BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 723 (Pavley)
As Introduced February 18, 2011
Hearing date: April 26, 2011
Penal Code
AA:mc
PROTECTIVE ORDERS
HISTORY
Source: California District Attorneys Association; Los Angeles
District Attorney
Prior Legislation: AB 1771 (Ma) - Ch. 86, Stats. 2008
AB 289 (Spitzer) - Ch. 582, Stats. 2007
AB 828 (Cohn) - 2006, failed in Senate Public
Safety Committee
Support: Junior Leagues of California; California State
Sheriffs' Association; California Partnership to End
Domestic Violence; California Communities United
Institute; California Chapters of the Brady Campaign to
Prevent Gun Violence; Crime Victims United of
California
Opposition:California Public Defenders Association
KEY ISSUES
SHOULD COURTS WITH JURISDICTION OVER A CRIMINAL MATTER BE
AUTHORIZED TO ISSUE, AND BE REQUIRED TO CONSIDER AT THE TIME OF
SENTENCING IN ANY DOMESTIC VIOLENCE CASE, AN ORDER VALID FOR UP
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TO 10 YEARS RESTRAINING THE DEFENDANT FROM ANY CONTACT WITH THE
VICTIM, REGARDLESS OF THE DISPOSITION OF THE SENTENCE?
(CONTINUED)
SHOULD COURTS IN CRIMINAL MATTERS BE AUTHORIZED TO READ AND CONSIDER
THE ARREST REPORTS OR ANY OTHER WRITTEN REPORT OF LAW ENFORCEMENT OR
WITNESSES, IN ORDER TO DETERMINE WHETHER GOOD CAUSE EXISTS FOR THE
ISSUANCE OF A PROTECTIVE ORDER UNDER PENAL CODE SECTION 136.2?
SHOULD THE ISSUANCE OF ANY PROTECTIVE ORDER UNDER PENAL CODE SECTION
136.2 BE ALLOWED TO BE BASED SOLELY UPON THE HARM ALLEGED TO HAVE
OCCURRED IN THE ARREST OR OTHER WRITTEN REPORT?
PURPOSE
The purpose of this bill is to provide the following with
respect to the issuance of protective orders by courts with
jurisdiction over criminal matters: 1) authorize the court to
issue, and require the court to consider at the time of
sentencing in any domestic violence case, an order valid for up
to 10 years restraining the defendant from any contact with the
victim, regardless of the disposition of the sentence, as
specified; 2) authorize the court to read and consider the
arrest reports or any other written report of law enforcement or
witnesses, in order to determine whether good cause exists for
the issuance of a protective order under Penal Code section
136.2; and 3) provide that the issuance of any protective order
under Penal Code section 136.2 may be based solely upon the harm
alleged to have occurred in the arrest or other written report.
Current law requires, in cases where a defendant has been
convicted of felony domestic violence, the sentencing court to
"consider issuing an order restraining the defendant from any
contact with the victim, which may be valid for up to 10 years,
as determined by the court. . . . This protective order may
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be issued by the court whether the defendant is sentenced to
state prison, county jail, or if imposition of sentence is
suspended and the defendant is placed on probation." (Penal
Code � 273.5(i).) This provision further states, "�i]t is the
intent of the Legislature that the length of any restraining
order 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." (Id.)
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 requires the court, in all cases where the defendant
is charged with a crime of domestic violence, as specified, to
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consider issuing these orders on its own motion.<1> (Penal Code
� 136.2(e)(1).)
Current law provides that in any case in which a complaint,
information, or indictment charging a crime of domestic violence
has been filed, the court may consider, in determining whether
good cause exists to issue a protective order, the underlying
nature of the offense charged, and the information provided to
the court concerning the respondent's criminal record history,
---------------------------
<1> In this context, "'Domestic violence' means abuse committed
against an adult or a minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person with whom the suspect
has had a child or is having or has had a dating or engagement
relationship. For purposes of this subdivision, "cohabitant"
means two unrelated adult persons living together for a
substantial period of time, resulting in some permanency of
relationship. Factors that may determine whether persons are
cohabiting include, but are not limited to, (1) sexual relations
between the parties while sharing the same living quarters, (2)
sharing of income or expenses, (3) joint use or ownership of
property, (4) whether the parties hold themselves out as husband
and wife, (5) the continuity of the relationship, and (6) the
length of the relationship." (Penal Code � 13700.) Penal Code
section 1203.097 also requires a protective order be part of
conditions of probation where probation is granted for a crime
in which the victim is one of the following: (a) a spouse or
former spouse; (b) a cohabitant or former cohabitant, as
defined; (c) a person with whom the respondent is having or has
had a dating or engagement relationship; (d) a person with whom
the respondent has had a child, where the presumption applies
that the male parent is the father of the child of the female
parent, as specified; (e) a child of a party or a child who is
the subject of an action under the Uniform Parentage Act, where
the presumption applies that the male parent is the father of
the child to be protected; or (f) any other person related by
consanguinity or affinity within the second degree. (Family
Code � 6211.)
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as specified.<2> (Penal Code � 136.2(h).)
This bill additionally would require the court, in all cases in
which a criminal defendant has been convicted of a crime of
domestic violence, to consider issuing an order restraining the
defendant from any contact with the victim at the time of
sentencing. "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."
---------------------------
<2> The specific cross-reference here is to Penal Code section
273.75, which generally requires prosecutors to conduct thorough
database examinations of defendants in domestic violence cases.
"This information shall be presented for consideration by the
court (1) when setting bond or when releasing a defendant on his
or her own recognizance at the arraignment, if the defendant is
in custody, (2) upon consideration of any plea agreement, and
(3) when issuing a protective order pursuant to Section 136.2 of
the Penal Code , in accordance with subdivision (h) of that
section." (Penal Code � 273.75 �emphasis added].)
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This bill would state that 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."
Current law provides that in any criminal action, after the
filing of any complaint or other accusatory pleading and before
a plea, finding, or verdict of guilty, no judge shall read or
consider any written report of any law enforcement officer or
witness to any offense, any information reflecting the arrest or
conviction record of a defendant, or any affidavit or
representation of any kind, verbal or written, without the
defendant's consent given in open court, except as provided in
the rules of evidence applicable at the trial, or as provided in
affidavits in connection with the issuance of a warrant or the
hearing of any law and motion matter, or in any application for
an order fixing or changing bail, or a petition for a writ.
(Penal Code � 1204.5(a).)
Existing law provides that this section does not preclude a
judge, who is not the preliminary hearing or trial judge in the
case, from considering any information about the defendant for
the purpose of that judge adopting a pre-trial sentencing
position or approving or disapproving a guilty plea entered
pursuant to existing law if all of the following occur:
1) The defendant is represented by counsel, unless he or
she expressly waives the right to counsel;
2) Any information provided to the judge for either of
those purposes is also provided to the district attorney
and to the defense counsel at least five days prior to any
hearing or conference held for the purpose of considering a
proposed guilty plea or proposed sentence; and
3) At any hearing or conference held for either of those
purposes, defense counsel or the district attorney is
allowed to provide information, either on or off the
record, to supplement or rebut the information provided
pursuant to existing law. (Penal Code � 1204.5 (b)(1-3).)
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This bill would provide that, "�n]otwithstanding any other
provision of law, the court may read and consider the arrest
reports or any other written report of law enforcement or
witnesses, in order to determine whether good cause exists for
the issuance of any protective order under Penal Code section
136.2. The issuance of any protective order under this section
may be based solely upon the harm alleged to have occurred in
the arrest or other written report."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
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 Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
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2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. What This Bill Would Do
As explained in detail above, any court with jurisdiction over a
criminal matter now has to consider issuing a protective order
in all domestic violence cases. In addition, a court sentencing
a defendant for felony domestic violence must consider issuing
an order restraining the defendant from having any contact with
the victim for up to 10 years. With respect to the latter
provision, the length of an order is "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," and the order may be imposed on a convicted
person regardless of the disposition of the sentence.
This bill would do the following with respect to protective
orders issued by a court with jurisdiction over a criminal
matter:
extend the existing protective order provisions
applicable to felony domestic violence convictions
described above, including the availability of an order
than can extend up to 10 years, to all crimes of domestic
violence;
allow the court to "read and consider the arrest reports
or any other written report of law enforcement or
witnesses, in order to determine whether good cause exists
for the issuance of any protective order under this
section. . . ."; and
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provide that a protective order in any case may be based
solely upon the harm alleged to have occurred in the arrest
or other written report.
2. Ten-Year Provision
The California District Attorneys Association ("CDAA"), which is
a co-sponsor of this bill, submits that this bill is necessary
to ensure that protective orders can extend beyond a domestic
violence criminal case without a victim having to seek the same
kind of protection in additional court proceedings. CDAA argues
in part:
In certain domestic violence cases, a criminal
protective order expires when the proceedings are
completed. This leaves the victim without the
protection of such an order unless he or she applies
for an order in Family Court. This process is overly
burdensome and unnecessarily jeopardizes the victim's
safety. When a defendant is sentenced to probation
for a domestic violence crime, the court can issue a
protective order to protect the victim during the term
of probation . . . . However, if the court sentences
the defendant to prison or jail, or otherwise denies
probation, the court can only issue a protective order
if the case is (felony domestic violence) . . . or . .
. stalking, both of which authorize the issuance of
an order to protect the victim whether or not the
defendant is granted probation. . . .
This means that for all other domestic violence
crimes, such as domestic violence battery (PC 243(e)),
criminal threats (PC 422), false imprisonment (PC
236), assault with a deadly weapon (PC 245), etc., if
the defendant is denied probation, the initial
protective order that the criminal court issued at
arraignment pursuant to PC 136.2 to protect the victim
from threats and intimidation during the case
terminates because the case is over. The criminal
court cannot issue a new protective order because the
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defendant was not placed on probation. The victim who
had previously had a no-contact order now needs to
apply with the Family Court to get a restraining
order, the basis of which is the criminal case. In
many counties, this is in a different courthouse with
a complicated and time-consuming procedure. Domestic
violence victims should get the same protection of
no-contact orders in all domestic violence cases
whether the defendant is placed on probation or not -
not just for the crimes of stalking and causing a
traumatic condition to a cohabitant. Consider that if
a woman is hit by her boyfriend, but they did not live
together, the crime he is likely to be charged with is
a domestic violence battery (PC 243(e)). In that
case, the defendant may plead to having hit her, have
his probation denied, and she will soon be informed
that he can contact her immediately without being in
violation of a court order.
The 10-year authority this bill would authorize addresses court
cases that have held protective orders under this section
operate only during the pendency of the criminal proceedings.
(See People v. Selga (2008) 162 Cal. App. 4th 113; People v.
Ponce (2009) 173 Cal.App.4th 378.)
Currently, felony stalking and felony domestic violence contain
the 10-year protective order authority this bill proposes for
any domestic violence crime, including misdemeanors. Members of
the Committee and the author may wish to discuss the policy
considerations of authorizing a "stay-away" order for up to 10
years in cases that would include misdemeanor convictions.
SHOULD COURTS BE AUTHORIZED TO ISSUE, AND REQUIRED TO CONSIDER
ISSUING, PROTECTIVE ORDERS THAT CAN EXTEND UP TO 10 YEARS AT THE
TIME OF SENTENCING IN ALL DOMESTIC VIOLENCE CASES?
3. Basis for "Good Cause"; "Harm"
This bill would allow the court to read and consider the arrest
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reports or any other written report of law enforcement or
witnesses, in order to determine whether good cause exists for
the issuance of any protective order under this section. The
bill also then would provide that the issuance of any protective
order under this section may be based solely upon the harm
alleged to have occurred in the arrest or other written report.
CDAA submits in support of this provision:
. . . PC 136.2 allows a court to issue pre-trial
criminal protective orders to protect witnesses and
victims of alleged crimes. Such an order may be
issued "upon good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has
occurred or is reasonably likely to occur." Thus, PC
136.2, on its face, provides trial courts with two
alternative grounds for issuing a protective order.
The first is an act by the defendant that shows that
harm to (or intimidation or dissuasion of) a victim or
witness "has occurred." The second is a showing that
harm to (or intimidation or dissuasion of) a victim or
a witness "is likely to occur." Despite this
statutory language, defense attorneys have argued that
a court may NOT issue a protective order solely on the
basis of the harm alleged in the police report or
charged in the criminal complaint. They argue that
the prosecution must show an ongoing threat or an
additional harm to a victim or witness before the
court can issue a protective order. In support of
this restrictive interpretation of PC 136.2, they cite
a trio of appellate court cases: People v. Stone
(2004) 123 Cal.App.4th 153; People v. Selga (2008) 162
Cal.App.4th 113; and People v. Ponce (2009) 173
Cal.App.4th 378. All three cases held that a PC 136.2
order must be limited in time to the pendency of the
criminal case for which it is issued. None of these
cases - and no other published authority - has
directly addressed whether the issuance of a pretrial
PC 136.2 order can be based upon solely the conduct
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charged in the complaint or information contained in
arrest reports.
A court of appeal opinion published in February of this year
appears to provide some additional context for this proposed
change. In a case that did not involve domestic violence the
court found that, with respect to the protective orders
authorized by the statute this bill would amend, "while past
harm alone is sufficient for issuance of a criminal protective
order in domestic violence cases, when there is no charge of
domestic violence, more is required." Babalola v. Superior
Court (2011) 192 Cal. App. 4th 948, 951. The court recounted
the following purposes and evolution of section 136.2:
The American Bar Association's Section of Criminal
Justice, Committee on Victims, in 1979 issued a report
and recommendations, including a proposed model
statute, for reducing victim and witness intimidation
in criminal proceedings. In large part in response to
that report the California Legislature . . . defined
misdemeanor and felony offenses of preventing or
dissuading, or attempting to prevent or dissuade, a
witness or victim; and . . . provided for issuance of
criminal protective orders "�u]pon a good cause belief
that intimidation or dissuasion of a victim or witness
has occurred or is reasonably likely to occur."
In 1988, dissatisfied with the refusal of some courts
to issue protective orders under section 136.2 in
cases involving victims of domestic violence, the
Legislature . . . expressly (authorized) the issuance
of orders "protecting victims of violent crime from
contact, with the intent to annoy, harass, threaten,
or commit acts of violence, by the defendant."
Although written broadly to include victims of all
violent crime, not just domestic violence, the
legislative history plainly demonstrates the
Legislature's concern to protect victims of domestic
violence: "According to the bill's sponsor, the Los
Angeles City Attorney's Office, pretrial restraining
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orders are essential in crimes involving domestic
violence. Current law authorizing judges to issue
restraining orders in criminal cases does not
specifically authorize orders which protect victims of
violent crime from further harassment, threats, or
acts of violence by the defendant. In some cases, the
lack of specificity in the current law has caused
courts to refuse to issue appropriate protective
orders. This bill is needed to provide legislative
guidance for the courts on this issue."
Section 136.2 was amended again in 1990 as part of
legislation revising portions of the Domestic Violence
Prevention Act . . . . (Section 136.2(e)(1)) was
added providing, "In all cases where the defendant is
charged with a crime of domestic violence, as defined
in Section 13700, the court shall consider issuing the
above-described orders on its own motion. In order to
facilitate this, the court's records of all criminal
cases involving domestic violence shall be marked to
clearly alert to the court to this issue." . . .
In 1996 Assembly Bill No. 2224 . . . was passed to
broaden the court's authority to issue ex parte
no-contact and stay-away orders under the Domestic
Violence Prevention Act. . . . The same legislation
also amended section 136.2, authorizing the trial
court in a criminal proceeding to issue "�a]ny order
issued pursuant to Section 6320 of the Family Code." .
. . In addition, the phrase "harm to, or" was
inserted in the opening paragraph of section 136.2,
expanding the grounds for issuance of a criminal
protective order to more than past, or the reasonable
likelihood of future, intimidation or dissuasion:
"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, any court
with jurisdiction over a criminal matter may issue"
orders including those enumerated in the statute. . .
.
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Nothing in the legislative history directly addresses
the addition of the term "harm" to section 136.2. Yet
it can be reasonably deduced . . . that the
Legislature believed its inclusion as a ground for
issuance of a criminal protective order was necessary
to give effect to the criminal court's new authority
to issue ex parte orders pursuant to Family Code
section 6320. Otherwise, there was a likelihood some
courts, which had in the past been resistant to
issuing domestic violence protective orders in
criminal proceedings, would continue to require
evidence of intimidation or dissuasion, a standard far
narrower than sufficient to protect victims of
domestic violence. . . . . ((Babalola, infra, 192
Cal.App.4th at 956-958 (citations omitted).)
The court of appeal concluded that past or future harm was not a
basis for the issuance of a criminal protective order under
Penal Code section 136.2 except in cases of domestic violence:
In sum, in domestic violence cases past harm, as
evidenced by the underlying charges or other
information concerning the defendant's criminal
history, or threat of future harm to the victim may
provide good cause for issuance of a criminal
protective order. In all other cases, a criminal
protective order must be based on a finding of good
cause to believe an attempt to intimidate or dissuade
a victim or witness has occurred or is reasonably
likely to occur. That finding may be based on the
underlying charges and the circumstances surrounding
the commission of the charged offenses, but a mere
finding of past harm to the victim or a witness is not
sufficient. (Babalola, infra, 192 Cal.App.4th at 963
(emphasis added).)
This bill would provide that the issuance of any protective
order under this section may be based solely upon the harm
alleged to have occurred in the arrest or other written report.
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In this way, this provision would appear to abrogate Babalola.
The California Public Defenders Association ("CPDA"), which
opposes this provision, submits in part:
Proposed Penal Code section 136.2(j) however seeks to
abrogate the recent decision in Babalola v. Superior
Court (2011) 192 Cal. App. 4th 948 and in so doing
goes well beyond current law and allows the sentencing
court to issue protective orders based solely upon the
harm alleged to have occurred in the arrest or written
report. A sentencing court already has broad powers
to protect domestic violence victims as the courts
have defined good cause broadly for Penal Code 136.2
orders in domestic violence cases. The courts have
not however defined good cause as broadly as this bill
seeks to do. In Babalola the court discussed the
expansion of Penal Code section 136.2 to provide
greater protection to the victims of domestic
violence. Tracking the amendments to Penal Code
section 136.2, the court noted that "good cause" for
issuing a criminal protective order in domestic
violence cases included the "underlying nature of the
offense charged," other information concerning the
defendant's criminal history, or threat of future
harm. (Id. at 963-964.)
Accordingly, we must oppose this legislation unless it
is amended to delete proposed subsection (j) of 136.2.
SHOULD THE BASIS FOR THE ISSUANCE OF A PROTECTIVE ORDER ISSUED
BY A COURT IN A CRIMINAL MATTER BE BROADENED TO INCLUDE HARM
ALLEGED IN ANY CASE?
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4. Basis for "Good Cause"; Arrest and Other Written Law
Enforcement or Witness Reports
This bill would authorize the court to read and consider the
arrest reports or any other written report of law enforcement or
witnesses to determine whether good cause exists for the
issuance of a protective order under section 136.2. CDAA
submits:
. . . defense attorneys have been objecting to the
court reviewing the arrest reports to determine
whether "good cause" exists to issue a PC 136.2
protective order. Because of the confusion in the law
sown by dicta from Stone, Ponce, and Selga, some
defense attorneys have demanded evidentiary hearings
before any such protective orders issue, even though
PC 136.2(a)(5) places such a hearing solely within the
judge's discretion. Typically, PC 136.2 orders are
issued at the arraignment or some other proceeding
early in the process where the victim usually is not
present. If a hearing is granted, there will almost
certainly be a significant time period between the
arraignment and the hearing where the victim will not
enjoy the protection of the order. Additionally,
forcing a vulnerable victim to testify at such a
hearing during the early stages of a proceeding can be
devastating to the case and the victim herself,
especially if she has not received the benefit of
available services such as counseling and relocation.
CPDA, which opposes this provision, argues in part:
By allowing the judges to read and consider police
reports in issuing protective orders, unaccompanied by
any requirement of accompanying affidavits and without
consent of the accused, SB 723 would create a new and
unwarranted exception to well established hearsay
rules, which would erode due process rights of the
accused, inevitably watering down the rights of
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battered women who find themselves falsely accused of
committing a crime.
Penal Code Section 1204.5, described above in the "Purpose"
section of this analysis, was enacted in 1968, SB 580 (Moscone)
(Ch. 1362, Stats. 1968) in response to some concerns that many
courts were then requiring prosecutors to file police reports
and criminal records information together with criminal
complaints and that this information could improperly influence
judges in their rulings prior to or during trials to the
prejudice of defendants. (O'Neal v. Superior Court (1986) 185
Cal.App.3d 1086, 1091.) SB 580 was eventually sponsored by the
State Bar and when passed included well defined exceptions to
the prohibition on use of the specified information. (Breedlove
v. Municipal Court (1994) 27 Cal.App.4th 60.)
Under existing law, a judge may review a police report under
certain circumstances, including affidavits in connection with
the issuance of a warrant or the hearing of any law and motion
matter, in any application for an order fixing or changing bail,
or a petition for a writ. A protective order arguably falls
under the category of a "law and motion matter." Members may
wish to discuss with the sponsor how existing law is inadequate
and, to the extent that it may be, whether judges in these cases
should be authorized to rely on hearsay statements when issuing
protective orders.
IS THE PROCESS FOR THE ISSUANCE OF PROTECTIVE ORDERS IN THE
CRIMINAL COURT CURRENTLY INADEQUATE WITH RESPECT TO PROTECTING
VICTIMS AND WITNESSES?
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