BILL ANALYSIS
AB 1596
Page 1
Date of Hearing: March 16, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1596 (Hayashi) - As Amended: March 4, 2010
As Proposed to be Amended
SUBJECT : PROTECTIVE ORDERS
KEY ISSUE : IN ORDER TO BETTER PROTECT VICTIMS OF DOMESTIC
VIOLENCE, SHOULD THE LAW BE CLARIFIED TO ENSURE THAT, WHEN
MULTIPLE RESTRAINING ORDERS ARE ISSUED WITH RESPECT TO THE SAME
INDIVIDUALS, THOSE ORDERS ARE ENFORCED IN A WAY TO PROVIDE THE
GREATEST PROTECTION TO THE VICTIM?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Currently the same parties may be subject to multiple protective
orders. If a defendant is charged with a crime of domestic
violence, a criminal court may issue a criminal protective
order. A family court may issue a protective order under the
Domestic Violence Prevention Act. Additionally, law enforcement
may seek an emergency protective order (EPO) when a police
officer determines that an individual is in immediate and
present danger of domestic violence. This non-controversial
bill seeks to ensure that victims of domestic violence, as well
as individuals protected by other protective orders, who are
protected by multiple protective orders, are provided with the
greatest protections that have been ordered by any court. The
bill has no known opposition.
SUMMARY : Requires that conflicting restraining orders be
enforced so as to provide the most protections to the protected
parties and expands the situations in which an EPO may be
issued. Specifically, this bill provides that, notwithstanding
any other law, protective orders issued pursuant to the Code of
Civil Procedure, or the Family, Penal or Welfare and
Institutions Code with conflicting provisions must be
interpreted and enforced in a manner that provides the greatest
amount of protection to the protected individual and provides
the most restrictions to the restrained party provided at least
one of the protected individuals is the same in all the orders
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and the restrained party is the same in all the orders.
EXISTING LAW :
1)Authorizes a court to issue a civil or criminal protective
order to protect victims of domestic violence. (Family Code
Sections 6300 et seq .; Penal Code Section 136.2.)
2)Permits a juvenile court to issue a protective order on behalf
of a dependent child or a ward. (Welfare & Institutions Code
Section 213.5.)
3)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
or stalking, or in imminent danger of abduction by a parent or
relative. An EPO is effective for up to seven days. (Family
Code Sections 6240 et seq .; Penal Code Section 646.91.)
4)Gives EPOs issued pursuant to either the Family Code or the
Penal Code precedence in enforcement over any other
restraining or protective order provided the EPO involves the
same individuals, but only to the extent that the provisions
of the EPO are more restrictive on the restrained person.
(Penal Code Section 136.2(c).)
5)Gives criminal protective orders precedence over civil orders
involving the same defendant, unless a court issues an EPO.
(Penal Code Section 136.2(e).)
COMMENTS : Currently the same parties may be subject to multiple
protective orders. If a defendant is charged with a crime of
domestic violence, a criminal court may issue a criminal
protective order. A family court may issue a protective order
under the Domestic Violence Prevention Act. Additionally, law
enforcement may seek an EPO when a police officer determines
that an individual is in immediate and present danger of
domestic violence. This bill seeks to ensure that victims of
domestic violence, who are protected by multiple protective
orders, are provided with the greatest protections that have
been ordered by a court.
Current law provides that if multiple orders protect the same
individual from the same restrained party and one of the orders
is an EPO, the EPO is to be given precedence in enforcement over
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any other restraining or protective order, but only to the
extent that the provisions of the EPO are more restrictive on
the restrained person. If there are multiple orders, but no
EPO, the criminal protective order is given precedence over the
civil order. However, there is no requirement that the criminal
order provide greater protection to the protected party than the
civil order. Thus, under current law, a criminal protective
order that offers less protection to a domestic violence victim
will be given enforcement priority over a more protective civil
order.
In support of the bill, the author writes:
Current law requires that a criminal protective order
supersedes any other protective order. Many
protective orders only include a "don't harass or
batter the victim" order and don't allow the victim
the proper safety precautions they may need. In other
words, the perpetrator can go home, have contact with
the victim and may not be required to stay away.
The problem with the criminal protective order arises
when a victim comes to Family Law Court seeking
greater protection through a full restraining order.
The Family Law Judge may grant the full restraining
order to the victim, but when a law officer is
presented with both orders, he or she is to enforce
the criminal protection order; which often times
offers less protection and could further place the
victim in danger. AB 1596 would simply clarify that
the most protective order prevails and shall be
enforced.
EPOs versus Other Protective Orders : An EPO may be issued by a
judge when a law enforcement officer reports that an individual
is in immediate and present danger of domestic violence or abuse
or stalking, or in imminent danger of abduction by a parent or
relative. 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. In contrast, other 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
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of the order.
This Bill Gives the Most Protective Order Enforcement Priority :
This bill should help provide the greatest protection to the
victim by requiring that, in cases with multiple and conflicting
protective orders issued under to the Code of Civil Procedure,
or the Family, Penal or Welfare and Institutions Code, against
the same restrained party and in favor of at least one of the
same protected parties, any conflicting provisions must be
interpreted and enforced in a manner that provides the greatest
amount of protection to the protected individual and provides
the most restrictions to the restrained party. This applies to
criminal, civil harassment, workplace harassment, domestic
violence and juvenile protective orders.
New Amendments Delete EPO for Sexual Assault : Currently EPOs
may be issued if a person or child is in immediate and present
danger of domestic violence or abuse or stalking, or in imminent
danger of abduction by a parent or relative. As in print, the
bill expands that list to permit a police officer to seek an EPO
if the peace officer asserts reasonable grounds to believe that
an individual is in immediate and present danger of sexual
assault. As proposed to be amended, this section of the bill
will be deleted in order to better define when an EPO may be
appropriate to prevent a sexual assault. This amendment is
accomplished by deleting Section 3 of the bill, page 9, line 4
through page 11, line 26.
ARGUMENTS IN SUPPORT : In support of the bill, the Judicial
Council writes:
Current law, which provides that orders issued
pursuant to the Penal Code take precedence over all
other orders, except for specified emergency
protective orders, creates gaps that make it difficult
for victims seeking protective orders to secure
necessary protection. By reading conflicting orders
in a manner that provides maximum protection, civil
courts will be able to effectively modify criminal
court orders to take into account the current needs of
the parties and their families when additional
protection is necessary, without requiring the parties
seek to be placed on the criminal courts calendar.
Parties will still need to seek relief from the
criminal court when its order is the most protective,
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but that will appropriately preserve the discretion of
the criminal court to determine whether it is
appropriate to diminish the level of protection that
it put in place. Thus the amended enforcement rule
will improve court efficiency in the manner that
results in the fullest enforcement of all of the
orders issued by the court.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
AFL-CIO
Judicial Council
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334