BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    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  
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            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.


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          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  

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          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,  

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            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

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