BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 2078 (Kim) - Domestic violence: protective orders
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|Version: February 17, 2016 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 1, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 2078 would increase the penalty for a violation of
a protection order issued after conviction of an offense
involving domestic violence to conform to the penalty for
violations of other similar protective orders.
Fiscal
Impact:
State prisons : Potential increase in state costs (General
Fund) to the extent the greater penalty for violating
protective orders issued for felony domestic violence
convictions results in additional commitments to state prison
for repeat violations that otherwise would have been subject
to a misdemeanor charge. To the extent even two defendants
statewide are impacted in any one year under the provisions of
this bill could increase state incarceration costs by $58,000
based on the estimated contract bed rate of $29,000 per
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inmate.
County jails : Potentially significant increase in local
incarceration costs (Local Funds or General Fund*), for
additional commitments to county jail, as well as longer
lengths of stay for defendants that otherwise would have
served shorter sentences in county jail under the six-month
misdemeanor charge.
*Proposition 30 (2012) provides that legislation enacted after
September 30, 2012, that has an overall effect of increasing the
costs already borne by a local agency, as specified, apply to
local agencies only to the extent the State provides annual
funding for the cost increase. Although legislation creating a
new crime or revising the definition of an existing crime is
exempt from Proposition 30 state funding requirements,
legislation that changes the penalty for an existing crime is
not similarly specifically exempt. Violating a protective order
issued for domestic violence convictions is an existing crime.
To the extent the greater penalties imposed for violating these
orders is determined to change the penalty for this crime, any
increase in costs to local agencies attributable to the
provisions of this legislation could potentially require annual
funding from the State.
Background: Existing law makes the willful and knowing violation of
specified protective orders or stay-away court orders a
misdemeanor, punishable by imprisonment in a county jail for up
to one year, or by a fine of up to $1,000, or by both that
imprisonment and fine, for a first offense. (Penal Code (PC)
§166(c)(1).)
A second or subsequent conviction for this offense occurring
within seven years of a prior conviction for violating an order
and involving an act of violence or credible threat of violence
is punishable as an alternate felony/misdemeanor, punishable by
imprisonment in county jail for up to one year or in the state
prison for 16 months, two years, or three years. (PC §
166(c)(4).)
Existing law provides that for cases in which a criminal
defendant has been convicted of felony domestic violence, the
court is required to consider issuing an order restraining the
defendant from any contact with the victim, which may be valid
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for up to 10 years, as determined by the court. (PC § 273.5(j))
However, a restraining order issued under this Penal Code
section is not listed under the specified protective orders
subject to misdemeanor penalties pursuant to PC § 166 described
above. As a result, violations of felony domestic violence
restraining orders are only punishable as a misdemeanor offense
subject to imprisonment in county jail for up to six months, a
fine of up to $1,000, or both.(PC § 166(a)(4).)
This bill seeks to add restraining orders issued by the
sentencing court in felony domestic violence cases under PC §
273.5(j) to the list of protective orders subject to the greater
penalties prescribed under PC § 166.
Proposed
Law: This bill would conform 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:
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.
Requires a first violation to include imprisonment in the
county jail for at least 48 hours if the violation resulted
in physical injury.
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.
Related
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Legislation: SB 883 (Roth) 2016 is identical to this measure.
This bill is pending a vote on the Assembly Floor.
Prior Legislation: SB 352 (Block) Chapter 279/2015 authorizes a
court to issue a post-conviction protective order in cases
involving elder or dependent adult abuse.
SB 723 (Pavley) Chapter 155/2011 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.
SB 289 (Spitzer) Chapter 582/2007 allows a court to issue a
protective order for 10 years upon a defendant's felony
conviction of willful infliction of corporal injury.
Staff
Comments: By increasing the punishment for violations of a
restraining order for domestic violence convictions under PC §
273.5, the provisions of this bill could result in increased
state and local costs for incarceration.
Statistics from the Department of Justice (DOJ) indicate over
10,000 convictions annually for each of the past three years for
domestic violence pursuant to PC § 273.5(a) that could
potentially be subject to a restraining order upon issuance of
the court. However, data is unavailable on the number of these
convictions that additionally had protective orders issued by
the court. For protective orders currently covered under
existing law by the greater penalties proposed to be extended to
domestic violence cases under this measure, DOJ data reflects
over 2,400 convictions in 2015, and 116 convictions for repeat
offenders.
CDCR data indicates an average of 21 commitments released from
state prison each year over each of past three years under
repeat violations of protective orders pursuant to PC §
166(c)(4). The number of additional commitments to state prison
cannot be estimated with certainty given the numerous factors
involved in charging and sentencing, including but not limited
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to judicial and prosecutorial discretion, the prior criminal
history of the defendant, and the elements specific to each
case. However, to the extent even two defendants are committed
to state prison in any one year resulting from the provisions of
this bill, state incarceration costs would increase by $58,000
(General Fund).
Staff notes that violating a protective order is a crime under
existing law. Pursuant to Proposition 30 (2012), legislation
enacted after September 30, 2012, that has an overall effect of
increasing the costs already borne by a local agency for
programs or levels of service mandated by the 2011 Realignment
Legislation apply to local agencies only to the extent that the
state provides annual funding for the cost increase. Although
Proposition 30 specifies that legislation defining a new crime
or changing the definition of an existing crime is not subject
to this provision, changing the penalty for a crime is not
specifically exempted and could potentially require a subvention
of funds from the state. To the extent increasing the penalty
for violating protective orders issued for domestic violence
convictions to conform to the penalty for violating other
protective orders is determined to change the penalty for the
existing crime, any increase in costs to local agencies
attributable to provisions of this legislation could potentially
require annual funding from the State.
The Three-Judge Court has ordered the State to reduce its prison
population to 137.5 percent of the prison system's design
capacity by February 28, 2016. Pursuant to its February 10, 2014
order, the Court has ordered the CDCR to implement several
population reduction measures, prohibited an increase in the
population of inmates housed in out-of-state facilities, and
indicated the Court will maintain jurisdiction over the State
for as long as necessary to ensure that the State's compliance
with the 137.5 percent final benchmark is durable, and that such
durability is firmly established. Any future increases to the
State's prison population challenge the ability of the State to
reach and maintain such a "durable solution," and could require
the State to pursue one of several options, including
contracting-out for additional bed space or releasing current
inmates earlier onto parole.
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