BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 176 (Campos)                                             
          As Amended: April 8, 2013 
          Hearing date:  June 18, 2013
          Family and Penal Codes
          AA:jr

                          PROTECTIVE AND RESTRAINING ORDERS:

                                ORDER OF ENFORCEMENT  


                                       HISTORY

          Source:  Author

          Prior Legislation: AB 118 (Cohn, Chapter 465, Statutes of 2005)
                       AB 112 (Cohn, Chapter 132, Statutes of 2005)
                       AB 160 (Bates, Chapter 698, Statutes of 2001)
                       AB 356 (Snyder, Chapter 320, Statutes of 1994)  

          Support: Association of Certified Family Law Specialists;  
                   California Police Chiefs Association; California  
                   Probation, Parole and Correctional Association;  
                   California Communities United Institute; National  
                   Association of Social Workers - California Chapter;  
                   three judges of the Superior Court of California County  
                   of Santa Clara; California Coalition Against Sexual  
                   Assault; Executive Committee of the Family Law Section  
                   of the State Bar of California

          Opposition:None known  

          Assembly Floor Vote:  Ayes  75 - Noes  0




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                                                            AB 176 (Campos)
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                                         KEY ISSUE
           
          SHOULD "NO-CONTACT" ORDERS HAVE ENFORCEMENT PRIORITY OVER OTHER  
          RESTRAINING AND PROTECTIVE ORDERS, AS SPECIFIED?


                                          

                                       PURPOSE

          The purpose of this bill is to provide, beginning July 1, 2014,  
          that if more than one restraining order has been issued and one  
          of the orders is a no-contact order, a peace officer must  
          enforce the no-contact order.  

           Existing law  authorizes a court to issue a civil or criminal  
          protective order to protect victims of domestic violence, and  
          authorizes a court to issue a no-contact order for the protected  
          party and, in the discretion of the court, for other named  
          family or household members.  (Fam. Code Sec. 6320 et seq.; Pen.  
          Code Sec. 136.2.)

           Existing law  generally authorizes courts to grant visitation  
          rights to a parent, and provides that if "visitation is ordered  
          in a case in which domestic violence is alleged and an emergency  
          protective order, protective order, or other restraining order  
          has been issued, the visitation order shall specify the time,  
          day, place, and manner of transfer of the child, so as to limit  
          the child's exposure to potential domestic conflict or violence  
          and to ensure the safety of all family members." (Family Code  
          Sec. 3100)

           Existing law  provides that if "a criminal protective order has  
          been issued pursuant to Section 136.2 of the Penal Code, the  
          visitation order shall make reference to, and acknowledge the  
          precedence of enforcement of, any appropriate criminal  
          protective order."  (Id.)





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           This bill  would exempt a no-contact order from this provision.    
           

           Existing law  authorizes a law enforcement officer to seek an  
          emergency protective order (EPO) from a court if any person or  
          child is in immediate and present danger of domestic violence,  
          abuse, or stalking, or in imminent danger of abduction by a  
          parent or relative.  Existing law allows a court to issue an EPO  
          for up to seven days.  (Fam. Code Sec. 6250 et seq.; Pen Code  
          Sec. 646.91.)  

           Existing law  provides that if there are multiple civil  
          protective or restraining orders regarding the same parties, the  
          order last entered shall be enforced.  If there are both  
          criminal and civil orders, the last criminal order shall be  
          enforced.   (Fam. Code Secs. 6383, 6405.)  

           Existing law  gives EPOs, whether civil or criminal, precedence  
          in enforcement over any other restraining or protective order,  
          provided that the EPO is more restrictive as to the restrained  
          party than any other orders.  (Pen. Code Sec. 136.2(c).)

           This bill  would provide, beginning July 1, 2014, that when there  
          are multiple protective or restraining orders regarding the same  
          parties and one of those orders is a no-contact order, law  
          enforcement is required to enforce the no-contact order.

           This bill  would delete, as of July 1, 2014, the enforcement  
          priority currently given to EPOs over other protective orders  
          involving the same parties.

           This bill  would require the Judicial Council, by July 1, 2014,  
          to update civil and criminal court forms, consistent with the  
          provisions of this bill. 

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  




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          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  




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          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the
          Committee will review each ROCA bill with more flexible  
          consideration.  The following questions will inform this  
          consideration 































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                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               Domestic violence victims often have multiple  
               restraining orders issued by both civil and criminal  
               courts against their abusers.  Restraining orders vary  
               in their level of protection with no-contact orders  
               being the strongest, stay away orders being the second  
               strongest and peaceful contact orders being the third  
               strongest.  Given that many victims have multiple  
               protective orders, existing law specifies that the  
               most recent criminal order be enforced over any other  
               order.  However, the most recent criminal order may  
               not provide the greatest level of protection for  
               victims.  Abusers may very well continue to violate a  
               civil no contact order because he or she knows that  
               the police will not enforce the civil protective order  
               if a criminal order exists.

               The highest level of protection for domestic violence  
               victims is the no-contact order, which can be issued  
               by either a criminal or civil court.  AB 176 ensures  
               that domestic violence victims receive the highest  




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               level of court protection by requiring a no-contact  
               order issued by either a criminal or civil court, to  
               be enforced over any other order.
           
           2. What This Bill Would Do

           Current law provides that where multiple restraining orders have  
          been issued, criminal restraining orders are generally given  
          priority over civil restraining orders.  This bill would instead  
          provide that no-contact orders, whether issued by a civil or  
          criminal court, take priority over all other restraining orders.  
            Both civil and criminal courts are able to issue orders  
          prohibiting a person from harassing, assaulting, following, or  
          threatening a protected party and his or her family.   
          Restraining orders can also require a restrained party to vacate  
          a premises, or require that a restrained party stay away from  
          any number of locations including the protected person's home,  
          vehicle, workplace, or school.  Many times these orders restrict  
          certain behavior, but allow for "peaceful contact." This is  
          common where parties live together, have children together and  
          must share custody, or where parties work in the same location.   
          Offering even more protection, courts may issue a "no-contact  
          order," which prohibits any contact with the protected party.  
           
          Unlike civil restraining orders which are issued for up to five  
          years, criminal restraining orders may be issued for up to ten  
          years.  Thus, under existing law, criminal restraining orders  
          maintain priority over civil orders for potentially a very long  
          time.  In situations where a more restrictive civil restraining  
          order has been issued, that order is null under current law  
          until the criminal order expires.  This bill would resolve the  
          problem of conflicting restraining orders by giving no-contact  
          orders priority, regardless of when it was issued, or by which  
          court.   

          3.  Law Enforcement  

          Under existing law, criminal restraining orders generally take  
          priority over civil orders.  However, if an emergency protective  
          order (EPO) has been issued, that order is given enforcement  



                                                                           







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          priority over all other orders, as long as that EPO is more  
          restrictive on the restrained person.   

          Thus, under the current priority scheme, law enforcement  
          officers may be required to determine which restraining order is  
          the most restrictive.  Arguably, if the purpose of the  
          restraining order is to protect a party from harassment or  
          abuse, law enforcement officers should be looking to which order  
          best protects that person, not to when an order was issued,  
          which court issued it, or whether it is the "most restrictive."   
          This bill would remove the priority of an EPO, and instead give  
          priority to no-contact orders, whether civil, criminal, or an  
          EPO.  If a no-contact order has not been issued, this bill would  
          otherwise maintain the existing priority scheme.   

          The Association of Certified Family Specialists, in support,  
          writes: 

               This bill strengthens protections for victims of  
               domestic violence, and eliminates dangerous confusion  
               for peace officers who must enforce a protective order  
               when multiple orders may be in effect simultaneously.   
               If this bill is enacted, criminal court protective  
               orders will still take precedence over civil (family)  
               court protective orders, the later issued order will  
               take precedence if multiple orders are issued by  
               criminal courts or by civil courts, and a "no-contact"  
               provision in any order will "trump" the other orders  
               in effect.  This eliminates any need for peace  
               officers to interpret existing orders, and assures  
               maximum protection for protected persons at those  
               perilous moments when the courts are not open, and an  
               immediate danger is present and must be confronted by  
               a peace officer. 

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