BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 910
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          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).)








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          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  








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            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.









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          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  








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            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  








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            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  








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            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  








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            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  








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            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  








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            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  








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               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