BILL ANALYSIS
AB 112
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 112 (Cohn)
As Amended June 21, 2005
Majority vote
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|ASSEMBLY: |76-0 |(May 16, 2005) |SENATE: |33-0 |(July 1, 2005) |
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Original Committee Reference: JUD.
SUMMARY : Gives emergency protective orders (EPOs) issued
pursuant to either the Family Code or the Penal Code precedence
in enforcement over any other restraining or protective order.
Specifically, this bill provides precedence:
1)In enforcement to an EPO over any other restraining or
protective order provided:
a) The EPO is issued to protect one or more individuals
already protected by another restraining or protective
order;
b) The EPO restrains an individual who is restrained by the
other restraining or protective order; and,
c) The provisions of the EPO are more restrictive as to the
restrained party than the other restraining or protective
order.
2)To an EPO only with respect to those provisions in the EPO
that is more restrictive in relation to the restrained person.
The Senate amendments clarify that EPOs could be issued to
protect more than one individual.
EXISTING LAW :
1)Authorizes a court to issue a civil or criminal protective
order to protect victims of domestic violence.
2)Allows a law enforcement officer to seek an EPO from a court,
24 hours a day, seven days a week, if any person or child is
in immediate and present danger of domestic violence or abuse,
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or in imminent danger of abduction by a parent or relative.
An EPO is effective for up to seven days. The EPO must be
entered into the California Law Enforcement Telecommunications
System (CLETS).
3)Allows a law enforcement officer to seek an EPO from a court,
if the officer has reasonable grounds to believe that an
individual is in immediate and present danger of stalking.
4)Gives criminal protective orders precedence over civil orders
involving the same defendant.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar,
except as set forth above.
FISCAL EFFECT : None
COMMENTS : This bill would provide that an EPO has precedence in
enforcement over other civil or criminal protective orders,
provided specified conditions are satisfied. According to the
author, this bill is necessary because:
Currently, Penal Code Section 136.2 requires that
criminal court orders take precedence over civil court
orders. Generally this is not a problem, but in some
cases that criminal court allows there to be peaceful
contact between the defendant and victim.
An Emergency Protective Order (EPO) is civil in nature
and is always issued as a result of some police
intervention which necessitates as stay away/no
contact order. The problem comes in where there is a
prior criminal order allowing contact, it would, under
current law, take precedence over the EPO and
jeopardize the victim's safety. This bill is a
solution to this problem for it allows for the EPO to
have precedence in enforcement over all other
protective orders for the short 5 court calendar days
that it is valid.
This bill's supporter, a deputy district attorney in Santa
Clara, argues that this provision would provide additional
protections to victims who have "peaceful contact" criminal
protective orders in place which would currently have priority
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over an EPO.
An EPO may be issued by a judge when a law enforcement officer
reports the incident based on the victim's allegation of abuse
or threat of abuse. The standard of proof for an EPO is that
reasonable grounds have been asserted to believe there is an
immediate and present danger of abuse, abduction or stalking.
The order lasts for five to seven days, and is issued
immediately without prior notice to the restrained party. The
EPO is supposed to be entered into CLETS, but because CLETS data
entry is backlogged, the EPO almost always expires before it is
entered into the system.
In contrast, other protective and restraining orders, including
criminal, civil harassment, workplace harassment, domestic
violence and juvenile protective orders are issued after notice
and an opportunity to be heard are provided to the restrained
party. Both parties can present their arguments and evidence in
a hearing prior to the issuance of the order.
In order to address concerns raised by advocates for victims of
domestic violence, the bill limits the EPO's priority in order
to protect legitimately victimized parties and not to overshadow
other criminal or civil protective orders that offer greater
protection to victims.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0011331