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Special procedural issues in sexual assault cases
By Karla Kerlin and Renee Korn

Please visit the MCLE section of the Daily Journal's website to take this test.

Trials involving sexual assaults can give rise to a host of difficult procedural issues for both judges and practitioners. Having a good grasp of the fundamental principles of procedure in sexual assault cases is essential to the efficient and fair administration of justice.

The objective of this article and self-study test is to acquaint bench officers and attorneys with common procedural issues in sexual assault cases, including statute of limitation problems, bail, speedy trial, and confidentiality.

Statute of Limitations

Defendant identified by DNA

When a defendant's identity is established by DNA in a sexual offense, the limitations period may be extended for up to one year from the date on which the identity of the suspect is established by DNA testing. Pen C Section 803(g). Case law has permitted the filing of "John Doe" warrants when DNA evidence exists, but a defendant has yet to be linked via DNA matching. The timely filing of a complaint and issuance of a "John Doe" warrant with a unique DNA profile satisfies the particularity requirement and begins the felony prosecution. People v. Robinson, 47 Cal. 4th 1104 (2010).

Sexual offenses against minors

In enumerated sexual offenses committed against a child under age 18, charges may be filed anytime before the victim reaches age 28. Pen C Section 801.1(a). If Pen C Section 801.1(a) does not apply, the limitations period is 10 years for any felony that requires registration as a sex offender under Pen C Section 290. Pen C Section 801.1(b).

Under certain circumstances, Pen C Section 803(f) allows for the limitations period for sex offenses committed against minors to be extended for a period of one year from the date a report is made to a California law enforcement agency. This extension only applies when all other statute of limitation periods have expired. Pen C Section 803(f)(2)(A). Although the crime must have occurred when the victim was under 18, the victim can make the report at any age. The extension applies to the crimes of rape, sodomy, lewd act on a child, oral copulation, continual sexual abuse of a child, and forcible sexual penetration. And the crime must involve substantial sexual conduct within the meaning of Pen C Section 1203.066(b). Pen C Section 803(f)(2)(B).

Additionally, for the extension to apply, there must be independent evidence that corroborates the victim's allegations. If the victim was 21 or older at the time of the report, the independent evidence must "clearly and convincingly corroborate" the victim's allegations. Pen C Section 803(f)(2)(C). Evidence admitted under Evid C Section 1101(b) or Section 1108 can provide the corroboration. See People v.Yovanov, 69 Cal. App. 4th 392 (1999). The corroborating evidence need not corroborate every element so long as it corroborates the victim's allegations that sexual acts occurred. People v. Smith, 198 Cal. App. 4th 415 (2011).

When a case alleges a continuous course of conduct (i.e., pleadings allege a time period rather than a specific date or a filing under Pen C Section 288.5), the statute of limitations does not begin until the entire course of conduct is complete. People v. Zamora, 18 Cal. 3d 538 (1976). Sex crimes that carry a life sentence under the One-Strike law under Pen C Section 667.61 may be brought at any time. Pen C Section 799; see also People v. Perez, 182 Cal. App. 4th 231 (2010).

Burden of pleading and proving offense committed within SOL and extensions

The prosecution must plead and prove that the charged offense was committed within an applicable extension of the statute of limitations and is not time-barred. People v. Lopez, 52 Cal. App. 4th 233 (1997). If the pleadings do not show as a matter of law that the prosecution is time-barred, the statute of limitations becomes an issue for the jury/trier of fact if disputed by the defendant. Zamora, 18 Cal. 3d at 562, 564. "The statute of limitations is not an 'element' of the offense insofar as the 'definition' of criminal conduct is concerned." People v. Frazer, 21 Cal. 4th 737 (1999). Hence, there is no requirement to bifurcate statute of limitations issues from guilt issues. People v. Ruiloba, 131 Cal. App. 4th 674 (2005).

Bail

Under Pen C Section 1270.1, in all serious or violent felonies, a court may not set bail higher or lower than the bail set under the bail schedule without holding a hearing in open court with two court days' written notice to the prosecuting attorney and defense attorney. Pen C Section 1270.1(a), (b). Virtually all sex assault felonies fall within this section. At the hearing, the judge must consider the defendant's record of appearances, potential length of sentence, criminal history, past history of violence, public safety concerns, threats made by the defendant, the defendant's ties to the community, and the ability to post bond. Pen C Section 1270.1(c). If bail is set higher or lower than the presumptive bail, the judge must state reasons on the record. Reasons must be included in the minute order. If any threats were made against the victims or witnesses, the judge must evaluate those threats on the record. Pen C Section 1270.1(d).

A defendant is presumptively entitled to bail under the California Constitution and Pen C Section 1271. However, in appropriate sex crimes cases, the court can deny bail. California Constitution Article I, Section 12 provides that: "A person shall be released on bail by sufficient sureties, except for: (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others." Due to its rigorous requirements and dire consequences, this provision is seldom used.

Speedy Trial

Trials involving sexual assaults are given a higher priority in setting a trial. For example, matters on calendar are disposed of generally in the following order: 1. Felonies (Defendant in custody) 2. Misdemeanors (Defendant in custody) 3. Felonies (Defendant not in custody) 4. Misdemeanors (Defendant not in custody). Pen C Section 1048(a). But, under Pen C Section 1048(b), cases involving sexual assaults (Pen C Sections 261, 262, 286, 288, 288a, and 289) are given precedence over all other criminal actions in the order of trial. And sexual assault trials must begin within 30 days of arraignment unless the court determines at a hearing that there is good cause for a continuance. Pen C Section 1048(b).

There are, however, limits. For example, at an arraignment of a person charged with sexual assaults (Pen C Sections 261, 262, 286, 288, 288a, and 289), the bench officer must make reasonable efforts to avoid setting the trial on a date when a specially assigned prosecutor is set to be in trial on another case. And continuances for up to a maximum of 10 court days, with or without good cause, can be granted to a sexual assault prosecutor specifically assigned to a case when the prosecutor is engaged in another trial, preliminary hearing, or motion to suppress. Pen C Section 1050(g)(2).

Finally, a sexual assault trial may be delayed by other considerations. For example, a bench officer may postpone the preliminary hearing for one court day to accommodate the special physical, mental, or emotional needs of a witness 10 years of age or under. Pen C Section 861.5. This is an exception to the "single session rule" for preliminary hearings under Pen C Section 861. If a break in the preliminary hearing is granted, the bench officer must admonish both defense and prosecution against coaching the witness during the postponement. Pen C Section 861.5.

Confidentiality

Under Pen C Section 293, at the time a report of a sexual assault is made by a victim, the law enforcement agency must inform the victim that his or her name will become a matter of public record unless the victim requests that his or her name remain confidential. Under this section, a police report of a sexual assault must include verification that the victim has been notified of his or her right to confidentiality.

At the request of the victim, a court, however, can order that a victim be identified as Jane or John Doe if the court determines that such an order is reasonably necessary to protect the privacy of the victim and will not unduly prejudice the prosecution or defense. At a jury trial, if the court orders the victim to be identified as Jane or John Doe, the court must instruct the jury at the beginning and end of the trial that the victim is being identified as Jane or John Doe only for the purpose of protecting his or her privacy. Pen C Section 293.5.

If the victim is using a fictitious name or only their last initial, the court should tell the jury that if any juror later does recognize the victim, the court should immediately be so advised. People v. Ramirez, 55 Cal. App. 4th 47 (1997). The court should also instruct the jury that the victim is being so identified only for the purpose of protecting his or her right to privacy. See CALCRIM No. 123.

In a sexual assault case, an Evidence Code section specifically allows the prosecution to make a written motion with notice to the defendant that evidence of the victim's address and phone number should be excluded. But, the court may only order the victim's address and phone number excluded if the court finds that the probative value of the evidence is outweighed by the creation of substantial danger to a victim. Evid C Section 352.1.

This Evidence Code section does not limit a defendant's right to discovery or ability to investigate. The names and addresses of all witnesses, including sexual assault victims, must be disclosed to the defendant or the attorney in a criminal case regardless of other statutory provisions that protect sexual assault victims from unwanted publicity. Pen C Section 1054.1. But attorneys are specifically prohibited from disclosing to defendant, defendant's family, or anyone else, the name, address, and phone number of a victim or witness disclosed under Pen C Section 1054.1. If the defendant is acting as his or her own attorney, the court is required to protect the name and address of the victim or witness by providing contact only through a licensed private investigator. Pen C Section 1054.2(a), (b).

Confidential records of a victim, including mental health, school, and medical records, may be discoverable by the defense because due process requires disclosure of exculpatory evidence. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987). California appellate cases have extended this rule, and concluded that, upon a showing of good cause, and after consideration of the competing interest in confidentiality, the Confrontation Clause may give a defendant the right to pretrial discovery, from nonparties, of a witness's otherwise privileged confidential records already in existence. See, e.g., People v. Dancer, 45 Cal. App. 4th 1677 (1996).

However, in People v. Hammon, 15 Cal. 4th 1117 (1997), the California Supreme Court limited this line of cases, holding that the Confrontation Clause provides defendants no right to pretrial discovery that would override a statutory or constitutional privilege, but also holding that the right to discovery still exists at trial.

As suggested by Justice Joyce Kennard, concurring and dissenting in Hammon, a judge should require a defendant to first make a showing of good cause for discovery. "In this context, good cause means a reasonable likelihood that the documents contain information that is both material and favorable to the defense and that the same or comparable information is not obtainable from non-privileged sources." Hammon, 15 Cal. 4th at 1131. If the defendant makes this showing, then the trial court should examine the documents in camera, to balance the interests served by the privilege against a defendant's right to a fair trial, and to disclose the documents in whole or in part to the extent that this balance tilts in the defendant's favor. 15 Cal. 4th at 1131.

Karla Kerlin is a judge in Los Angeles County Superior Court.

Renee Korn is a judge in Los Angeles County Superior Court.

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