BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2078


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          Date of Hearing:  March 29, 2016
          Counsel:               Sandra Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                      2078 (Kim) - As Introduced  February 17, 2016




          SUMMARY:  Conforms the punishment for a violation of a  
          protection order issued after conviction of an offense involving  
          domestic violence to the punishment for other similar protective  
          orders.  Specifically, this bill:  

          1)States that the first violation of a post-conviction domestic  
            violence restraining order is punishable by imprisonment in  
            the county jail for up to one year, by a fine of up to $1,000,  
            or both.

          2)Requires a first violation to include imprisonment in the  
            county jail for at least 48 hours if the violation resulted in  
            physical injury.

          3)States that a second or subsequent violation occurring within  
            seven years and involving an act of violence, or a credible  
            threat of violence, is punishable by imprisonment in the  
            county jail not to exceed one year, or by 16 months, two or  
            three years in state prison.

          EXISTING LAW:  

          1)Authorizes the trial court in a criminal case to issue  








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            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).)

          2)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).)

          3)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.)

          4)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).)

          5)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 court. (Pen. Code, § 136.2, subd. (b).)

          6)States that a violation of specified restraining orders,  
            including elder abuse and domestic violence restraining orders  
            issued as a condition of probation, is considered contempt of  
            court and punishable as follows:  








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             a)   The first violation is punishable as a misdemeanor with  
               imprisonment in the county jail for up to one year, by a  
               maximum fine of $1,000, or both; and,

             b)   A second violation or subsequent violation occurring  
               within seven years, and involving an act of violence or a  
               credible threat of violence, is a wobbler, punishable by  
               imprisonment in the county jail for up to one year, or in  
               state prison for 16 months, or two or three years. (Pen.  
               Code, § 166, subd. (c).)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "Every nine  
            seconds a woman is assaulted in the United States, and nearly  
            20 people per minute are physically abused by their intimate  
            partner.  The consequences of domestic violence are  
            devastating and can cross generations and last a life-time.   
            By making appropriate cross-references in the Penal Code, AB  
            2078 closes a loophole ensuring that all those who violate  
            domestic violence restraining orders are held accountable.   
            Restraining orders are one of the best ways to protect victims  
            of domestic violence from further abuse and AB 2078 would  
            provide more fitting sentencing guidelines than the general  
            contempt of court guidelines it currently falls under." 

          2)Domestic Violence Restraining Orders:  As a general matter,  
            the court can issue a protective order in any criminal  
            proceeding, including domestic violence cases, 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.  Protective  
            orders issued under this statute are valid only during the  
            pendency of the criminal proceedings.  (People v. Ponce (2009)  
            173 Cal.App.4th 378, 382.)

          When criminal proceedings have concluded, the court has  
            authority to issue protective orders as a condition of  
            probation.  For example, when domestic violence criminal  








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            proceedings have concluded, the court can issue a "no-contact  
            order" as a condition of probation.  (Pen. Code, § 1203.097.)

          Finally, in some cases in which probation has not been granted,  
            the court also has the authority to issue post-conviction  
            protective orders.  The court is authorized to issue  
            no-contact orders for up to 10 years when a defendant has been  
            convicted of willful infliction of corporal injury to a  
            spouse, former spouse, cohabitant, former cohabitant, or the  
            mother or father of the defendant's child.  The court can also  
            issue no-contact orders lasting up to 10 years in cases  
            involving a domestic-violence-related offense, rape, spousal  
            rape, statutory rape, or any crime requiring sex offender  
            registration.  (Pen. Code, § 136.2, subd. (i)(1).) 

          3)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.4th 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.)










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          4)Necessity for this Bill:  There are certain violations of  
            protective orders that are punished with an enhanced  
            misdemeanor sentence when a violation of that order is proven.  
             These include:  (1) protective orders based on the court's  
            finding of good cause belief that harm to, or intimidation or  
            dissuasion of, a victim or witness has occurred or is  
            reasonably likely to occur; (2) a protective order issued as a  
            condition of probation in a domestic violence case; (3) an  
            order issued after conviction in an elder or dependent adult  
            abuse case; (4) a restraining order after conviction of a sex  
            offense involving a minor; and (5) other family court  
            protective orders.  

            In 2007, legislation was enacted authorizing a court to issue  
            a protective order for 10 years upon a defendant's felony  
            conviction of willful infliction of corporal injury.   
            Subsequently, in 2011, the Legislature expanded this authority  
            to cover all cases involving domestic violence, regardless of  
            the sentence imposed.  (SB 723 (Pavley), Chapter 155, Statutes  
            of 2011.)  However, a conforming cross reference was  
            inadvertently omitted from the contempt of court statute,  
            which among other things describes the punishment for  
            violating restraining orders.  (See Pen. Code, § 166.)

            In contrast, last year when the legislature amended the elder  
            abuse statute, Penal Code section 368, to allow for  
            post-conviction restraining orders in all elder abuse cases  
            regardless of whether probation was granted, the bill was  
            amended to include a conforming cross reference to the statute  
            that provides how a violation of the restraining order is  
            punished, Penal Code section 166.  (See SB 352 (Block),  
            Chapter 279, Statutes of 2015, [June 17, 2015 amendments].)

            This bill makes the punishment for a violation of a  
            post-conviction domestic violence restraining orders  
            consistent with that for other post-conviction restraining  
            orders against defendants convicted of abuse.

          5)Argument in Support:  According to the California District  
            Attorneys Association, "[E]xisting law allows courts to issue  
            criminal protective orders for up to ten years when a  
            defendant is convicted of domestic violence under Penal Code  








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            section 273.5.  AB 2078 simply updates California's Penal Code  
            in order to provide the appropriate cross reference so that  
            the willful violation of a domestic violence restraining order  
            may be considered contempt of court under PC 166."

          6)Argument in Opposition:  According to Legal Services for  
            Prisoners with Children, "We do not believe that increasing  
            punishments will increase public safety.  Resources that will  
            go towards arresting, prosecuting, and incarcerating someone  
            could instead be put towards resources that might better  
            prevent people from violating restraining orders, like  
            counseling or mental health care.  Restorative justice has  
            been shown to be highly successful at reducing and eliminating  
            domestic violence.  Solutions to violence against others  
            should be addressed at the root, instead of reactionary  
            responses which punish people."

          7)Related Legislation:  

             a)   AB 2340 (Gallagher) exempts from the gun-free school  
               zone regulations a person holding a valid license to carry  
               a concealed firearm who is also protected by a domestic  
               violence protective order.  AB 2340 will be heard in this  
               committee today.

             b)   SB 883 (Roth) is substantially similar to this bill,  
               except with regard to stalking protective orders.  SB 883  
               is pending in the Senate Public Safety Committee. 

          8)Prior Legislation:  

             a)   SB 352 (Block), Chapter 279, Statutes of 2015,  
               authorizes a court to issue a post-conviction protective  
               order in cases involving elder or dependent adult abuse.

             b)   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 of an offense involving domestic  
               violence, regardless of the sentence imposed.

             c)   AB 289 (Spitzer) Chapter 582, Statutes of 2007, allows a  
               court to issue a protective order for 10 years upon a  








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               defendant's felony conviction of willful infliction of  
               corporal injury.

          REGISTERED SUPPORT / OPPOSITION:
          
          Support

          California District Attorneys Association
          California State Sheriffs' Association

          Opposition
          
          California Attorneys for Criminal Justice
          Legal Services for Prisoners with Children   
          
          Analysis Prepared  
          by:              Sandy Uribe / PUB. S. / (916) 319-3744