BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1498 (Campos) 8
As Introduced January 9, 2014
Hearing date: June 17, 2014
Penal Code
AA:mc
PROTECTIVE ORDERS
HISTORY
Source: California District Attorneys Association
Prior Legislation: None
Support: Association for Los Angeles Deputy Sheriffs; California
State Sheriffs' Association; Los Angeles Police
Protective League; Los Angeles Probation Officers'
Union, AFSCME, Local 685; Crime Victims United of
California; Riverside Sheriffs' Association; National
Association of Social Workers, California Chapter
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD CERTAIN CRIMINAL PROTECTIVE ORDER PROVISIONS NOW APPLICABLE
TO DOMESTIC VIOLENCE CASES BE EXPANDED TO ALSO APPLY TO CERTAIN SEX
CRIME CASES?
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PURPOSE
The purpose of this bill is to 1) require a court to consider,
in all cases where the defendant is charged with rape, statutory
rape, spousal rape, or any other offense for which the defendant
would have to register as a sex offender, issuing a protective
order on its own motion during the pendency criminal
proceedings; and 2) provide that criminal protective orders
where the defendant is charged with one of these sex crimes have
precedence over a civil protective order, as specified.
Current law generally 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. (Pen.
Code � 136.2, subd. (a).)
Current law provides that a person violating a protective order
may be punished for any substantive offense described in
provisions of law related to intimidation of witnesses or
victims, or for a contempt of the court making the order. (Pen.
Code � 136.2, subd. (b).)
Current law states in those cases in which a complaint,
information, or indictment charging a crime of domestic violence
has been issued, except as specified, a restraining order or
protective order against the defendant issued by the criminal
court in that case has precedence in enforcement over a civil
court order against the defendant. (Pen. Code � 136.2, subd.
(e)(2).)
Current law allows a court, in any case in which a complaint,
information, or indictment charging a crime of domestic violence
has been filed, to consider, in determining whether good cause
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exists to issue a protective order, the underlying nature of the
offense charged, and any information about the defendant's prior
convictions for domestic violence, other forms of violence or
weapons offenses, and any current protective or restraining
order issued by a criminal or civil court. (Pen. Code �� 136.2,
subd. (h) and 273.75.)
Current law provides that in cases in which a complaint,
information, or indictment charging a crime of domestic violence
has been issued, except as specified, a restraining order or
protective order against the defendant issued by the criminal
court in that case has precedence in enforcement over a civil
court order against the defendant. (Pen. Code � 136.2, subd.
(e)(2).)
This bill provides that in any case where a defendant is charged
with rape, statutory rape, spousal rape, or any other offense
for which the defendant would have to register as a sex
offender, except as provided, a restraining order or protective
order against the defendant issued by the criminal court in the
case has precedence in enforcement over a civil court order
against the defendant.
Current law provides that in all cases where the defendant is
charged with a crime of domestic violence, as defined, the court
shall consider issuing specified protective orders on its own
motion. (Pen. Code � 136.2, subd. (e)(1).)
This bill would expand this provision to include the additional
crimes of rape, statutory rape, spousal rape, or any other
offense for which the defendant would have to register as a sex
offender.
This bill would provide that in any criminal case involving the
sex crimes enumerated above the court may consider, in
determining whether good cause exists to issue a protective
order under the provisions described above, the underlying
nature of the offense charged, the defendant's relationship to
the victim, the likelihood of continuing harm to the victim, any
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current restraining order or protective order issued by any
civil or criminal court involving the defendant, and the
defendant's criminal history, including, but not limited to,
prior convictions for a violation of these sex crimes, or any
other forms of violence, or any weapons offenses.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
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public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
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inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Stated Need for This Bill
The author states:
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The existing process for obtaining a protective order
during a criminal sexual assault case requires a
hearing, after which the order will only be issued if
there is a showing of good cause that harm or
dissuasion of a victim's testimony has occurred or is
likely to occur. This creates two issues.
First, it generally requires some proof that the
perpetrator has attempted or will attempt to harm or
dissuade the victim, beyond the harm that has already
occurred. That proof can be difficult to obtain,
until a new incident has taken place. Victims should
not be put in the position of having to wait until
they are harmed again to be able to obtain a
protective order.
Second, meeting the standard of good cause requires
the victim and his/her family members having to
participate in a separate hearing in order to obtain a
protective order. This means having to testify and
relive the traumatic experience.
In domestic violence cases, under PC 136.2(e), the
court can issue a protective order without requiring a
separate hearing or a showing of good cause. Victims
of sex crimes, on the other hand, must still seek
protective orders through the PC 136.2(a) process.
AB 1498 would extend to victims of sexually motivated
crimes the protections afforded domestic violence
victims.
2. Criminal Protective Orders; This Bill
Courts generally can issue a protective order in any criminal
proceeding pursuant to Penal Code Section 136.2 where 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
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occur. The only purpose of criminal protective orders "is to
protect victims and witnesses in connection with the criminal
proceeding in which the restraining order is issued in order to
allow participation without fear of reprisal." (People v. Ponce
(2009) 173 Cal.App.4th 378, 383.) Criminal protective orders
issued pursuant to Penal Code Section 136.2 are valid only
during the pendency of the criminal proceedings. (Id. at p.
382.)
In general, good cause to issue a criminal protective order must
be based on a showing of "a threat, or likely threat to criminal
proceedings or participation in them." (People v. Ponce, supra,
173 Cal.App.4th at pg. 384.) One single incident of assault,
even aggravated assault, before there were any criminal
proceedings, and without any intent to interfere with such
proceedings, is insufficient to justify the issuance of a
criminal protective order under this statute. (Ibid.) The one
exception to this requirement is in domestic violence cases,
which allows a protective order to be issued upon a showing of
past harm to the victim or witness, evidenced by the underlying
crime or the defendant's criminal history. (Babalola v.
Superior Court (2011) 192 Cal. App. 4th 948, 963.)
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In the Babalola case, a defendant assaulted two of his neighbors
with his fists and a handgun. The superior court issued a
criminal protective order prohibiting any contact by the
defendant based on a summary of testimony at the preliminary
hearing regarding the charged assaults and the proximity of the
defendant's and alleged victims' residences. The appellate
court ruled that the information used to issue the order did not
constitute good cause and vacated the criminal protective order.
The court explicitly stated that this case was not a domestic
violence case, and therefore required evidence that the
defendant had attempted to intimidate or dissuade the victims
from testifying at trial or that there would be a likelihood
that intimidation or dissuasion or any other type of harm to the
victims would occur in the future. (Babalola v. Superior Court,
supra, 192 Cal. App. 4th at p. 963.)
This bill seeks to provide the same exception found in domestic
violence cases in cases where a defendant is charged with rape,
statutory rape, spousal rape, or any other offense for which the
defendant would have to register as a sex offender. The bill
specifies, in determining whether good cause exists to issue a
protective order, the court may consider the underlying nature
of the offense charged, the defendant's relationship to the
victim, the likelihood of continuing harm to the victim, any
current restraining order or protective order issued by any
civil or criminal court involving the defendant, and the
defendant's criminal history. While some of these specified
offenses may involve domestic violence or a relationship between
the victim and the defendant, not all of the offenses involve a
relationship that would make it likely that the defendant would
contact the victim or have any kind of influence to dissuade the
victim from participating in the criminal proceedings. In that
regard, the same rationale that led the Legislature to create
this exception for domestic violence cases would not exist in
some cases involving the offenses specified in this bill.
3. Criminal Contempt
Disobedience of a court order may be punished as criminal
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contempt. The crime of contempt is a general intent crime. It
is proven by showing that the defendant intended to commit the
prohibited act, without any additional showing that he or she
intended "to do some further act or achieve some additional
consequence." (People v. Greenfield (1982) 134 Cal.App.3d Supp.
1, 4.) Nevertheless, a violation must also be willful, which in
the case of a court order encompasses both intent to disobey the
order, and disregard of the duty to obey the order." (In re
Karpf (1970) 10 Cal.App.3d 355, 372.)
Criminal contempt under Penal Code section 166 is a misdemeanor,
and so proceedings under the statute are conducted like any
other misdemeanor offense. (In re McKinney (1968) 70 Cal.2d 8,
10; In re Kreitman (1995) 40 Cal.App.4th 750, 755.) Therefore,
the criminal contempt power is vested in the prosecution; the
trial court has no power to institute criminal contempt
proceedings under the Penal Code. (In re McKinney, supra, 70
Cal.2d at p. 13.) A defendant charged with the crime of
contempt "is entitled to the full panoply of substantive and due
process rights." (People v. Kalnoki (1992) 7 Cal.App.4t Supp.
8, 11.) Therefore, the defendant has the right to a jury trial,
regardless of the sentence imposed. (People v. Earley (2004)
122 Cal.App.4th 542, 550.)
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