BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 258 (Ma)
As Introduced February 11, 2009
Hearing date: June 9, 2009
Penal Code
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DOMESTIC VIOLENCE
HISTORY
Source: California Partnership to End Domestic Violence
Prior Legislation: None
Support: AFSCME, AFL-CIO; California District Attorneys
Association; State Public Affairs Committee, Junior
Leagues of California; Legal Services for Prisoners
with Children; Los Angeles County District Attorney's
Office
Opposition:None known
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUE
SHOULD THE PHRASE "PRIMARY AGGRESSOR" IN EXISTING STATUTORY LANGUAGE
CONCERNING ARRESTS IN SITUATIONS WHERE MUTUAL PROTECTIVE ORDERS HAVE
BEEN ISSUED, BE CHANGED TO "DOMINANT AGGRESSOR"?
PURPOSE
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The purpose of this bill is to amend Penal Code Section 836,
concerning arrests in situations where mutual protective orders
have been issued, to change the phrase "primary aggressor" to
"dominant aggressor."
Existing law :
1. States when a peace officer is responding to a
call alleging a violation of a domestic violence
protective or restraining order, as specified, or of a
domestic violence protective or restraining order
issued by the court of another state, tribe, or
territory and the peace officer has probable cause to
believe that the person against whom the order is
issued has notice of the order and has committed an
act in violation of the order, the officer shall, make
a lawful arrest of the person without a warrant and
take that person into custody whether or not the
violation occurred in the presence of the arresting
officer. (Penal Code 836 (c)(1).)
2. Provides that the person against whom a
protective order has been issued shall be deemed to
have notice of the order if the victim presents to the
officer proof of service of the order, the officer
confirms with the appropriate authorities that a true
copy of the proof of service is on file, or the person
against whom the protective order was issued was
present at the protective order hearing or was informed
by a peace officer of the contents of the protective
order. (Penal Code 836 (c)(2).]
3. States in situations where mutual protective
orders have been issued, as specified, liability for
arrest under this subdivision applies only to those
persons who are reasonably believed to have been the
primary aggressor. In those situations, prior to
making an arrest under this subdivision, the peace
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officer shall make reasonable efforts to identify, and
may arrest, the primary aggressor involved in the
incident. The primary aggressor is the person
determined to be the most significant, rather than the
first, aggressor. In identifying the primary
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 involved acted in self-defense. (Penal Code
836 (c)(3).)
4. States every law enforcement agency in
California 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, these policies
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. (Penal Code 13701 (a).)
5. Requires 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 has been issued
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
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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. (Penal Code 13701 (b).)
This bill amends Penal Code Section 836, concerning arrests in
situations where mutual protective orders have been issued, to
change the phrase "primary aggressor" to "dominant aggressor."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
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. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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COMMENTS
1. Stated Need for This Bill
The author states:
SB 1944 (Solis) amended California Penal Code 13701
in 2000 to require police officers to arrest the
dominant aggressor instead of the primary aggressor
in domestic violence cases. At the scene of a
domestic violence incident, law enforcement should
identify who is the dominant aggressor, that is the
person who is the most significant, and not the first
aggressor. Before this amendment the code section
required law enforcement to identify the primary
aggressor. It was found to be confusing in law
enforcement trainings to refer to the primary
aggressor because this was interpreted to mean the
first person who hit. One of the underlying purposes
of using the term dominant aggressor is to reduce the
number of mutual arrests and have police officers
arrest the most significant aggressor in light of
domestic violence mandatory arrest laws. In
response, the Legislature passed laws that changed
primary aggressor to dominant aggressor in Penal Code
13701.
Penal Code 836 was not amended at the time the
other code section was changed. Penal Code 836
concerns arrest procedures when mutual protective
orders exist (both parties are protected from the
other with court orders). The language in Penal Code
836 provides that the most significant, not the
first aggressor, should be arrested. However, the
section labels that to be the primary aggressor
instead of the dominant aggressor.
A legislative fix is needed because other sections of
the Penal Code refer to dominant aggressor and this
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difference causes confusion and is inconsistent.
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