Amended  IN  Senate  March 11, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill No. 233

Introduced by Senator Wiener
(Principal coauthor: Assembly Member Quirk)
(Coauthor: Assembly Member Friedman)(Coauthors: Assembly Members Carrillo and Friedman)

February 07, 2019

An act to repeal and add Section 782.1 of the Evidence Code, and to add Section 647.3 to the Penal Code, relating to crime.


LEGISLATIVE COUNSEL'S DIGEST


SB 233, as amended, Wiener. Immunity from arrest.
Existing law criminalizes various aspects of sex work, including soliciting anyone to engage in, or engaging in, lewd or dissolute conduct in a public place, loitering in a public place with the intent to commit prostitution, or maintaining a public nuisance. Existing law, the California Uniform Controlled Substances Act (CUCSA), also criminalizes various offenses relating to the possession, transportation, and sale of specified controlled substances.
This bill would prohibit the arrest of a person for a misdemeanor violation of the CUCSA or other specified sex work crimes, if that person is reporting a crime of sexual assault, human trafficking, stalking, robbery, assault, kidnapping, threats, blackmail, extortion, burglary, or another violent crime. The bill would also state that possession of condoms in any amount, in and of itself, is not amount does not provide a basis for probable cause for arrest for specified sex work crimes.
Existing law specifies a procedure by which condoms may be introduced as evidence in a prosecution for various crimes, including soliciting or engaging in lewd or dissolute conduct in a public place, soliciting or engaging in acts of prostitution, loitering in or about a toilet open to the public for the purpose of engaging in or soliciting a lewd, lascivious, or unlawful act, or loitering in a public place with the intent to commit prostitution.
This bill, instead, would prohibit the possession of a condom as evidence of a violation of soliciting or engaging in lewd or dissolute conduct in a public place, soliciting or engaging in acts of prostitution, loitering in a public place with the intent to commit prostitution, or for maintaining a public nuisance.
The California Constitution includes the Right to Truth-In-Evidence, which requires a 2/3 vote of the Legislature to pass a bill that would exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude from a criminal action evidence about a person’s liability for an act of prostitution that is otherwise admissible, it requires a 2/3 vote of the Legislature.
Vote: MAJORITY2/3   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 782.1 of the Evidence Code is repealed.
782.1.

In any prosecution under Sections 647 and 653.22 of the Penal Code, if the possession of one or more condoms is to be introduced as evidence in support of the commission of the crime, the following procedure shall be followed:

(a)A written motion shall be made by the prosecutor to the court and to the defendant stating that the prosecution has an offer of proof of the relevancy of the possession by the defendant of one or more condoms.

(b)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 subdivision (c). After that determination, the affidavit shall be resealed by the court.

(c)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 questioning regarding the offer of proof made by the prosecution.

(d)At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the prosecutor regarding the possession of condoms is relevant pursuant to Section 210, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the prosecutor. The prosecutor may then offer evidence pursuant to the order of the court.

(e)An affidavit resealed by the court pursuant to subdivision (b) shall remain sealed, unless the defendant raises an issue on appeal or collateral review relating to the offer of proof contained in the sealed document. If the defendant 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.

SEC. 2.

 Section 782.1 is added to the Evidence Code, to read:

782.1.
 The possession of a condom is not admissible as evidence of a violation of subdivision (a) or (b) of Section 647 of the Penal Code or Section 372 or 653.22 of the Penal Code.

SECTION 1.SEC. 3.

 Section 647.3 is added to the Penal Code, to read:

647.3.
 (a) A person who is reporting a crime of sexual assault, human trafficking, stalking, robbery, assault, kidnapping, threats, blackmail, extortion, burglary, or another violent crime shall not be arrested for a crime, including a either of the following:
(1) A misdemeanor violation of the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code) or a Code).
(2) A violation of subdivision (a) or (b) of Section 647 or of Section 372 or 653.22.
(b) Possession of condoms in any amount shall not, in and of itself, be not provide a basis for probable cause for arrest for a crime, including a violation of subdivision (a) or (b) of Section 647 or of Section 372 or 653.22.