BILL NUMBER: SB 197AMENDED BILL TEXT AMENDED IN SENATE APRIL 23, 2009 INTRODUCED BY Senator Pavley FEBRUARY 23, 2009 An act to amend Sections 1335, 1336,and 13371337, and 1341 of the Penal Code, relating to domestic violence. LEGISLATIVE COUNSEL'S DIGEST SB 197, as amended, Pavley. Domestic violence proceedings: conditional examination of witnesses. Existing law provides for the conditional examination of a witness by the defendant in all cases , and by the people in cases where the punishment may be other than deathor, if the defendant is charged with a serious felony and there is evidence that the life of the witness is in jeopardy , and in certain other circumstances . This bill would also provide for the conditional examination of a witness by the people or the defendant in a case of domestic violence, as defined, when there is evidence that the life of the witness is in jeopardy; when criminal charges arising out of the same acts have been previously dismissed for specified reasons and refiled; or when there is evidence that a victim or material witness has been or is being dissuaded by any means from cooperating with the prosecution or testifying at trial. The bill would make conforming changes to related provisions. 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 1335 of the Penal Code is amended to read: 1335. (a) When a defendant has been charged with a public offense triable in any court, he or she in all cases, and the people in cases other than those for which the punishment may be death, may, if the defendant has been fully informed of his or her right to counsel as provided by law, have witnesses examined conditionally in his or her or their behalf, as prescribed in this chapter. (b) When a defendant has been charged with a serious felony or in a case of domestic violence, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter, if there is evidence that the life of the witness is in jeopardy. (c) As used in this section, "serious felony" means any of the felonies listed in subdivision (c) of Section 1192.7 or any violation of Section 11351, 11352, 11378, or 11379 of the Health and Safety Code. (d) If a defendant has been charged in a case of domestic violence and there is evidence that criminal charges arising out of the same acts have been previously dismissed and refiled pursuant to paragraph (2) or (3) of subdivision (a), or subdivision (b), of Section 1387, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter. (e) If a defendant has been charged in a case of domestic violence and there is evidence that a victim or material witness has been or is being dissuaded by any means from cooperating with the prosecution or testifying at trial, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter. (f) For the purposes of this section, "domestic violence" means any public offense arising from acts of domestic violence as defined in Section 13700. SEC. 2. Section 1336 of the Penal Code is amended to read: 1336. (a) 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, or is a person 65 years of age or older, or a dependent adult, or is a victim or material witness in a case charging domestic violence who has been or is being dissuaded by any means from cooperating with the prosecution or testifying at trial, the defendant or the people may apply for an order that the witness be examined conditionally. (b) When there is evidence that the life of a witness is in jeopardy, or, in a case of domestic violence, if criminal charges arising out of the same acts have been previously dismissed and refiled pursuant to paragraph (2) or (3) of subdivision (a), or subdivision (b), of Section 1387, the defendant or the people may apply for an order that the witness be examined conditionally. (c) As used in this section, "dependent adult" means any person who is between the ages of 18 and 65, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. "Dependent adult" includes any person between the ages of 18 and 65, who is admitted as an inpatient to a 24-hour facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code. (d) As used in this section, "domestic violence" means any public offense arising from acts of domestic violence as defined in Section 13700. SEC. 3. Section 1337 of the Penal Code is amended to read: 1337. The application shall be made upon affidavit stating all of the following: (a) The nature of the offense charged. (b) The state of the proceedings in the action. (c) The name and residence of the witness, and that his or her testimony is material to the defense or the prosecution of the action. (d) That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he or she will not be able to attend the trial, or is a person 65 years of age or older, or a dependent adult, or that the life of the witness is in jeopardy, or that the witness is a victim or material witness in a domestic violence case who has been or is being dissuaded by any means from cooperating with the prosecution or testifying at trial, or that the witness is a victim or material witness in a domestic violence case and criminal charges arising out of the same acts have been previously dismissed and refiled pursuant to paragraph (2) or (3) of subdivision (a), or subdivision (b), of Section 1387. SEC. 4. Section 1341 of the Penal Code is amended to read: 1341. If, at the time and place so designated, it is shown to the satisfaction of the magistrate thatthe witness is not about to leave the state, or is not sick or infirm, or is not a person 65 years of age or older, or a dependent adult, or that the life of the witness is not in jeopardy,the stated ground for conditional examination is not true or that the application was made to avoid the examination of the witness at the trial, the examination cannot take place.