BILL ANALYSIS Ó
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