BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 834 (Florez)
As Amended March 25, 2010
Hearing date: April 6, 2010
Penal Code
MK:mc
COURT ORDERS: MINOR VICTIMS:
PROHIBITIONS ON COMMUNICATIONS
HISTORY
Source: Allred, Maroko and Goldberg
Prior Legislation: None
Support: California State Sheriffs' Association
Opposition:California Attorneys for Criminal Justice; American
Civil Liberties Union
KEY ISSUES
SHOULD THE COURT BE AUTHORIZED TO PROHIBIT A CONVICTED DEFENDANT
FROM HAVING ANY CONTACT OR COMMUNICATION WITH THE VICTIM OR THE
VICTIM'S FAMILY MEMBERS, SPOUSE, COWORKERS, OR ANY OTHER PERSON
DESIGNATED BY THE COURT WHO HAS A SOCIAL RELATIONSHIP WITH THE
VICTIM IN A CASE IN WHICH THE VICTIM WAS A MINOR?
SHOULD THE COURT BE AUTHORIZED TO PROHIBIT ANY PERSON ACTING ON
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BEHALF OF, OR AT THE REQUEST OF, A CONVICTED DEFENDANT FROM HAVING
ANY CONTACT OR COMMUNICATIONS WITH THE VICTIM OR VICTIM'S FAMILY
MEMBERS, SPOUSE, COWORKERS, OR ANY OTHER PERSON DESIGNATED BY THE
COURT WHO HAS A SOCIAL RELATIONSHIP WITH THE VICTIM IN A CASE IN
WHICH THE VICTIM WAS A MINOR?
PURPOSE
The purpose of this bill is to specifically authorize the court,
upon conviction in a case where the victim was a minor, to
prohibit the defendant or anyone acting on behalf of or at the
request of the defendant from having any contact or
communications with the victim or the victim's family members,
spouse, coworkers, or any other person designated by the court
who has a social relationship with the victim.
Existing law makes it a wobbler for a person who has been
convicted of a violent offense to willfully and maliciously
communicate to a witness to, or a victim of, the crime for which
the person was convicted, a credible threat to use force or
violence upon that person or that person's immediate family.
(Penal Code 139.)
Existing law gives a court with jurisdiction over the defendant
authority to issue orders to protect a victim or witness upon
good cause belief that harm to or intimidation or dissuasion of
a victim has occurred or is reasonably likely to occur. (Penal
Code 1136.2.)
Existing law provides that if a court makes an order under Penal
Code Section 1136.2, it shall order any party it has enjoined
from taking action to obtain the address or location of a
protected party or a protected party's family members,
caretakers, or guardian unless there is good cause not to make
the order. (Penal Code 1136.3.)
Existing law provides that every person imprisoned in county
jail or the state prison who has been convicted of a sexual
offense who knowingly reveals the name and address of any
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witness or victim to that offense to any other prisoner with the
intent that the other prisoner will intimidate or harass the
witness or victim through the initiation of unauthorized
correspondence with the witness or victim, is guilty of a public
offense, punishable as a wobbler. (Penal Code 136.7.)
Existing law provides that no law enforcement officer or
employee of a law enforcement agency shall disclose to any
arrested person, or to any person who may be a defendant in a
criminal action, the address or telephone number of any person
who is a victim or witness in the alleged offense. However,
nothing shall impair or interfere with the right of a defendant
to obtain information necessary for the preparation of his or
her defense through the discovery process or impair or interfere
with the right of an attorney to obtain the address or telephone
number of any person who is a victim of, or a witness to, an
alleged offense where a client of that attorney has been
arrested for, or may be a defendant in a criminal action related
to the alleged offense. (Penal Code 841.5.)
Existing law provides that each district attorney and law
enforcement agency shall establish a procedure to protect the
personal confidential information regarding any witness or
victim in any police, arrest, or investigative report. This
shall not be construed to impair or affect a criminal defense
counsel's access to unredacted reports otherwise authorized by
law, or the submission of documents in support of a civil
complaint. (Penal Code 964.)
Existing law provides that no attorney may disclose or permit to
be disclosed to a defendant, members of the defendant's family
or anyone else, the address or telephone number of a victim or
witness whose name is disclosed to the attorney, unless
specifically permitted to do so by the court after a hearing and
a showing of good cause. However, an attorney may disclose or
permit to be disclosed the address or telephone number of a
victim or witness to persons employed by the attorney or to
persons appointed by the court to assist in the preparation of a
defendant's case if the disclosure is required for that
preparation. Violation of this prohibition is a misdemeanor.
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(Penal Code 1054.2.)
This bill provides that upon the conviction of a defendant for
an offense involving a minor victim or in the case of a minor
appearing in juvenile court whose petition is admitted or
sustained for an offense involving a minor victim, the court is
authorized to issue orders that would do either or both of the
following:
Prohibit the defendant or juvenile from having any
communications with the victim or the victim's family
members, spouse, coworkers, or any other person designated
by the court who has a social relationship with the victim
or the victim's family members, spouse, coworkers, or any
other person designated by the court who has a social
relationship with the victim.
Prohibit any person acting on behalf of, or at the
request of the defendant or juvenile from having any
communications with the victim or the victim's family
members, spouse, coworkers, or any other person designated
by the court who has a social relationship with the victim.
This bill provides that the court may authorize any person
subject to an order issued pursuant to an order under this bill
to contact or communicate with the victim or victim's family
members, spouse, coworkers, or any other person designated by
the court who has a social relationship with the victim if there
is a noticed hearing as follows:
Notice of the hearing is served not less than three days
prior to the hearing on the victim, on all persons who the
victim has designated for the receipt of notice, and on the
prosecuting attorney.
Good cause for authorizing the contact or communication
is shown at the hearing.
This bill provides that anyone who is authorized to make contact
shall not annoy, harass or threaten any person protected by the
order.
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This bill provides that a violation of an order pursuant to this
bill is punishable as misdemeanor criminal contempt pursuant to
Penal Code Section 166.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
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deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Existing law, relating to restraining orders and
criminal protective orders, unfortunately do not address
the type of harm a minor-victim may suffer following the
conclusion of the criminal proceedings he or she has
testified in. In addition, existing law does very
little to protect the welfare and privacy of a
minor-victim's family, friends, and others following the
same criminal proceedings.
At least one victim from a recent sexual assault case
was contacted, electronically and otherwise, by agents
of the defendant (and/or his supporters) following his
conviction and sentencing. Moreover, the victim's
friends and family were also contacted by a defendant's
supporters.
In this case the minor-victim's identity was protected
during trial, which permitted her to testify without
fear of retaliation, and it allowed her to go about her
life without being ridiculed or ostracized by her peers.
However, when the defendant's private investigators
contacted the victim and her friends, via the internet
and in some cases through text-messaging, the
communications revealed many sensitive matters covered
in court in addition to the victim's identity.
Unfortunately, a civil restraining order could not
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address the immediacy of the victim's situation (because
most of the damage has been done) and it would have been
difficult for the victim to reappear in court and relive
this troubling experience.
Although, existing law permits a court to issue an order
upon good cause belief that harm to or intimidation or
dissuasion of, a victim or witness has occurred or is
reasonably likely to occur, Penal Code Section 136.2,
such an order was not viable in this case as the
criminal proceedings were concluded and the court no
longer had jurisdiction over the matter.
While the victim in this case was able to retain a
private attorney to seek other civil remedies against
her harassers-most victims in her position do not have
such an option.
This bill would remedy this situation by permitting a
court, upon the conviction of a defendant for an offense
involving a minor victim, to issue orders prohibiting
the defendant or any person acting on behalf of, or at
the request of, the defendant from having any
communications with the victim or victim's family
members, spouse, coworkers, or any other person
designate by the court who has a social relationship
with the victim.
2. Court Order
This bill authorizes the court, upon conviction of a defendant
in a case where the victim was a minor, to issue orders that
would do one or both of the following:
Prohibit the defendant or juvenile from having any
contact or communications with the victim or victim's
family members, spouse, coworkers, or any other person
designated by the court who has a social relationship with
the victim.
Prohibit any person acting on behalf of, or at the
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request of, the defendant or juvenile from having any
contact or communications with the victim or victim's
family members, spouse, coworkers, or any other person
designated by the court who has a social relationship with
the victim.
The court may authorize a person subject to the order to contact
or communicate with the victim or victim's family members,
etcetera, after a noticed hearing.
A violation of the order would be punishable as a misdemeanor
under Penal Code Section 166.
3. Jurisdiction
Under Penal Code Section 136.2, a court can order a defendant to
stay away from a victim or witness while the trial is going on.
The court can also order a convicted defendant to stay away from
a victim if the defendant is granted probation. This bill would
extend the right to order a defendant to stay away from a victim
to post conviction where there is no probation given and apply
it not only to the defendant but to anyone acting on behalf of
the defendant or at the request of the defendant and extend the
reach not just to the victim but to the victim's family member,
spouse, coworkers or any other person designated by the court
who has a social relationship with the victim.
It is not clear that the trial court retains jurisdiction over a
defendant who is not given probation after the person has been
convicted and is sentenced. It is clear that the court retains
jurisdiction after a criminal case over specified areas,
including terms of probation (In re Osslo (1958) 51 C.2d 371,
379, 380, 334 P.2d 1); the ability of a defendant to reimburse a
county for fees
(People v. Turner (1993) 15 C.A.4th 1690, 1695, 1696, 19 C.R.2d
736.); and, to recall a legally invalid sentence (People v.
Blume (1960) 183 C.A.2d 474, 477, 7 C.R. 16). According to
Witkin the trial court also has jurisdiction over specified
noncriminal proceedings within or related to criminal trials:
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(1) Proceedings for discovery (2 Cal. Evidence (4th),
Discovery, 1 et seq.).
(2) Proceedings for determination of present sanity (5
Cal. Crim. Law (3d), Criminal Trial, Trial, 694 et
seq.).
(3) Sex offender proceedings (6 Cal. Crim. Law (3d),
Criminal Judgment, 126, 128).
(4) Bail forfeiture (4 Cal. Crim. Law (3d), Pretrial
Proceedings, 103 et seq.).
(5) Coram nobis (6 Cal. Crim. Law (3d), Criminal
Judgment, 182 et seq.).
(6) Extraordinary writ proceedings (6 Cal. Crim. Law
(3d), Criminal Writs, 1 et seq.).
(7) Rehabilitation proceedings (3 Cal. Crim. Law (3d),
Punishment, 671). (4 Witkin Cal. Crim. Law Jur & Ven
14)
None of these examples of continuing jurisdiction seem to apply
to the situation conceived by this bill. In fact, case law
seems to indicate that there is no jurisdiction retained by the
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trial court.<2> Thus, it is unclear how the court would have
the authority to make the order contemplated by this bill.
Furthermore, the court has no jurisdiction over a person who is
not the defendant. A person may be acting on behalf or the
defendant with or without the defendant's knowledge. It is not
clear how the court would have the jurisdiction to order these
people to not contact the victim or how the court could broadly
order "any person on acting on the defendant's behalf" not to do
so. A person who has not been served with the order could not
be convicted for violating it.
WOULD THE COURT HAVE THE JURISDICTION TO MAKE THIS ORDER AFTER A
PERSON HAS BEEN CONVICTED?
HOW DOES THE COURT HAVE THE JURISDICTION OVER ANYONE ACTING ON
THE DEFENDANT'S BEHALF, BUT NOT AT THE DEFENDANT'S REQUEST?
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<2> See In re Johannes (1931) 213 C. 125, 129, 1 P.2d 984;
People v. Sonoqui (1934) 1 C.2d 364, 366, 35 P.2d 123; France v.
Superior Court (1927) 201 C. 122, 126, 132, 255 P. 815 [superior
court cannot discharge defendant on habeas corpus on ground
appearing on face of record that could be raised in appeal];
People v. Haynes (1969) 270 C.A.2d 318, 321, 75 C.R. 800, citing
the text [superior court judge cannot grant coram nobis to
vacate judgment]; People v. Getty (1975) 50 C.A.3d 101, 107, 123
C.R. 704, quoting the text [court without jurisdiction to modify
order of commitment to Youth Authority]; People v. Mendez (1999)
19 C.4th 1084, 1094, 81 C.R.2d 301, 969 P.2d 146, supra, 10,
citing the text [notice of appeal largely divests superior court
of jurisdiction and vests it in Court of Appeal]; 9 Cal. Proc.
(4th), Appeal, 21 et seq.; C.E.B., 1 Appeals and Writs in
Criminal Cases, 1.41; 5 Am.Jur.2d (1995 ed.), Appellate Review
422, 423; 89 A.L.R.2d 1236 [jurisdiction to proceed with trial
pending appeal from order overruling demurrer, motion to quash,
or similar motion for dismissal]; on instances where the trial
court retains jurisdiction, see infra, 25, 26. (6 Witkin Cal.
Crim. Law Crim Appeal 23)
4. Access by Appellate and Habeas Counsel
This bill would allow the court to prohibit anyone from
contacting the victim or his or her friends, relatives,
acquaintances on behalf of the defendant. If such an order is
entered, it would not only preclude contacting the victim for
post-conviction proceedings, but also would preclude a
re-investigation of the crime should the prosecution later
announce its intention to use the prior crime as a third strike
or an aggravating factor in a later capital prosecution. The
dangers of one-sided investigation and the inherent problems
with faulty identification and improper withholding of
exculpatory information concerning such crimes have been shown
in recent years. (See, e.g., Edward Humes, Mean Justice (1999)
(recounting the misconduct in several Kern County prosecutions);
People v. Uribe, Order re: Outrageous Prosecutorial Misconduct,
Santa Clara County Superior Court No. CC598686 (Jan, 6, 2010)
(dismissing child sexual assault prosecution for Due Process
violations resulting from district attorney's withholding of
videotaped medical examination of the victim). Any order
permitted by this bill would need to exempt appellate and habeas
counsel as well as their investigators, as well as any other
attorneys investigating the conviction for the purpose of use in
a future case.
If the defendant is sued by the victim, this would also seem to
prohibit the defendant from investigating his or her defense in
the civil case.
SHOULD THE BILL CLEARLY EXEMPT APPELLATE AND HABEAS COUNSEL, AS
WELL AS ANY OTHER COUNSEL ACTING ON THE DEFENDANT'S BEHALF FROM
ANY ORDER ISSUED UNDER THIS BILL?
5. Any Crime Where the Victim is a Minor
This bill would apply to any offense in which the victim is a
minor, even a minor offense including a petty theft or
vandalism. If the court has jurisdiction, should the court
really be able to make such an order in any case where the
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juvenile is a victim?
SHOULD THE TYPE OF ORDER CREATED BY THIS BILL APPLY IN ANY CASE
WHERE THE VICTIM IS A MINOR?
6. Broad Reach to Anyone With a "Social Relationship"
This bill allows the court to prohibit contact with anyone who
"has a social relationship with the victim." It is unclear what
"social relationship" means. Is it someone you consider
friends, or can it be a friend of a friend who you see at social
functions? Can it be the person that sits next to you in one
class? Can it be the person who makes your coffee at the coffee
house every morning and knows your name and where you go to
school? In order for a criminal order to be enforceable, it
cannot be too vague.
IS EXTENDING THE PROTECTIONS TO PEOPLE WHO HAVE A SOCIAL
RELATIONSHIP WITH THE VICTIM TOO BROAD OR VAGUE?
7. Criminal Order vs. Civil Injunction
Since it is unclear that the criminal court retains jurisdiction
over the defendant, a more appropriate action may be a civil
injunction against the person who is actually harassing the
victim or someone the victim knows.
IS A CRIMINAL ORDER THE APPROPRIATE SOLUTION TO THIS PROBLEM?
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