BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
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SB 720 (Kuehl)
As Amended April 12, 2005
Hearing date: April 19, 2005
Civil Procedure, Family and Penal Codes
AA:br
DOMESTIC VIOLENCE :
PROTECTIVE ORDERS: CONTEMPT
HISTORY
Source: Office of the Attorney General
Prior Legislation: None
Support: Alameda County District Attorney's Office; California
Alliance Against Domestic Violence; City and County of
San Francisco, Adult Probation Department; Family
Justice Center Foundation, San Diego; Gray Panthers;
Haven House, Inc.; Judge Pamela Iles, Superior Court
of California, County of Orange; San Diego County
Sheriff's Department; Women's Center of San Joaquin
County; California Alliance Against Domestic Violence;
Statewide California Coalition for Battered Women
Opposition:None known
KEY ISSUES
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SHOULD the district OR CITY attorney BE authorizeD to initiate
and pursue a court action for contempt against a person for
failing to comply with a domestic violence protective order, AS
SPECIFIED?
(CONTINUED)
SHOULD THE court or the court's designee BE REQUIRED to transmit,
with respect to domestic violence protective orders, all data filed
with the court to law enforcement personnel, in the same manner that
criminal court protective orders are transmitted, AS SPECIFIED?
SHOULD EXISTING LAW BE CLARIFIED TO EXPLICITLY PROVIDE THAT orderS
protecting victims of violent crime applies to all contact by the
defendaNT?
PURPOSE
The purpose of this bill is to 1) authorize the district
attorney or city attorney to initiate and pursue a court action
for contempt against a person for failing to comply with a
domestic violence protective order issued by a court; 2)require,
with respect to domestic violence protective orders, the court
or the court's designee to transmit all data filed with the
court to law enforcement personnel, in the same manner that
criminal court protective orders are transmitted; and 3) clarify
that an order protecting victims of violent crime applies to all
contact by the defendant, thereby ensuring the court's authority
to issue stay-away orders in addition to criminal protective
orders.
Existing law provides the procedure for initiating and pursuing
contempt proceedings against a person in violation of an order
of the court. (Code of Civil Procedure 1211 and 1218(a).)
The court may order the person found guilty of contempt to pay
up to a $1,000 fine and/or to be imprisoned for no more than
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five days, and to pay reasonable attorney's fees and costs
incurred in connection with the contempt proceeding.
Existing law also provides specified penalties that may be
imposed on a person found in contempt of a court order issued by
the family court. The penalty for a first violation is community
service or imprisonment of up to 120 hours for each count of
contempt. The penalty for a second violation is up to 120 hours
of community service in addition to up to 120 hours of
imprisonment for each count of contempt. For a third or any
subsequent violation, the penalty is up to 240 hours of community
service and up to 240 hours of imprisonment, plus an
administrative fee for the period of community service imposed,
as specified. (C.C.P. 1218(c).)
This bill would authorize a district attorney or city attorney
to initiate and pursue a court action for contempt against a
party for failing to comply with a domestic violence protective
order issued by a court. The penalty for contempt under these
prosecutions would be the same as in existing law.
This bill additionally would provide that any attorney's fees
and costs ordered by the court for contempt under the bill's
provisions "shall be paid to the Office of Emergency Services'
account established for the purpose of funding domestic
violence shelter service providers pursuant to subdivision (f)
of Section 13823.15 of the Penal Code."
Existing law requires the courts to transmit to the Department
of Justice specified data relating to criminal protective
orders electronically through the California Law Enforcement
Telecommunications System (CLETS).
Existing law requires the Department of Justice to maintain a
database of domestic violence protective orders [referred to as
the Domestic Violence Restraining Order System (DVROS)] that is
available to law enforcement connected to the CLETS. (Family
Code 6380.)
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This bill would require the court or the court's designee to
transmit to the Department of Justice all data filed with the
court with respect to protective orders issued under the Family
Code (domestic violence protective orders), including their
issuance, modification, extension, or termination, using the
same CLETS system now used for criminal protective orders, as
specified.
Existing law provides for the issuance of protective orders by
a criminal court to protect victims or witnesses and their
families from contact by a defendant. (Penal Code 136.2.)
This bill would clarify that the protective orders the court
may issue under this provision may include a protective order
prohibiting all contact by the defendant, as specified.
COMMENTS
1. Stated Need for This Bill
The author states in part:
SB 720 makes several changes to California's domestic
violence restraining order statutes to enhance the
safety of victims of intimate partner violence.
These changes reflect the recommendations of the
Attorney General's Task Force on the Criminal Justice
Response to Domestic Violence. This bill:
Makes the courts responsible for entering Family
Court domestic violence restraining orders into the
Domestic Violence Restraining Order System (DVROS),
just as they are responsible for entering Criminal
Protective Orders into DVROS.
Authorizes the District Attorney or City Attorney
to bring criminal contempt actions for violations of
Family Court restraining orders.
Clarifies that Criminal Courts have authority to
issue stay-away orders.
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2. Bill Authorizes District Attorney or City Attorney to
Prosecute for Contempt
Current law provides for the court to impose a fine up to $1,000
and/or imprisonment for no more than five days per violation
upon persons found guilty of contempt of an existing court
order. Section 1218 of the Code of Civil Procedure also allows
the court to order payment of reasonable attorney's fees and
costs incurred in connection with the contempt proceeding.
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In addition, specified community service and/or jail time
penalties may be imposed by the court on persons found guilty of
violating domestic violence protective orders.
However, current statute - Code of Civil Procedure Section 1218
- is not clear whether or not an individual victim may institute
proceedings under its provisions, or whether it is the district
attorney or city attorney who may prosecute the violation.
Because the penalties include imprisonment as well as fines and
community service, it is also questionable whether a private
individual should be able to take advantage of this contempt
proceeding at all.
This bill would provide that the district attorney or city
attorney may initiate and pursue these contempt actions against
persons who violate domestic violence protection orders issued
under the Family Code.
3. Domestic Violence Restraining Order System ("DVROS")
Family Code Section 6380 requires that when a criminal court or
family court issues a domestic violence restraining order, the
order must be entered into the DVROS, which is accessible to all
law enforcement through CLETS. This statute was enacted to
provide law enforcement responding to a domestic violence call
with the means of determining if the perpetrator of domestic
violence is subject to an active order, has violated it, and
should be arrested.
According to the Attorney General's Office, studies confirm that
batterers who are the subject of domestic violence protective
orders are generally more dangerous than other defendants
against whom criminal protective orders are issued. Thus, any
information gleaned from the DVROS on a batterer who is already
the subject of a restraining order, also assists the officer in
being prepared when entering the scene of reported domestic
violence and in handling a potentially dangerous situation.
However, Family Code Section 6380, the statute that directs the
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court to enter data on protective orders into the DVROS, treats
orders issued by the criminal court differently than those
issued by the family court. Under Section 6380(a), the criminal
protective order must be entered by the court or by a law
enforcement agency the court designates to do so, through the
CLETS.
Protective orders issued by a family court are not subject to
the same directive as those issued by criminal courts. Thus,
while family court protective orders are required to be on
Judicial Council-generated forms for ease of entry into DVROS,
there is no urgency to the entry of the data into the DVROS.
Nor is it clear who is responsible for ensuring the data is
entered into the DVROS. The result, according to the Task
Force, is the large and increasing gap between the information
that is available from DVROS and the information that could be
available and accessible if the process of entering data were
working properly. The Attorney General's Office contends that
thousands of domestic violence protective orders remain outside
the DVROS database, making those orders useless when a protected
person calls for law enforcement to arrest the subject of the
order at the scene of a violation.
The Task Force recommendation is to treat the two types of
orders, which in all respects could be the same except for the
court issuing them, identically. Thus, under SB 720, all family
courts would be required to enter domestic violence restraining
orders they issue directly into DVROS or designate a law
enforcement agency to do so.
According to the Attorney General's Office, there are 19
counties that already treat family court-issued restraining
orders as if they were issued by a criminal court: courts of
four of the counties (Sonoma, Riverside, Orange and San
Bernardino) enter the information directly into DVROS through
CLETS, while the rest send the orders to a designated law
enforcement agency for entry into DVROS, also through CLETS. SB
720 would make this practice uniform across the state.
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4. Protective Order against Contact to include Stay-away Orders
This bill would include, among the orders that a criminal court
may issue upon a good cause belief that harm or intimidation of
a victim or witness has occurred or may reasonably occur, an
order prohibiting all contact by the defendant with the victim,
witness or their families. This type of court order is
generally known as a "stay away order" because it is not limited
to contact intended to harass, intimidate, annoy or threaten a
victim or witness.
The Attorney General's Task Force recommended this clarifying
language to ensure that criminal courts are empowered to issue
this type of order, which is normally issued by a family court
under the Domestic Violence Protection Act (Family Code 6200
et seq.).
5. Prior Hearing by Senate Judiciary Committee
This bill was heard by Senate Judiciary Committee on April 5,
and passed 5-1.
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