BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2078 Hearing Date: June 21, 2016
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|Author: |Kim |
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|Version: |February 17, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|AA |
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Subject: Protective Orders
HISTORY
Source: Author
Prior Legislation:SB 352 (Block) - Chapter 279, Statutes of 2015
SB 723 (Pavley) - Chapter 155, Statutes of 2011
AB 289 (Spitzer) - Chapter 582, Statutes of 2007
Support: California District Attorneys Association; California
State Sheriffs' Association
Opposition:Legal Services for Prisoners with Children
Assembly Floor Vote: 72 - 0
PURPOSE
The purpose of this bill is to conform the misdemeanor
punishment for a violation of a protection order issued after a
conviction for felony domestic violence to the punishment for
other similar protective orders.
Current law authorizes the trial court in a criminal case to
issue protective orders when there is a good cause belief that
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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).)
Current law 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 are required to receive a copy of those orders, as
specified. (Pen. Code, § 136.2, subd. (e)(1).)
Current law 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.)
Current law 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).)
Current law 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).)
Current law sets forth the following circumstances constituting
misdemeanor contempt of court:
1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of a court of justice, in the immediate
view and presence of the court, and directly tending to
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interrupt its proceedings or to impair the respect due to
its authority.
2) Behavior specified in paragraph (1) that is committed in
the presence of a referee, while actually engaged in a
trial or hearing, pursuant to the order of a court, or in
the presence of any jury while actually sitting for the
trial of a cause, or upon an inquest or other proceeding
authorized by law.
3) A breach of the peace, noise, or other disturbance
directly tending to interrupt the proceedings of the court.
4) Willful disobedience of the terms as written of any
process or court order or out-of-state court order,
lawfully issued by a court, including orders pending trial.
5) Resistance willfully offered by any person to the lawful
order or process of a court.
6) The contumacious and unlawful refusal of a person to be
sworn as a witness or, when so sworn, the like refusal to
answer a material question.
7) The publication of a false or grossly inaccurate report
of the proceedings of a court.
8) Presenting to a court having power to pass sentence upon
a prisoner under conviction, or to a member of the court,
an affidavit, testimony, or representation of any kind,
verbal or written, in aggravation or mitigation of the
punishment to be imposed upon the prisoner, except as
provided in this code.
9) Willful disobedience of the terms of an injunction that
restrains the activities of a criminal street gang or any
of its members, lawfully issued by a court, including an
order pending trial. (Penal Code § 166(a).)
Current law provides generally that the penalty for these
contempt misdemeanors is up to six months in jail and a fine,
except that in specified cases the penalty is up to a year in
jail, and a fine of not more than $1000 or both.
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Current law provides that the willful and knowing violation of
specified protective or stay-away orders are subject to the
greater penalty of up to one year in jail and a fine of not more
than $1000 or both. (Penal Code § 166 (b) and (c).) Where a
violation results in physical injury, specified mandatory jail
time applies. (Penal Code § 166(c)(2).) A second or subsequent
conviction for a violation of these orders occurring within
seven years of a prior conviction for a violation of any of
those orders and involving an act of violence or "a credible
threat" of violence, as defined, is punishable as a "wobbler,"
(jail up to one year, or state prison for 16 months or two or
three years).(Penal Code § 166(c)(4).)
This bill would add a restraining order issued by the sentencing
court in a felony domestic violence case (Penal Code § 273.5(j))
to the list of protective or stay-away orders subject to these
greater penalties.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
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final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states in part:
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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.
Courts may issue a protective order to potential
victims of domestic violence if the judge finds that
there is good cause to believe that harm,
intimidation, or dissuasion of a victim or witness has
occurred or is likely to occur. But due to a drafting
error in current law, if violators of restraining
orders pursuant to PC 273.5(j) are not also listed in
PC 166 the defense could argue that the perpetrator
cannot be rightly charged under PC 166, which provides
for stronger penalties for violations of court
restraining and protective orders relating to sexual
assault, elder abuse, and domestic violence-related
crimes. . . .
Because criminal protective orders issued pursuant to
Penal Code section 273.5(j) are always going to be
domestic violence orders by definition of the charge,
violation of such orders should be punishable as
contempt under Penal Code section 166(c)(1). If orders
issued pursuant to Penal Code section 273.5(j) are not
listed in 166(c)(1), then the defense could argue that
such violations cannot be charged under this
subsection.
2.What This Bill Would Do
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,
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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 order consistent
with that for other post-conviction restraining orders against
defendants convicted of abuse.
3.Background
As a general matter, courts 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. 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, courts have authority
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to issue protective orders as a condition of probation. For
example, when domestic violence criminal proceedings have
concluded, the court can issue a "no-contact order" as a
condition of probation. (Pen. Code, § 1203.097.)
In addition, in some cases in which probation has not been
granted, courts also have the authority to issue post-conviction
protective orders. Courts are 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).) The same is true of stalking
cases (Pen. Code, §646.9, subd. (k)). Similarly, in cases
involving a criminal conviction or juvenile adjudication for a
sex offense in which the victim was a minor, the court may issue
an order "that would prohibit ? harassing, intimidating, or
threatening the victim or the victim's family members or
spouse." (Pen. Code, § 1201.3, subd. (a).)
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.)
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4.Opposition
Legal Services for Prisoners with Children opposes this bill,
stating in part:
We do not believe that increasing punishments will
increase public safety. . . Solutions to violence
against others should be addressed at the root,
instead of reactionary responses which punish people.
5.Related Legislation
This bill is identical to SB 883 (Roth) which currently is in
the Assembly. That bill passed this Committee (7-0) on April
4th of this year.
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