BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 307
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          Date of Hearing:  April 9, 2012
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     AB 307 (Campos) - As Amended: April 4, 2013
           
           
           SUMMARY  :  Allows a court to issue a protective order for up to  
          10 years when a defendant is convicted of specified sex crimes,  
          regardless of the sentence imposed.  Specifically,  this bill  :  

          1)Allows a court to issue a protective order for up to 10 years  
            when a defendant is convicted of any of the following crimes:

             a)   Rape; 

             b)   Spousal rape;

             c)   Statutory rape; and, 

             d)   Any crime that requires the defendant to register as a  
               sex offender under Penal Code Section 290(c).

          2)Clarifies that a violation of the following protective orders  
            is a misdemeanor, punishable by up to one year in jail, a fine  
            of up to $1,000, or both:

             a)   An order issued pursuant to Penal Code Section 136.2;

             b)   An order issued as a condition of probation in a  
               domestic-violence-related offense;

             c)   An order issued as a condition of probation in an elder  
               or dependent abuse case;

             d)   An order issued in a sex case involving a minor victim;  
               and,

             e)   Specified family court orders.

           EXISTING LAW  : 









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          1)Authorizes the trial court in a criminal case to issue  
            protective orders when there is a good cause belief that harm  
            to, or intimidation or dissuasion of a victim or witness has  
            occurred or is reasonably likely to occur.  (Penal Code  
            Section 136.2.)

          2)Requires the court to consider issuing a protective order in  
            any case in which a crime of "domestic violence" has been  
            charged.  [Penal Code Section 136.2(e)(1).]

          3)Authorizes the court to issue an order restraining the  
            defendant from "contact with the victim" upon a conviction for  
            domestic violence where the defendant is sentenced to state  
            prison, county jail, or if imposition of sentence is suspended  
            and the defendant is placed on probation.  [Penal Code Section  
            273.5(i).]

          4)Requires a defendant who is granted probation for committing a  
            crime in which the victim is a person defined in the Family  
            Code  to comply with a mandatory order protecting the victim  
            from further acts of violence, threats, stalking, sexual  
            abuse, and harassment, and, if appropriate, containing  
            residence exclusion or stay-away conditions.  [Penal Code  
            Section 1203.097(a)(2).]

          5)Allows the court to issue a protective order for up to 10  
            years when a defendant is convicted for an offense involving  
            "domestic violence" regardless of the sentence imposed.   
            [Penal Code Section 136.2(i)(1).]

          6)Authorizes the court to issue protective orders for up to 10  
            years in stalking cases regardless of the sentence imposed.   
            [Penal Code Section 646.9(k).]

          7)Authorizes the court to issue a protective order for up to 10  
            years in sex cases involving a minor victim.  [Penal Code  
            Section 1201.3(a).]

          8)Allows the victim of a past act or acts of domestic abuse to  
            petition the court for a restraining order lasting up to five  
            years. [Family Code Sections 6300 and 6345.]

          9)Gives the court discretion to renew a protective order for an  
            additional five years, or permanently, without any additional  
            showing of abuse since the initial order.   [Family Code  








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            Section 6345.]

          10)Allows the court to issue civil harassment protective orders  
            and workplace violence protective orders for up to three years  
            upon a showing of clear and convincing evidence.  (Code of  
            Civil Procedure Sections 527.6 and 527.8.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Victims of sex  
            crimes deserve the maximum protection that the courts can  
            provide so that their assailants cannot further torment or  
            traumatize them.

          "AB 307 authorizes a court to issue a protective order for up to  
            10 years to anyone who has been the victim of rape, spousal  
            rape, unlawful sex with a minor, or any crime that requires  
            the defendant to register as a sex offender.  Last session,  
            this Committee unanimously approved such safeguards to victims  
            of domestic violence (SB 723 (Pavley) - Chapter 155, Statutes  
            of 2011).  The bill extends these same protections to  
            survivors of sexual crimes.

          "In addition, providing a court the ability to issue a 10-year  
            criminal protective order will allow survivors to avoid the  
            process and expense of going to family court to have a new  
            order issued upon the expiration of the original order.

          "AB 307 also clarifies the penalties for violating a protective  
            order."  

           2)Protective Orders  :  As a general matter, the court can issue a  
            protective order in any criminal proceeding pursuant to Penal  
            Code Section 136.2 where it finds good cause belief that harm  
            to, or intimidation or dissuasion of, a victim or witness has  
            occurred or is reasonably likely to occur.  Protective orders  
            issued under this statute are valid only during the pendency  
            of the criminal proceedings.  [People v. Ponce (2009) 173  
            Cal.App.4th 378, 382.]

            When criminal proceedings have concluded, the court has  
            authority to issue protective orders as a condition of  
            probation.  For example, when domestic violence criminal  








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            proceedings have concluded, the court can issue a "no-contact  
            order" as a condition of probation.  (Penal Code Section  
            1203.097.)  

            Finally, in some cases in which probation has not been  
            granted, the court also has the authority to issue  
            post-conviction protective orders.  Penal Code Section  
            273.5(i) authorizes no-contact orders for up to 10 years when  
            a defendant has been convicted of willful infliction of  
            corporal injury to a spouse, former spouse, cohabitant, former  
            cohabitant, or the mother or father of the defendant's child.   
            The same is true of stalking cases [Penal Code Section  
            646.9(k)], and cases involving a domestic-violence related  
            offense [Penal Code Section 136.2(i)(1)].  Similarly, in cases  
            involving a criminal conviction or juvenile adjudication for a  
            sex offense in which the victim was a minor, the court may  
            issue an order "that would prohibit ? harassing, intimidating,  
            or threatening the victim or the victim's family members or  
            spouse."  [Penal Code Section 1201.3(a)]

            This bill extends the court's authority to issue no-contact  
            orders lasting up to 10 years in cases involving rape, spousal  
            rape, statutory rape, or any crime requiring sex offender  
            registration.  There does not appear to be any reason to treat  
            adult victims of sex crimes differently than minor victims.   
            Moreover, these crimes are certainly more serious than the  
            crime of stalking.  
             
           3)Criminal Contempt  :  Disobedience of a court order may be  
            punished as criminal contempt.  The crime of contempt is a  
            general intent crime.  It is proven by showing that the  
            defendant intended to commit the prohibited act, without any  
            additional showing that he or she intended "to do some further  
            act or achieve some additional consequence."  [People v.  
            Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.]  Nevertheless, a  
            violation must also be willful, which in the case of a court  
            order encompasses both intent to disobey the order, and  
            disregard of the duty to obey the order."  [In re Karpf (1970)  
            10 Cal.App.3d 355, 372.]

            Criminal contempt under Penal Code Section 166 is a  
            misdemeanor, and so proceedings under the statute are  
            conducted like any other misdemeanor offense.  [In re McKinney  
            (1968) 70 Cal.2d 8, 10; In re Kreitman (1995) 40 Cal.App.4th  
            750, 755.]  Therefore, the criminal contempt power is vested  








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            in the prosecution; the trial court has no power to institute  
            criminal contempt proceedings under the Penal Code.  (In re  
            McKinney, supra, 70 Cal.2d at p. 13.)  A defendant charged  
            with the crime of contempt "is entitled to the full panoply of  
            substantive and due process rights."  [People v. Kalnoki  
            (1992) 7 Cal.App.4t Supp. 8, 11.]  Therefore, the defendant  
            has the right to a jury trial, regardless of the sentence  
            imposed.  [People v. Earley (2004) 122 Cal.App.4th 542, 550.]
             
             
           4)Argument in Support  :  According to the  California District  
            Attorneys Association  (a co-sponsor of this bill), "In 2011,  
            CDAA sponsored Senator Pavley's SB 723, which closed the  
            loophole that formerly kept victims of misdemeanor domestic  
            violence offenses from being able to get the 10-year  
            protective order described above.  As this statute has  
            evolved, it has also become clear that victims of sexual  
            assault offenses should also enjoy the same ability to obtain  
            a meaningful protective order, subject to the court's  
            discretion.

            "While a victim may obtain a criminal protective order that is  
            valid for the pendency of any court proceedings or go to  
            family court to get a longer-term order, the current process  
            can be burdensome to a victim, especially if he or she has to  
            relive the trauma underlying criminal act that was committed  
            against him or her.  AB 307 expands the availability of the  
            10-year protective order to a sexual assault victim if the  
            defendant is convicted and ensures that the victim can get a  
            long-term order in criminal court without having to negotiate  
            the family court process."

           5)Argument in Opposition  :  The  California Public Defenders  
            Association  states, "This bill is unnecessary, as the court  
            already has broad discretion to consider the defendant's  
            background and issue a protective order if the circumstances  
            warrant the same.

          "Furthermore, the class that AB 307 proposes to protect is  
            already protected under existing law.  It's a crime to  
            dissuade a witness, and it's a crime to contact any party in  
            violation of a protective order.  If the perpetrator's actions  
            are more egregious than dissuading or violation of the  
            protective orders, other existing statutes, such as the  
            prohibition against stalking and terrorist threats already  








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            address that behavior.  There's no need for a new statute or  
            new class of crime."  
           
           6)Related Legislation  :  AB 176 (Campos) requires that when there  
            are both civil and criminal orders in effect, an officer must  
            enforce the order that is more restrictive in relation to the  
            restrained person.  AB 176 is pending hearing by the Assembly  
            Judiciary Committee.

           7)Prior Legislation  :  

             a)   SB 723 (Pavley), Chapter 155, Statutes of 2011, allows a  
               court to issue a protective order for up to 10 years when a  
               defendant is convicted for an offense involving "domestic  
               violence" regardless of the sentence imposed.

             b)   SB 834 (Florez), Chapter 627, Statutes of 2010, allows a  
               court to issue a protective order for up to 10 years in sex  
               cases involving a minor victim.

             c)   AB 289 (Spitzer), Chapter 582, Statutes of 2007, allows  
               a court to issue a protective order for 10 years upon a  
               defendant's conviction for stalking.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Alameda County District Attorney (Co-Sponsor)
          California District Attorneys Association (Co-Sponsor)
          California Communities United Institute
          California Coalition Against Sexual Assault
          California Police Chiefs Association
          Crime Victims United of California
          National Association of Social Workers, California Chapter

           Opposition 
           
          California Public Defenders Association
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744 











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