BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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0
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AB 2051 (Campos) 1
As Amended May 16, 2012
Hearing date: June 12, 2012
Penal Code
AA:mc
DOMESTIC VIOLENCE:
VICTIM TESTIMONY
HISTORY
Source: California District Attorneys Association
Prior Legislation: SB 1356 (Yee) - Ch. 49, Stats. 2008
AB 41 (Yee) - 2006, died in the Assembly
AB 363 (Nolan) - Ch. 866, Stats. 1991
SB 1678 (McCorquodale) - Ch. 1644, Stats. 1984
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUES
SHOULD COURTS BE AUTHORIZED TO REFER DOMESTIC VIOLENCE VICTIMS WHO
REFUSE TO TESTIFY TO A DOMESTIC VIOLENCE COUNSELOR, AS SPECIFIED?
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SHOULD PROSECUTORS BE ABLE TO RE-FILE A PROSECUTION WITHIN 6 MONTHS
OF A DISMISSAL WHERE A SEXUAL ABUSE OR DOMESTIC VIOLENCE VICTIM WAS
FOUND IN CONTEMPT FOR REFUSING TO TESTIFY, AS SPECIFIED?
PURPOSE
The purpose of this bill is to authorize courts to refer victims
of domestic violence cases to a domestic violence counselor when
they refuse to testify, and to authorize prosecutors to re-file
charges when they dismiss cases due to a domestic violence
victim's failure to testify, as specified.
Current law generally provides victims of crime the
constitutional right to "refuse an interview, deposition, or
discovery request by the defendant, the defendant's attorney, or
any other person acting on behalf of the defendant, and to set
reasonable conditions on the conduct of any such interview to
which the victim consents," and to "reasonable notice of and to
reasonably confer with the prosecuting agency, upon request,
regarding the arrest of the defendant if known by the
prosecutor, the charges filed, the determination whether to
extradite the defendant, and, upon request, to be notified of
and informed before any pretrial disposition of the case."
(Cal. Const. Art. 1, § 28 (b) (5) and (6).) "A victim, the
retained attorney of a victim, a lawful representative of the
victim, or the prosecuting attorney upon request of the victim,
may enforce the rights enumerated (in the Constitution) in any
trial or appellate court with jurisdiction over the case as a
matter of right. The court shall act promptly on such a
request." (Cal. Const. Art. 1 § 28(c) (1).)
Current law enumerates specified acts or omissions with respect
to a court of justice or proceedings therein which are contempt
of the authority of the court, including "refusing to be sworn
or answer as a witness." (Code of Civil Procedure §
1209(a)(9).)
Current law provides generally that "when the contempt consists
of the omission to perform an act which is yet in the power of
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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." (CCP § 1219(a).)
However, current law provides 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."<1> (CCP § 1219 (b).)
This bill would provide that "(b)efore 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."
This bill would define "domestic violence counselor" in this
context to mean "'domestic violence counselor' as defined in
subdivision (a) of Section 1037.1 of the Evidence Code."<2>
Current law provides generally that an order terminating an
action 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, 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
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<1> As used in this section, "sexual assault" means any act made
punishable by Section 261, 262, 264.1, 285, 286, 288, 288a, or
289 of the Penal Code, and "domestic violence" means "domestic
violence" as defined in Section 6211 of the Family Code.
<2> That section states, "As used in this article, 'domestic
violence counselor' means a person who is employed by a domestic
violence victim service organization, as defined in this
article, whether financially compensated or not, for the purpose
of rendering advice or assistance to victims of domestic
violence and who has at least 40 hours of training as specified
in paragraph (2)."
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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 for domestic
violence, spousal rape or violation of a domestic violence
protective order, as specified. "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." (Penal Code § 1387(a).)
This bill would add an additional exception allowing further
prosecution after the dismissal of a case where the termination
of the action was the result of the complaining witness being
found in contempt of court for refusing to testify about a
sexual assault or domestic violence crime, as specified. This
bill would provide that this provision "shall apply only within
six months of the original dismissal of the action, and may be
invoked only once in each action."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
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penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations
for felonies or constricting statutory parole standards). In
addition, proposed expansions to the classification of felonies
enacted last year by AB 109 (the 2011 Public Safety Realignment)
which may be punishable in jail and not prison (Penal Code
section 1170(h)) would be subject to ROCA because an offender's
criminal record could make the offender ineligible for jail and
therefore subject to state prison. Under these principles, ROCA
has been applied as a content-neutral, provisional measure
necessary to ensure that the Legislature does not erode progress
towards reducing prison overcrowding by passing legislation
which could increase the prison population. ROCA will continue
until prison overcrowding is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
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to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
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The author states in part:
SB 1356 (Yee) 2008, removed the provision 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 will help to enhance
their safety. The elimination of these provisions has
resulted in a greater number of domestic violence
victims refusing to testify against their abusers,
thus denying justice for victims and making it
extremely difficult to successfully prosecute domestic
violence cases. 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 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. . . .
Prosecutors feared that SB 1356 would have a dire
impact on domestic violence cases by eliminating the
court's ability to incarcerate. Incarceration was a
tool that was rarely exercised, but its threat was a
very powerful incentive. It produced victim testimony
in serious domestic violence cases while protecting
victims. The force of the law sent a clear message to
abusive partners that the government - not the victim
- was making the decision to pursue a criminal action.
Ultimately, this measure has resulted in defense
attorneys misinterpreting CCP §1219 and advising
domestic violence victims that they have the right to
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refuse to testify, thus preventing prosecutors from
going forward with the case.
SB 1356 also had the consequence of removing the
court's ability to require victims to undergo
counseling if they refused to testify. Professional
counseling can help victims begin the healing process
they desperately need after experiencing such
traumatic abuse. 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.
Finally, this measure will 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).
This bill will extend that same authorization to cases
that were dismissed due to victim contempt for refusal
to testify. . . .
This bill will provide the special care that domestic
violence victims need, offer victims the opportunity
to pursue the justice that they deserve, and give
prosecutors the tools they require to ensure that
perpetrators of domestic violence are brought to
justice. . . .
2. What This Bill Would Do
As explained above, this bill pertains to the issue of domestic
violence and sexual assault victims who refuse to testify. This
bill would do two principal things:
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This bill would authorize courts to refer a domestic
violence victim for consultation with a domestic violence
counselor before finding the victim in contempt of court
for refusing to testify; and
This bill would provide 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 a sexual
assault or domestic violence crime, as specified. This is
consistent with current law that 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).
3. Background
As explained above, until the passage of SB 1356 (Yee) in 2008
domestic violence victim witnesses who were found in contempt of
court for refusing to testify were not initially subject to
incarceration for that contempt. Instead, the court could
require a victim to attend up to 72 hours of relevant
programming or community service, provided that in a subsequent
finding of contempt for refusing to testify arising out of the
same case, the court could incarcerate the victim witness for
contempt for up to 5 days. In addition to removing the
incarceration sanction in these provisions, SB 1356 also removed
the provision that required victims who refused to testify to
undergo counseling.
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