BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 307 Hearing Date: April 14, 2015
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|Author: |Pavley |
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|Version: |February 23, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|AA |
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Subject: Restraining Orders
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation:None
Support: California State Sheriffs' Association; Crime Victims
United of California
Opposition:None Known
PURPOSE
The purpose of this bill is to include mandatory supervision, a
sentencing feature for felonies subject to jail confinement, in
protective order statutes regarding domestic violence, sex
crimes and stalking, as specified.
Current law 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, §
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136.2, subd. (a).)
Current law requires that in cases in which a criminal defendant
has been convicted of a domestic violence or sex offense crime,
as specified, 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, and the protective order may
be issued by the court regardless of whether the defendant is
sentenced to the state prison or a county jail, or whether
imposition of sentence is suspended and the defendant is placed
on probation. "It is the intent of the Legislature in enacting
this subdivision that the duration of any restraining order
issued by the court be based upon the seriousness of the facts
before the court, the probability of future violations, and the
safety of the victim and his or her immediate family." (Penal
Code § 136.2(i)(1).)
This bill would amend this provision to include defendants
placed on mandatory supervision, a feature of a jail felony
sentence pursuant to Penal Code section 1170(h).
Current law requires the sentencing court in a case where the
defendant has been convicted of felony domestic violence to
"also consider issuing an order restraining the defendant from
any contact with the victim, which may be valid for up to 10
years, as determined by the court. It is the intent of the
Legislature that the length of any restraining order be based
upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim
and his or her immediate family. This protective order may be
issued by the court whether the defendant is sentenced to state
prison or county jail, or if imposition of sentence is suspended
and the defendant is placed on probation." (Penal Code §
273.5.)
This bill would amend this provision to include defendants
placed on mandatory supervision, a feature of a jail felony
sentence pursuant to Penal Code section 1170(h).
Current law requires the sentencing court in a stalking case to
"also shall consider issuing an order restraining the defendant
from any contact with the victim, that may be valid for up to 10
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years, as determined by the court. It is the intent of the
Legislature that the length of any restraining order be based
upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim
and his or her immediate family. . . . This protective order may
be issued by the court whether the defendant is sentenced to
state prison, county jail, or if imposition of sentence is
suspended and the defendant is placed on probation." (Penal
Code § 646.9.)
This bill would amend this provision to include defendants
placed on mandatory supervision, a feature of a jail felony
sentence pursuant to Penal Code section 1170(h).
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight 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 February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 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).
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While significant gains have been made in reducing the prison
population, the state now 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:
SB 307 expands the potential use of criminal justice
restraining orders when offenders are released to
their communities. Currently, spouses, partners and
other family members may receive restraining-order
protections of up to 10 years when misdemeanor or
felony abusers are released from jail or prison or
placed on parole or probation. However, if an
offender is sentenced to mandatory supervision in the
community, victims are not protected unless they get a
new restraining order in family court, which is a
costly and time-consuming process that puts victims at
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risk of abuse and violence when perpetrators are
released.
Under California's Realignment Law of 2011,
(Proposition 109), many criminal offenders were
shifted from state prison to local jails or mandatory
supervision in communities throughout California. SB
307 addresses an omission in the law, which fails to
give courts the discretion to issue criminal
restraining orders to victims of domestic violence or
sex crimes if the offender is ordered to mandatory
supervision, instead of incarceration in prison or
jail or probation.
SB 307 closes a potentially life-threatening gap in
the law by giving sentencing judges the tools they
need to protect victims once their offenders are
released back into the public. Family members and
other victims are often the first target for abuse
when a domestic-violence or sexual-assault offender is
released to the community. This bill closes a
dangerous loophole in the law by giving sentencing
judges the ability to protect all victims from abuse
once these offenders return to our streets.
In California, there are more than 410 domestic abuse
incidents reported every day, according to the
Department of Justice. According to the National
Intimate Partner and Sexual Violence Survey, conducted
by the Centers for Disease Control and Prevention,
there are an estimated two million female victims of
rape in California, and an estimated 8.6 million
survivors of sexual violence other than rape in the
state.
2.What This Bill Would Do
This bill revises protective order provisions concerning
defendants in domestic violence, stalking and certain sex
crime cases to include offenders whose sentences includes
"mandatory supervision." As explained by the author,
mandatory supervision is a sentencing feature created with
the enactment of the criminal justice realignment in 2011
pursuant to AB 109. Specifically, Penal Code section
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1170(h) - the "jail felony" piece of AB 109, provides:
(h)(1) Except as provided in paragraph (3), a felony
punishable pursuant to this subdivision where the term
is not specified in the underlying offense shall be
punishable by a term of imprisonment in a county jail
for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony
punishable pursuant to this subdivision shall be
punishable by imprisonment in a county jail for the
term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the
defendant (A) has a prior or current felony conviction
for a serious felony described in subdivision (c) of
Section 1192.7 or a prior or current conviction for a
violent felony described in subdivision (c) of Section
667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements
of a serious felony described in subdivision (c) of
Section 1192.7 or a violent felony described in
subdivision (c) of Section 667.5, (C) is required to
register as a sex offender pursuant to Chapter 5.5
(commencing with Section 290) of Title 9 of Part 1, or
(D) is convicted of a crime and as part of the
sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state
prison.
(4) Nothing in this subdivision shall be construed to
prevent other dispositions authorized by law,
including pretrial diversion, deferred entry of
judgment, or an order granting probation pursuant to
Section 1203.1.
(5) (A) Unless the court finds that, in the interests
of justice, it is not appropriate in a particular
case, the court, when imposing a sentence pursuant to
paragraph (1) or (2), shall suspend execution of a
concluding portion of the term for a period selected
at the court's discretion.
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(B) The portion of a defendant's sentenced term
that is suspended pursuant to this paragraph shall be
known as mandatory supervision, and, unless otherwise
ordered by the court, shall commence upon release from
physical custody or an alternative custody program,
whichever is later. During the period of mandatory
supervision, the defendant shall be supervised by the
county probation officer in accordance with the terms,
conditions, and procedures generally applicable to
persons placed on probation, for the remaining
unserved portion of the sentence imposed by the court.
The period of supervision shall be mandatory, and may
not be earlier terminated except by court order. Any
proceeding to revoke or modify mandatory supervision
under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or
Section 1203.3. During the period when the defendant
is under such supervision, unless in actual custody
related to the sentence imposed by the court, the
defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court.
Any time period which is suspended because a person
has absconded shall not be credited toward the period
of supervision. (emphasis added.)
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