BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 258|
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THIRD READING
Bill No: AB 258
Author: Ma (D)
Amended: As introduced
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/9/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,
Wright
ASSEMBLY FLOOR : 77-0, 3/23/09 (Consent) - See last page
for vote
SUBJECT : Domestic violence
SOURCE : California Partnership to End Domestic Violence
DIGEST : 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."
ANALYSIS :
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
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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 Section 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 Section
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 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
Section 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
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domestic violence is the same as any other request for
assistance where violence has occurred. (Penal Code
Section 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 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 Section 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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/10/09)
California Partnership to End Domestic Violence (source)
American Federation of State, County and Municipal
Employees, AFL-CIO
California District Attorneys Association
State Public Affairs Committee, Junior Leagues of
California
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Legal Services for Prisoners with Children
Los Angeles County District Attorney's Office
ARGUMENTS IN SUPPORT : The author's office states, SB
1944 (Solis), Chapter 1001, Statutes of 2000, amended
California Penal Code Section 13701, 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 Section 13701.
Penal Code Section 836 was not amended at the time the
other code section was changed. Penal Code Section 836
concerns arrest procedures when mutual protective orders
exist (both parties are protected from the other with court
orders). The language in Penal Code Section 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 difference
causes confusion and is inconsistent.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, De La Torre, De Leon,
DeVore, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani,
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Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi,
Hernandez, Hill, Huber, Huffman, Jeffries, Jones, Knight,
Krekorian, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza,
Miller, Monning, Nava, Nestande, Niello, Nielsen, John A.
Perez, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Yamada, Bass
NO VOTE RECORDED: Davis, Price, Villines
RJG:do 6/10/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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