BILL ANALYSIS
SB 834
Page 1
Date of Hearing: June 29, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 834 (Florez) - As Amended: June 1, 2010
SUMMARY : Authorizes the court, upon the conviction of a
defendant for a sexual offense involving a minor victim, or if a
juvenile petition involving a sexual offense against a minor
victim is admitted or sustained, to issue orders prohibiting the
defendant or juvenile, for a period up to 10 years, from
harassing, intimidating, or threatening the victim, or the
victim's family members or spouse.
1)Provides 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 would prohibit the
defendant or juvenile, for a period up to 10 years, from
harassing, intimidating, or threatening the victim or the
victim's family members or spouse.
2)States no order issued pursuant to this section 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 therefrom,
provided, however, that no counsel or investigator shall
harass or threaten any person protected by an order issued
under this section.
3)Mandates notice of the intent to request an order pursuant to
this section 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.
4)Punishes violations of an order issued under this section as a
one year misdemeanor.
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EXISTING LAW :
5)Makes it an alternate felony/misdemeanor 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 Section 139.)
6)Grants a court with jurisdiction over the defendant the
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.)
7)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.)
8)States 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 an alternate
felonly/misdemeanor. (Penal Code Section 136.7.)
9)Prohibits any law enforcement officer or employee of a law
enforcement agency from disclosing 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
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action related to the alleged offense. (Penal Code Section
841.5.)
10)Requires each district attorney and law enforcement agency to
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 Section 964.)
11)Disallows an attorney from disclosing or permitting 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.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author of this bill,
"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
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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 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)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 under way. The court can also order a convicted
defendant to stay away from a victim if the defendant is
granted probation. This bill extends the right to order a
defendant to stay away from a victim to post conviction where
there is no probation given.
It is not clear that the trial court retains jurisdiction over a
defendant who is not given probation after the person has been
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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 []; 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: proceedings for discovery,
proceedings for determination of present sanity, sex offender
proceedings, bail forfeiture, coram nobis, extraordinary writ
proceedings, and rehabilitation proceedings. (6 Witkin Cal.
Crim. Law Crim Appeal Section 23.)
In fact, case law seems to indicate that there is no
jurisdiction retained by the trial court. While statutes exist
that grant the court similar authority in stalking and
domestic violence cases, those do not appear to have been
challenged in court.
Since jurisdiction can only rest in one court at a time, and
after conviction that court is the appropriate appellate
court, it is unclear whether the court will have the authority
to make the order contemplated by this bill.
3)Prior Legislation : AB 289 (Spitzer), Chapter 582, Statutes of
2007, allows a court to issue a protective order for 10 years
upon a defendant's conviction of willful infliction of
corporal injury.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
Orange County Employees Association
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744