BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 8 3 4 SB 834 (Florez) As Amended March 25, 2010 Hearing date: April 6, 2010 Penal Code MK:mc COURT ORDERS: MINOR VICTIMS: PROHIBITIONS ON COMMUNICATIONS HISTORY Source: Allred, Maroko and Goldberg Prior Legislation: None Support: California State Sheriffs' Association Opposition:California Attorneys for Criminal Justice; American Civil Liberties Union KEY ISSUES SHOULD THE COURT BE AUTHORIZED TO PROHIBIT A CONVICTED DEFENDANT FROM HAVING ANY CONTACT OR COMMUNICATION WITH THE VICTIM OR THE VICTIM'S FAMILY MEMBERS, SPOUSE, COWORKERS, OR ANY OTHER PERSON DESIGNATED BY THE COURT WHO HAS A SOCIAL RELATIONSHIP WITH THE VICTIM IN A CASE IN WHICH THE VICTIM WAS A MINOR? SHOULD THE COURT BE AUTHORIZED TO PROHIBIT ANY PERSON ACTING ON (More) SB 834 (Florez) PageB BEHALF OF, OR AT THE REQUEST OF, A CONVICTED DEFENDANT FROM HAVING ANY CONTACT OR COMMUNICATIONS WITH THE VICTIM OR VICTIM'S FAMILY MEMBERS, SPOUSE, COWORKERS, OR ANY OTHER PERSON DESIGNATED BY THE COURT WHO HAS A SOCIAL RELATIONSHIP WITH THE VICTIM IN A CASE IN WHICH THE VICTIM WAS A MINOR? PURPOSE The purpose of this bill is to specifically authorize the court, upon conviction in a case where the victim was a minor, to prohibit the defendant or anyone acting on behalf of or at the request of the defendant from having any contact or communications with the victim or the victim's family members, spouse, coworkers, or any other person designated by the court who has a social relationship with the victim. Existing law makes it a wobbler for a person who has been convicted of a violent offense to willfully and maliciously communicate to a witness to, or a victim of, the crime for which the person was convicted, a credible threat to use force or violence upon that person or that person's immediate family. (Penal Code 139.) Existing law gives a court with jurisdiction over the defendant authority to issue orders to protect a victim or witness upon good cause belief that harm to or intimidation or dissuasion of a victim has occurred or is reasonably likely to occur. (Penal Code 1136.2.) Existing law provides that if a court makes an order under Penal Code Section 1136.2, it shall order any party it has enjoined from taking action to obtain the address or location of a protected party or a protected party's family members, caretakers, or guardian unless there is good cause not to make the order. (Penal Code 1136.3.) Existing law provides that every person imprisoned in county jail or the state prison who has been convicted of a sexual offense who knowingly reveals the name and address of any (More) SB 834 (Florez) PageC witness or victim to that offense to any other prisoner with the intent that the other prisoner will intimidate or harass the witness or victim through the initiation of unauthorized correspondence with the witness or victim, is guilty of a public offense, punishable as a wobbler. (Penal Code 136.7.) Existing law provides that no law enforcement officer or employee of a law enforcement agency shall disclose to any arrested person, or to any person who may be a defendant in a criminal action, the address or telephone number of any person who is a victim or witness in the alleged offense. However, nothing shall impair or interfere with the right of a defendant to obtain information necessary for the preparation of his or her defense through the discovery process or impair or interfere with the right of an attorney to obtain the address or telephone number of any person who is a victim of, or a witness to, an alleged offense where a client of that attorney has been arrested for, or may be a defendant in a criminal action related to the alleged offense. (Penal Code 841.5.) Existing law provides that each district attorney and law enforcement agency shall establish a procedure to protect the personal confidential information regarding any witness or victim in any police, arrest, or investigative report. This shall not be construed to impair or affect a criminal defense counsel's access to unredacted reports otherwise authorized by law, or the submission of documents in support of a civil complaint. (Penal Code 964.) Existing law provides that no attorney may disclose or permit to be disclosed to a defendant, members of the defendant's family or anyone else, the address or telephone number of a victim or witness whose name is disclosed to the attorney, unless specifically permitted to do so by the court after a hearing and a showing of good cause. However, an attorney may disclose or permit to be disclosed the address or telephone number of a victim or witness to persons employed by the attorney or to persons appointed by the court to assist in the preparation of a defendant's case if the disclosure is required for that preparation. Violation of this prohibition is a misdemeanor. (More) SB 834 (Florez) PageD (Penal Code 1054.2.) This bill provides that upon the conviction of a defendant for an offense involving a minor victim or in the case of a minor appearing in juvenile court whose petition is admitted or sustained for an offense involving a minor victim, the court is authorized to issue orders that would do either or both of the following: Prohibit the defendant or juvenile from having any communications with the victim or the victim's family members, spouse, coworkers, or any other person designated by the court who has a social relationship with the victim or the victim's family members, spouse, coworkers, or any other person designated by the court who has a social relationship with the victim. Prohibit any person acting on behalf of, or at the request of the defendant or juvenile from having any communications with the victim or the victim's family members, spouse, coworkers, or any other person designated by the court who has a social relationship with the victim. This bill provides that the court may authorize any person subject to an order issued pursuant to an order under this bill to contact or communicate with the victim or victim's family members, spouse, coworkers, or any other person designated by the court who has a social relationship with the victim if there is a noticed hearing as follows: Notice of the hearing is served not less than three days prior to the hearing on the victim, on all persons who the victim has designated for the receipt of notice, and on the prosecuting attorney. Good cause for authorizing the contact or communication is shown at the hearing. This bill provides that anyone who is authorized to make contact shall not annoy, harass or threaten any person protected by the order. (More) SB 834 (Florez) PageE This bill provides that a violation of an order pursuant to this bill is punishable as misdemeanor criminal contempt pursuant to Penal Code Section 166. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION 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 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 (More) SB 834 (Florez) PageF 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 adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010 ruling pending the state's appeal of the decision to the U.S. Supreme --------------------------- <1> 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). (More) SB 834 (Florez) PageG Court. That appeal, and the final outcome of this litigation, is not anticipated until later this year or 2011. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: Existing law, relating to restraining orders and criminal protective orders, unfortunately do not address the type of harm a minor-victim may suffer following the conclusion of the criminal proceedings he or she has testified in. In addition, existing law does very little to protect the welfare and privacy of a minor-victim's family, friends, and others following the same criminal proceedings. At least one victim from a recent sexual assault case was contacted, electronically and otherwise, by agents of the defendant (and/or his supporters) following his conviction and sentencing. Moreover, the victim's friends and family were also contacted by a defendant's supporters. In this case the minor-victim's identity was protected during trial, which permitted her to testify without fear of retaliation, and it allowed her to go about her life without being ridiculed or ostracized by her peers. However, when the defendant's private investigators contacted the victim and her friends, via the internet and in some cases through text-messaging, the communications revealed many sensitive matters covered in court in addition to the victim's identity. Unfortunately, a civil restraining order could not (More) SB 834 (Florez) PageH address the immediacy of the victim's situation (because most of the damage has been done) and it would have been difficult for the victim to reappear in court and relive this troubling experience. Although, existing law permits a court to issue an order upon good cause belief that harm to or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, Penal Code Section 136.2, such an order was not viable in this case as the criminal proceedings were concluded and the court no longer had jurisdiction over the matter. While the victim in this case was able to retain a private attorney to seek other civil remedies against her harassers-most victims in her position do not have such an option. This bill would remedy this situation by permitting a court, upon the conviction of a defendant for an offense involving a minor victim, to issue orders prohibiting the defendant or any person acting on behalf of, or at the request of, the defendant from having any communications with the victim or victim's family members, spouse, coworkers, or any other person designate by the court who has a social relationship with the victim. 2. Court Order This bill authorizes the court, upon conviction of a defendant in a case where the victim was a minor, to issue orders that would do one or both of the following: Prohibit the defendant or juvenile from having any contact or communications with the victim or victim's family members, spouse, coworkers, or any other person designated by the court who has a social relationship with the victim. Prohibit any person acting on behalf of, or at the (More) SB 834 (Florez) PageI request of, the defendant or juvenile from having any contact or communications with the victim or victim's family members, spouse, coworkers, or any other person designated by the court who has a social relationship with the victim. The court may authorize a person subject to the order to contact or communicate with the victim or victim's family members, etcetera, after a noticed hearing. A violation of the order would be punishable as a misdemeanor under Penal Code Section 166. 3. Jurisdiction Under Penal Code Section 136.2, a court can order a defendant to stay away from a victim or witness while the trial is going on. The court can also order a convicted defendant to stay away from a victim if the defendant is granted probation. This bill would extend the right to order a defendant to stay away from a victim to post conviction where there is no probation given and apply it not only to the defendant but to anyone acting on behalf of the defendant or at the request of the defendant and extend the reach not just to the victim but to the victim's family member, spouse, coworkers or any other person designated by the court who has a social relationship with the victim. It is not clear that the trial court retains jurisdiction over a defendant who is not given probation after the person has been convicted and is sentenced. It is clear that the court retains jurisdiction after a criminal case over specified areas, including terms of probation (In re Osslo (1958) 51 C.2d 371, 379, 380, 334 P.2d 1); the ability of a defendant to reimburse a county for fees (People v. Turner (1993) 15 C.A.4th 1690, 1695, 1696, 19 C.R.2d 736.); and, to recall a legally invalid sentence (People v. Blume (1960) 183 C.A.2d 474, 477, 7 C.R. 16). According to Witkin the trial court also has jurisdiction over specified noncriminal proceedings within or related to criminal trials: (More) SB 834 (Florez) PageJ (1) Proceedings for discovery (2 Cal. Evidence (4th), Discovery, 1 et seq.). (2) Proceedings for determination of present sanity (5 Cal. Crim. Law (3d), Criminal Trial, Trial, 694 et seq.). (3) Sex offender proceedings (6 Cal. Crim. Law (3d), Criminal Judgment, 126, 128). (4) Bail forfeiture (4 Cal. Crim. Law (3d), Pretrial Proceedings, 103 et seq.). (5) Coram nobis (6 Cal. Crim. Law (3d), Criminal Judgment, 182 et seq.). (6) Extraordinary writ proceedings (6 Cal. Crim. Law (3d), Criminal Writs, 1 et seq.). (7) Rehabilitation proceedings (3 Cal. Crim. Law (3d), Punishment, 671). (4 Witkin Cal. Crim. Law Jur & Ven 14) None of these examples of continuing jurisdiction seem to apply to the situation conceived by this bill. In fact, case law seems to indicate that there is no jurisdiction retained by the (More) SB 834 (Florez) PageK trial court.<2> Thus, it is unclear how the court would have the authority to make the order contemplated by this bill. Furthermore, the court has no jurisdiction over a person who is not the defendant. A person may be acting on behalf or the defendant with or without the defendant's knowledge. It is not clear how the court would have the jurisdiction to order these people to not contact the victim or how the court could broadly order "any person on acting on the defendant's behalf" not to do so. A person who has not been served with the order could not be convicted for violating it. WOULD THE COURT HAVE THE JURISDICTION TO MAKE THIS ORDER AFTER A PERSON HAS BEEN CONVICTED? HOW DOES THE COURT HAVE THE JURISDICTION OVER ANYONE ACTING ON THE DEFENDANT'S BEHALF, BUT NOT AT THE DEFENDANT'S REQUEST? (More) --------------------------- <2> See In re Johannes (1931) 213 C. 125, 129, 1 P.2d 984; People v. Sonoqui (1934) 1 C.2d 364, 366, 35 P.2d 123; France v. Superior Court (1927) 201 C. 122, 126, 132, 255 P. 815 [superior court cannot discharge defendant on habeas corpus on ground appearing on face of record that could be raised in appeal]; People v. Haynes (1969) 270 C.A.2d 318, 321, 75 C.R. 800, citing the text [superior court judge cannot grant coram nobis to vacate judgment]; People v. Getty (1975) 50 C.A.3d 101, 107, 123 C.R. 704, quoting the text [court without jurisdiction to modify order of commitment to Youth Authority]; People v. Mendez (1999) 19 C.4th 1084, 1094, 81 C.R.2d 301, 969 P.2d 146, supra, 10, citing the text [notice of appeal largely divests superior court of jurisdiction and vests it in Court of Appeal]; 9 Cal. Proc. (4th), Appeal, 21 et seq.; C.E.B., 1 Appeals and Writs in Criminal Cases, 1.41; 5 Am.Jur.2d (1995 ed.), Appellate Review 422, 423; 89 A.L.R.2d 1236 [jurisdiction to proceed with trial pending appeal from order overruling demurrer, motion to quash, or similar motion for dismissal]; on instances where the trial court retains jurisdiction, see infra, 25, 26. (6 Witkin Cal. Crim. Law Crim Appeal 23) 4. Access by Appellate and Habeas Counsel This bill would allow the court to prohibit anyone from contacting the victim or his or her friends, relatives, acquaintances on behalf of the defendant. If such an order is entered, it would not only preclude contacting the victim for post-conviction proceedings, but also would preclude a re-investigation of the crime should the prosecution later announce its intention to use the prior crime as a third strike or an aggravating factor in a later capital prosecution. The dangers of one-sided investigation and the inherent problems with faulty identification and improper withholding of exculpatory information concerning such crimes have been shown in recent years. (See, e.g., Edward Humes, Mean Justice (1999) (recounting the misconduct in several Kern County prosecutions); People v. Uribe, Order re: Outrageous Prosecutorial Misconduct, Santa Clara County Superior Court No. CC598686 (Jan, 6, 2010) (dismissing child sexual assault prosecution for Due Process violations resulting from district attorney's withholding of videotaped medical examination of the victim). Any order permitted by this bill would need to exempt appellate and habeas counsel as well as their investigators, as well as any other attorneys investigating the conviction for the purpose of use in a future case. If the defendant is sued by the victim, this would also seem to prohibit the defendant from investigating his or her defense in the civil case. SHOULD THE BILL CLEARLY EXEMPT APPELLATE AND HABEAS COUNSEL, AS WELL AS ANY OTHER COUNSEL ACTING ON THE DEFENDANT'S BEHALF FROM ANY ORDER ISSUED UNDER THIS BILL? 5. Any Crime Where the Victim is a Minor This bill would apply to any offense in which the victim is a minor, even a minor offense including a petty theft or vandalism. If the court has jurisdiction, should the court really be able to make such an order in any case where the (More) SB 834 (Florez) PageM juvenile is a victim? SHOULD THE TYPE OF ORDER CREATED BY THIS BILL APPLY IN ANY CASE WHERE THE VICTIM IS A MINOR? 6. Broad Reach to Anyone With a "Social Relationship" This bill allows the court to prohibit contact with anyone who "has a social relationship with the victim." It is unclear what "social relationship" means. Is it someone you consider friends, or can it be a friend of a friend who you see at social functions? Can it be the person that sits next to you in one class? Can it be the person who makes your coffee at the coffee house every morning and knows your name and where you go to school? In order for a criminal order to be enforceable, it cannot be too vague. IS EXTENDING THE PROTECTIONS TO PEOPLE WHO HAVE A SOCIAL RELATIONSHIP WITH THE VICTIM TOO BROAD OR VAGUE? 7. Criminal Order vs. Civil Injunction Since it is unclear that the criminal court retains jurisdiction over the defendant, a more appropriate action may be a civil injunction against the person who is actually harassing the victim or someone the victim knows. IS A CRIMINAL ORDER THE APPROPRIATE SOLUTION TO THIS PROBLEM? ***************