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. SB 834 Page 2 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 Page 3 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 SB 834 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