BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2467 (Hueso) 7
As Amended May 25, 2012
Hearing date: June 26, 2012
Penal Code
AA:mc
DOMESTIC VIOLENCE PROTECTIVE ORDERS:
ELECTRONIC MONITORING
HISTORY
Source: Author
Prior Legislation: None
Support: Chula Vista Police Chief; Crime Victims United of
California; Peace Officers Research Association of
California; South Bay Community Services; American Federation of
State, County and Municipal Employees (AFSCME), AFL-CIO; Junior
Leagues of California State Public Affairs Committee; Carlsbad
Chief of Police; one individual
Opposition:California Public Defenders Association; California
State Sheriffs' Association (unless amended)
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
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SHOULD COURTS WITH JURISDICTION OVER A CRIMINAL MATTER BE
AUTHORIZED TO INCLUDE ELECTRONIC MONITORING AS PART OF A
PROTECTIVE ORDER, AS SPECIFIED?
PURPOSE
The purpose of this bill is to authorize a court with
jurisdiction over a criminal matter to include electronic
monitoring as part of a protective order, as specified.
Current law generally authorizes courts with jurisdiction over a
criminal matter to issue certain protective orders "upon a good
cause belief that harm to, or intimidation or dissuasion of, a
victim or witness has occurred or is reasonably likely
to occur," as specified. (Penal Code
� 136.2.)
Current law authorizes a court with jurisdiction over a criminal
matter to issue any "order protecting victims of violent crime
from all contact by the defendant, or contact, with the intent
to annoy, harass, threaten, or commit acts of violence, by the
defendant." (Penal Code
� 136.2(A)(7).)
This bill would authorize a court issuing a protective order
under this provision to require electronic monitoring, as
specified:
A protective order under this paragraph may require
the defendant to be placed on electronic monitoring if
the local government adopts a policy to authorize
electronic monitoring of defendants for this purpose.
If the court determines that the defendant has the
ability to pay for the monitoring device, the court
shall order the defendant to pay for the monitoring.
If the court determines that the defendant does not
have the ability to pay for the electronic monitoring,
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the court may order electronic monitoring to be paid
for by the local government that adopted the policy to
authorize electronic monitoring.<1> The duration of
electronic monitoring shall not exceed one year from
the date the order is issued. At no time shall the
electronic monitoring be in place if the protective
order is not in place.
Current law provides that in cases in which a criminal defendant
has been convicted of a crime of domestic violence, "the court,
at the time of sentencing, shall consider issuing an order
restraining the defendant from any contact with the victim. The
order may be valid for up to 10 years, as determined by the
court. This protective order may be issued by the court
regardless of whether the defendant is sentenced to the state
prison or a county jail, or whether imposition of sentence is
suspended and the defendant is placed on probation. It is the
intent of the Legislature in enacting this subdivision that the
duration of any restraining order issued by the court be based
upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim
and his or her immediate family." (Penal Code � 136.2(i).)
This bill would authorize a court issuing a protective order
under this provision to require electronic monitoring, as
specified:
An order under this subdivision may include provisions
for electronic monitoring if the local government
adopts a policy authorizing electronic monitoring of
defendants for this purpose. If the court determines
that the defendant has the ability to pay for the
monitoring program, the court shall order the
defendant to pay for the monitoring. If the court
determines that the defendant does not have the
ability to pay for the electronic monitoring, the
court may order the electronic monitoring to be paid
----------------------
<1> For purposes of this section, "local government" would be
defined to mean "the county that has jurisdiction over the
protective order."
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for by the local government that adopted the policy
authorizing electronic monitoring.<2> The duration of
the electronic monitoring shall not exceed one year
from the date the order is issued.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
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<2> Id., fn. 1.
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District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
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COMMENTS
1. Stated Need for This Bill
The author states in part:
Domestic violence offenses continue to be a
significant public health and criminal justice
problem. In the U.S. each day three women are killed
due to domestic violence. In CA alone, about 700,000
women currently experience domestic violence; this is
three times the national average. Domestic violence
is the leading cause of serious injury to women and is
responsible for three times as many emergency room
visits as car crashes and muggings combined. Courts
and law enforcement respond with protective orders;
however, over 50% of them are violated, according to
the National Partnership to End Domestic Violence.
The California Department of Corrections and
Rehabilitation (CCDR) as well as several counties
throughout the state attach GPS devices on defendants
who are violent sexual predators on parole or violent
gang members, respectively. CCDR, for example, has
approximately 7,000 GPS units. It pays approximately
$5 per day for the electronic monitoring and the
device, which is leased. The counties pay about $4-7
per day. . . . Neither the CCDR nor the counties use
GPS in domestic violence cases.
About 30 other states use or are working on laws to
use electronic devices to monitor defendants in
domestic violence cases. . . . In Massachusetts, GPS
monitoring has been very successful in preventing
homicides related to intimate partner violence. A
six-year report showed that 6% of defendants in
domestic violence cases were ordered to wear a GPS
device (Jeanne Geiger Crisis Center, Inc. Safety and
Accountability report 2005-11). . . .
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It's time for California to offer tangible protection
to victims of domestic violence and stalking. AB 2467
will turn victims into survivors by giving courts and
law enforcement the tools to monitor offenders. . . .
This bill is named "Kathy's Law," after Kathy
Scharbarth, a San Diego resident murdered by her
ex-boyfriend in November 2011, while a restraining
order was in place. Her perpetrator violated the
restraining order several times before strangling her.
2. What This Bill Would Do
As explained above, this bill would authorize courts with
jurisdiction over a criminal matter to impose electronic
monitoring ("EM") as part of a domestic violence-related
protective order where local government has adopted this as a
policy. The bill provides that if a defendant has been
determined by the court to not have the ability to pay for the
device, the court may order it to be paid for by local
government, as specified. EM under this bill would be
authorized for up to one year from the date the order is issued.
3. Opposition
The California Public Defenders Association opposes this bill,
submitting in part:
AB 2467 would create an enormous cost burden for local
governments. While the bill states that the defendant
would be required to pay for the costs of electronic
monitoring assuming the ability to pay, should a court
determine that the defendant is indigent, the local
government authorizing the electronic monitoring
policy would be required to pay for the costs.
Assuming an average daily cost of electronic
monitoring at $20/day, authorizing local governments
would face an unfunded local mandate of over $7,000
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per person for one year of electronic monitoring
placement. In reality, a requirement of electronic
monitoring in pretrial cases where a Section 136.2
protective order is issued would also place a
disproportionate burden on indigent individuals.
Instead, AB 2467 would give victims a false sense of
security and would subject those charged and not even
convicted of domestic violence and stalking charges,
even at the misdemeanor level, with electronic
monitoring for up to a year regardless of whether a
conviction ever takes place.
In domestic violence cases, already onerous burdens
are imposed on defendants, including 52 weeks of
costly batterer intervention classes along with
additional fines and fees that must be shouldered by
the offender. . . . The imposition of electronic
monitoring for up to one year in misdemeanor and
felony domestic violence and stalking cases at the
pre-trial level will cause indigent individuals to
reject probation altogether . . . .
As a result of recent changes stemming from
realignment, under current law pursuant to Penal Code
section 1203.018, the board of supervisors of any
county already may authorize the correctional
administrator to offer electronic monitoring and even
global positioning monitoring on a pre-trial basis to
those inmates being held in lieu of bail.
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Considerable (local) . . . resources . . . would need
to be focused on electronic monitoring to determine
equipment malfunction, batteries running out,
equipment tampering or other willful failure to
comply. Countless hours of investigation and time for
probation violation hearings would be required in
order to fully litigate the issue of whether the
probationer willfully failed to comply with electronic
monitoring requirements in misdemeanor domestic
violence and stalking cases.
. . . The unintended consequence of AB 2467 would be
that victims of domestic violence and stalking would
fail to take proactive and cautionary measures to
protect themselves and their families because they
would wrongly assume that electronic monitoring was
taking place at all times. Local governments and
their county probation departments would bear the
burden of developing a VINE notification system to
immediately alert victims that the electronic
monitoring devices have apparently been removed or are
somehow malfunctioning.
4. Background: GPS
The Assembly Committee on Public Safety analysis of this bill
provides the following useful information concerning the use of
GPS in the context proposed by this bill:
GPS uses triangulation of satellites orbiting the
earth, similar to cellular phones. Offenders wear
ankle bracelets and carry with them packs containing
mobile receivers. When offenders are sleeping or
sitting, packs can be placed near them. A monitoring
station receives data from all offenders using the
system and tracks them. Tracking may be active or
passive. Active GPS transmits its location at near
real-time intervals and can include immediate alert
notifications. Passive GPS transmits its location at
set intervals and alert notifications are usually
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received the next day. �See
(accessed on April 10, 2012).] If the
offender tampers with the equipment, moves more than
about 150 feet from the receiver, deviates from a
schedule, or ventures into forbidden territory,
overseers are automatically paged. Not only does GPS
follow offenders, GPS can also be programmed with
"exclusion zones" where sex offenders are not allowed
- for example, the home of a victim or the victim's
place of employment. . . .
Under existing law, GPS surveillance may be used as a
condition of probation or parole. The parole
authority is authorized to use electronic monitoring
for the purpose of helping to verify a parolee's
compliance. GPS surveillance may also be applied as a
term of probation. In granting probation, courts have
broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant
to Penal Code Section 1203.1. The court may impose
and require such reasonable conditions as it may
determine are fitting and proper to the end that
justice may be done; that amends may be made to
society for the breach of the law and for any injury
done to any person resulting from that breach; and,
generally and specifically, for the reformation and
rehabilitation of the probationer.
Existing law does not provide for the placement of GPS
monitoring on a defendant who has not been placed on
probation or parole. . . .
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