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
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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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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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