BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 720 S
Senator Kuehl B
As Amended March 29, 2005
Hearing Date: April 5, 2005 7
Code of Civil Procedure; Family Code 2
Penal Code 0
GMO:cjt
SUBJECT
Court Orders: Domestic Violence Protective Orders
DESCRIPTION
This bill would 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.
The bill would 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.
Finally, the bill would 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.
BACKGROUND
SB 720 is one of the recommendations made by the Attorney
General's Task Force on the Criminal Justice Response to
Domestic Violence, of which the author is a member. The
Task Force met for two years and studied ways to improve
the statutes governing restraining orders to enhance the
safety of domestic violence victims.
(more)
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SB 720 complements AB 429 (Chu), another bill resulting
from the Task Force recommendations. AB 429 would provide
for the verbal service of process of an outstanding
domestic violence protective order by a law enforcement
officer called to the scene of a violation of the order.
CHANGES TO EXISTING LAW
1. 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 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 each. For a second violation the penalty is up
to 120 hours of community service in addition to up to
120 hours of imprisonment. For a third and subsequent
violation the penalty is up to 240 hours of community
service, plus up to 240 hours of imprisonment, plus an
administrative and supervision fee for the period of
community service imposed. [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.
2. Existing law requires the courts to transmit to the
Department of Justice 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
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Order System (DVROS)] that is available to law
enforcement connected to the CLETS.
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 orders issued under the
Family Code (domestic violence protective orders), using
the same CLETS system now used for criminal protective
orders.
3. 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 (i.e., a
stay-away order) by the defendant with the victims or
witnesses or their families.
COMMENT
1. Need for the bill
The author states that SB 720 intends to ensure that law
enforcement anywhere using the CLETS have uniform access
to domestic violence restraining orders issued by any
family court in the state. This provision of the bill,
as well as the new authority for a district attorney or
city attorney to prosecute a defendant for contempt of a
domestic violence protective order, would enhance the
safety of victims of domestic violence and their
families, the author states.
Apparently, in many jurisdictions, police officers would
not or could not enforce restraining orders because, for
example, the victim did not have a copy of the order at
hand when the officers arrived at the scene of a
violation, and the computer system at the police station
could not access the information even if they were
connected to CLETS because the protective order had not
been entered into the DVROS. This bill intends to cure
that deficiency.
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2. Court or designee must enter data into DVROS, just
like criminal protective orders are entered now
Family Code 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 6380, the statute that directs the
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 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
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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.
3. 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.
In addition, specified community service and/or
imprisonment penalties may be imposed by the court upon
persons found guilty of violating domestic violence
protective orders.
However, under C.C.P. 1218 it 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
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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.
However, the fact that C.C.P. 1218(a) provides for
payment of reasonable attorney's fees and costs raises
questions of bounty hunting by the district attorneys and
city attorneys. While it may be clear the goal of SB 720
is better enforcement of these domestic violence orders
by empowering the district attorney and the city attorney
to prosecute violations, the monetary motivation provided
by the reasonable attorney's fees and costs language of
1218(a) should also be addressed.
SHOULD ANY FINES, ATTORNEY'S FEES AND COSTS COLLECTED
PURSUANT TO THESE CONTEMPT ACTIONS BE PLACED EITHER IN A
DOMESTIC VIOLENCE VICTIMS FUND, A DOMESTIC VIOLENCE
SHELTER FUND OR A SPECIAL FUND FOR THE PROSECUTION OF
THESE ACTIONS?
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.].
Support: None Known
Opposition: None Known
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HISTORY
Source: Attorney General's Office, on behalf of the
Attorney General's Task Force on the Criminal Justice
Response to Domestic Violence
Related Pending Legislation: AB 429 (Chu) would permit
verbal service of an outstanding
domestic violence order by a law
enforcement officer called to the
scene of a violation.
Prior Legislation: AB 1358 (Shelley, Ch. 808, Stats.
2000);
SB 1944 (Solis, Ch. 1001, Stats. 2000;
AB 825 (Keeley, Ch. 661, Stats. 1999);
AB 1671 (Cmte. on Jud., Ch. 980, Stats. 1999;
SB 218 (Solis, Ch. 662, Stats. 1999.
These bills revised and recast the statutes
dealing with domestic violence protective
orders, enacting the "Domestic Violence
Protection Act" and related provisions.
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