BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 883| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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).) SB 883 Page 2 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 SB 883 Page 3 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 SB 883 Page 4 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 SB 883 Page 5 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 SB 883 Page 6 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) SB 883 Page 7 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." SB 883 Page 8 Prepared by:Alison Anderson / PUB. S. / 5/28/16 16:50:07 **** END ****