BILL ANALYSIS Ó AB 2051 Page 1 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; AB 2051 Page 2 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 AB 2051 Page 3 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 AB 2051 Page 4 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 AB 2051 Page 5 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 AB 2051 Page 6 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 AB 2051 Page 7 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 Page 8