent of the Legislature, in enacting this
section, to provide the court with discretion to modify court
procedures, as a reasonable accommodation, to assure that adults
and children with disabilities who have been victims of an alleged
sexual or otherwise specified offense are able to participate
effectively in criminal proceedings. In exercising its discretion,
the court shall balance the rights of the defendant against the right
of the victim who has a disability to full access and participation
in the proceedings, while preserving the integrity of the court’s
truthfinding function.

(1) For purposes of this section, the term “disability” is defined
in paragraphs (1) and (2) of subdivision (c) of Section 11135 of
the Government Code.

(2) The right of the victim is not to confront the perpetrator, but
derives under both Section 504 of the Rehabilitation Act of 1973
(29 U.S.C. Sec. 794) and the Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12101 begin delete and following end delete begin insert et. seq. end insert ) as a right to
participate in or benefit from the same services or services that are
equal or as effective as those enjoyed by persons without
disabilities.

(b) Notwithstanding any other law, in any criminal proceeding
in which the defendant is charged with a violation of Section 220,
243.4, 261, 261.5, 264.1, 273a, 273d, 285, 286, 288, 288a, 288.5,
or 289, subdivision (1) of Section 314, Section 368, 647.6, or with
any attempt to commit a crime listed in this subdivision, committed
with or upon a person with a disability, the court in its discretion
may make accommodations to support the person with a disability,
including, but not limited to, any of the following:

(1) Allow the person with a disability reasonable periods of
relief from examination and cross-examination during which he
or she may retire from the courtroom. The judge may also allow
other witnesses in the proceeding to be examined when the person
with a disability retires from the courtroom.

(2) Allow the person with a disability to utilize a support person
pursuant to Section 868.5 or a regional center representative
providing services to a developmentally disabled individual
pursuant to Article 1 (commencing with Section 4620) or Article
2 (commencing with Section 4640) of Chapter 5 of Division 4.5
of the Welfare and Institutions Code. In addition to, or instead of,
allowing the person with a disability to utilize a support person or
regional center representative pursuant to this paragraph, the court
may allow the person with a disability to utilize a person necessary
to facilitate the communication or physical needs of the person
with a disability.

(3) Notwithstanding Section begin delete 68119 end delete begin insert 68110 end insert of the Government
Code, the judge may remove his or her robe if the judge believes
that this formal attire prevents full participation of the person with
a disability because it is intimidating to him or her.

(4) The judge, parties, witnesses, support persons, and court
personnel may be relocated within the courtroom to facilitate a
more comfortable and personal environment for the person with
a disability as well as accommodating any specific requirements
for communication by that person.

(c) The prosecutor may apply for an order that the testimony of
the person with a disability at the preliminary hearing, in addition
to being stenographically recorded, be begin delete recorded end delete begin insert video-recorded end insert
and begin delete preserved on videotape. end delete begin insert the video-recording preserved. end insert

(1) The application for the order shall be in writing and made
three days prior to the preliminary hearing.

(2) Upon timely receipt of the application, the judge shall order
that the testimony of the person with a disability given at the
preliminary hearing be taken and preserved begin delete on videotape. end delete begin insert as a
video-recording. end insert The begin delete videotape end delete begin insert video-recording end insert shall be
transmitted to the clerk of the court in which the action is pending.

(3) If at the time of trial the court finds that further testimony
would cause the person with a disability emotional trauma so that
he or she is medically unavailable or otherwise unavailable within
the meaning of Section 240 of the Evidence Code, the court may
admit the begin delete videotape end delete begin insert video-recording end insert of his or her testimony at the
preliminary hearing as former testimony under Section 1291 of
the Evidence Code.

(4)  begin delete Any videotape end delete begin insert A video-recording end insert that is taken pursuant to
this subdivision is subject to a protective order of the court for the
purpose of protecting the privacy of the person with a disability.
This subdivision does not affect the provisions of subdivision (b)
of Section 868.7.

(d) Notwithstanding any other law, the court in any criminal
proceeding, upon written notice of the prosecutor made at least
three days prior to the date of the preliminary hearing or trial date
on which the testimony of the person with a disability is scheduled,
or during the course of the proceeding on the court’s own motion,
may order that the testimony of the person with a disability be
taken by contemporaneous examination and cross-examination in
another place and out of the presence of the judge, jury, and
defendant, and communicated to the courtroom by means of
two-way closed-circuit television, if the court makes all of the
following findings:

(1) The person with a disability will be called on to testify
concerning facts of an alleged sexual offense, or other crime as
specified in subdivision (b), committed on or with that person.

(2) The impact on the person with a disability of one or more
of the factors enumerated in subparagraphs (A) to (D), inclusive,
is shown by clear and convincing evidence to be so substantial as
to make the person with a disability unavailable as a witness unless
closed-circuit television is used. The refusal of the person with a
disability to testify shall not alone constitute sufficient evidence
that the special procedure described in this subdivision is necessary
in order to accommodate the disability. The court may take into
consideration the relationship between the person with a disability
and the defendant or defendants.

(A) Threats of serious bodily injury to be inflicted on the person
with a disability or a family member, of incarceration,
institutionalization, or deportation of the person with a disability
or a family member, or of removal of the person with a disability
from his or her residence by withholding needed services when
the threats come from a service provider, in order to prevent or
dissuade the person with a disability from attending or giving
testimony at any trial or court proceeding or to prevent that person
from reporting the alleged offense or from assisting in criminal
prosecution.

(B) Use of a firearm or any other deadly weapon during the
commission of the crime.

(C) Infliction of great bodily injury upon the person with a
disability during the commission of the crime.

(D) Conduct on the part of the defendant or defense counsel
during the hearing or trial that causes the person with a disability
to be unable to continue his or her testimony.

(e) (1) The hearing on the motion brought pursuant to this
subdivision 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 person with a disability to testify at the hearing;
nor shall the court deny the motion on the ground that the person
with a disability has not testified.

(3) In determining whether the impact on an individual person
with a disability of one or more of the factors enumerated under
paragraph (2) of subdivision (d) is so substantial that the person
is unavailable as a witness unless the closed-circuit television
procedure is employed, the court may question the person with a
disability 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 described under paragraph (2) of
subdivision (b), the prosecutor, and defense counsel present. At
this time the court shall explain the process to the person with a
disability. The defendant or defendants shall not be present;
however, the defendant or defendants shall have the opportunity
to contemporaneously observe the proceedings by closed-circuit
television. Defense counsel shall be afforded a reasonable
opportunity to consult with the defendant or defendants prior to
the conclusion of the session in chambers.

(f) When the court orders the testimony of a victim who is a
person with a disability 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
assuring the full participation of the victim who is a person with
a disability by accommodating that individual’s disability.

(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 person, if the person is part of the court’s
accommodation of the disability, 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 person with a disability.

(5) Order that a complete record of the examination of the person
with a disability, including the images and voices of all persons
who in any way participate in the examination, be made and
preserved begin delete on videotape end delete begin insert as a video-recording end insert in addition to being
stenographically recorded. The begin delete videotape end delete begin insert video-recording end insert 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, and his or her attorney, during ordinary
business hours. The begin delete videotape end delete begin insert video-recording end insert shall be destroyed
after five years have elapsed from the date of entry of judgment.
If an appeal is filed, the begin delete tape end delete begin insert video-recording end insert shall not be destroyed
until a final judgment on appeal has been ordered. begin delete Any videotape end delete
begin insert A video-recording end insert 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 person with a disability. This subdivision does not
affect the provisions of subdivision (b) of Section 868.7.

(g) When the court orders the testimony of a victim who is a
person with a disability to be taken in another place outside the
courtroom, nothing in this section shall prohibit the court from
ordering the victim to appear in the courtroom for a limited
purpose, including the identification of the defendant or defendants
as the court deems necessary.

(h) The examination shall be under oath, and the defendant shall
be able to see and hear the person with a disability. If two-way
closed-circuit television is used, the defendant’s image shall be
transmitted live to the person with a disability.

(i) Nothing in this section shall affect the disqualification of
witnesses pursuant to Section 701 of the Evidence Code.

(j) 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.

(k) This section shall not be construed to obviate the need to
provide other accommodations necessary to ensure accessibility
of courtrooms to persons with disabilities nor prescribe a lesser
standard of accessibility or usability for persons with disabilities
than that provided by Title II of the Americans with Disabilities
Act of 1990 (42 U.S.C. Sec. 12101 begin delete and following end delete begin insert et. seq. end insert ) and
federal regulations adopted pursuant to that act.

(l) The Judicial Council shall report to the Legislature, no later
than two years after the enactment of this subdivision, on the
frequency of the use and effectiveness of admitting the videotape
of testimony by means of closed-circuit television.