BILL ANALYSIS Ó
SB 883
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Date of Hearing: June 14, 2016
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
883 (Roth) - As Amended March 28, 2016
SUMMARY: Conforms the punishment for a violation of a protection order
issued after conviction of an offense involving domestic
violence to the punishment for other similar protective orders.
Specifically, this bill:
1)Punishes the first violation of a post-conviction domestic
violence restraining order is with imprisonment in the county
jail for up to one year, by a fine of up to $1,000, or both.
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2)Requires a first violation to include imprisonment in the
county jail for at least 48 hours if the violation resulted in
physical injury.
3)Punishes a second or subsequent violation occurring within
seven years and involving an act of violence, or a credible
threat of violence, with imprisonment in the county jail not
to exceed one year, or by 16 months, or two, or three years in
state prison.
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).)
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
shall receive a copy of those orders. In order to facilitate
this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court
to this issue. (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
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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)States that a violation of specified restraining orders,
including elder abuse and domestic violence restraining orders
issued as a condition of probation, is considered contempt of
court and punishable as follows:
a) The first violation is punishable as a misdemeanor with
imprisonment in the county jail for up to one year, by a
maximum fine of $1,000, or both; and,
b) A second violation or subsequent violation occurring
within seven years, and involving an act of violence or a
credible threat of violence, is a wobbler, punishable by
imprisonment in the county jail for up to one year, or in
state prison for 16 months, or two or three years. (Pen.
Code, § 166, subd. (c).)
FISCAL EFFECT: Unknown
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COMMENTS:
1)Author's Statement: According to the author, "Vigorous
enforcement of protective order violations has been shown to
be an effective tool in both protecting victims and in
ensuring offender accountability. Under current law, a
defendant whose more serious offense lands them in state
prison receives less of a consequence for violation of the
protective order than a defendant on probation. This bill
makes all violations of all criminal restraining orders
punishable in the same manner."
2)Domestic Violence Restraining Orders: As a general matter,
the court can issue a protective order in any criminal
proceeding, including domestic violence cases, 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
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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).)
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.) Therefore, 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)Necessity for this Bill: 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
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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 279, Statutes of 2015, [June 17, 2015 amendments].)
This bill makes the punishment for a violation of a
post-conviction domestic violence restraining orders
consistent with that for other post-conviction restraining
orders against defendants convicted of abuse.
5)Argument in Support: According to the Riverside County
District Attorney's Office, "Almost every single form of
protective order (both civil and criminal) provides uniform
incarceration. Victims of elder abuse, family law restraining
order violations, civil restraining order violations, sexual
assault protective orders, stalking protective orders, all
have the similar levels of protection. Even victims whose
offenders are currently awaiting trial receive the same level
of protection. Offenders who violate any of these protective
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orders can receive up to one year in county jail.
"Currently, an offender who has been convicted of domestic
violence and sentenced to prison is subject to less
punishment for violating the protective order than all other
types of offenders. SB 883 would create more uniform
sentencing for protective order violations and give victims of
our most serious offenses equal protection from unwanted
contact."
6)Argument in Opposition: According to the California Public
Defenders Association, "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), they are already subject to additional punishment,
including potential prosecution as a felon 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.
"Here, because the conduct covered by SB 883 is already illegal
and is already punishable by time in jail or prison, SB 883
serves no significant purpose beyond slowing efforts to reform
California's over-crowded prison system.
"Because criminal justice policies calling for ever-increasing
amounts of prison time are ineffective, expensive, and a
significant step backwards on the road to criminal justice
reform."
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7)Related Legislation: AB 2078 (Kim) is identical to this bill.
AB 2078 is pending referral in the Senate Rules Committee.
8)Prior Legislation:
a) SB 352 (Block), Chapter 279, Statutes of 2015,
authorizes a court to issue a post-conviction protective
order in cases involving elder or dependent adult abuse.
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 of an offense involving domestic
violence, regardless of the sentence imposed.
c) AB 289 (Spitzer) Chapter 582, Statutes of 2007, allows a
court to issue a protective order for 10 years upon a
defendant's felony conviction of willful infliction of
corporal injury.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association
Riverside County District Attorney's Office
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Opposition
California Public Defenders Association
Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744