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 












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