BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 834|
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THIRD READING
Bill No: SB 834
Author: Florez (D)
Amended: 6/1/10
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/20/10
AYES: Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,
Wright
SENATE APPROPRIATIONS COMMITTEE : 10-0, 5/27/10
AYES: Kehoe, Alquist, Corbett, Denham, Leno, Price,
Walters, Wolk, Wyland, Yee
NO VOTE RECORDED: Cox
SUBJECT : Court orders: minor victims: prohibitions on
communications
SOURCE : Allred, Maroko and Goldberg
DIGEST : This bill specifically authorizes the court,
upon conviction in a case where the victim was a minor, to
prohibit the defendant from harassing, intimidating,
threatening the victim, victim's family members, or spouse
for a period of up to 10 years.
ANALYSIS :
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
CONTINUED
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which the person was convicted, a credible threat to use
force or violence upon that person or that person's
immediate family. (Penal Code Section 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 Section 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 Section 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 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 Section 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 Section 841.5.)
Existing law provides that each district attorney and law
enforcement agency shall establish a procedure to protect
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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 Section 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. (Penal
Code Section 1054.2.)
This bill, provides that upon the conviction of a defendant
for a sexual offense involving a minor victim, or in the
case of a minor appearing in juvenile court, if a petition
is admitted or sustained for a sexual offense involving a
minor victim, the court is authorized to issue orders that
prohibits the defendant as a juvenile, or for a period up
to 10 years, from harassing, intimidating, or threatening
the victim or the victim's family members or spouse.
This bill provides that no order shall be interpreted to
apply to counsel acting on behalf of the defendant or
juvenile, or to investigators working on behalf of counsel,
in an action relating to a conviction, petition in juvenile
court, or any civil action arising there from, provided
however, that no counsel or investigator shall harass or
threaten any person protected by an order.
This bill provides that notice of the intent to request an
order shall be given to counsel for the defendant or
juvenile by the prosecutor or the court at the time of
conviction or disposition of the petition in juvenile
court, and counsel shall have adequate time in which to
respond to the request before the order is made.
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This bill provides that a violation of the order is a
misdemeanor.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12
2012-13 Fund
New misdemeanor
**Potentially significant local costs; Local
non-reimbursable**
Loss of prison credits
**Potentially significant state costs**
General
SUPPORT : (Verified 6/1/10)
Allred, Maroko and Goldberg (source)
California State Sheriffs' Association
ARGUMENTS IN SUPPORT : According to the author's office,
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
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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 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 remedies 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.
RJG:do 6/1/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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