BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

          AB 1738 (Tran)                                             8
          As Amended May 24, 2010 
          Hearing date:  June 15, 2010
          Family Code

                          DOMESTIC VIOLENCE: INCIDENT REPORTS  


          Source:  Conference of California Bar Associations

          Prior Legislation: AB 403 (Romero) - Chap. 1022, Stats. 1999
                       SB 1265 (Alpert) - Chap. 377, Stats. 2002

          Support: Executive Committee of the Family Law Section of the  
                   State Bar; Crime Victims Action Alliance; Peace  
                   Officers Research Association of California

          Opposition:None known

          Assembly Floor Vote:  Ayes  74 - Noes  0

                                         KEY ISSUE




                                                             AB 1738 (Tran)

          The purpose of this bill is to expand the current law providing  
          domestic violence victims with a free copy of the domestic  
          violence incident report to include family members and  
          additional representatives, as specified.

           Current law  requires state and local law enforcement agencies to  
          provide, without charging a fee, one copy of all domestic  
          violence incident report face sheets, one copy of all domestic  
          violence incident reports, or both, to a victim of domestic  
          violence, or to his or her representative if the victim is  
          deceased, upon request.  (Family Code  6228.)

           Current law  provides that, for purposes of this section, a  
          representative of the victim where the victim is deceased, means  
          any of the following:

                 The surviving spouse.
                 A surviving child of the decedent who has attained 18  
               years of age.
                 A domestic partner.
                 A surviving parent of the decedent.
                 A surviving adult relative.
                 The public administrator if one has been appointed.   
               (Family Code  6228(g).)

           This bill  would revise this list to include in this authority  
          the "personal representative of the victim, as defined in  



                                                             AB 1738 (Tran)

          Section 58 of the Probate Code,<1> if one is appointed."

           This bill  additionally would authorize "either of" the following  
          persons as representatives entitled to this information where  
          the victim is not deceased:


                 A parent, sibling, or adult child of the victim, who  
               shall present to law enforcement his or her identification  
               and a signed authorization by the victim allowing that  
               family member to act on behalf of the victim.

                 An attorney for the victim, who shall present to law  
               enforcement his or her identification and written proof  
               that he or she is the attorney for the victim.

                 A conservator or guardian of the victim.

           This bill  would provide that domestic violence incident report  
          face sheets may not be provided to a representative of the  
          victim unless both of the following conditions are met:

                 The representative presents his or her identification,  
          <1> This section provides:  "58 (a) 'Personal representative'  
          means executor, administrator, administrator with the will  
          annexed, special administrator, successor personal  
          representative, public administrator acting pursuant to
          Section 7660, or a person who performs substantially the same  
          function under the law of another jurisdiction governing the  
          person's status.  (b) 'General personal representative' excludes  
          a special administrator unless the special administrator has the  
          powers, duties, and obligations of a general personal  
          representative under Section 8545."



                                                             AB 1738 (Tran)

               such as a current, valid driver's license, a state-issued  
               identification card, or a passport.

                 The representative presents one of the following:

                  o         If the victim is deceased, a certified copy of  
                    the death certificate or other satisfactory evidence  
                    of the death of the victim at the time of the request.

                  o         If the victim is alive, a written  
                    authorization signed by the victim making him or her  
                    the victim's personal representative.
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  



                                                             AB 1738 (Tran)

               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, California's prisons remain severely  
               overcrowded, and inmates in the California prison  
               system continue to languish without constitutionally  



                                                             AB 1738 (Tran)

               adequate medical and mental health care.<2>


          <2>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).

          The court stayed implementation of its January 12, 2010, ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not aggravate the prison overcrowding crisis  
          described above.


          1.  Stated Need for This Bill

           The author states:

               Current law authorizes a victim of domestic violence  
               (or the representative of a deceased victim of  
               domestic violence . . . .) to obtain one copy of the  
               domestic violence incident report or domestic violence  
               incident report face sheets, to support the  
               evidentiary showing required to obtain a temporary  
               restraining order or protective order, and for other  
               purposes.  However, the law does not permit the victim  
               to authorize a representative, including the attorney  
               hired to represent the victim in the matter, to obtain  
               a copy of the incident report or face sheets on the  
               victim's behalf; a representative of the victim may  
               only obtain a copy of the incident report or face  
               sheets if the victim is deceased.  Thus, a victim who  
               is injured, has moved to another location, or is  
               otherwise unable to appear in person, cannot obtain a  
               copy of the incident report or face sheet.  Existing  
               law further does not authorize the conservator of a  
               victim to has been determined incapacitated or the  
               guardian of a minor victim to obtain a copy of the  
               reports or face sheets on the victim's behalf.

               AB 1738 . . . would permit a victim of domestic  
               violence to authorize a member of her or his immediate  
               family (representative to obtain a copy of the  



                                                             AB 1738 (Tran)

               incident report or face sheet on her or his behalf.   
               It would also authorize the attorney of the victim  
               hired to represent the victim in the matter related to  
               the domestic violence and the conservator or guardian  
               of the victim to obtain a copy of the incident report  
               or face sheet.  All authorizations would be subject to  
               the existing prohibition against the reports or face  
               sheets being provided to any person who has been  
               convicted of murder in the first degree, as defined in  
               Section 189 of the Penal Code, of the victim, or any  
               person identified in the incident report face sheet as  
               a suspect.  
          2.  What This Bill Would Do

           Current law generally requires that victims of domestic violence  
          or, where a victim is deceased, their representative receive one  
          free copy of all domestic violence incident report face sheets,  
          one copy of all domestic violence incident reports, or both, as  
          specified.  This bill would make the following changes to this  

                 Authorize a family member, attorney or conservator or  
               guardian of the victim to this information where a victim  
               is alive and has authorized that person to receive the  
               information, as specified;
                 Authorize a personal representative, as defined in the  
               Probate Code, to this information where a victim is  
               deceased;<3> and
                 Clarify the requirements for a victim representative to  
               obtain information under this section.

          3.  Background

           As explained in the analysis of this bill prepared by the  
          Assembly Judiciary Committee:

               Law enforcement is required to complete a domestic  
               violence incident report for each domestic  

          <3>   See fn. 1, supra.


                                                             AB 1738 (Tran)

               violence-related call it receives.  These reports may  
               be evidence for a court to consider when determining  
               whether to issue a protective order for the victim.   
               Originally, victims of domestic violence had to write  
               and request copies of those reports, which were then  
               provided by mail, a process that often took several  
               weeks.  That delay prejudiced victims in their ability  
               to present a case for a protective order, so, in 1999,  
               the Legislature required that victims be provided with  
               an expedited and affordable method for obtaining these  
               important reports.  (AB 403 (Romero, Chap. 1022,  
               Stats. 1999.)  

               The Legislature expanded this provision to include  
               representatives of deceased domestic violence victims  
               in response to an incident where a victim had committed  
               suicide.  In that case, the victim's mother sought  
               emergency temporary custody of the victim's children,  
               and needed to obtain the police reports to support her  
               case - yet she was unable to get these reports until  
               she hired an attorney.  The 2002 legislation extended  
               to specified representatives of a deceased victim of  
               domestic violence the right a living victim has to get  
               face sheets and incident reports from law enforcement  
               upon request.  (SB 1265 (Alpert, Chap. 377, Stats.