BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1738 (Tran) 8
As Amended May 24, 2010
Hearing date: June 15, 2010
Family Code
AA:mc
DOMESTIC VIOLENCE: INCIDENT REPORTS
HISTORY
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
SHOULD THE CURRENT LAW PROVIDING DOMESTIC VIOLENCE VICTIMS WITH A
FREE COPY OF THEIR DOMESTIC VIOLENCE INCIDENT REPORT BE EXPANDED TO
INCLUDE FAMILY MEMBERS AND ADDITIONAL REPRESENTATIVES, AS SPECIFIED?
PURPOSE
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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
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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,
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<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."
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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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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
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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
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adequate medical and mental health care.<2>
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<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.
COMMENTS
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
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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
provision:
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
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<3> See fn. 1, supra.
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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.
2002.)
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