BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 723|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 723
Author: Pavley (D)
Amended: 5/2/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/26/11
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Protective orders
SOURCE : California District Attorneys Association
Los Angeles District Attorney
DIGEST : This bill authorizes the court to issue, and
requires 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.
ANALYSIS : 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,
who may be valid for up to 10 years, as determined by the
court. This protective order may be issued by the court
whether the defendant is sentenced to state prison, county
CONTINUED
SB 723
Page
2
jail, or if imposition of sentence is suspended and the
defendant is placed on probation." (Penal Code Section
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."
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
Section 136.2.)
Current law requires the court, in all cases where the
defendant is charged with a crime of domestic violence, as
specified, to consider issuing these orders on its own
motion. (Penal Code Section 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, as specified.
(Penal Code Section 136.2(h).)
This bill additionally requires 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."
This bill states that it "is the intent of the Legislature
in enacting this bill that the duration of any restraining
order issued by the court be based upon the seriousness of
CONTINUED
SB 723
Page
3
the facts before the court, the probability of future
violations, and the safety of the victim and his/her
immediate family."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/10/11)
California District Attorneys Association (co-source)
Los Angeles District Attorney (co-source)
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
State Commission on the Status of Women
ARGUMENTS IN SUPPORT : 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.
CONTINUED
SB 723
Page
4
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 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 Senate Public Safety
Committee and the author's officer may wish to discuss the
policy considerations of authorizing a "stay-away" order
for up to 10 years in cases that would include misdemeanor
CONTINUED
SB 723
Page
5
convictions.
RJG:do 5/10/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED