BILL ANALYSIS                                                                                                                                                                                                    



                                                                     SB 352


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          Date of Hearing:   June 16, 2015


          Counsel:               Sandy Uribe








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          SB 352  
                      (Block) - As Introduced February 24, 2015


                       As Proposed to be Amended in Committee






          SUMMARY:  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 imposed.  Specifically, this bill:  











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          1)Requires the court to consider issuing a restraining order  
            lasting up to ten years when a defendant is convicted of a  
            violation of any of the following crimes:

             a)   Infliction of unjustifiable physical pain or mental  
               suffering upon an elder or dependent adult, or willfully  
               causing or permitting such a person to suffer or become  
               endangered;

             b)   Theft, identity theft, embezzlement, forgery, or fraud  
               of an elder or dependent adult; 



             c)   False imprisonment of an elder or dependent adult by  
               violence, menace, fraud or deceit. 



          2)States that the length of the restraining order should be  
            based on the seriousness of the facts in the case, the  
            probability of future violations, and the safety of the victim  
            and his or her immediate family.

          3)States that the protective order may be issued regardless of  
            whether the defendant is sentenced to state prison, county  
            jail, or to probation.



          4)Makes a conforming cross reference to the statute describing  
            the punishment for violation of a restraining order.





          EXISTING LAW:  









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          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)Makes it a crime for a person who knows, or should have known,  
            that another person is an elder or dependent adult to inflict  
            unjustifiable physical pain or mental suffering, or willfully  
            cause or permit that person to suffer, or to steal or embezzle  
            from that person, or to falsely imprison such a person by the  
            use of violence, menace, fraud or deceit.  (Pen. Code,  368.)



          4)Defines "elder" as any person who is 65 years of age or older.  
             (Pen. Code,  368, subd. (g).)



          5)Defines "dependent adult" as any person who is between the  
            ages of 18 and 64, who has physical or mental limitations  
            which restrict his or her ability to carry out normal  
            activities or to protect his or her rights, including, but not  
            limited to, persons who have physical or developmental  
            disabilities or whose physical or mental disabilities have  
            been diminished because of age," or "any person between the  
            ages of 18 and 64 who is admitted as an inpatient to a 24-hour  
            health facility."  (Pen. Code,  368, subd. (h).)









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          6)Authorizes a court to issue, upon petition by an elder or  
            dependent adult who has suffered abuse, as defined, a civil  
            protective orders restraining a party from committing certain  
            acts, or removing a party from the residence of the abused  
            elder or dependent adult.  The order does not require a  
            conviction and can be for no more than five years.  (Welf. &  
            Inst. Code,  15657.03.)



          7)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).)



          8)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).)



          FISCAL EFFECT:  Unknown.





          COMMENTS:  









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          1)Author's Statement:  According to the author, "With 4.2  
            million individuals over the age of 65 years, California has  
            the highest number of aging adults in the nation.  Currently,  
            loopholes in the law restrict a prosecutor's ability to  
            protect victims of elder abuse through the use of  
            post-conviction criminal protective orders.  This loophole  
            leaves our most vulnerable crime victims with an unnecessary  
            level of exposure to revictimization. Elders are also among  
            the least equipped victims able to pursue protection through  
            civil remedies such as temporary restraining orders since they  
            are often complicated, costly and time consuming to obtain.

          "Although great progress was made with the recent passage of SB  
            910 (Pavley), which provided protection to victims whose  
            perpetrator is related within two degrees of consanguinity,  
            more could be done to protect elders. SB 352 expands the  
            protection of elders in the following cases where current law  
            falls short:

          "Where the victim is unrelated to a defendant which is most  
            prevalent in cases involving caretakers who are abusive  
            physically, financially, or through neglect;

          "Where the defendant is a relative of the victim but not within  
            two degrees of consanguinity leaving elders exposed to  
            perpetrators who may be cousins, aunts/uncles,  
            great-grandchildren, nieces/nephews; step-children; etc.

          "Where the defendant gets sentenced to probation and the  
            defendant and victim are not related within two degrees of  
            consanguinity.  This scenario is most common when there is  
            elder abuse committed by caretakers.

          "SB 352 will close this dangerous loophole in the law that makes  
            our elder victims vulnerable to further abuse and anxiety."

          2)Criminal Protective Orders:  As a general matter, the court  








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            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, 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).)


            This bill extends the court's authority to issue no-contact  
            orders lasting up to 10 years in cases involving the abuse of  
            an elder or dependent adult.








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          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.)  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.)


          4)Argument in Support:  According to the San Diego County  
            District Attorney, the sponsor of this bill, "Senate Bill 352  
            ? closes a loophole that restricts a prosecutor's use of a  
            post-conviction criminal protective order in certain  
            situations.  Current law allows for post-conviction use of  
            protective orders in cases where the suspect and victim are  
            related within two degrees of consanguinity.  However, in  
            cases where suspect and victim are not related within those  
            two degrees, the protective order is not enforceable.  This  
            creates a very dangerous situation for vulnerable victims once  








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            the defendant is released from custody.  SB 352 will also add  
            a box to check pursuant to the new section on the form CR-161-  
            'Criminal Protective Order - Other than Domestic Violence.'   
            This will ensure that these orders are specific  to elder  
            abuse victims post-conviction.

          "The thrust of SB 352 is to add a provision to PC 368 that  
            mirrors the language in PC 273.5 (j) (Domestic Violence) and  
            PC 646.9(k)(1) (Stalking) and closes this critical loophole in  
            the law that makes our elder victims vulnerable to further  
            abuse and anxiety."

          5)Related Legislation: SB 307 (Pavley) authorizes restraining  
            orders to be issued by a court for specified crimes when a  
            defendant's sentence includes a period of mandatory  
            supervision.  SB 307 is pending hearing in this committee  
            today.

          6)Prior Legislation:  

             a)   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.  

             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 for an offense involving domestic  
               violence, regardless of the sentence imposed.

             c)   SB 834 (Florez), Chapter 627, Statutes of 2010, allows a  
               court to issue a protective order for up to 10 years in sex  
               cases involving a minor victim.

             d)   AB 289 (Spitzer), Chapter 582, Statutes of 2007, allows  
               a court to issue a protective order for 10 years upon a  
               defendant's conviction for stalking.

          REGISTERED SUPPORT / OPPOSITION:








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          Support


          


          San Diego County District Attorney (Sponsor)


          Association of Deputy District Attorneys
          California Advocates for Nursing Home Reform
          California Commission on Aging
          California District Attorneys Association
          California Police Chiefs Association
          California Retired Teachers Association
          California School Employees Association
          California State Sheriffs' Association
          Judicial Council of California 
          Marin County Board of Supervisors
          National Association of Social Workers



          Opposition


          


          None












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          Analysis Prepared by:Sandy Uribe / PUB. S. / (916)  
          319-3744