BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2051|
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THIRD READING
Bill No: AB 2051
Author: Campos (D)
Amended: 5/16/12 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/12/12
AYES: Hancock, Anderson, Harman, Liu, Price, Steinberg
NO VOTE RECORDED: Calderon
ASSEMBLY FLOOR : 76-0, 5/21/12 - See last page for vote
SUBJECT : Domestic violence: victim testimony
SOURCE : California District Attorneys Association
DIGEST : This bill authorizes 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.
ANALYSIS : Existing 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
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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."
(California Constitution (Cal. Const.) Article 1, Section
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. Article 1 Section 28(c) (1))
Existing 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 (CCP) Section 1209(a)(9))
Existing law provides generally that "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." (CCP Section 1219(a).) However, existing 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." (CCP Section 1219
(b))
This bill provides 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 defines "domestic violence counselor" in this
context to mean "'domestic violence counselor' as defined
in subdivision (a) of Section 1037.1 of the Evidence Code."
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Existing 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 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 Section 1387(a))
This bill adds 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 provides 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."
Prior legislation . SB 1356 (Yee), Chapter 49, Statutes of
2008.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/13/12)
California District Attorneys Association (source)
ARGUMENTS 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 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
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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.
ASSEMBLY FLOOR : 76-0, 5/21/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fong, Fuentes, Furutani, Beth
Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Hill, Huber,
Hueso, Huffman, Jeffries, Jones, Knight, Lara, Logue,
Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Olsen, Pan, V.
Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio,
Swanson, Torres, Valadao, Wagner, Wieckowski, Williams,
Yamada, John A. Pérez
NO VOTE RECORDED: Fletcher, Roger Hernández, Norby, Perea
RJG:k 6/13/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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