BILL ANALYSIS Ó SB 352 Page 1 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: SB 352 Page 2 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: SB 352 Page 3 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).) SB 352 Page 4 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: SB 352 Page 5 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 SB 352 Page 6 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. SB 352 Page 7 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 SB 352 Page 8 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: SB 352 Page 9 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 SB 352 Page 10 Analysis Prepared by:Sandy Uribe / PUB. S. / (916) 319-3744