Amended in Senate April 24, 2013

Senate Bill No. 130

Introduced by Senators Corbett and Anderson

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(Coauthors: Assembly Members Alejo and Maienschein)

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January 23, 2013

An act to amend Sections 868.5 and 868.8 of the Penal Code, relating to witnesses.

LEGISLATIVE COUNSEL’S DIGEST

SB 130, as amended, Corbett. Witnesses.

Existing law provides that a prosecuting witness in the prosecution of a case involving murder, kidnaping, and certain sex offenses, among other specified offenses, is entitled, for support, to the attendance of up to 2 persons of his or her own choosing at the preliminary hearing and at the trial or juvenile court proceeding during the testimony of the prosecuting witness, as specified.

This bill would extend these provisions to include cases involving attempted violations of the above-described offenses, and would expand the list of offenses that a witness is entitled to support to include kidnaping with the intent to commit robbery or specified sex offenses, certain sex offenses involving a minor under 10 years of age, criminal threats, and stalking.

Existing law requires courts to take special precautions to provide for the comfort and protection of a person with a disability or a minor under 11 years of age when that person is testifying in criminal proceedings alleging certain sex offenses committed with or upon that person. The court may, among other things, allow the witness reasonable periods of relief and relocate parties within the courtroom.

This bill would extend these provisions to include cases involving attempted violations of the above-described offenses, and would expand the list of offenses that special precautions apply to include kidnaping with the intent to commit robbery or specified sex offenses, assault with intent to commit certain felonies, human trafficking, aggravated sexual assault of a child, certain sex offenses involving a minor under 10 years of age, criminal threats, and stalking.

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 868.5 of the Penal Code is amended to
read:

868.5.  

(a) Notwithstanding any other law, a prosecuting
witness in a case involving a violation or attempted violation of
Section 187, 203, 205, or 207, subdivision (b) of Section 209,
Section 211, 215, 220, 236.1, 240, 242, 243.4, 245, 261, 262, 266,
266a, 266b, 266c, 266d, 266e, 266f, 266g, 266h, 266i, 266j, 266k,
267, 269, 273a, 273d, 273.5, 273.6, 278, 278.5, 285, 286, 288,
288a, 288.5, 288.7, 289, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6,
311.10, 311.11, 422, 646.9, or 647.6, former Section 277 or 647a,
subdivision (1) of Section 314, or subdivision (b), (d), or (e) of
Section 368 when the prosecuting witness is the elder or dependent
adult, shall be entitled, for support, to the attendance of up to two
persons of his or her own choosing, one of whom may be a witness,
at the preliminary hearing and at the trial, or at a juvenile court
proceeding, during the testimony of the prosecuting witness. Only
one of those support persons may accompany the witness to the
witness stand, although the other may remain in the courtroom
during the witness’ testimony. The person or persons so chosen
shall not be a person described in Section 1070 of the Evidence
Code unless the person or persons are related to the prosecuting
witness as a parent, guardian, or sibling and do not make notes
during the hearing or proceeding.

(b) If the person or persons so chosen are also witnesses, the
prosecution shall present evidence that the person’s attendance is
both desired by the prosecuting witness for support and will be
helpful to the prosecuting witness. Upon that showing, the court
shall grant the request unless information presented by the
defendant or noticed by the court establishes that the support
person’s attendance during the testimony of the prosecuting witness
would pose a substantial risk of influencing or affecting the content
of that testimony. In the case of a juvenile court proceeding, the
judge shall inform the support person or persons that juvenile court
proceedings are confidential and may not be discussed with anyone
not in attendance at the proceedings. In all cases, the judge shall
admonish the support person or persons to not prompt, sway, or
influence the witness in any way. Nothing in this section shall
preclude a court from exercising its discretion to remove a person
from the courtroom whom it believes is prompting, swaying, or
influencing the witness.

(c) The testimony of the person or persons so chosen who are
also witnesses shall be presented before the testimony of the
prosecuting witness. The prosecuting witness shall be excluded
from the courtroom during that testimony. Whenever the evidence
given by that person or those persons would be subject to exclusion
because it has been given before the corpus delicti has been
established, the evidence shall be admitted subject to the court’s
or the defendant’s motion to strike that evidence from the record
if the corpus delicti is not later established by the testimony of the
prosecuting witness.

SEC. 2.  

Section 868.8 of the Penal Code is amended to read:

868.8.  

Notwithstanding any other provision of law, in any
criminal proceeding in which the defendant is charged with a
violation or attempted violation of subdivision (b) of Section 209,
Section 220, 236.1, 243.4, 261, 269, 273a, 273d, 285, 286, 288,
288a, 288.5, 288.7, or 289, subdivision (1) of Section 314, Section
422, 646.9, 647.6, or former Section 647a, or any crime that
constitutes domestic violence defined in Section 13700, committed
with or upon a person with a disability or a minor under 11 years
of age, the court shall take special precautions to provide for the
comfort and support of the person with a disability or minor and
to protect him or her from coercion, intimidation, or undue
influence as a witness, including, but not limited to, any of the
following:

(a) In the court’s discretion, the witness may be allowed
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 or
child witness retires from the courtroom.

(b) Notwithstanding Section 68110 of the Government Code,
in his or her discretion, the judge may remove his or her robe if
the judge believes that this formal attire intimidates the person
with a disability or the minor.

(c) In the court’s discretion 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 or begin insert the end insert child witness.

(d) In the court’s discretion, the taking of the testimony of the
person with a disability or the minor may be limited to normal
school hours if there is no good cause to take the testimony of the
person with a disability or the minor during other hours.

(e) For the purposes of this section, the term “disability” is
defined in subdivision (j) of Section 12926 of the Government
Code.