2009 California Penal Code - Section 1346-1347.5 :: Chapter 4.5. Examination Of Victims Of Sexual Crimes

PENAL CODE
SECTION 1346-1347.5

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, where the victim either is a person 15
years of age or less or is developmentally disabled as a result of
mental retardation, 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 recorded and
preserved on videotape.
   (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 on videotape. The videotape 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 videotape
of the victim's testimony at the preliminary hearing as former
testimony under Section 1291 of the Evidence Code.
   (e) Any videotape which 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) Any videotape 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. Any videotape
which 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 tape shall be destroyed after five years have elapsed from
the date of entry of judgment; provided, however, that if an appeal
is filed, the tape shall not be destroyed until a final judgment on
appeal has been rendered.

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 recorded and
preserved on videotape.
   (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 on videotape. The videotape 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
videotape recording of that testimony may be introduced as evidence
at trial.

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 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 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 videotape shall record the image of the minor
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 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.

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 and following) 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 68119 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 recorded and preserved on
videotape.
   (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 on videotape. The
videotape 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
videotape of his or her testimony at the preliminary hearing as
former testimony under Section 1291 of the Evidence Code.
   (4) Any videotape 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 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, 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 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 and following) 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.


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