BILL ANALYSIS
AB 789
Page 1
Date of Hearing: January 10, 2006
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 789 (Lieber) - As Amended: January 4, 2006
SUMMARY : Increases the fine for those convicted of domestic
violence in the amount of $150 and deposits that amount into the
Domestic Violence Training and Education Fund. After a hearing,
if the court determines that the defendant is unable to pay, the
court may reduce or waive the fine.
EXISTING LAW :
1)Waives the fee for the service of process of a protective
order, restraining order, or injunction for a victim of
domestic violence, sexual assault, or stalking. [Code of
Civil Procedure Section 527.6(p).]
2)Allows a sheriff, marshal, or constable to submit a billing to
superior court for the payment of fees waived for the service
of process for the victim of domestic violence, sexual
assault, or stalking. [Penal Code Section 6103.2(b)(4).]
3)Provides for the waiver of the fee for the service of a
domestic violence protective order for an indigent petitioner.
[Penal Code Section 6222(b).]
4)Provides there is no filing fee for an application, responsive
pleading, or an order to show cause that seeks to enforce a
protective order or other order in a domestic violence case.
[Family Code Section 6222(a).]
5)Authorizes the criminal court to issue a protective order upon
a good cause belief that harm to, or intimidation or
dissuasion of, a victim or witness has occurred or is
reasonably likely to occur. The court may also order that no
communication or contact occur between the defendant and any
victim or witness. (Penal Code Section 136.2.)
6)States that a minimum payment by the defendant of $400 to be
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disbursed as specified in this paragraph. After a hearing in
court on the record, if the court finds that the defendant
does not have the ability to pay, the court may reduce or
waive this fee. Two-thirds of the moneys deposited with the
county treasurer pursuant to this section shall be retained by
counties and deposited in the domestic violence programs
special fund created pursuant to existing law. The remainder
shall be transferred, once per month, to the State Controller
for deposit in equal amounts in the Domestic Violence
Restraining Order Reimbursement Fund and in the Domestic
Violence Training and Education Fund, which are hereby
created, in an amount equal to one-third of funds collected
during the preceding month. In no event may the funds
transferred to the Controller be less than $133 for each
defendant. However, if the court orders the defendant to pay
less than $200 because of his or her inability to pay, the
state shall receive two-thirds of the payment. Moneys
deposited into these funds pursuant to this section shall be
available upon appropriation by the Legislature and shall be
distributed each fiscal year as follows:
a) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law
enforcement or other criminal justice agencies for
state-mandated local costs resulting from the notification
requirements set forth in existing law based on the annual
notification from the Department of Justice of the number
of restraining orders issued and registered in the state
domestic violence restraining order registry maintained by
the Department of Justice for the development and
maintenance of the domestic violence restraining order
databank system.
b) Funds from the Domestic Violence Training and Education
Fund shall support a statewide training and education
program to increase public awareness of domestic violence
and to improve the scope and quality of services provided
to the victims of domestic violence. Grants to support
this program shall be awarded on a competitive basis and be
administered by the State Department of Health Services, in
consultation with the statewide domestic violence
coalition, which is eligible to receive funding under this
section. [Penal Code Section 1203.097(a)(1) to (5).]
7)States that any intentional and knowing violation of a
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protective order, as defined, is a misdemeanor punishable by
imprisonment in the county jail for not more than one year; by
a fine of not more than $1,000; or by both a fine and
imprisonment. [Penal Code Section 273.6(a).]
8)Provides that any person who willfully inflicts upon a person
who is his or her spouse, cohabitant, former cohabitant, or
the mother or father of his or her child, corporal injury
resulting in a traumatic condition is guilty of a felony and
upon conviction thereof shall be punished by imprisonment in
the state prison for two, three, or four years; in a county
jail for not more than one year; by a fine of up to $6,000; or
by both that fine and imprisonment. [Penal Code Section
273.5.]
9)Defines "domestic violence" as abuse perpetrated against any
of the following persons:
a) A spouse or former spouse;
b) A cohabitant or former cohabitant as defined in Family
Code Section 6209;
c) A person with whom the respondent is having or has had a
dating or engagement relationship;
d) A person with whom the respondent has had a child;
e) A child of a party; or,
f) Any other person related by consanguinity or affinity
within the second degree. (Family Code Section 6211.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Domestic
violence education and intervention is typically focused on
the victim and the abuser. But there is often another party
involved who is also deeply impacted by the violence:
children who are witnesses to the abuse. For example,
according to the Santa Clara County District Attorney's
office, 13 of the 21 domestic violence homicides in that
county last year were committed in the presence of children.
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"The consequences of ignoring the impact of this are dire.
There is a demonstrated link between witnessing abuse as a
child and becoming an abuser as an adult. According to the
Center on Child Abuse and Neglect at the University of
Okalahoma, 85% of those who commit domestic violence witnessed
domestic violence as children. Experts say that children who
witness violence in the home learn to model this behavior and
come to believe that violence is a customary part of intimate
adult relationships. As a result, the cycle of domestic
violence continues from one generation to the next.
"This bill would assist in breaking this cycle of domestic
violence by working to teach children alternatives to the
violence they are witnessing at home. The fee imposes in
domestic violence cases would help fund, on a competitive
basis, new education programs in our schools to help break
this cycle."
2)Recent Fee Increases in Domestic Violence Cases : Existing law
requires that a person granted probation for a domestic
violence offense pay a minimum fee of $400 to be deposited in
special accounts to fund domestic violence shelters, training,
and restraining order reimbursements. [Penal Code Section
1203.097(a)(5). See AB 352 (Goldberg), Chapter 431, Statutes
of 2003.] This bill increases that fee an additional $150 to
a total of $550. It should be noted that if the court finds
that the defendant does not have the ability to pay the
additional fee, the court may reduce or waive the fee. Other
Penal Code sections also require the defendant to pay as much
as $5,000 to a battered women's shelter. [See Penal Code
Section 1203.097 (a)(11)(A).] Additionally, this bill revises
the formula for the distribution of the fees collected to
compensate for the additional fees collected to offset the
costs of the service of process. The increase from $200 to
$400 is set to sunset on January 1, 2007, meaning that the
actual fee increase after January 1, 2007 would be $350.
According to information provided by the author, "This bill will
help address the intergenerational cycle of domestic violence
- the cycle of violence from one generation to the next as
children who witness domestic violence grow up to become
abusers themselves. According to the Center on Child Abuse
and Neglect at the University of Okalahoma, 85% of those who
commit domestic violence witnessed domestic violence as
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children. This bill would increase the fine in certain
domestic violence cases to help fund education programs in
schools targeted specifically at breaking this cycle of
violence."
3)Existing Penalty Assessments : Under current law, penalty
assessments applied to every fine are up to 250% plus $20.
The penalty assessments have been increasing over time, from
50% in 1983 to 250% today. The existing penalty assessments
are as follows:
a) State Penalty Assessment - 100% : Existing law provides
for an additional "state penalty" of $10 for every $10 or
fraction thereof, upon every fine, penalty or forfeiture
imposed and collected by the courts for criminal offenses
including all offenses, except parking offenses, involving
the Vehicle Code. Of the money collected, 70% is
transmitted to the state and 30% remains with the county.
The state portion of the money collected from the penalty
is distributed in specified percentages among: the Fish
and Game Preservation Fund (0.33%); the Restitution Fund
(32.02%); the Peace Officers Training Fund (23.99%); the
Driver Training Penalty Assessment Fund (25.70%); the
Corrections Training Fund (7.88%); the Local Public
Prosecutors and Public Defenders Fund (0.78%, not to exceed
$850,000 per year); the Victim-Witness Assistance Fund
(8.64%); and the Traumatic Brain Injury Fund (0.66%).
(Penal Code Section 1464.)
b) County Penalty Assessment - 70% : Existing law provides
for an additional county penalty assessment of $7 for every
$10 or fraction thereof, upon every fine, penalty, or
forfeiture imposed and collected by the courts for criminal
offenses, including all offenses involving a violation of
the Vehicle Code or any local ordinance adopted pursuant to
the Vehicle Code except parking offenses. The money
collected shall be placed in any of the following funds if
established by a county board of supervisors: Courthouse
Construction Fund, Criminal Justice Facilities Construction
Fund, Automated Fingerprint Identification Fund, Emergency
Medical Services Fund, or DNA Identification Fund.
(Government Code Section 76000, et seq.)
c) State Surcharge - 20% : As a part of the 2002-03 Budget
Act, the Legislature imposed a temporary state surcharge of
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20% on every base fine collected by the court. The
surcharge took effect on September 30, 2002 and all money
collected shall be deposited in the General Fund. (Penal
Code Section 1465.7.)
d) State Court Facilities Construction - 50%: Two years
ago, as a part of the Trial Court Facilities Act of 2002
[SB 1732 (Escutia), Chapter 1022, Statutes of 2002], the
Legislature established the "State Court Facilities
Construction Fund" and added a state court construction
penalty assessment in an amount up to $5 for every $10 or
fraction thereof upon every fine, penalty, or forfeiture
imposed and collected by the courts for criminal offenses.
The variation in the amount is dependant on the amount
collected by the county for deposit into the local
Courthouse Construction Fund established pursuant to
Government Code Section 76100. As a result, the penalty
assessment ranges from $0.00 for every $10 in two counties
to the full $5 for every $10 in nine counties. This
provision took effect on January 1, 2003. (Government Code
Section 70372.)
e) Court Security - $20 : Finally, as part of the 2003-04
Budget, the Legislature approved a flat fee of $20 on every
conviction for a criminal offense to ensure adequate
funding for court security. This provision took effect
immediately. (Penal Code Section 1465.8.)
f) Proposition 69 (November 2004) - 10% : Proposition 69
levies a $1 penalty assessment on every $10 in fines and
forfeitures resulting from criminal and traffic offenses
and dedicates these revenues to state and local governments
for implementation purposes - the State will receive 70% of
these funds in the first two years, 50% in the third year
and 25% annually thereafter. The remainder will go to
local governments. (Government Code Section 76104.6.)
4)Prior Legislation : AB 352 (Goldberg), Chapter 431, Statutes
of 2003, increased the fees a person convicted of a domestic
violence offense must pay which are used to support specified
domestic violence programs.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 789
Page 7
None on file
Opposition
None on file
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744