BILL NUMBER: AB 2051 CHAPTERED
BILL TEXT
CHAPTER 510
FILED WITH SECRETARY OF STATE SEPTEMBER 24, 2012
APPROVED BY GOVERNOR SEPTEMBER 24, 2012
PASSED THE SENATE AUGUST 13, 2012
PASSED THE ASSEMBLY MAY 21, 2012
AMENDED IN ASSEMBLY MAY 16, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Campos
FEBRUARY 23, 2012
An act to amend Section 1219 of the Code of Civil Procedure, and
to amend Section 1387 of the Penal Code, relating to domestic
violence.
LEGISLATIVE COUNSEL'S DIGEST
AB 2051, Campos. Contempt of court: domestic violence.
Existing law authorizes a court to punish for acts of contempt,
including authorizing a court to direct the incarceration of a
defendant until he or she complies with the court's order. Existing
law prohibits a court from imprisoning or otherwise taking into
custody the victim of a sexual assault or domestic violence crime for
contempt of court when the contempt consists of refusing to testify
about the sexual assault or domestic violence crime. Additionally,
under existing law, a victim of domestic violence has a privilege to
refuse to disclose, and to prevent another from disclosing,
confidential communications between the victim and a domestic
violence counselor, as specified.
This bill would authorize the court to refer a victim of a
domestic violence crime who refuses to testify to a domestic violence
counselor, as defined, before finding the victim in contempt of
court. Under the bill, any communications between the victim and the
domestic violence counselor would remain confidential, subject to
certain exceptions.
Existing law provides that an order terminating a criminal action
is a bar to further prosecution for the same offense, as specified.
This bar to subsequent prosecution does not apply in certain
circumstances, including if the court makes certain specified
findings after the dismissal of the action. These findings include
that the termination of the action was the result of the failure to
appear by the complaining witness, who had been personally subpoenaed
in a prosecution for misdemeanor battery, felony rape, felony
corporal injury, or a felony or misdemeanor violation of a court
order to prevent domestic violence.
This bill would provide that an order terminating an action does
not bar further prosecution for the same offense if the termination
of the action was the result of the complaining witness being found
in contempt of court for refusing to testify about the sexual assault
or domestic violence crime. This provision would apply only within 6
months of the original dismissal of the action, and could be invoked
only once in each action.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1219 of the Code of Civil Procedure is amended
to read:
1219. (a) Except as provided in subdivision (b), when the
contempt consists of the omission to perform an act which is yet in
the power of the person to perform, he or she may be imprisoned until
he or she has performed it, and in that case the act shall be
specified in the warrant of commitment.
(b) Notwithstanding any other law, no court may imprison or
otherwise confine or place in custody the victim of a sexual assault
or domestic violence crime for contempt when the contempt consists of
refusing to testify concerning that sexual assault or domestic
violence crime. Before finding a victim of a domestic violence crime
in contempt as described in this section, the court may refer the
victim for consultation with a domestic violence counselor. All
communications between the victim and the domestic violence counselor
that occur as a result of that referral shall remain confidential
under Section 1037.2 of the Evidence Code.
(c) As used in this section, the following terms have the
following meanings:
(1) "Sexual assault" means any act made punishable by Section 261,
262, 264.1, 285, 286, 288, 288a, or 289 of the Penal Code.
(2) "Domestic violence" means "domestic violence" as defined in
Section 6211 of the Family Code.
(3) "Domestic violence counselor" means "domestic violence
counselor" as defined in subdivision (a) of Section 1037.1 of the
Evidence Code.
SEC. 2. Section 1387 of the Penal Code is amended to read:
1387. (a) An order terminating an action pursuant to this
chapter, or Section 859b, 861, 871, or 995, is a bar to any other
prosecution for the same offense if it is a felony or if it is a
misdemeanor charged together with a felony and the action has been
previously terminated pursuant to this chapter, or Section 859b, 861,
871, or 995, or if it is a misdemeanor not charged together with a
felony, except in those felony cases, or those cases where a
misdemeanor is charged with a felony, where subsequent to the
dismissal of the felony or misdemeanor the judge or magistrate finds
any of the following:
(1) That substantial new evidence has been discovered by the
prosecution which would not have been known through the exercise of
due diligence at, or prior to, the time of termination of the action.
(2) That the termination of the action was the result of the
direct intimidation of a material witness, as shown by a
preponderance of the evidence.
(3) That the termination of the action was the result of the
failure to appear by the complaining witness, who had been personally
subpoenaed in a prosecution arising under subdivision (e) of Section
243 or Section 262, 273.5, or 273.6. This paragraph shall apply only
within six months of the original dismissal of the action, and may
be invoked only once in each action. Nothing in this section shall
preclude a defendant from being eligible for diversion.
(4) That the termination of the action was the result of the
complaining witness being found in contempt of court as described in
subdivision (b) of Section 1219 of the Code of Civil Procedure. This
paragraph shall apply only within six months of the original
dismissal of the action, and may be invoked only once in each action.
(b) Notwithstanding subdivision (a), an order terminating an
action pursuant to this chapter is not a bar to another prosecution
for the same offense if it is a misdemeanor charging an offense based
on an act of domestic violence, as defined in subdivisions (a) and
(b) of Section 13700, and the termination of the action was the
result of the failure to appear by the complaining witness, who had
been personally subpoenaed. This subdivision shall apply only within
six months of the original dismissal of the action, and may be
invoked only once in each action. Nothing in this subdivision shall
preclude a defendant from being eligible for diversion.
(c) An order terminating an action is not a bar to prosecution if
a complaint is dismissed before the commencement of a preliminary
hearing in favor of an indictment filed pursuant to Section 944 and
the indictment is based upon the same subject matter as charged in
the dismissed complaint, information, or indictment.
However, if the previous termination was pursuant to Section 859b,
861, 871, or 995, the subsequent order terminating an action is not
a bar to prosecution if:
(1) Good cause is shown why the preliminary examination was not
held within 60 days from the date of arraignment or plea.
(2) The motion pursuant to Section 995 was granted because of any
of the following reasons:
(A) Present insanity of the defendant.
(B) A lack of counsel after the defendant elected to represent
himself or herself rather than being represented by appointed
counsel.
(C) Ineffective assistance of counsel.
(D) Conflict of interest of defense counsel.
(E) Violation of time deadlines based upon unavailability of
defense counsel.
(F) Defendant's motion to withdraw a waiver of the preliminary
examination.
(3) The motion pursuant to Section 995 was granted after dismissal
by the magistrate of the action pursuant to Section 871 and was
recharged pursuant to Section 739.