BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
1
9
0
AB 1900 (Quirk) 0
As Amended: March 27, 2014
Hearing date: June 10, 2014
Penal Code
AL/MK:sl
VICTIMS OF SEX CRIMES:
VIDEO RECORDING OF TESTIMONY
HISTORY
Source: Alameda County District Attorney
Prior Legislation: SB 138 (Maldonado) - Ch. 480, Stats. 2005
AB 20 (Lieber) - Ch. 823, Stats. 2004
Support: California District Attorneys Association; California
Police Chiefs Association; California State Sheriffs'
Association; SEIU California; Los Angeles District
Attorney's Office
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD COURTS BE ALLOWED TO PRESERVE TESTIMONY AS A VIDEO RECORDING,
AS OPPOSED TO VIDEOTAPE, IN CASES WHERE RECORDED TESTIMONY IS
PERMITTED UNDER CURRENT LAW?
(More)
AB 1900 (Quirk)
Page 2
PURPOSE
The purpose of this bill is to make a technical change to
modernize the recording and preservation requirements of
admissible, recorded court testimony by replacing the term
"videotape" with "video recording."
Existing law provides that when a defendant is charged with
specified sex offenses, child abuse, lewd and lascivious acts on
a child, 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, the people may apply for
an order that the victim's testimony at the preliminary hearing,
in addition to being stenographically recorded, be recorded and
preserved on videotape. (Pen. Code, � 1346(a).)
Existing law states that at the time of trial, if the court
finds that further testimony in any of the qualifying cases
would cause the victim emotional trauma so that the victim is
medically unavailable or otherwise unavailable within the
statutory definition of unavailability, the court may admit the
videotape of the victim's testimony at the preliminary hearing,
as specified. (Pen. Code, � 1346(d).)
Existing law establishes that a videotape prepared for court
testimony is subject to a protective order of the court to
protect the privacy of the victim and must be made available to
the prosecuting attorney, the defendant, and his/her attorney
for viewing during business hours. The videotape is to be
destroyed five years from the date of judgment, unless an appeal
is filed. (Pen. Code, � 1346(e), (f), and (g).)
Existing law provides that when a defendant is charged with
spousal rape or infliction of corporal injury resulting in a
traumatic injury to a spouse, former spouse, or domestic
partner, the people may apply for an order that the victim's
testimony at the preliminary hearing, in addition to being
(More)
AB 1900 (Quirk)
Page 3
stenographically recorded, be recorded and preserved on
videotape. If the victim's testimony at the preliminary hearing
is admissible, the videotape recording may be introduced as
evidence at trial (Pen. Code, � 1346.1(a) and (d).)
Existing law allows, in cases where a minor, 13 years or
younger, will testify that a sexual offense was committed
against or with the minor, or that the minor was a victim of a
violent felony, as defined, that the minor may testify by way of
contemporaneous examination and cross examination in another
location and communicated to the courtroom by closed-circuit
television if the court finds that the impact on the minor of
one or more of the following is shown by clear and convincing
evidence to make the minor unavailable as a witness unless
closed-circuit television 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) Threats of serious bodily injury to be inflicted on the
minor or a family member, of incarceration or deportation
of the minor or a family member, or of removal of the minor
from the family or dissolution of the 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 the prosecution;
d) The defendant inflicted great bodily injury upon the
child in the commission of the offense; or,
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. (Pen. Code �
1347(b).)
(More)
AB 1900 (Quirk)
Page 4
Under existing law, when the testimony of a minor is taken
outside of the courtroom, the court must order that a complete
record of the examination be made and preserved on videotape.
(Pen. Code � 1347(e)(5).)
Existing law provides that when a defendant is charged with a
sexual or otherwise specified offense upon an adult or child
with a disability, the court may use its discretion to make
accommodations to support the victim, and 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 recorded and preserved on
videotape. (Pen. Code, � 1347.5(b) and (c).)
This bill makes a technical change to specified recording and
preservation requirements related to the provisions above by
replacing the term "videotape" with "video recording."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
(More)
AB 1900 (Quirk)
Page 5
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
(More)
AB 1900 (Quirk)
Page 6
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
(More)
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1)Need for This Bill
According to the author:
AB 249 (Cunneen) Ch. 19, Statutes of 1997 authorized
video-recorded witness testimony to be used at trial.
Allowing for testimony to be recorded guaranteed that, even
if the victim could not appear at trial due to an
unforeseen circumstance, the jury would still be able to
hear the victim's testimony and understand the impact the
crime had on the victim. For example, the author of AB 249
noted that the legislation was necessary for several
reasons including the reality that elderly witnesses may
not outlive the length of the trial.
(More)
AB 1900 (Quirk)
Page 8
Technology is changing at a rapid rate. California's Penal
Code contains references to outdated technology that needs
updating.
There are several references to "videotape" in the Penal
Code as it relates to the showing of recorded testimony of
a victim of sexual assault. This can create a complication
for the District Attorney (DA) when prosecuting certain
sexual assault cases. In order to use something different
than a videotape during a trial, the DA's office needs to
ask the defense for a stipulation regarding this
requirement.
AB 1900 changes the word "videotape" in certain sections of
the California Penal Code to "video-recording" to enable
the DA's office to officially use modern video-recordings
of testimony during trial.
2)Effect of This Bill
This bill would modernize requirements for recorded court
testimony, when permitted as specified under current law, by
replacing the term "videotape" with "video recording." This
modification would allow courts to preserve testimony by any
means of video recording, including digital video recordings and
videotape that comply with specified recording and preservation
requirements. With the advent of digital media, this bill would
make a necessary and practical update to reflect technological
advances in statute.
***************