BILL ANALYSIS Ó SB 910 Page 1 Date of Hearing: June 10, 2014 Counsel: Stella Choe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 910 (Pavley) - As Amended: March 24, 2014 SUMMARY : Expands the definition of domestic violence for purposes of a court's ability to issue restraining orders in domestic violence cases during the pendency of criminal proceedings and upon conviction of a crime of a domestic violence offense. Specifically, this bill : 1)Includes abuse perpetrated against any of the additional following persons: a) Cohabitants and former cohabitants, defined more broadly; b) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent, as specified; c) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; and, d) Any other person related by consanguinity or affinity within the second degree. 2)Revises existing law to provide that these restraining orders apply in cases involving domestic violence, rather than in cases of domestic violence. 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).) SB 910 Page 2 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 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)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.) 5)Provides in all cases in which a criminal defendant has been convicted of a crime of domestic violence, as defined in relevant sections of the Family Code, or any crime that requires the defendant to register as a sex offender, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may be valid for up to 10 years, as determined by the court. (Pen. Code, § 136.2, subd. (i)(1).) 6)Defines "abuse" as intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. (Pen. Code, § 13700, subd. (a).) 7)Defines "domestic violence" in the Penal Code as abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or SB 910 Page 3 engagement relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to (Pen. Code, § 13700, subd. (b)): a) Sexual relations between the parties while sharing the same living quarters, b) Sharing of income or expenses, c) Joint use or ownership of property, d) Whether the parties hold themselves out as husband and wife, e) The continuity of the relationship; and, f) The length of the relationship. 8)Defines "domestic violence" in the Family Code as abuse perpetrated against any of the following persons (Fam. Code, § 6211): a) A spouse or former spouse; b) A cohabitant or former cohabitant, as defined; c) A person with whom the respondent is having or has had a dating or engagement relationship. d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act; e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; or, f) Any other person related by consanguinity or affinity within the second degree. SB 910 Page 4 9)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 (Fam. Code, § 6218): 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. 10)Authorizes, under the Domestic Violence Prevention Act (DVPA), a court to issue and enforce a domestic violence restraining order, including an emergency protective order, a temporary restraining order and a permanent restraining order. (Fam. Code, §§ 6300 et seq.) 11)Provides that a permanent order made after hearing under the DVPA may have a duration of no more than five years, subject to termination or modification. An order may be renewed, upon request of either party, for either five years or permanently, without a showing of any further abuse since issuance of the original order. (Fam. Code, § 6345.) 12)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.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "Tragically, children are often the first target for abuse when a domestic violence offender is released from prison or jail. SB 910 SB 910 Page 5 addresses this potentially life threatening gap in the law by giving sentencing judges a tool to protect all potential victims from abuse regardless of their age. "SB 910 is needed to protect children from domestic abusers during court proceedings and after offenders are released from prison or jail. In California, domestic violence fatalities account for 12 percent of homicides. Offering children the same protections we give to adult victims may mean the difference of life and death for a child. "Currently, courts may issue orders to protect spouses during criminal proceedings, and for up to 10 years after abusers are convicted. However, this protection does not extend to all children because of a narrow legal definition of domestic violence. This narrow definition in the law has led to an equally narrow interpretation by judges when issuing protection orders in domestic violence cases with child victims, with some refusing to issue pre-sentencing protective orders for child abuse victims. "As a result of this interpretation, the only recourse available is for family members to request a new order to protect children in family court, which is often time-consuming and difficult, putting children at risk unless and until a new order to protect children in family court, which is often time-consuming and difficult, putting children at risk unless and until a new order is issued. The most vulnerable victims, including infants, are the only category of people that are left unprotected by current law. They deserve the same protection as adult victims of family violence. "SB 910 closes a loophole in California to ensure that children are a protected category in the issuance of criminal protective orders. Specifically SB 910 amends Penal Code Section 136.2 by adding the definition of domestic violence contained in Family Code Section 6211. "Family Code Section 6211 includes the same victims listed in existing PC Section 13700, but broadens the definition of cohabitants to "the child of a party" and anyone related by "consanguinity or affinity within the second degree." "The bill pertains only to pre-sentencing and post-sentencing SB 910 Page 6 protective orders. Even with the clear inclusion of children, courts will retain the discretion to not issue a pre-sentencing or post-sentencing protective order if the facts do not justify it. "The Family Code definition is already used in relation to several other sections of the Penal Code related to domestic violence. This bill merely updates the protective order law to conform to the broader definition." 2)Expanding the Definition of Domestic Violence : This bill expands the definition of domestic violence for purposes of issuing a restraining order in a domestic violence criminal case, both during the pendency of the criminal proceedings and upon conviction. Under existing law, the Penal Code defines "domestic violence" as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant or former cohabitant, as defined, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. (Pen. Code, § 13700, subd. (b).) The statute defines "cohabitant" as two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship." According to the author of the bill, this definition is too narrow because it does not cover children, either related by consanguinity (blood) or affinity (marriage). In order to address this issue, the author adds a reference to Family Code section 6211 which defines "domestic violence" as abuse perpetrated against any of the following persons: spouse or former spouse, a cohabitant or former cohabitant, as defined, a person with whom the respondent has had a child, as specified, a child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected, or any other person related by consanguinity or affinity within the second degree. (Fam. Code, § 6211.) The Family Code defines "cohabitant" as "a person who regularly resides in the household." (Fam. Code, § 6209.) The difference between the Penal Code section's definition of "domestic violence" and the Family Code section's definition is that children, as well as other persons related by marriage SB 910 Page 7 or blood within the second degree (e.g., grandparents, nieces, nephews, etc.) are included in the Family Code. The Family Code also defines "cohabitant" more broadly than the Penal Code, which requires that the two persons must be unrelated adults living together for a substantial period of time. The Family Code merely requires that the person must have regularly resided in the home, without stating that the persons must be unrelated or both adults. This bill will add the same protections provided in the Family Code definition to the Penal Code for purposes of restraining orders. 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 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 SB 910 Page 8 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).) But the Legislature has also made clear that courts must have a protocol to coordinate appropriate communication and information sharing between criminal, family, and juvenile courts concerning orders and cases that involve the same parties. (Pen. Code, § 136.2, subd. (f).) 4)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 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.) 5)Argument in Support : According to the Los Angeles County District Attorney's Office , the sponsor of this bill, "Under current law, a criminal court may issue an order protecting an alleged victim of domestic violence from contact with the defendant during the pendency of the criminal case. However, this protection does not extend to all child victims living in the household, such as the children of adult victims, other child family members or the children or stepchildren of the defendant. This is because the narrow definition of domestic violence contained in this law does not apply to these child SB 910 Page 9 victims, who are not considered 'cohabitants.' "Current law also provides for a protective order of up to 10 years to be entered after the defendant has been convicted of a crime of domestic violence. The duration of the order is based upon the seriousness of facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. However, because of the narrow definition of domestic violence and in particular, 'cohabitants,' this protection is also unavailable to protect all child victims in the home. "SB 910 solves this problem by incorporating the more broadly accepted definition of who can be included as a victim of domestic violence which is set forth in Family Code Section 6211. The Family Code defines a cohabitant as a person who regularly resides in the household, which includes the children, not just unrelated adults who are in a serious relationship. Second, Family Code Section 6211 explicitly adds 'child of a party' (and any 'other person related by consanguinity or affinity within the second degree') to the current law that protects 'spouses, former spouses, cohabitants, former cohabitants, and persons in a current or former dating or engagement relationship.'" 6)Argument in Opposition : According to Legal Services for Prisoners with Children , "Although we do not condone violence, especially when it hurts children, protective orders by a criminal court can be very long, up to ten years, with no contact at all between the parties. This time is irreplaceable in a parent-child relation, especially if the child is young. From what seems to be a commendable act to protect children, we can easily end up doing more harm than good by breaking down challenged families. Offender and children sometimes both need and ask for visitation rights to help them move forward and grow up more peacefully. "SB 910 would expand the definition of domestic violence to the definition provided in California Family Code Section 6211 to include children of any of the partners involved in domestic violence when issuing a protective order. The problem is that this definition has been put together for family law purposes, in relevant courts, not for criminal matters. Family courts can issue a restraining order themselves, and when they do so, they take the children's will and bonding issues in account SB 910 Page 10 and can issue visitation rights under strict conditions, with some mediation for example. Criminal courts' focus is on the crime itself and a strict choice is made between not issuing any order at all, or ordering a non-contact visit. Our main concern is that Criminal Protective Orders take precedence over other conflicting orders including family protective orders of visitation rights, and that it could easily be prejudicial both to the offender and to the children." 7)Related Legislation : a) AB 1498 (Campos) 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. AB 1498 is pending hearing by the Senate Committee on Public Safety. b) AB 1850 (Waldron) 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. AB 1850 is pending hearing by the Senate Committee on Public Safety. c) 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 Senate Committee on Judiciary. 8)Prior Legislation : a) AB 176 (Campos), Chapter 263, Statutes of 2013, requires that if more than one order (excluding Emergency Protective Orders) has been issued and any of the orders is a no-contact order, as described, an officer must enforce a no-contact order. b) AB 307 (Campos), Chapter 291, Statutes of 2013, allows a court to issue a protective order for up to 10 years when a SB 910 Page 11 defendant is convicted of specified sex crimes, regardless of the sentence imposed. 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 court pursuant to a criminal history search. d) SB 723 (Pavley), Chapter 155, Statutes of 2011, allows a 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. REGISTERED SUPPORT / OPPOSITION : Support Los Angeles County District Attorney's Office (Sponsor) American Federation of State, County and Municipal Employees California District Attorneys Association California Partnership to End Domestic Violence Crime Victims United of California Jewish Family Service of Los Angeles Jewish Public Affairs Committee of California National Association of Social Workers, California Chapter Opposition California Attorneys for Criminal Justice California Public Defenders Association Legal Services for Prisoners with Children Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744