BILL ANALYSIS Ó SB 883 Page 1 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. SB 883 Page 2 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 SB 883 Page 3 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 SB 883 Page 4 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 SB 883 Page 5 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 SB 883 Page 6 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 SB 883 Page 7 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." SB 883 Page 8 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 SB 883 Page 9 Opposition California Public Defenders Association Analysis Prepared by:Sandy Uribe / PUB. S. / (916) 319-3744