BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 883        Hearing Date:    April 5, 2016    
          
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          |Author:    |Roth                                                 |
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          |Version:   |March 28, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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                   Subject:  Domestic Violence:  Protective Orders



          HISTORY

          Source:   Riverside County District Attorney

          Prior Legislation:SB 352 (Block), Chapter 279, Statutes of 2015
                         SB 723 (Pavley), Chapter 155, Statutes of 2011
                         AB 289 (Spitzer), Chapter 582, Statutes of 2007

          Support:  California District Attorneys Association

          Opposition:California Public Defenders Association



                                       PURPOSE


          The purpose of this bill is to conform the misdemeanor  
          punishment for a violation of a protection order issued after a  
          conviction for felony domestic violence to the punishment for  
          other similar protective orders.

          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  







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          has occurred or is reasonably likely to occur. (Pen. Code, §  
          136.2, subd. (a).)

          Current law requires a court, in all cases where the defendant  
          is charged with a crime of domestic violence, to consider  
          issuing a protective order on its own motion. All interested  
          parties are required to receive a copy of those orders, as  
          specified. (Pen. Code, § 136.2, subd. (e)(1).)

          Current law allows a court, in any case in which a complaint,  
          information, or indictment charging a crime of domestic violence  
          has been filed, to consider, in determining whether good cause  
          exists to issue a protective order, the underlying nature of the  
          offense charged, and information provided to the court through a  
          background check, including information about the defendant's  
          prior convictions for domestic violence, other forms of violence  
          or weapons offenses, and any current protective or restraining  
          order issued by a criminal or civil court. (Pen. Code, §§ 136.2,  
          subd. (h) and 273.75.)



          Current law 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).) 

          Current law 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).) 

           Current law sets forth the following circumstances constituting  
          misdemeanor contempt of court:

             1)   Disorderly, contemptuous, or insolent behavior committed  
               during the sitting of a court of justice, in the immediate  
               view and presence of the court, and directly tending to  
               interrupt its proceedings or to impair the respect due to  








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               its authority.

             2)   Behavior specified in paragraph (1) that is committed in  
               the presence of a referee, while actually engaged in a  
               trial or hearing, pursuant to the order of a court, or in  
               the presence of any jury while actually sitting for the  
               trial of a cause, or upon an inquest or other proceeding  
               authorized by law.

             3)   A breach of the peace, noise, or other disturbance  
               directly tending to interrupt the proceedings of the court.

             4)   Willful disobedience of the terms as written of any  
               process or court order or out-of-state court order,  
               lawfully issued by a court, including orders pending trial.

             5)   Resistance willfully offered by any person to the lawful  
               order or process of a court.

             6)   The contumacious and unlawful refusal of a person to be  
               sworn as a witness or, when so sworn, the like refusal to  
               answer a material question.

             7)   The publication of a false or grossly inaccurate report  
               of the proceedings of a court.

             8)   Presenting to a court having power to pass sentence upon  
               a prisoner under conviction, or to a member of the court,  
               an affidavit, testimony, or representation of any kind,  
               verbal or written, in aggravation or mitigation of the  
               punishment to be imposed upon the prisoner, except as  
               provided in this code.

             9)   Willful disobedience of the terms of an injunction that  
               restrains the activities of a criminal street gang or any  
               of its members, lawfully issued by a court, including an  
               order pending trial.  (Penal Code § 166(a).)

          Current law provides generally that the penalty for these  
          contempt misdemeanors is up to six months in jail and a fine,  
          except that in specified cases the penalty is up to a year in  
          jail, and a fine of not more than $1000 or both.  

          Current law provides that the willful and knowing violation of  








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          specified protective or stay-away orders are subject to the  
          greater penalty of up to one year in jail and a fine of not more  
          than $1000 or both.  (Penal Code § 166 (b) and (c).)  Where a  
          violation results in physical injury, specified mandatory jail  
          time applies.  (Penal Code § 166(c)(2).)  A second or subsequent  
          conviction for a violation of these orders occurring within  
          seven years of a prior conviction for a violation of any of  
          those orders and involving an act of violence or "a credible  
          threat" of violence, as defined, is punishable as a "wobbler,"  
          (jail up to one year, or state prison for 16 months or two or  
          three years).(Penal Code § 166(c)(4).)

          This bill would add a restraining order issued by the sentencing  
          court in a felony domestic violence case (Penal Code § 273.5(j))  
          to the list of protective or stay-away orders subject to these  
          greater penalties.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several 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 December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  








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          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 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).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 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).)  
           
          While significant gains have been made in reducing the prison  
          population, the state 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:

               Penal Code Section 166(c)(1) provides that violations  
               of criminal restraining orders issued under 1203.097  
               (terms of domestic violence probation), 136.2  








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               (criminal protective orders), and 368 PC (Elder  
               Abuse), may be punishable by up to one year in county  
               jail.

               Since they are not mentioned in subdivision (c),  
               violations of criminal protective orders under  
               273.5(j) are only punishable as a 6 month misdemeanor  
               offense.  Because of this, an individual convicted of  
               a violation of Penal Code Section 273.5 who violates a  
               protective order receives a lesser potential sentence  
               than someone who has yet to be convicted.

          2.What This Bill Would Do

          There are certain violations of protective orders that are  
          punished with an enhanced misdemeanor sentence when a violation  
          of that order is proven. These include: (1) protective orders  
          based on the court's finding of good cause belief that harm to,  
          or intimidation or dissuasion of, a victim or witness has  
          occurred or is reasonably likely to occur; (2) a protective  
          order issued as a condition of probation in a domestic violence  
          case; (3) an order issued after conviction in an elder or  
          dependent adult abuse case; (4) a restraining order after  
          conviction of a sex offense involving a minor; and (5) other  
          family court protective orders.

          In 2007, legislation was enacted authorizing a court to issue a  
          protective order for 10 years upon a defendant's felony  
          conviction of willful infliction of corporal injury.  
          Subsequently, in 2011, the Legislature expanded this authority  
          to cover all cases involving domestic violence, regardless of  
          the sentence imposed. (SB 723 (Pavley), Chapter 155, Statutes of  
          2011.) However, a conforming cross reference was inadvertently  
          omitted from the contempt of court statute, which among other  
          things describes the punishment for violating restraining  
          orders. (See Pen. Code, § 166.) 

          In contrast, last year when the legislature amended the elder  
          abuse statute, Penal Code section 368, to allow for  
          post-conviction restraining orders in all elder abuse cases  
          regardless of whether probation was granted, the bill was  
          amended to include a conforming cross reference to the statute  
          that provides how a violation of the restraining order is  
          punished, Penal Code section 166. (See SB 352 (Block), Chapter  








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          279, Statutes of 2015, [June 17, 2015 amendments].) 

          This bill makes the punishment for a violation of a  
          post-conviction domestic violence restraining order consistent  
          with that for other post-conviction restraining orders against  
          defendants convicted of abuse.

          3.Background

          As a general matter, courts 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, courts have 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.)

          In addition, in some cases in which probation has not been  
          granted, courts also have the authority to issue post-conviction  
          protective orders. Courts are 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).)

          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  








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          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.)  

          4.Related Legislation

          This bill is identical to AB 2078 (Kim), which was heard and  
          passed by the Assembly Committee on Public Safety on March 29,  
          2016.

          

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