BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 834
                                                                  Page 1

          Date of Hearing:   June 29, 2010
          Counsel:                Nicole J. Hanson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     SB 834 (Florez) - As Amended:  June 1, 2010


           SUMMARY  :   Authorizes the court, upon the conviction of a  
          defendant for a sexual offense involving a minor victim, or if a  
          juvenile petition involving a sexual offense against a minor  
          victim is admitted or sustained, to issue orders prohibiting the  
          defendant or juvenile, for a period up to 10 years, from  
          harassing, intimidating, or threatening the victim, or the  
          victim's family members or spouse.  

          1)Provides upon the conviction of a defendant for a sexual  
            offense involving a minor victim, or in the case of a minor  
            appearing in juvenile court if a petition is admitted or  
            sustained for a sexual offense involving a minor victim, the  
            court is authorized to issue orders that would prohibit the  
            defendant or juvenile, for a period up to 10 years, from  
            harassing, intimidating, or threatening the victim or the  
            victim's family members or spouse.

          2)States no order issued pursuant to this section shall be  
            interpreted to apply to counsel acting on behalf of the  
            defendant or juvenile, or to investigators working on behalf  
            of counsel, in an action relating to a conviction, petition in  
            juvenile court, or any civil action arising therefrom,  
            provided, however, that no counsel or investigator shall  
            harass or threaten any person protected by an order issued  
            under this section. 

          3)Mandates notice of the intent to request an order pursuant to  
            this section shall be given to counsel for the defendant or  
            juvenile by the prosecutor or the court at the time of  
            conviction, or disposition of the petition in juvenile court,  
            and counsel shall have adequate time in which to respond to  
            the request before the order is made. 

          4)Punishes violations of an order issued under this section as a  
            one year misdemeanor. 








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           EXISTING LAW  :

          5)Makes it an alternate felony/misdemeanor 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 Section 139.)

          6)Grants a court with jurisdiction over the defendant the  
            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 Section 1136.2.)

          7)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 Section 1136.3.)

          8)States 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 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 an alternate  
            felonly/misdemeanor.  (Penal Code Section 136.7.)

          9)Prohibits any law enforcement officer or employee of a law  
            enforcement agency from disclosing 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  








                                                                  SB 834
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            action related to the alleged offense.  (Penal Code Section  
            841.5.)

          10)Requires each district attorney and law enforcement agency to  
            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 Section 964.)

          11)Disallows an attorney from disclosing or permitting 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.  (Penal Code Section 1054.2.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author of this bill,  
            "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  








                                                                  SB 834
                                                                  Page 4

            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 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)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 under way.  The court can also order a convicted  
            defendant to stay away from a victim if the defendant is  
            granted probation.  This bill extends the right to order a  
            defendant to stay away from a victim to post conviction where  
            there is no probation given.

          It is not clear that the trial court retains jurisdiction over a  
            defendant who is not given probation after the person has been  








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                                                                  Page 5

            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 []; 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:  proceedings for discovery,  
            proceedings for determination of present sanity, sex offender  
            proceedings, bail forfeiture, coram nobis, extraordinary writ  
            proceedings, and rehabilitation proceedings.  (6 Witkin Cal.  
            Crim. Law Crim Appeal Section 23.)

          In fact, case law seems to indicate that there is no  
            jurisdiction retained by the trial court. While statutes exist  
            that grant the court similar authority in stalking and  
            domestic violence cases, those do not appear to have been  
            challenged in court.  

          Since jurisdiction can only rest in one court at a time, and  
            after conviction that court is the appropriate appellate  
            court, it is unclear whether the court will have the authority  
            to make the order contemplated by this bill.

           3)Prior Legislation  :  AB 289 (Spitzer), Chapter 582, Statutes of  
            2007, allows a court to issue a protective order for 10 years  
            upon a defendant's conviction of willful infliction of  
            corporal injury.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California State Sheriffs' Association 
          Orange County Employees Association 
           
            Opposition 
           
          None


           Analysis Prepared by :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744