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AB-2359 Sexual Assault Crimes Against Disabled and Developmentally Disabled Victims.(2017-2018)

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Date Published: 04/03/2018 09:00 PM
AB2359:v97#DOCUMENT

Amended  IN  Assembly  April 03, 2018
Amended  IN  Assembly  March 15, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill
No. 2359


Introduced by Assembly Member Maienschein

February 13, 2018


An act to amend Section 1050 of the Penal Code, relating to criminal procedure. An act to add and repeal Article 5 (commencing with Section 13839) of Chapter 4 of Title 6 of Part 4 of the Penal Code, relating to crimes, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


AB 2359, as amended, Maienschein. Hearings: continuances. Sexual Assault Crimes Against Disabled and Developmentally Disabled Victims.
Existing law establishes the Office of Emergency Services, which is required to, among other things, allocate and award funds to communities developing and providing ongoing citizen involvement and crime resistance programs.
This bill would require the office, until January 1, 2023, to allocate and award funds to up to 11 district attorney offices that employ a vertical prosecution methodology for the prosecution of sexual assault crimes, as specified, involving disabled and developmentally disabled victims and that meet other specified criteria, including minimum staffing levels for the program. The bill would require the office, on or before January 1, 2022, to submit to the Legislature and the Governor’s office a report that describes the counties that received funding pursuant to this program, the number of prosecutions for those sexual assault crime cases filed by the counties receiving funding, the number of sexual assault convictions obtained by those counties, and the sentences imposed by those counties. The bill would appropriate $2,650,000 from the General Fund to the office for funding the program.

Existing law authorizes a party in a criminal proceeding to request the continuance of a hearing to a later date, and prescribes the procedures and requirements for requesting a continuance. Existing law authorizes a court to waive these requirements if the moving party shows good cause for the failure to comply with them. “Good cause” is defined to include instances in which the prosecuting attorney assigned to a case involving the commission of specified crimes has another proceeding in progress in that court or another court.

This bill would also authorize a court to grant a continuance if a prosecuting attorney is assigned to a case involving a person with a developmental disability, as defined, who is a victim of, or a material witness to, a violent or serious felony, as specified, and the prosecuting attorney has another proceeding in that court or another court.

Vote: MAJORITY2/3   Appropriation: NOYES   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Article 5 (commencing with Section 13839) is added to Chapter 4 of Title 6 of Part 4 of the Penal Code, to read:
Article  5. Sexual Assault Crimes Against Disabled and Developmentally Disabled Victims Vertical Prosecution Program

13839.
 (a) There is hereby established in the Office of Emergency Services a program of financial and technical assistance for district attorney offices to assist the prosecution of sexual assault crimes involving victims with disabilities and victims who are developmentally disabled.
(b) The Director of Emergency Services shall allocate and award funds to up to 11 district attorney offices that apply for funding pursuant to this article. A county selected for funding shall meet all of the following minimum requirements:
(1) Employ a vertical prosecution methodology for sexual assault crimes involving victims with disabilities and victims who are developmentally disabled.
(2) Dedicate at least one-half of the time of one deputy district attorney and one-half of the time of one district attorney investigator solely to the investigation and prosecution of sexual assault crimes involving victims with disabilities and victims who are developmentally disabled.
(3) Provide the office with annual data on the number of cases of sexual assault crimes involving victims with disabilities and victims who are developmentally disabled filed by that county, the number of convictions obtained in those cases, and the sentences imposed in those cases.
(4) Enter into an agreement, either by contract or a memorandum of understanding, with an advocacy agency funded by the office that provides services, counseling, or both, to victims of sexual assault crimes involving victims with disabilities and victims who are developmentally disabled in order to ensure that victims receive appropriate services.
(5) Funding received by district attorney offices pursuant to this program shall be used to supplement, but not supplant, existing financial resources.
(c) The office shall select applications based upon a competitive process and may establish selection criteria. At a minimum, an applicant shall demonstrate the ability to comply with the criteria in subdivision (b) and shall include an estimate of the potential number of sexual assault crimes involving victims with disabilities and victims who are developmentally disabled in that county.
(d) (1) On or before January 1, 2022, the office shall submit to the Legislature and the Governor’s office a report that describes the counties that received funding pursuant to this program, the number of prosecutions for sexual assault crimes involving victims with disabilities and victims who are developmentally disabled filed by the counties receiving funding, the number of convictions for those crimes obtained by those counties, and the sentences imposed for those crimes in those counties.
(2) The report required pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e) As used in this section, the term “sexual assault crimes involving victims with disabilities and victims who are developmentally disabled” means:
(1) Rape, in violation of paragraph (1) of subdivision (a) of Section 261.
(2) Sodomy, in violation of subdivision (g) or (h) of Section 286.
(3) Oral copulation, in violation of subdivision (g) or (h) of Section 288a.
(4) Sexual penetration, in violation of subdivision (b) or (c) of Section 289.
(5) Any other offense for which registration as a sex offender is required pursuant to Section 290 if the victim is a paraplegic, a quadriplegic, or “developmentally disabled,” as defined in subdivision (d) of Section 667.9.
(f) No more than 10 percent of funds appropriated for this program shall be expended by the office for administrative costs, including technical assistance, training, and the cost of producing the report required pursuant to subdivision (d).

13839.5.
  This article shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2023, deletes or extends that date.

SEC. 2.

 The sum of two million six hundred fifty thousand dollars ($2,650,000) is hereby appropriated from the General Fund to the Office of Emergency Services for the purpose of funding the Sexual Assault Crimes Against Disabled and Developmentally Disabled Victims Vertical Prosecution Program, as established in Article 5 (commencing with Section 13839) of Chapter 4 of Title 6 of Part 4 of the Penal Code.
SECTION 1.Section 1050 of the Penal Code is amended to read:
1050.

(a)The welfare of the people of the State of California requires that all proceedings in criminal cases be set for trial and heard and determined at the earliest possible time. To this end, the Legislature finds that the criminal courts are becoming increasingly congested with resulting adverse consequences to the welfare of the people and the defendant. Excessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses. Continuances also lead to longer periods of presentence confinement for those defendants in custody and the concomitant overcrowding and increased expenses of local jails. It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it is the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice. In accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings. In further accordance with this policy, death penalty cases in which both the prosecution and the defense have informed the court that they are prepared to proceed to trial shall be given precedence over, and set for trial and heard without regard to the pendency of, other criminal cases and any civil matters or proceedings, unless the court finds in the interest of justice that it is not appropriate.

(b)In order to continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary and (2) within two court days of learning that he or she has a conflict in the scheduling of any court hearing, including a trial, an attorney shall notify the calendar clerk of each court involved, in writing, indicating which hearing was set first. A party shall not be deemed to have been served within the meaning of this section until that party actually has received a copy of the documents to be served, unless the party, after receiving actual notice of the request for continuance, waives the right to have the documents served in a timely manner. Regardless of the proponent of the motion, the prosecuting attorney shall notify the people’s witnesses and the defense attorney shall notify the defense’s witnesses of the notice of motion, the date of the hearing, and the witnesses’ right to be heard by the court.

(c)Notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision. However, unless the moving party shows good cause for the failure to comply with those requirements, the court may impose sanctions as provided in Section 1050.5.

(d)When a party makes a motion for a continuance without complying with the requirements of subdivision (b), the court shall hold a hearing on whether there is good cause for the failure to comply with those requirements. At the conclusion of the hearing, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding. A statement of the finding and a statement of facts proved shall be entered in the minutes. If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted.

(e)Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause.

(f)At the conclusion of the motion for continuance, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding. A statement of facts proved shall be entered in the minutes.

(g)When deciding whether or not good cause for a continuance has been shown, the court shall consider the general convenience and prior commitments of all witnesses, including peace officers. Both the general convenience and prior commitments of each witness also shall be considered in selecting a continuance date if the motion is granted. The facts as to inconvenience or prior commitments may be offered by the witness or by a party to the case.

(h)For purposes of this section, “good cause” includes, but is not limited to, instances in which the prosecuting attorney assigned to any of the following cases has another trial, preliminary hearing, or motion to suppress in progress in that court or another court:

(1)A case involving murder, as defined in subdivision (a) of Section 187.

(2)A case being handled in the California Career Criminal Prosecution Program pursuant to Sections 999b to 999h, inclusive.

(3)A case involving a person with a developmental disability who is either the victim of, or a material witness to, a violent felony or a serious felony.

(4)Cases alleging that the following have occurred:

(A)Stalking, as defined in Section 646.9.

(B)A violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or Section 11165.6.

(C)Domestic violence, as defined in Section 13700.

(D)A hate crime, as defined in Title 11.6 (commencing with Section 422.55) of Part 1.

(5)A continuance granted under this subdivision shall be limited to a maximum of 10 court days.

(i)Only one continuance per case may be granted to the people under this section for cases involving stalking, hate crimes, or cases handled under the Career Criminal Prosecution Program. Any continuance granted to the people in a case involving stalking or handled under the Career Criminal Prosecution Program shall be for the shortest time possible, not to exceed 10 court days.

(j)Upon a showing that the attorney of record at the time of the defendant’s first appearance in the superior court on an indictment or information is a Member of the Legislature of this state and that the Legislature is in session or that a legislative interim committee of which the attorney is a duly appointed member is meeting or is to meet within the next seven days, the defendant shall be entitled to a reasonable continuance not to exceed 30 days.

(k)A continuance shall be granted only for that period of time shown to be necessary by the evidence considered at the hearing on the motion. Whenever any continuance is granted, the court shall state on the record the facts proved that justify the length of the continuance, and those facts shall be entered in the minutes.

(l)Whenever it shall appear that any court may be required, because of the condition of its calendar, to dismiss an action pursuant to Section 1382, the court shall immediately notify the Chair of the Judicial Council.

(m)This section shall not apply when the preliminary examination is set on a date less than 10 court days from the date of the defendant’s arraignment on the complaint, and the prosecution or the defendant moves to continue the preliminary examination to a date not more than 10 court days from the date of the defendant’s arraignment on the complaint.

(n)For purposes of this section, the following definitions apply:

(1)“Person with a developmental disability” means a person described in subdivision (d) of Section 667.9.

(2)“Serious felony” means an offense enumerated in subdivision (c) of Section 1192.7.

(3)“Violent felony” means an offense enumerated in subdivision (c) of Section 667.5.

(o)This section is directory only and does not mandate dismissal of an action by its terms.