California Senate Bill SB1026 Amended / Bill

 BILL NUMBER: SB 1026AMENDED 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.