BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 258
                                                                  Page 1

          Date of Hearing:   March 17, 2009
          Counsel:                Kimberly A. Horiuchi


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                   AB 258 (Ma) - As Introduced:  February 11, 2009
           
           
           SUMMARY :   Alters provisions relating to mutual protective  
          orders by replacing the term "primary aggressor" with "dominant  
          aggressor."  

           EXISTING LAW  :

          1)States when a peace officer is responding to a call alleging a  
            violation of a domestic violence protective or restraining  
            order, as specified, or of a domestic violence protective or  
            restraining order issued by the court of another state, tribe,  
            or territory and the peace officer has probable cause to  
            believe that the person against whom the order is issued has  
            notice of the order and has committed an act in violation of  
            the order, the officer shall, make a lawful arrest of the  
            person without a warrant and take that person into custody  
            whether or not the violation occurred in the presence of the  
            arresting officer.  [Penal Code Section 836(c)(1).]

          2)Provides that the person against whom a protective order has  
            been issued shall be deemed to have notice of the order if the  
            victim presents to the officer proof of service of the order,  
            the officer confirms with the appropriate authorities that a  
            true copy of the proof of service is on file, or the person  
            against whom the protective order was issued was present at  
            the protective order hearing or was informed by a peace  
            officer of the contents of the protective order.  [Penal Code  
            Section 836(c)(2).]

          3)States in situations where mutual protective orders have been  
            issued, as specified, liability for arrest under this  
            subdivision applies only to those persons who are reasonably  
            believed to have been the primary aggressor.  In those  
            situations, prior to making an arrest under this subdivision,  
            the peace officer shall make reasonable efforts to identify,  
            and may arrest, the primary aggressor involved in the  








                                                                  AB 258
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            incident.  The primary aggressor is the person determined to  
            be the most significant, rather than the first, aggressor.  In  
            identifying the primary aggressor, an officer shall consider:   
            the intent of the law to protect victims of domestic violence  
            from continuing abuse, the threats creating fear of physical  
            injury, the history of domestic violence between the persons  
            involved, and whether either person involved acted in  
            self-defense.

          4)States every law enforcement agency in California shall  
            develop, adopt, and implement written policies and standards  
            for officers' responses to domestic violence calls by January  
            1, 1986.  These policies shall reflect that domestic violence  
            is alleged criminal conduct.  Further, these policies shall  
            reflect existing policy that a request for assistance in a  
            situation involving domestic violence is the same as any other  
            request for assistance where violence has occurred.  [Penal  
            Code Section 13701(a).]

          5)Requires the written policies shall encourage the arrest of  
            domestic violence offenders if there is probable cause that an  
            offense has been committed.  These policies also shall require  
            the arrest of an offender, absent exigent circumstances, if  
            there is probable cause that a protective order has issued or  
            by a court of any other state, a commonwealth, territory, or  
            insular possession subject to the jurisdiction of the United  
            States, a military tribunal, or a tribe has been violated.   
            These policies shall discourage, when appropriate, but not  
            prohibit, dual arrests.  Peace officers shall make reasonable  
            efforts to identify the dominant aggressor in any incident.   
            The dominant aggressor is the person determined to be the most  
            significant, rather than the first, aggressor.  In identifying  
            the dominant aggressor, an officer shall consider the intent  
            of the law to protect victims of domestic violence from  
            continuing abuse, the threats creating fear of physical  
            injury, the history of domestic violence between the persons  
            involved, and whether either person acted in self-defense.   
            These arrest policies shall be developed, adopted, and  
            implemented by July 1, 1996.  [Penal Code Section 13701(b).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :    

           1)Author's Statement  :  According to the author, "Penal Code  








                                                                  AB 258
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            Section 836 was not amended at the time other code section was  
            changed.  Penal Code Section 836 concerns arrest procedures  
            when mutual protective orders exist (both parties are  
            protected from the other with court orders).  The language in  
            Penal Code Section 836 provides that the most significant, not  
            the first, aggressor should be arrested.  However, the section  
            labels that to be the primary aggressor instead of the  
            dominant aggressor.  Changing all references from primary  
            aggressor to dominant aggressor is important for police  
            understanding and to clear up the confusion of two different  
            labels."

           2)Dominant vs. Primary Aggressor  :  In 2000, SB 1944 (Solis),  
            Chapter 1001, Statutes of 2000, amended Penal Code Section  
            13701 to include the term "dominant aggressor" rather than  
            "primary aggressor" in an effort to discourage police from  
            making a dual arrest at the scene of a domestic violence.  In  
            the alternative, officers are provided guidance to determine  
            which person was the aggressor and, hence, which person must  
            be arrested.  The author of SB 1944 stated:

          "The bill [also] clarifies that at the scene of a domestic  
            violence incident, law enforcement should identify who is the  
            dominant aggressor, that is the person who is the most  
            significant, and not the first aggressor.  Current statute  
            requires law enforcement to identify the 'primary aggressor.'   
            In law enforcement trainings, it has been confusing referring  
            to primary aggressor because this is being interpreted to mean  
            the first person who hit."

          This confusion often results in dual arrests.  Ms. Catherine  
            Popham-Durant, University of Southern California, Review of  
            Law and Women Studies, posited, "States [have] struggled to  
            enact language to discourage dual arrest, and many have  
            included language stating that only the primary aggressor  
            should be arrested.  How to define the 'primary aggressor',  
            however, remains an obstacle.  Some define 'primary aggressor'  
            as the party who is not acting in self-defense.  This creates  
            a problem, however, because some victims' violence may be  
            reactive without meeting the legal standard of self-defense.   
            Other states and the old standard in California defined the  
            'primary aggressor' as 'the person determined to be the most  
            significant, rather than the first, aggressor' and came up  
            with some criteria to help the officers decide who was the  
            most significant.  








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          "California law, for example explained:  'In identifying the  
            primary aggressor, an officer shall consider the intent of the  
            law to protect victims of domestic violence from continuing  
            abuse, the threats creating fear of physical injury, the  
            history of domestic violence between the persons involved, and  
            whether either person acted in self defense.'

          "Although the legislators included these criteria, they were  
            concerned that forcing police officers to make arrests would  
            lead to confusion regarding whom to arrest.  This influenced  
            them to elect a pro-arrest rather than a mandatory arrest  
            policy when amending California Penal Code Section 13701.  As  
            predicted by the legislature, officers in law enforcement  
            training reported that they did not understand how to  
            interpret the statute and continued, despite the statutory  
            standards, to define the 'primary aggressor' as the person who  
            hit first.  Responding to officers' suggestions of what  
            language would clarify their responsibilities, the legislature  
            again amended California Penal Code Section 13701 in 2000.   
            Keeping all of the definitions and explanations the same, they  
            replaced the words 'primary aggressor' with 'dominant  
            aggressor'."  [Popham-Durant, When To Arrest: What Influences  
            Police Determination To Arrest When There Is A Report Of  
            Domestic Violence?, (2003) 12 S. Cal. Rev. L. & Women's Stud.  
            301, 311.]

           3)Argument in Support  :  According to the  California Partnership  
            to End Domestic Violence  states, "California Penal Code 13701  
            was amended in 2000 to require police officers to arrest the  
            dominant aggressor, instead of the primary aggressor, in  
            domestic violence cases.  At the scene of a domestic violence  
            incident, law enforcement is required to identify who the  
            dominant aggressor is; or the person who is the most  
            significant, not necessarily the first aggressor.  Before this  
            amendment, the Code section required law enforcement to  
            identify the primary aggressor.  It proved to be confusing in  
            law enforcement training to refer to the primary aggressor,  
            because this was interpreted to mean the first person who  
            assaulted their partner.  One of the underlying purposes of  
            using the term dominant aggressor was to reduce the number of  
            dual arrests and have police officers arrest the most  
            significant aggressor in light of domestic violence mandatory  
            arrest laws.  In response, the legislature passed laws that  
            changed primary aggressor to dominant aggressor in Penal Code  








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            Section 13701.  Existing California law, Penal Code Section  
            836, provides that the most significant, not the first  
            aggressor should be arrested.  However, the section is  
            mislabeled and the term 'primary' aggressor is listed instead  
            of 'dominant aggressor'.  AB 258 in a minor technical clean-up  
            bill that will not change anything in current practice.  This  
            bill will align the Penal Code Sections and ensure there is no  
            confusion for law enforcement when interpreting the law."

           4)Related Legislation  : AB 1082 (Torrico) establishes the  
            Domestic Violence Prevention Fund and the Domestic Abuser  
            Surveillance Fund by imposing a sales and use tax on harmful  
            matter.  AB 1082 is pending referral by the Assembly Rules  
            Committee. 

           5)Prior Legislation  :  SB 1944 (Solis), Chapter 1001, Statutes of  
            2000, provided that peace officers shall make reasonable  
            efforts to identify the "dominant" aggressor, rather than the  
            "primary" aggressor, regarding the arrest of domestic violence  
            offenders.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Federation of State, County and Municipal Employees
          California Partnership to End Domestic Violence 
          Legal Services for Prisoners of Children

           Opposition 
           
          None received

           
          Analysis Prepared by  :    Kimberly Horiuchi / PUB. S. / (916)  
          319-3744