BILL ANALYSIS Ó
AB 1498
Page 1
Date of Hearing: March 25, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1498 (Campos) - As Amended: January 9, 2014
SUMMARY : Requires a court to consider, in all cases where the
defendant is charged with rape, statutory rape, spousal rape, or
any other offense for which the defendant would have to register
as a sex offender, issuing a protective order on its own motion
during the pendency of the criminal proceedings. Specifically,
this bill :
1)Provides that in any case where a defendant is charged with
the sex crimes specified above, except as provided, a
restraining order or protective order against the defendant
issued by the criminal court in the case has precedence in
enforcement over a civil court order against the defendant.
2)States in any case in which a defendant is charged with the
sex crimes specified above, the court may consider, in
determining whether good cause exists to issue a protective
order, the underlying nature of the offense charged, the
defendant's relationship to the victim, the likelihood of
continuing harm to the victim, any current restraining order
or protective order issued by any civil or criminal court
involving the defendant, and the defendant's criminal history,
including, but not limited to, prior convictions for specified
sex crimes, or any other forms of violence, or any weapons
offenses.
EXISTING LAW :
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. (Pen. Code, §
136.2, subd. (a).)
2)Provides that a person violating a protective order may be
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punished for any substantive offense described in provisions
of law related to intimidation of witnesses or victims, or for
a contempt of the court making the order. (Pen. Code, § 136.2,
subd. (b).)
3)Requires a court, in all cases where the defendant is charged
with a crime of domestic violence, to consider issuing a
protective order on its own motion. All interested parties
shall receive a copy of those orders. In order to facilitate
this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court
to this issue. (Pen. Code, § 136.2, subd. (e)(1).)
4)States in those cases in which a complaint, information, or
indictment charging a crime of domestic violence has been
issued, except as specified, a restraining order or protective
order against the defendant issued by the criminal court in
that case has precedence in enforcement over a civil court
order against the defendant. (Pen. Code, § 136.2, subd.
(e)(2).)
5)Allows a court, in any case in which a complaint, information,
or indictment charging a crime of domestic violence has been
filed, to consider, in determining whether good cause exists
to issue a protective order, the underlying nature of the
offense charged, and information provided to the court through
a background check, including information about the
defendant's prior convictions for domestic violence, other
forms of violence or weapons offenses, and any current
protective or restraining order issued by a criminal or civil
court. (Pen. Code, §§ 136.2, subd. (h) and 273.75.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : "While great strides have been made in
increasing sentences for those who commit crimes of a sexual
nature, little has been done to protect the safety and
well-being of the victims of these crimes during the pendency
of criminal proceedings. There should be a mechanism in the
law that allows for victims of sexually motivated crimes to
have a criminal protective order issued as a matter of law
during the pendency of criminal proceedings.
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"If criminal protective orders can be sought for victims of
domestic violence during the pendency of criminal proceedings,
it seems an absurdity of the law that victims of child
molestation or rape are unable to seek similar protections.
"This proposal would take provisions that are already in place
allowing victims of domestic violence to obtain criminal
protective orders during the pendency of the criminal case and
extend them to victims of crimes specified under Penal Code
section 290 as well as victims of crimes specified under Penal
Code section 261.5 (Statutory Rape)."
2)Criminal 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. The only purpose of criminal protective orders "is to
protect victims and witnesses in connection with the criminal
proceeding in which the restraining order is issued in order
to allow participation without fear of reprisal." (People v.
Ponce (2009) 173 Cal.App.4th 378, 383.) Criminal protective
orders issued pursuant to Penal Code Section 136.2 are valid
only during the pendency of the criminal proceedings. (Id. at
p. 382.)
In general, good cause to issue a criminal protective order must
be based on a showing of "a threat, or likely threat to
criminal proceedings or participation in them." (People v.
Ponce, supra, 173 Cal.App.4th at pg. 384.) One single
incident of assault, even aggravated assault, before there
were any criminal proceedings, and without any intent to
interfere with such proceedings, is insufficient to justify
the issuance of a criminal protective order under this
statute. (Ibid.) The one exception to this requirement is in
domestic violence cases, which allows a protective order to be
issued upon a showing of past harm to the victim or witness,
evidenced by the underlying crime or the defendant's criminal
history. (Babalola v. Superior Court (2011) 192 Cal. App. 4th
948, 963.)
In the Babalola case, a defendant assaulted two of his neighbors
with his fists and a handgun. The superior court issued a
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criminal protective order prohibiting any contact by the
defendant based on a summary of testimony at the preliminary
hearing regarding the charged assaults and the proximity of
the defendant's and alleged victims' residences. The
appellate court ruled that the information used to issue the
order did not constitute good cause and vacated the criminal
protective order. The court explicitly stated that this case
was not a domestic violence case, and therefore required
evidence that the defendant had attempted to intimidate or
dissuade the victims from testifying at trial or that there
would be a likelihood that intimidation or dissuasion or any
other type of harm to the victims would occur in the future.
(Babalola v. Superior Court, supra, 192 Cal. App. 4th at p.
963.)
This bill seeks to provide the same exception found in domestic
violence cases in cases where a defendant is charged with
rape, statutory rape, spousal rape, or any other offense for
which the defendant would have to register as a sex offender.
The bill specifies, in determining whether good cause exists
to issue a protective order, the court may consider the
underlying nature of the offense charged, the defendant's
relationship to the victim, the likelihood of continuing harm
to the victim, any current restraining order or protective
order issued by any civil or criminal court involving the
defendant, and the defendant's criminal history. While some
of these specified offenses may involve domestic violence or a
relationship between the victim and the defendant, not all of
the offenses involve a relationship that would make it likely
that the defendant would contact the victim or have any kind
of influence to dissuade the victim from participating in the
criminal proceedings. In that regard, the same rationale that
led the Legislature to create this exception for domestic
violence cases would not exist in many of the offenses
specified in this bill.
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
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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
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)Arguments in Support : According to the California District
Attorneys Association , the sponsor of this bill, "The existing
process for obtaining a protective order during a criminal
sexual assault case requires a hearing, after which the order
will only be issued if there is a showing of good cause that
harm or dissuasion of a victim's testimony has occurred or is
likely to occur, beyond the incident that has already taken
place. Victims should not be put in the position of having to
wait until they are harmed again to be able to obtain a
protective order.
"Additionally, meeting the standard of good cause requires the
victim and members of the victim's family to participate in a
separate hearing in order to obtain the protective order.
This consumes valuable court time, and means that the victim
will have to testify and relive the traumatic experience."
5)Current Legislation :
a) AB 1850 (Waldron) authorizes a court with jurisdiction
over a criminal matter to issue an order protecting a
witness of violent crime from all contact by the defendant
upon a good cause belief that harm to, or intimidation or
dissuasion of, that witness has occurred or is reasonably
likely to occur. This bill includes within the meaning of
the term "harm" the harm to a minor resulting from his or
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her physical presence at, proximity to, or location near,
an act of domestic violence. AB 1850 will be heard by this
Committee today.
b) AB 2089 (Quirk) authorizes the issuance of a restraining
order on the basis of evidence of past abuse, without any
showing that the wrongful acts will be continued or
repeated and prohibits the court from denying an order
solely because of the length of time between an act of
abuse and the filing of the petition for the restraining
order. AB 2089 is pending hearing by the Committee on
Judiciary.
c) SB 910 (Pavley) expand the definition of domestic
violence, for purposes of issuing protective orders, to
include abuse perpetrated against a child of a party to the
domestic violence proceedings or a child who is the subject
of an action under the Uniform Parentage Act, as specified,
or against any other person related to the defendant by
consanguinity or affinity within the 2nd degree. SB 910 is
pending hearing by the Senate Committee on Public Safety.
6)Prior Legislation :
a) AB 307 (Campos), Chapter 291, Statutes of 2013, allows a
court to issue a protective order up to 10 years when a
defendant is convicted of specified sex crimes, regardless
of the sentence imposed.
b) SB 723 (Pavley), Chapter 155, Statutes of 2011,
requires, in all cases in which a criminal defendant has
been convicted of a crime of domestic violence, the court
to consider, at the time of sentencing, issuing an order
restraining the defendant from any contact with the victim,
for up to 10 years, regardless of whether the defendant is
sentenced to the state prison or a county jail, or whether
imposition of sentence is suspended and the defendant is
placed on probation.
c) AB 1771 (Ma), Chapter 86, Statutes of 2008, specifies
the information that a court may consider in determining
whether "good cause" exists to issue a domestic violence
restraining order, to include the underlying nature of the
offense charged as well as information provided to the
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court pursuant to a criminal history search.
d) AB 3593 (Speier), Chapter 935, Statutes of 1990, allows
a court to issue a criminal protective order during the
pendency of the criminal proceedings on its own motion in
domestic violence cases.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
Association for Los Angeles Deputy Sheriffs
California Police Chiefs Association
California State Sheriffs' Association
Los Angeles Police Protective League
Los Angeles Probation Officers' Union
Riverside Sheriffs' Association
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744