BILL ANALYSIS Ó
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
AB 307
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