BILL ANALYSIS Ó
SB 307
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Date of Hearing: June 16, 2015
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
307(Pavley) - As Amended: June 9, 2015
As Proposed to be Amended in Committee
SUMMARY: Clarifies that post-conviction restraining orders may
be issued by the court in domestic violence or sex crimes when a
defendant's sentence includes a period of mandatory supervision.
Specifically, this bill: States that such protective orders
may be issued by the court regardless of whether the defendant
is sentenced to the state prison or a county jail, subject to
mandatory supervision, or whether imposition of sentence is
suspended and the defendant is placed on probation.
SB 307
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EXISTING LAW:
1)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, §
136.2, subd. (a).)
2)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).)
3)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).)
4)States that a violation of specified restraining orders,
including an order issued as a condition of probation in elder
or dependent abuse case, is considered contempt of court and
punishable as a misdemeanor. (Pen. Code, § 166, subd.
(c)(1)(C).)
5)Authorizes the court, when imposing a sentence for a county
jail-eligible felony under Criminal Justice Realignment, to
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commit the defendant to county jail as follows:
a) For a full term in custody as determined in accordance
with applicable sentencing law; or
b) For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a
concluding portion or the term selected in the court's
discretion, during which time defendant will be placed on
mandatory supervision for the remaining unserved portion of
the sentence imposed by the court; but,
c) States a presumption in favor of split sentencing, which
requires the court to provide a period of mandatory
supervision for a concluding portion of a sentence, unless
the court finds that it is in the best interest of justice
not to do so. (Pen. Code, § 1170, subd. (h)(5).)
FISCAL EFFECT: >
COMMENTS:
1)Author's Statement: According to the author, "SB 307
clarifies that sentencing judges have the authority to impose
a protective order when a defendant is sentenced to mandatory
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supervision (supervision in the community under AB 109
realignment) for domestic violence or a serious sex offense.
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 risk of abuse and violence when
perpetrators are released.
"SB 307 addresses an omission in California's Realignment Law of
2011, (Proposition 109), and clarifies that sentencing judges
have the authority to impose a protective order when a
defendant is sentenced to mandatory supervision for domestic
violence or a serious sex offense.
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
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 victims of rape
in California and an estimated 8.6 million survivors of sexual
violence other than rape in the state."
2)Criminal Protective Orders: As a general matter, the court
can issue a protective order in any criminal proceeding
pursuant to Penal Code Section 136.2 where it finds good cause
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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
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).) 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).)
3)Necessity for this Bill: Under realignment, the court has the
authority to sentence a defendant convicted of a felony
punishable by incarceration in the county jail to either a
full term in custody, or to split the sentence between time in
custody and mandatory supervision in the community in any
proportion the court deems appropriate. However, effective
January 1, 2015, there is a presumption in favor of the
imposition of a split sentence unless the court finds that it
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is in the best interest of justice not to do so. (Pen. Code,
§1170, subd. (h)(5).) Thus, mandatory supervision is a
component of a split sentence which follows a period of
incarceration in county jail. It is not a separate sentencing
alternative.
As noted above, current law allows the issuance of a
post-conviction restraining order in domestic violence and sex
cases which can last up to 10 years. The language of the
statute specifies that "This protective order may be issued
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." (Pen.
Code, § 136.2, subd. (i)(1).)
Because mandatory supervision is period of supervision that
follows a county jail commitment, under the current language
of the statute, a court can already issue a post-conviction
restraining order even when a defendant has to serve part of
his or her sentence under mandatory supervision. However,
arguably, it is possible that the court could allow a
defendant to serve the custody portion of a split sentence in
some form of alternative custody, rather than the county jail.
In such a situation, the defendant might argue he or she was
not "sentenced to county jail" for purposes of the statute
allowing post-conviction restraining orders. This bill
clarifies that such an order may be issued whenever a
defendant is subject to mandatory supervision, regardless of
where he or she serves the custody component of the split
sentence.
4)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
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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.) 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.)
5)Argument in Support: The Los Angeles County District
Attorney's Office, the sponsor of this bill, "SB 307 will
clarify that sentencing judges have the authority to impose a
protective order when a defendant is sentences to mandatory
supervision (supervision in the community under AB 109
realignment) for domestic violence or a serious sex offense.
The law already allows judges to issue protective orders when
the defendant is sentenced to prison, county jail, or
probation.
"Victims have a Constitutional right to reasonable protection
from a defendant and to have their safety considered in
setting release conditions for a defendant. However, without
this clarification in the law, many domestic violence and
sexual assault victims may not be protected."
6)Related Legislation: SB 352 (Block) requires the court to
consider issuing a restraining order for up to 10 years when a
defendant is convicted for an offense involving abuse of an
elder or a dependent adult, regardless of the sentence
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imposed. SB 352 is pending hearing in this committee today.
7)Prior Legislation:
a) SB 910 (Pavley), Chapter 638, Statutes of 2014, expanded
the definition of "domestic violence" for purposes of a
court's ability to issue restraining orders in domestic
violence cases.
b) AB 307 (Campos), Chapter 291, Statutes of 2013, allows a
court to issue a protective order for up to 10 years when a
defendant is convicted of specified sex crimes, regardless
of the sentence imposed.
c) 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 for an offense involving domestic
violence, regardless of the sentence imposed.
REGISTERED SUPPORT / OPPOSITION:
Support
California Probation, Parole, and Correctional Association
California State Sheriffs' Association
Crime Victims United of California
Jewish Family Services of Los Angeles
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One Private Individual
Opposition
None
Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744