BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 883|
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THIRD READING
Bill No: SB 883
Author: Roth (D)
Amended: 3/28/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/5/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
SUBJECT: Domestic violence: protective orders
SOURCE: Riverside County District Attorney
DIGEST: This bill conforms 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.
ANALYSIS:
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).)
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2)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).)
3)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.)
4)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).)
5)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).)
6)Sets forth the following circumstances constituting
misdemeanor contempt of court:
a) 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
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interrupt its proceedings or to impair the respect due to
its authority.
b) 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.
c) A breach of the peace, noise, or other disturbance
directly tending to interrupt the proceedings of the court.
d) 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.
e) Resistance willfully offered by any person to the lawful
order or process of a court.
f) 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.
g) The publication of a false or grossly inaccurate report
of the proceedings of a court.
h) 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.
i) Willful disobedience of the terms of an injunction that
restrains the activities of a criminal street gang or any
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of its members, lawfully issued by a court, including an
order pending trial. (Pen. Code § 166(a).)
j) Existing 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.
7)Provides that the willful and knowing violation of 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
$1,000 or both. (Pen. Code § 166 (b) and (c).) Where a
violation results in physical injury, specified mandatory jail
time applies. (Pen.l 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).(Pen. Code §
166(c)(4).)
This bill adds a restraining order issued by the sentencing
court in a felony domestic violence case (Pen. Code § 273.5(j))
to the list of protective or stay-away orders subject to these
greater penalties.
Background
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
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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
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
State prisons: Potential increase in state costs (General
Fund) to the extent the greater penalty for violating
protective orders issued for felony domestic violence
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convictions results in additional commitments to state prison
for repeat violations that otherwise would have been subject
to a misdemeanor charge. To the extent even two defendants
statewide are impacted in any one year under the provisions of
this bill could increase state incarceration costs by $58,000
based on the estimated contract bed rate of $29,000 per
inmate.
County jails: Potentially significant increase in local
incarceration costs (Local Funds or General Fund*), for
additional commitments to county jail, as well as longer
lengths of stay for defendants that otherwise would have
otherwise served shorter sentences in county jail under the
six-month misdemeanor charge.
*Proposition 30 (2012) provides that legislation enacted after
September 30, 2012, that has an overall effect of increasing the
costs already borne by a local agency, as specified, apply to
local agencies only to the extent the state provides annual
funding for the cost increase. Although legislation creating a
new crime or revising the definition of an existing crime is
exempt from Proposition 30 state funding requirements,
legislation that changes the penalty for an existing crime is
not similarly specifically exempt. Violating a protective order
issued for domestic violence convictions is an existing crime.
To the extent the greater penalties imposed for violating these
orders is determined to change the penalty for this crime, any
increase in costs to local agencies attributable to the
provisions of this legislation could potentially require annual
funding from the state.
SUPPORT: (Verified5/27/16)
Riverside County District Attorney (source)
California District Attorneys Association
OPPOSITION: (Verified5/27/16)
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California Public Defenders Association
ARGUMENTS IN SUPPORT: 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 (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."
ARGUMENTS IN OPPOSITION: The California Public Defenders
Association states in part:
"SB 883 proposes increased incarceration for individuals who
violate protective orders issued under Penal Code 646.9. Under
current law, an individual who disobeys such an order by
contacting a protected party by phone, text, letter or in person
may already be punished by up to a year in jail. Similarly,
under current law, if the individual engages in any other
criminal action while contacting the protected party (such as
making threats), the are already subject to additional
punishment, including potential prosecution as a felony and
years in state prison. Nonetheless, SB 883 seeks to increase
prison sentences for some violations of Penal Code section 166.
"This bill will unnecessarily increase prison over-crowding in
California, threatening efforts to reduce California's expensive
and counter-productive reliance on incarceration to establish
public policy."
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Prepared by:Alison Anderson / PUB. S. /
5/28/16 16:50:07
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