BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1850 (Waldron) 0
As Amended May 5, 2014
Hearing date: June 10, 2014
Penal Code
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RESTRAINING ORDERS IN CRIMINAL CASES
HISTORY
Source: Conference of California Bar Associations
Prior Legislation: None
Support: California District Attorneys Association; California
State Sheriffs' Association
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD PROTECTIVE ORDERS IN CRIMINAL CASES BE BROADENED WITH RESPECT
TO WITNESSES OF VIOLENT CRIME, AND MINORS WHO ARE PRESENT AT THE
TIME OF AN ACT OF DOMESTIC VIOLENCE, AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) expressly provide that a minor
who was not a victim but was physically present at the time of
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an act of domestic violence is deemed to have suffered harm for
the purpose of issuing a protective order in a pending criminal
case, as specified; and 2) authorize the court to issue an order
protecting a witness of violent crime from all contact by the
defendant, or contact, with the intent to annoy, harass,
threaten, or commit acts of violence, by the defendant.
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. (Pen. Code, §
136.2, subd. (a).)
Current law provides that a person violating a protective order
may be 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).)
Current law 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).)
Current law 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).)
Current law 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
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offense charged, and any 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.)
Current law states that a "protective order" means an order that
includes any of the following restraining orders, whether issued
ex parte, after notice and hearing, or in a judgment:
a) An order enjoining specific acts of abuse, such as
contacting, molesting, and
striking, as described;
b) An order excluding a person from a dwelling, as
described; or,
c) An order enjoining other specified behavior
necessary to effectuate the first two orders, as
described. (Fam. Code, § 6218.)
Current law provides that a court may issue an ex parte order
enjoining a party from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing,
telephoning, including, but not limited to, making annoying
telephone calls as described, destroying personal property,
contacting, either directly or indirectly, by mail or otherwise,
coming within a specified distance of, or disturbing the peace
of the other party, and, in the discretion of the court, on a
showing of good cause, of other named family or household
members. (Fam. Code, § 6320.)
Current law authorizes a court to issue an ex parte order
excluding a party from the family dwelling, the dwelling of the
other party, the common dwelling of both parties, or the
dwelling of the person who has care, custody, and control of a
child to be protected from domestic violence for the period of
time and on the conditions the court determines, regardless of
which party holds legal or equitable title or is the lessee of
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the dwelling. The court may issue such an order only on a
showing of all of the following:
a) Facts sufficient for the court to ascertain that the
party who will stay in the dwelling has a right under
color of law to possession of the premises;
b) That the party to be excluded has assaulted or
threatens to assault the other party or any other person
under the care, custody, and control of the other party,
or any minor child of the parties or of the other party;
and,
c) That physical or emotional harm would otherwise
result to the other party, to any person under the care,
custody, and control of the other party, or to any minor
child of the parties or of the other party. (Fam.
Code, § 6321.)
This bill would provide that a minor who was not a victim of,
but who was physically present at the time of an act of domestic
violence, is a witness and is deemed to have suffered harm for
the purposes of issuing a protective order in a pending criminal
case.
This bill additionally would authorize the court to issue an
order protecting a witness of violent crime from all contact by
the defendant, or contact, with the intent to annoy, harass,
threaten, or commit acts of violence, by the defendant.
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.
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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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
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Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills - bills that may
impact the prison population - will be informed by the following
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questions:
Whether a measure erodes realignment and impacts the
prison population;
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
1. Stated Need for This Bill
The author states:
Under current law (Penal Code §136.2), if a defendant
is charged with domestic violence and a child is
present during the crime, but not listed as a victim
of actual physical abuse, the court will not issue a
protective order for the child unless there is a
showing of good cause that the defendant will attempt
to dissuade the child from testifying. If the child
is used against the parent victim to threaten or
intimidate them, the statute does not recognize that
as "harm" to either the child or the process.
AB 1850 would amend Penal Code §136.2 to clarify that
children who are physically present at the time of
acts of domestic violence are, by definition,
witnesses to the DV and have suffered harm within the
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meaning of the statute, thereby permitting the court
to issue orders to protect them.
Minors who are present during domestic violence are
almost always the children of the abusee, abuser, or
both, and almost invariably the emotional and
psychological victims of the abuse. Some of these are
infants and young children who cannot attest to the
abuse, which is a requirement for protection under
current law. However, there should not be any
requirement that even older minors re-live the abuse
by having to attest to what they have seen and heard,
and to the damaging effect that this abuse has had on
their lives - especially when to do so often requires
them to choose between their mother and their father.
These children are very often used as pawns by the
abuser to manipulate the abusee to drop the charges,
to not testify in court, or in other ways.
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2. What this Bill Would Do
Current law generally authorizes courts in criminal cases to
issue protective orders when there is good cause to believe that
harm to, or intimidation or dissuasion of a victim or witness
has occurred or is reasonably likely to occur, and 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. This bill essentially would deem this harm to
exist as a matter of law for a minor physically present at the
time of an act of domestic violence. Under current law courts
can issue a protective order in these cases, based upon a good
cause belief that a victim or witness may suffer harm. While
this bill would deem the harm to exist, the court would retain
the discretion to issue a protective order.
In addition, this bill would authorize the court to issue an
order protecting a witness of violent crime from all contact by
the defendant, or contact, with the intent to annoy, harass,
threaten, or commit acts of violence, by the defendant.
Currently, this provision now applies to victims of violent
crime.
3. Criminal Protective Orders Versus Family Court Restraining
Orders
A 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. These
orders are valid only during the pendency of the criminal
proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 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 p. 384.) In domestic violence cases,
however, past harm to the victim, may provide good cause for
issuance of a criminal protective order. (Babalola v. Superior
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Court (2011) 192 Cal. App. 4th 948, 963-964.) In all cases, not
just domestic violence, if a court determines that there is good
cause for the protective order, the court may issue an ex parte
order prohibiting the defendant from contacting the victim or
witness and other family members or household members during the
pendency of the criminal proceedings. (Pen. Code, § 136, subd.
(a)(1).)
A person may also seek a restraining order in family law or
civil court even when there is a criminal protective order.
These orders can be issued ex parte and can prohibit the
enjoined party from contacting the victim, and, on a showing of
good cause or other specified factors, any other family member
or household members and minor children. (Fam. Code, §§ 6320
and 6321.) However, the criminal protective order takes
precedence over other conflicting orders. That means if the
criminal order is different from another restraining order, it
will supersede any other orders as the primary order that must
be obeyed. (Pen. Code, § 136.2, subd. (e)(2).)
4. Opposition
California Attorneys for Criminal Justice, which opposes this
bill, states in part:
The reason for our continued opposition is, as before,
due to the fact that "harm" to a minor cannot be
presumed from implied (as the bill was formerly
drafted) or actual (as the bill is currently drafted)
presence at the time of an act of domestic violence.
On the contrary, sentient knowledge that such an act
has been committed in one's presence may cause some
amorphous "harm." But this bill goes well beyond
that, by simply presuming "harm" where none may have
occurred.
Subdivision (a) of the law already provides: "Upon a
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good cause belief that harm to, or indimation or
dissuasion of, a victim or witness has occurred or is
reasonably likely to occur, any court with
jurisdiction over a criminal matter may issue" orders
including those enumerated in the statute. (. . .
emphasis added).)
It is unnecessary, conflicting and over-inclusive for
a penal law to presume harm in one section, when
another requires a good faith belief (one that ought
to be fact based) that "harm" has been done. . . .
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