BILL ANALYSIS Ó AB 2078 Page 1 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 AB 2078 Page 2 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: AB 2078 Page 3 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 AB 2078 Page 4 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.) AB 2078 Page 5 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 AB 2078 Page 6 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 AB 2078 Page 7 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