BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          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  




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          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  




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          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.   




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          (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.





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           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  




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               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).




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          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  




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              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  




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               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:
               




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              (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  
























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          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?






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          ---------------------------
          <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  




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          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?


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