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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