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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