BILL NUMBER: SB 1944 CHAPTERED 09/30/00 CHAPTER 1001 FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2000 APPROVED BY GOVERNOR SEPTEMBER 29, 2000 PASSED THE SENATE AUGUST 30, 2000 PASSED THE ASSEMBLY AUGUST 24, 2000 AMENDED IN ASSEMBLY AUGUST 22, 2000 AMENDED IN ASSEMBLY AUGUST 11, 2000 AMENDED IN ASSEMBLY JUNE 27, 2000 AMENDED IN ASSEMBLY JUNE 13, 2000 AMENDED IN ASSEMBLY JUNE 2, 2000 AMENDED IN SENATE MAY 15, 2000 AMENDED IN SENATE APRIL 25, 2000 AMENDED IN SENATE MARCH 27, 2000 INTRODUCED BY Senator Solis (Coauthor: Senator McPherson) FEBRUARY 24, 2000 An act to amend Sections 1107 and 1370 of the Evidence Code, to amend Section 6222 of the Family Code, to amend Section 13701 of, and to amend the title heading of Title 11.5 of Part 1 of, the Penal Code, relating to domestic violence. LEGISLATIVE COUNSEL'S DIGEST SB 1944, Solis. Domestic violence. (1) Existing law permits the admission of expert testimony regarding battered women's syndrome in criminal actions, as specified. This bill would provide that the expert testimony on the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence is admissible, and would specify that the definition of "abuse" as used by these provisions includes the crimes of battery, rape of a spouse, infliction of corporal punishment on a person with whom he or she has a domestic relationship or a child, intentional violation of a protective order, issuance of terrorist threats, as defined, and annoying a person by means of a telephone or electronic communications. (2) Existing law provides that a court may issue specified protective orders for up to 3 years, subject to termination or modification upon the motion or stipulation of a party, and provides that these orders may be renewed either for 3 years or permanently. Existing law also provides that no filing fee shall be charged for a petition or response, or for a paper seeking the modification or enforcement of specified protective orders. This bill would provide that there is no filing fee for an application or other pleading or specified order that seeks to obtain, modify, or enforce a protective order or other specified order when the request for the other order is necessary to obtain or give effect to a protective order. (3) Existing law, known as the "hearsay rule," provides that, at a hearing, evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated is inadmissible. Existing law also provides exceptions to the hearsay rule to permit the admission of specified kinds of evidence. This bill would create a new exception to the hearsay rule for evidence of a statement made by a declarant who meets specified criteria to a physician, nurse, or paramedic. This bill would make technical changes to other provisions of law. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1107 of the Evidence Code is amended to read: 1107. (a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women's syndrome, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge. (b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on battered women's syndrome shall not be considered a new scientific technique whose reliability is unproven. (c) For purposes of this section, "abuse" is defined in Section 6203 of the Family Code and "domestic violence" is defined in Section 6211 of the Family Code or acts defined in Section 242, subdivision (e) of Section 243, or Section 262, 273.5, 273.6, 422, or 653m of the Penal Code. (d) This section is intended as a rule of evidence only and no substantive change affecting the Penal Code is intended. (e) This section shall be known, and may be cited as, the Expert Witness Testimony on Battered Women's Experiences Section of the Evidence Code. SEC. 2. Section 1370 of the Evidence Code is amended to read: 1370. (a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. (2) The declarant is unavailable as a witness pursuant to Section 240. (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. (4) The statement was made under circumstances that would indicate its trustworthiness. (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official. (b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following: (1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested. (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section. (c) A statement is admissible pursuant to this section only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement. SEC. 3. Section 6222 of the Family Code is amended to read: 6222. (a) There is no filing fee for an application, a responsive pleading, or an order to show cause that seeks to obtain, modify, or enforce a protective order or other order authorized by this division when the request for the other order is necessary to obtain or give effect to a protective order. (b) Fees otherwise payable by a petitioner to a law enforcement agency for serving an order issued under this division may be waived in any case in which the petitioner has requested a fee waiver on the initiating petition and has filed a declaration that demonstrates, to the satisfaction of the court, the financial need of the petitioner for the fee waiver. (c) The declaration required by subdivision (b) shall be on one of the following forms: (1) The form formulated and adopted by the Judicial Council for litigants proceeding in forma pauperis pursuant to Section 68511.3 of the Government Code, but the petitioner is not subject to any other requirements of litigants proceeding in forma pauperis. (2) Any other form that the Judicial Council may adopt for this purpose pursuant to Section 6226. (d) In conjunction with a hearing pursuant to this division, the court may make an order for the waiver of fees otherwise payable by the petitioner to a law enforcement agency for serving an order issued under this division. SEC. 4. The heading of Title 11.5 of Part 1 of the Penal Code is amended to read: TITLE 11.5. CRIMINAL THREATS SEC. 5. Section 13701 of the Penal Code is amended to read: 13701. (a) Every law enforcement agency in this state shall develop, adopt, and implement written policies and standards for officers' responses to domestic violence calls by January 1, 1986. These policies shall reflect that domestic violence is alleged criminal conduct. Further, they shall reflect existing policy that a request for assistance in a situation involving domestic violence is the same as any other request for assistance where violence has occurred. (b) The written policies shall encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. These policies also shall require the arrest of an offender, absent exigent circumstances, if there is probable cause that a protective order issued under Chapter 4 (commencing with Section 2040) of Part 1 of Division 6, Division 10 (commencing with Section 6200), or Chapter 6 (commencing with Section 7700) of Part 3 of Division 12, of the Family Code, or Section 136.2 of this code, or by a court of any other state, a commonwealth, territory, or insular possession subject to the jurisdiction of the United States, a military tribunal, or a tribe has been violated. These policies shall discourage, when appropriate, but not prohibit, dual arrests. Peace officers shall make reasonable efforts to identify the dominant aggressor in any incident. The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense. These arrest policies shall be developed, adopted, and implemented by July 1, 1996. Notwithstanding subdivision (d), law enforcement agencies shall develop these policies with the input of local domestic violence agencies. (c) These existing local policies and those developed shall be in writing and shall be available to the public upon request and shall include specific standards for the following: (1) Felony arrests. (2) Misdemeanor arrests. (3) Use of citizen arrests. (4) Verification and enforcement of temporary restraining orders when (A) the suspect is present and (B) the suspect has fled. (5) Verification and enforcement of stay-away orders. (6) Cite and release policies. (7) Emergency assistance to victims, such as medical care, transportation to a shelter, or a hospital for treatment when necessary, and police standbys for removing personal property and assistance in safe passage out of the victim's residence. (8) Assisting victims in pursuing criminal options, such as giving the victim the report number and directing the victim to the proper investigation unit. (9) Furnishing written notice to victims at the scene, including, but not limited to, all of the following information: (A) A statement informing the victim that despite official restraint of the person alleged to have committed domestic violence, the restrained person may be released at any time. (B) A statement that, "For further information about a shelter you may contact ____." (C) A statement that, "For information about other services in the community, where available, you may contact ____." (D) A statement that, "For information about the California victims' compensation program, you may contact 1-800-777-9229." (E) A statement informing the victim of domestic violence that he or she may ask the district attorney to file a criminal complaint. (F) A statement informing the victim of the right to go to the superior court and file a petition requesting any of the following orders for relief: (i) An order restraining the attacker from abusing the victim and other family members. (ii) An order directing the attacker to leave the household. (iii) An order preventing the attacker from entering the residence, school, business, or place of employment of the victim. (iv) An order awarding the victim or the other parent custody of or visitation with a minor child or children. (v) An order restraining the attacker from molesting or interfering with minor children in the custody of the victim. (vi) An order directing the party not granted custody to pay support of minor children, if that party has a legal obligation to do so. (vii) An order directing the defendant to make specified debit payments coming due while the order is in effect. (viii) An order directing that either or both parties participate in counseling. (G) A statement informing the victim of the right to file a civil suit for losses suffered as a result of the abuse, including medical expenses, loss of earnings, and other expenses for injuries sustained and damage to property, and any other related expenses incurred by the victim or any agency that shelters the victim. (H) In the case of an alleged violation of subdivision (e) of Section 243 or Section 261, 261.5, 262, 273.5, 286, 288a, or 289, a "Victims of Domestic Violence" card which shall include, but is not limited to, the following information: (i) The names and phone numbers of or local county hotlines for, or both the phone numbers of and local county hotlines for, local shelters for battered women and rape victim counseling centers within the county, including those centers specified in Section 13837, and their 24-hour counseling service telephone numbers. (ii) A simple statement on the proper procedures for a victim to follow after a sexual assault. (iii) A statement that sexual assault by a person who is known to the victim, including sexual assault by a person who is the spouse of the victim, is a crime. (iv) A statement that domestic violence or assault by a person who is known to the victim, including domestic violence or assault by a person who is the spouse of the victim, is a crime. (10) Writing of reports. (d) In the development of these policies and standards, each local department is encouraged to consult with domestic violence experts, such as the staff of the local shelter for battered women and their children. Departments may utilize the response guidelines developed by the commission in developing local policies.