BILL ANALYSIS �
SB 723
Page 1
Date of Hearing: June 14, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 723 (Pavley) - As Amended: May 2, 2011
SUMMARY : Expands the court's authority for issuing restraining
orders in domestic violence cases. Specifically, this bill :
1)Allows a court to issue a protective order for up to 10 years
when a defendant is convicted for an offense involving
"domestic violence" regardless of the sentence imposed.
2)Declares legislative intent that the length of any restraining
order issued in domestic violence cases 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.
EXISTING LAW :
1)Authorizes the trial court in a criminal case to issue
protective orders when there is a 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.)
2)Requires the court to consider issuing a protective order in
any case in which a crime of "domestic violence" has been
charged. �Penal Code Section 136.2(e)(1).]
3)Authorizes the court to issue an order restraining the
defendant from "contact with the victim" upon a conviction for
domestic violence where 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 Section
273.5(i).]
4)Requires a defendant who is granted probation for committing a
crime in which the victim is a person defined in the Family
Code to comply with a mandatory order protecting the victim
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from further acts of violence, threats, stalking, sexual
abuse, and harassment, and, if appropriate, containing
residence exclusion or stay-away conditions. �Penal Code
Section 1203.097(a)(2).]
5)Grants the court authority to issue protective orders for 10
years in stalking cases. �Penal Code Section 646.9(k).]
6)Allows the victim of a past act or acts of domestic abuse to
petition the court for a restraining order lasting up to five
years. �Family Code Sections 6300 and 6345.]
7)Gives the court discretion to renew a protective order for an
additional five years, or permanently, without any additional
showing of abuse since the initial order. �Family Code
Section 6345.]
8)Allows the court to issue civil harassment protective orders
and workplace violence protective orders for up to three years
upon a showing of clear and convincing evidence. (Code of
Civil Procedure Sections 527.6 and 527.8.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Domestic
Violence continues to be one of the most devastating issues
facing families today, with many victims and children
experiencing serious injury or death because they are unable
to seek protection or escape from those who seek to harm them.
This bill is intended to provide increased public safety to
families and children who are victims of domestic violence.
"SB 723 would provide long overdue uniformity in terms of the
crimes and circumstances in which protective orders are issued
and would allow criminal courts to issue protective orders for
up to 10 years based on any domestic violence conviction. The
bill gives the court full flexibility to decide what length of
time is appropriate on a case-by-case basis.
"This bill is needed to address a gap in victim protection
because criminal protective orders for most crimes expire when
the proceedings are completed. Consequently, once the
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offender is released from jail or prison, there is no
protection for the victim unless a new order is sought in
Family Court. This can be time-consuming and difficult - and
not to mention expensive, especially for indigent victims -
jeopardizing the victim's safety until further protections are
in place."
2)Background : As a general matter, the court can issue a
protective order in any criminal proceeding pursuant to Penal
Code Section 136.2 where it finds good cause belief that harm
to, or intimidation or dissuasion of, a victim or witness has
occurred or is reasonably likely to occur. However, in
domestic violence cases, the court is required to consider
issuing such an order. Protective orders issued under this
statute are valid only during the pendency of the criminal
proceedings. �People v. Ponce (2009) 173 Cal.App.4th 378,
382.]
When domestic violence criminal proceedings have concluded, the
court can issue a "no-contact order" as a condition of
probation. (Penal Code Section 1203.097.) In addition, Penal
Code Section 273.5(i) authorizes no-contact orders for up to
10 years when a defendant has been convicted of willful
infliction of corporal injury to a spouse, former spouse,
cohabitant, former cohabitant, or the mother or father of the
defendant's child. The statute requires the court to consider
issuing such an order and the length of duration must 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." This protective order may
be issued by the court regardless of whether the defendant is
sentenced to state prison, county jail, or if imposition of
sentence is suspended and the defendant is placed on
probation. (Ibid.) The same is true of stalking cases.
�Penal Code Section 646.9(k).]
The Domestic Violence Prevention Act also authorizes the family
court to issue temporary restraining orders (Family Code
Section 6250) and protective orders (Family Code Sections 6320
et seq. and 6340.) Under the act, a protective order may be
granted to any person specified in Family Code Section 6211
against whom abuse is perpetrated. Initially, the protective
order may not last more than five years, but a party may
request renewal for an additional five years or permanently.
(Family Code Section 6345.) These remedies are in addition to
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any other remedies, either civil or criminal, that may be
available to the petitioner. (Family Code Section 6227.)
3)Offenses Included in this Bill : This bill states a
restraining order can be imposed on any defendant convicted of
a crime involving domestic violence as defined in Penal Code
Section 13700. That statute, in turn, defines "domestic
violence" as "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." �Penal Code
Section 13700(b).] For purposes of the statute, "cohabitant"
is defined as "two unrelated adult persons living together for
a substantial period of time, resulting in some permanency of
relationship." (Ibid.) Relevant factors in determining
cohabitation include, but are not limited to: sexual
relations between the parties while sharing the same living
quarters, sharing of income or expenses, joint use or
ownership of property, whether the parties hold themselves out
as husband and wife, the continuity of the relationship, and
the length of the relationship. (Ibid.) The same statute
defines "abuse" as "intentionally or recklessly causing or
attempting to cause bodily injury, or placing another person
in reasonable apprehension of imminent serious bodily injury
to himself or herself, or another." �Penal Code Section
13700(a).]
Some of the crimes intended to fall within the parameters of
this bill, such as false imprisonment, do not appear to meet
the statutory definition of Penal Code Section 13700.
4)Possible Sixth Amendment Implications : To impose a
restraining order under this bill, a finding would have to be
made that the case meets that criteria of Penal Code Section
13700.
In Apprendi v. United States (2000) 530 U.S. 466, the United
States Supreme Court held that "other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." (Id. at p. 490.)
Subsequently, in Blakely v. Washington (2004) 542 U.S. 296,
the Court explained that "the 'statutory maximum' for Apprendi
purposes is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or
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admitted by the defendant." (Id. at p. 303)
Because restraining orders are enforceable by way of contempt
proceedings, arguably they constitute criminal punishment over
and above the terms mandated by the offense of conviction. As
such, they could be considered elements of an offense, and
could not be mere findings of a court at sentencing. Thus, it
is possible that the orders cannot be imposed unless the
defendant had an opportunity for a jury trial and findings
beyond a reasonable doubt under Blakely and Apprendi.
5)Arguments in Support : According to the California District
Attorneys Association (the sponsors of this bill), "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 pursuant to Penal Code
(PC) 1203.097. 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 a violation
of PC 273.5 (causing a traumatic condition on spouse,
cohabitant or parent of your child) or PC 646.9 (stalking),
both of which authorize the issuance of an order to protect
the victim whether or not the defendant is granted probation.
(See People v. Stone (2004) 123 Cal.App.4th 153 (holding that
the court cannot issue a PC 136.2 protective order if the
defendant is not on 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 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."
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6)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 for stalking.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
California State Sheriffs' Association
Crime Victims United of California
Opposition
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744