BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1850| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1850 Author: Waldron (R), et al. Amended: 5/5/14 in Assembly Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/10/14 AYES: Hancock, Anderson, De León, Knight, Liu, Steinberg NO VOTE RECORDED: Mitchell SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 74-0, 5/8/14 - See last page for vote SUBJECT : Restraining orders in criminal cases SOURCE : Conference of California Bar Associations DIGEST : This bill provides that a minor who was not a victim but was physically present at the time of 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. ANALYSIS : 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 CONTINUED AB 1850 Page 2 occurred or is reasonably likely to occur. 2.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 contempt of the court making the order. 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. 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. 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 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. 6.Defines a "protective order" as 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. CONTINUED AB 1850 Page 3 1.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. This bill: 1.Provides 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. 2.Authorizes 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 6/23/14) Conference of California Bar Associations (source) California District Attorneys Association California Police Chiefs Association California State Sheriff's Association Peace Officers Research Association OPPOSITION : (Verified 6/23/14) California Attorneys for Criminal Justice ARGUMENTS IN SUPPORT : The author states: AB 1850 clarifies that children who are physically present at the time of acts of domestic violence are, by definition, witnesses to the domestic violence and have suffered harm within CONTINUED AB 1850 Page 4 the 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 existing 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. ARGUMENTS IN OPPOSITION : California Attorneys for Criminal Justice states: 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 good cause belief that harm to, or intimation 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. ASSEMBLY FLOOR : 74-0, 5/8/14 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom, Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley, CONTINUED AB 1850 Page 5 Dababneh, Dahle, Daly, Dickinson, Donnelly, Fong, Fox, Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Holden, Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea, Quirk, Quirk-Silva, Rendon, Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Eggman, Gorell, Mansoor, V. Manuel Pérez, Ridley-Thomas, Vacancy JG:e 6/23/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED