BILL ANALYSIS Ó
AB 2051
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Date of Hearing: May 8, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2051 (Campos) - As Amended: March 29, 2012
As Proposed to be Amended in Committee
SUMMARY : Authorizes courts to refer victims of domestic
violence cases to a domestic violence counselor when they refuse
to testify and permits prosecutors to re-file charges when they
dismiss cases due to a domestic violence victim's failure to
testify. Specifically, this bill :
1)Authorizes courts 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.
2)Specifies that any communications between the victim and the
domestic violence counselor would remain confidential, subject
to certain exceptions.
3)Provides that an order terminating an action does not bar
further prosecution within six months 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.
EXISTING LAW :
1)Includes the following acts or omissions in respect to a court
of justice, or proceedings therein, are contempts of authority
of the court: (Code of Civil Procedure Section 1209.)
a) Disorderly, contemptuous, or insolent behavior toward
the judge while holding the court, tending to interrupt the
due course of a trial or other judicial proceeding;
b) A breach of the peace, boisterous conduct, or violent
disturbance, tending to interrupt the due course of a trial
or other judicial proceeding;
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c) Misbehavior in office, or other willful neglect or
violation of duty by an attorney, counsel, clerk, sheriff,
coroner, or other person, appointed or elected to perform a
judicial or ministerial service;
d) Abuse of the process or proceedings of the court, or
falsely pretending to act under authority of an order or
process of the court;
e) Disobedience of any lawful judgment, order, or process
of the court;
f) Rescuing any person or property in the custody of an
officer by virtue of an order or process of such court;
g) Unlawfully detaining a witness, or party to an action
while going to, remaining at, or returning from the court
where the action is on the calendar for trial;
h) Any other unlawful interference with the process or
proceedings of a court;
i) Disobedience of a subpoena duly served, or refusing to
be sworn or answer as a witness;
j) When summoned as a juror in a court, neglecting to
attend or serve as such, or improperly conversing with a
party to an action, to be tried at such court, or with any
other person, in relation to the merits of such action, or
receiving a communication from a party or other person in
respect to it, without immediately disclosing the same to
the court; and,
2)Disobedience by an inferior tribunal, magistrate, or officer,
of the lawful judgment, order, or process of a superior court,
or proceeding in an action or special proceeding contrary to
law, after such action or special proceeding is removed from
the jurisdiction of such inferior tribunal, magistrate, or
officer: (Code of Civil Procedure Section 1209.)
a) No speech or publication reflecting upon or concerning
any court or any officer thereof shall be treated or
punished as a contempt of such court unless made in the
immediate presence of such court while in session and in
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such a manner as to actually interfere with its
proceedings.
b) Notwithstanding any other provision of law, if an order
of contempt is made affecting an attorney, his agent,
investigator, or any person acting under the attorney's
direction, in the preparation and conduct of any action or
proceeding, the execution of any sentence shall be stayed
pending the filing within three judicial days of a petition
for extraordinary relief testing the lawfulness of the
court's order, the violation of which is the basis of the
contempt, except for such conduct as may be proscribed by
Business and Professions Code Section 6068(b), relating to
an attorney's duty to maintain respect due to the courts
and judicial officers.
c) Notwithstanding any other provision of law, if an order
of contempt is made affecting a public safety employee
acting within the scope of employment for reason of the
employee's failure to comply with a duly issued subpoena or
subpoena duces tecum, the execution of any sentence shall
be stayed pending the filing within three judicial days of
a petition for extraordinary relief testing the lawfulness
of the court's order, a violation of which is the basis for
the contempt.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS :
1)Author's Statement : According to the author, "This bill would
simply provide a mechanism for victims to get the proper care
they deserve. It would also give victims the opportunity to
understand the legal process, along with their rights and
responsibilities, in an environment where they can be free
from the fear of retaliation at the hand of their abusers."
2)Background : SB 1356 (Yee), Chapter 49, Statutes of 2008,
removed the provision that required victims who refused to
testify to undergo counseling. Prior to the passage of SB
1356, existing law provided that domestic violence victims in
California could be found in contempt of court for refusing to
testify against their batterers and that punishment could be
incarceration. Existing law also provided two exceptions for
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incarceration: (1) a court could not imprison a victim of
sexual assault for contempt when the contempt consisted of
refusing to testify concerning that sexual assault; and (2)
courts were able to compel victims to testify by first
requiring them to attend a domestic violence counseling
program for victims, and then, if the victim continued to
refuse, the court had the option to incarcerate. According to
the author of SB 1356, the purpose of this legislation was to
"align protections for domestic violence victims with those
for sexual assault victims by exempting domestic violence
victims from being incarcerated when they were held in
contempt for refusing to testify in court." Prosecutors
feared that SB 1356 would have a dire impact on domestic
violence cases by eliminating the court's ability to
incarcerate.
SB 1356 also had the consequence of removing the court's
ability to require victims to undergo counseling if they
refused to testify. AB 2051 would authorize courts 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.
Finally, AB 2051 would allow prosecutors to re-file charges in
cases that were dismissed because the victim was held in
contempt for refusing to testify. Penal Code §1387(b) allows
prosecutors to re-file charges in domestic violence cases if
the case was dismissed due to the failure of the complaining
witness to appear in court (charges must be re-filed within
six months of the original dismissal date). AB 2051 will
extend that same authorization to cases that were dismissed
due to victim contempt for refusal to testify.
3)Judicial Discretion to Punish for Contempt : Code of Civil
Procedure Section 177 bestows upon every judicial officer the
power to compel the attendance of persons to testify in a
proceeding before him or her in the cases and manner provided
under existing law. Code of Civil Procedure Section 178
allows for the effectual exercise of the aforementioned power
by allowing a judicial officer to punish contempt.
Aside from statutory authority, it is a well-known principle of
jurisprudence that every court of general jurisdiction has
inherent power to punish for contempt persons who obstruct or
interfere with its proceedings. ÝEx parte Terry (1888) 128
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U.S. 303; People v. Turner (1850) 1 Cal. 152; People v.
Durrant (1897) 116 Cal. 209; 7 Am. & Eng. Ency. of Law, 2d
ed., p. 30, and numerous cases cited.] "The power to punish
for contempt is inherent in all courts; its existence is
essential to the preservation of order in judicial proceedings
and the enforcement of judgments, orders, and writs of the
court." ÝEx parte Robinson (1874) 86 U.S. 505, 511.] "The
power to punish for a contempt is inherent in the nature and
constitution of a court. It is a power not derived from any
statute, but arising from necessity; implied, because it is
necessary to the exercise of all other powers." ÝIn re Cooper
(1859) 32 Vt. 253, 257.]
Although, the power of the court to punish for contempt is
broad, it is not unlimited. Ý In re Burns (1958) 161 Cal. App.
2d 137.] "It is a drastic remedy, to be employed only when
necessary to the proper and orderly conduct of judicial
proceedings. A charge of contempt of court must be considered
judicially as the question of guilt of any criminal offense
must be, and a judge may not punish for contempt merely
because he has suffered annoyance through the failure of some
order he has made to receive instant observance." (Ibid. at
144.)
"Refusing to testify may be treated with different responses,
depending on the nature of the contempt, the options the court
may employ before finding contempt, and other considerations
that go into the making of a contempt holding. Before holding
a domestic violence victim in contempt for refusal to testify,
the court should assess whether a continuance for a reasonable
period may have the desired effect of getting the witness to
testify." ÝCal. Judges Benchbook: Domestic Violence Cases in
Criminal Court (CJER 2007) Considerations at Preliminary
Hearing or Trial, Section 4.36.]
4)Argument in Support : According to the California District
Attorneys Association, "Prior to 2009, then-current law
provided that domestic violence victims in California could be
found in contempt of court for refusing to testify against
their batterers and that a potential sanction for that finding
of contempt could be incarceration. Existing law also
provided two exceptions for incarceration: (1) a court could
not imprison a victim of sexual assault for contempt when the
contempt consisted of refusing to testify concerning a sexual
assault; and (2) courts were able to compel victims to testify
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by first requiring them to attend a domestic violence
counseling program for victims, and then, if the victim
continued to refuse, the court had the option to incarcerate.
"In 2008, SB 1356 (Yee, Chapter 49, Statutes of 2008) was
signed into law. This bill amended Section 1219 of the Code
of Civil Procedure (CCP) to state that, '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.' According to the
author of SB 1356, the purpose of this legislation was to
'align protections for domestic violence victims with those
for sexual assault victims by exempting domestic violence
victims from being incarcerated when they were held in
contempt for refusing to testify in court.'
"At the same time, however, SB 1356 removed a companion
provision that that required victims who refused to testify to
undergo counseling. This counseling helped victims to
understand that they would be protected from retaliation and
that testifying would help enhance their safety. Professional
counseling can help victims begin the healing process they
desperately need after experiencing such dramatic abuse.
"This bill would additionally allow prosecutors to re-file
charges in sexual assault and domestic violence cases that
were dismissed because the victim was held in contempt for
refusing to testify. Penal Code Section 1387(b) allows for
prosecutors to re-file charges in a domestic violence case if
the case was dismissed due to the failure of the complaining
witness to appear in court (charges must be re-filed within
six months of the original dismissal date). This bill will
extend similar authorization to cases that are dismissed due
to victim contempt for refusal to testify."
5)Argument in Opposition : According to the California Public
Defenders Association , "The Legislature should not presume
that a domestic violence victim is being disrespectful or
obstinate in refusing to testify against an alleged batterer.
The complaining witness may not want to participate in court
proceeding for a multitude of reasons. That person should not
be re-victimized on an institutional level for his or her
refusal to testify. Furthermore, allowing the prosecution to
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get a second bite at the apple in those instances where the
complaining witness is found in contempt is coercive and would
create a carve out that does not generally exist in other
felony or misdemeanor cases."
6)Prior Legislation :
a) SB 1356 (Yee), Chapter 49, Statutes of 2008, eliminates
the court's discretion to imprison or otherwise confine in
custody a victim of a domestic violence crime for contempt
when the contempt consists of refusing to testify
concerning that domestic violence crime.
b) AB 363 (Nolan), Chapter 866, Statutes of 1991, states
that where contempt consists of refusing to testify
concerning a victim of domestic violence, the execution of
any sentence shall be stayed pending the filing within
three judicial days of a petition for extraordinary relief
testing the lawfulness of the court's order. AB 363 also
requires victims of domestic violence who are found in
contempt for refusing to testify to attend up to 72 hours
of a domestic violence or community service program,
c) AB 1678 (McCorquodale), Chapter 1644, Statutes of 1984,
provides that no sexual assault victim who refuses to
testify may be imprisoned for contempt.
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
California District Attorneys Association
Opposition
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
AB 2051
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