BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 307 (Campos)
As Amended: April 4, 2013
Hearing date: June 18, 2013
Penal Code
AA:jr
PROTECTIVE ORDERS
HISTORY
Source: Alameda County District Attorney; California District
Attorneys Association
Prior Legislation: SB 723 (Pavley) - Ch. 155, Stats. 2011
AB 1771 (Ma) - Ch. 86, Stats. 2008
AB 289 (Spitzer) - Ch. 582, Stats. 2007
AB 828 (Cohn) - 2006, failed in Senate Public
Safety Committee
Support: California Partnership to End Domestic Violence;
California Police Chiefs Association; Crime
Victims United of California; California Coalition Against
Sexual Assault; San Diego County District Attorney; State Public
Affairs Committee of the Junior Leagues of California;
California Communities United Institute
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 76 - Noes 0
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KEY ISSUES
SHOULD THE EXISTING REQUIREMENT THAT CRIMINAL COURTS CONSIDER
ISSUING, AND BE AUTHORIZED TO ISSUE, PROTECTIVE ORDERS FOR UP TO
10 YEARS BE EXTENDED TO SPECIFIED SEX CRIMES?
SHOULD THE PENALTY FOR A WILLFUL AND KNOWING VIOLATION OF A
PROTECTIVE ORDER OR STAY-AWAY COURT ORDER IN CERTAIN CASES BE
CLARIFIED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to provide the following with
respect to the issuance of protective orders by courts with
jurisdiction over criminal matters: 1) authorize the court to
issue, and require the court to consider at the time of
sentencing in any conviction for rape, spousal rape, statutory
rape, and any crime that requires the defendant to register as a
sex offender, an order valid for up to 10 years restraining the
defendant from any contact with the victim, regardless of the
disposition of the sentence, as specified; and 2) clarify that a
violation of specified protective orders relating to domestic
violence, domestic abuse, or child sex abuse is a misdemeanor,
punishable by up to one year in jail, a fine of up to $1,000, or
both.
Current law 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.)
Current law 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].)
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Current law 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].)
Current law 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].)
Current law 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].)
Current law 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].)
Current law 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].)
Current law 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.)
Current law 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 Section 6345.)
Current law allows the court to issue civil harassment
protective orders and workplace violence protective orders for
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up to three years upon a showing of clear and convincing
evidence. (Code of Civil Procedure Sections 527.6 and 527.8.)
This bill would authorize a court to issue a protective order
for up to 10 years when a defendant is convicted of any of the
following crimes:
Rape;
Spousal rape;
Statutory rape; and,
Any crime that requires the defendant to register as a
sex offender under Penal Code Section 290(c).
Under current law a willful and knowing violation of a
protective order or stay-away court order issued pursuant to
Section 136.2, in a pending criminal proceeding involving
domestic violence, as defined in Section 13700, or issued as a
condition of probation after a conviction in a criminal
proceeding involving domestic violence, as defined in Section
13700, or elder or dependent adult abuse, as defined in Section
368, or that is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a
fine of not more than one thousand dollars ($1,000), or by both
that imprisonment and fine. (Penal Code Section 166(c).)
This bill would clarify that this section apply to the following
types of orders:
An order issued pursuant to Penal Code Section 136.2;
An order issued as a condition of probation in a
domestic-violence-related offense;
An order issued as a condition of probation in an elder
or dependent abuse case;
An order issued in a sex case involving a minor victim;
and,
Specified family court orders.
This bill would make additional non-substantive changes to this
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section.
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
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
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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
"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:
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
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1. Stated Need for This Bill
The author states:
Sex crimes are arguably among the most traumatic and
psychologically shattering experiences that an
individual can endure. The long term effects are well
documented. As such, survivors should be afforded the
maximum protection that the courts can provide.
AB 307 extends the existing protections for stalking
and domestic violence survivors to those who have been
the victim of sex crimes, specifically rape, spousal
rape, unlawful sex with a minor, or any crime that
requires the defendant to register as a sex offender.
Specifically, it authorizes a court to issue a
protective order for up to 10 years to anyone who has
been the victim of these sex 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.]
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When criminal proceedings have concluded, the court has
authority to issue protective orders as a condition of
probation. For example, when domestic violence criminal
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.
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
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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 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
The California District Attorneys Association, a co-sponsor of
this bill, submits in part:
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
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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, which opposes this
bill, states in part:
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 address
that behavior. There's no need for a new statute or
new class of crime.
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