Bill Text: CA AB1761 | 2015-2016 | Regular Session | Chaptered
Bill Title: Human trafficking: victims: affirmative defense.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2016-09-26 - Chaptered by Secretary of State - Chapter 636, Statutes of 2016. [AB1761 Detail]
Download: California-2015-AB1761-Chaptered.html
BILL NUMBER: AB 1761 CHAPTERED
BILL TEXT
CHAPTER 636
FILED WITH SECRETARY OF STATE SEPTEMBER 26, 2016
APPROVED BY GOVERNOR SEPTEMBER 26, 2016
PASSED THE SENATE AUGUST 23, 2016
PASSED THE ASSEMBLY AUGUST 29, 2016
AMENDED IN SENATE AUGUST 19, 2016
AMENDED IN ASSEMBLY APRIL 14, 2016
AMENDED IN ASSEMBLY MARCH 28, 2016
INTRODUCED BY Assembly Member Weber
(Principal coauthor: Assembly Member Santiago)
FEBRUARY 2, 2016
An act to add Section 1107.5 to the Evidence Code, and to add
Section 236.23 to the Penal Code, relating to human trafficking.
LEGISLATIVE COUNSEL'S DIGEST
AB 1761, Weber. Human trafficking: victims: affirmative defense.
(1) Under existing law, as amended by Proposition 35, an
initiative measure approved by the voters at the November 6, 2012,
statewide general election, a person who deprives or violates another
person's personal liberty with the intent to obtain forced labor or
services or who deprives or violates another person's personal
liberty for the purpose of prostitution or sexual exploitation is
guilty of human trafficking, a felony. Proposition 35 provides that
it may be amended by a statute in furtherance of its objectives by a
majority of the membership of each house of the Legislature
concurring.
This bill would create an affirmative defense against a charge of
a crime that the person was coerced to commit the offense as a direct
result of being a human trafficking victim at the time of the
offense and had reasonable fear of harm. The bill would prohibit this
defense from being used with respect to a serious or violent crime,
as defined, or a charge of human trafficking. The bill would grant a
person who prevails on that affirmative defense the right to have all
records in the case sealed, except as specified, and to be released
from all penalties and disabilities, as provided.
(2) Existing law makes expert testimony regarding intimate partner
battering and its effects admissible in a criminal action.
This bill would make expert testimony regarding the effect of
human trafficking on a human trafficking victim admissible in a
criminal action.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1107.5 is added to the Evidence Code, to read:
1107.5. (a) In a criminal action, expert testimony is admissible
by either the prosecution or the defense regarding the effects of
human trafficking on human trafficking victims, including the nature
and effect of physical, emotional, or mental abuse on the beliefs,
perceptions, or behavior of human trafficking victims.
(b) The foundation shall be sufficient for admission of this
expert testimony if the proponent of the evidence establishes its
relevancy and the proper qualifications of the expert witness.
(c) For purposes of this section, "human trafficking victim" is
defined in Section 236.1 of the Penal Code.
(d) This section is intended as a rule of evidence only and no
substantive change affecting the Penal Code is intended.
SEC. 2. Section 236.23 is added to the Penal Code, to read:
236.23. (a) In addition to any other affirmative defense, it is a
defense to a charge of a crime that the person was coerced to commit
the offense as a direct result of being a human trafficking victim
at the time of the offense and had a reasonable fear of harm. This
defense does not apply to a serious felony, as defined in subdivision
(c) of Section 1192.7, or a violent felony, as defined in
subdivision (c) of Section 667.5, or a violation of Section 236.1.
(b) A defendant asserting the affirmative defense specified in
subdivision (a) has the burden of establishing the affirmative
defense by a preponderance of the evidence.
(c) Certified records of a federal, state, tribal, or local court
or governmental agency documenting the person's status as a victim of
human trafficking at the time of the offense, including
identification of a victim of human trafficking by a peace officer
pursuant to Section 236.2 and certified records of approval notices
or enforcement certifications generated from federal immigration
proceedings, may be presented to establish an affirmative defense
pursuant to this section.
(d) The affirmative defense may be asserted at any time before the
entry of a plea of guilty or nolo contendere or admission to the
truth of the charges and before the conclusion of any trial for the
offense. If asserted before the preliminary hearing held in a case,
the affirmative defense shall, upon request by the defendant, be
determined at the preliminary hearing.
(e) If the defendant prevails on the affirmative defense provided
under subdivision (a), the defendant is entitled to all of the
following relief:
(1) (A) The court shall order that all records in the case be
sealed pursuant to Section 851.86.
(B) Records that have been sealed pursuant to this paragraph may
be accessed, inspected, or utilized by law enforcement for subsequent
investigatory purposes involving persons other than the defendant.
(2) The person shall be released from all penalties and
disabilities resulting from the charge, and all actions and
proceedings by law enforcement personnel, courts, or other government
employees that led to the charge shall be deemed not to have
occurred.
(3) (A) The person may in all circumstances state that he or she
has never been arrested for, or charged with, the crime that is the
subject of the charge or conviction, including without limitation in
response to questions on employment, housing, financial aid, or loan
applications.
(B) The person may not be denied rights or benefits, including,
without limitation, employment, housing, financial aid, welfare, or a
loan or other financial accommodation, based on the arrest or charge
or his or her failure or refusal to disclose the existence of or
information concerning those events.
(C) The person may not be thereafter charged or convicted of
perjury or otherwise of giving a false statement by reason of having
failed to disclose or acknowledge the existence of the charge, or any
arrest, indictment, trial, or other proceedings related thereto.
(f) If, in a proceeding pursuant to Section 602 of the Welfare and
Institutions Code, the juvenile court finds that the offense on
which the proceeding is based was committed as a direct result of the
minor being a human trafficking victim, and the affirmative defense
established in subdivision (a) is established by a preponderance of
the evidence, the court shall dismiss the proceeding and order the
relief prescribed in Section 786 of the Welfare and Institutions
Code.
