BILL NUMBER: SB 717	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator DeSaulnier

                        FEBRUARY 22, 2013

   An act to amend Section 782 of the Evidence Code, relating to
evidence.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 717, as introduced, DeSaulnier. Credibility of witnesses:
sexual conduct evidence.
   Existing law sets forth the procedure required in any prosecution
for rape or other specified offenses, with certain exceptions, if
evidence of sexual conduct of the complaining witness, as defined, is
offered to attack the credibility of the complaining witness.
   This bill would expand the offenses included within the term
"sexual conduct" to include commercial sexual conduct, as specified,
and would make conforming changes to those 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 782 of the Evidence Code is amended to read:
   782.  (a) In any of the circumstances described in subdivision
(c), if evidence of sexual conduct of the complaining witness is
offered to attack the credibility of the complaining witness under
Section 780, the following procedure shall be followed:
   (1) A written motion shall be made by the  defendant
  party seeking to introduce the evidence  to the
court  and prosecutor   , with notice  
to all parties,  stating that the  defense 
 party  has an offer of proof of the relevancy of  the
 evidence  of the sexual conduct of the complaining
witness  proposed to be presented  and its relevancy
 in attacking the credibility of the complaining witness.
   (2) The written motion shall be accompanied by an affidavit in
which the offer of proof shall be stated. The affidavit shall be
filed under seal and only unsealed by the court to determine if the
offer of proof is sufficient to order a hearing pursuant to paragraph
(3). After that determination, the affidavit shall be resealed by
the court.
   (3) If the court finds that the offer of proof is sufficient, the
court shall order a hearing out of the presence of the jury, if any,
and at the hearing allow the questioning of the complaining witness
regarding the offer of proof  made by the defendant 
.
   (4) At the conclusion of the hearing, if the court finds that 
the  evidence proposed to be offered  by the defendant
regarding the   of  sexual conduct of the
complaining witness is relevant pursuant to Section 780, and is not
inadmissible pursuant to Section 352, the court may make an order
stating what  part of the  evidence may be introduced by the
 defendant,  proffering party,  and the
nature of the questions to be permitted. The  defendant
  proffering party  may then offer evidence
pursuant to the order of the court.
   (5) An affidavit resealed by the court pursuant to paragraph (2)
shall remain sealed, unless the  defendant  
proffering party  raises an issue on appeal or collateral review
relating to the offer of proof contained in the sealed document. If
the  defendant   proffering party  raises
that issue on appeal, the court shall allow the Attorney General and
appellate counsel for the defendant access to the sealed affidavit.
If the issue is raised on collateral review, the court shall allow
the district attorney and defendant's counsel access to the sealed
affidavit. The use of the information contained in the affidavit
shall be limited solely to the pending proceeding.
   (b) As used in this  section, "complaining witness" means:
  section:  
   (1) "Complaining witness" means either of the following: 

   (1) 
    (A)  The alleged victim of the crime charged, the
prosecution of which is subject to this section, pursuant to
paragraph (1) of subdivision (c). 
   (2) 
    (B)  An alleged victim offering testimony pursuant to
paragraph (2) or (3) of subdivision (c). 
   (2) "Sexual conduct" includes commercial sexual conduct,
including, but not limited to, that described in subdivisions (b) and
(c) of Section 236.1, 266, 266h, 266i, 266j, 267, 311.1, 311.2,
311.3, 311.4, 311.5, 311.6, 518, or 647 of the Penal Code. 
   (c) The procedure provided by subdivision (a) shall apply in any
of the following circumstances:
   (1) In a prosecution under Section  236.1,  261, 262,
264.1,  266, 266h, 266i, 266j, 267,  286, 288, 288a, 288.5,
 or 289   289, 311.1, 311.2, 311.3, 311.4,
311.5, 311.6, 518, or 647  of the Penal Code, or for assault
with intent to commit, attempt to commit, or conspiracy to commit any
crime defined in any of those sections, except if the crime is
alleged to have occurred in a local detention facility, as defined in
Section 6031.4 of the Penal Code, or in the state prison, as defined
in Section  4504.   4504 of the Penal Code.

   (2) When an alleged victim testifies pursuant to subdivision (b)
of Section 1101 as a victim of a crime listed in Section  236.1,
 243.4, 261, 261.5,  266, 266h, 266i, 266j, 267,  269,
285, 286, 288, 288a, 288.5, 289,  311.1, 311.2, 311.3, 311.4,
311.5, 311.6,  314,  518, 647,  or 647.6 of the Penal
Code, except if the crime is alleged to have occurred in a local
detention facility, as defined in Section 6031.4 of the Penal Code,
or in the state prison, as defined in Section 4504 of the Penal Code.

   (3) When an alleged victim of a sexual offense testifies pursuant
to Section 1108, except if the crime is alleged to have occurred in a
local detention facility, as defined in Section 6031.4 of the Penal
Code, or in the state prison, as defined in Section 4504 of the Penal
Code.