BILL ANALYSIS �
AB 1850
Page 1
Date of Hearing: March 25, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1850 (Waldron) - As Amended: March 17, 2014
SUMMARY : Provides that a minor who was not a victim of, but who
was physically present during or located near, an act of
domestic violence, is a witness and is deemed to have suffered
harm for the purposes of issuing a protective order in a pending
criminal case.
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. (Pen. Code, �
136.2, subd. (a).)
2)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).)
3)Requires a court, in all cases where the defendant is charged
with a crime of domestic violence, to consider issuing a
protective order on its own motion. All interested parties
shall receive a copy of those orders. In order to facilitate
this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court
to this issue. (Pen. Code, � 136.2, subd. (e)(1).)
4)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.
AB 1850
Page 2
(e)(2).)
5)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 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.)
6)States that a "protective order" means an order that includes
any of the following restraining orders, whether issued ex
parte, after notice and hearing, or in a judgment:
a) An order enjoining specific acts of abuse, such as
contacting, molesting, and striking, as described.
b) An order excluding a person from a dwelling, as
described.
c) An order enjoining other specified behavior necessary to
effectuate the first two orders, as described. (Fam. Code,
� 6218.)
7)Provides that a court may issue an ex parte order enjoining a
party from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing,
telephoning, including, but not limited to, making annoying
telephone calls as described, destroying personal property,
contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or
disturbing the peace of the other party, and, in the
discretion of the court, on a showing of good cause, of other
named family or household members. (Fam. Code, � 6320.)
8)Authorizes a court to issue an ex parte order excluding a
party from the family dwelling, the dwelling of the other
party, the common dwelling of both parties, or the dwelling of
the person who has care, custody, and control of a child to be
protected from domestic violence for the period of time and on
the conditions the court determines, regardless of which party
holds legal or equitable title or is the lessee of the
AB 1850
Page 3
dwelling. The court may issue such an order only on a showing
of all of the following:
a) Facts sufficient for the court to ascertain that the
party who will stay in the dwelling has a right under color
of law to possession of the premises.
b) That the party to be excluded has assaulted or threatens
to assault the other party or any other person under the
care, custody, and control of the other party, or any minor
child of the parties or of the other party.
c) That physical or emotional harm would otherwise result
to the other party, to any person under the care, custody,
and control of the other party, or to any minor child of
the parties or of the other party. (Fam. Code, � 6321.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1850 makes
clear in the law that a child's presence during an act of
domestic violence makes the child a witness to the act who has
suffered harm, thereby permitting courts to issue protective
orders for such children. This legislation is needed to
protect infants and young children who cannot vocalize or
otherwise testify about the harm they suffered by being
powerless witnesses to acts of domestic violence. Infants and
young children cannot review and sign declarations attesting
to the harm they suffered, testify in court, or be interviewed
by investigators. Therefore, there is nothing in current law
that would enable their protection. AB 1850 would fill that
void."
2)Background : According to the background materials provided by
the author's office, "Under current law, if a defendant is
charged with domestic violence and a child is present during
the crime, but not listed as a victim, the court will not
issue a protective order for the child unless there is a
showing of good cause that the defendant will attempt to
dissuade the child from testifying. If the child is used
against the parent victim to threaten or intimidate them, the
statute does not recognize that as 'harm' to either the child
AB 1850
Page 4
or the process.
"AB 1850 would specify that a child's presence during an act
of domestic violence makes the child a witness to the act who
has suffered harm, within the meaning of the statute. This
will enable courts to issue protective orders for these
children, who otherwise fall outside of the scope of the
statute. These orders are typically made at arraignment and
can be modified if information becomes available that warrants
a change in the order."
3)Criminal Protective Orders versus Family Court Restraining
Orders : A 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. These orders are valid only during the pendency of
the criminal proceedings. (People v. Ponce (2009) 173
Cal.App.4th 378, 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 p. 384.) In domestic
violence cases, however, past harm to the victim, may provide
good cause for issuance of a criminal protective order.
(Babalola v. Superior Court (2011) 192 Cal. App. 4th 948,
963-964.) In all cases, not just domestic violence, if a
court determines that there is good cause for the protective
order, the court may issue an ex parte order prohibiting the
defendant from contacting the victim or witness and other
family members or household members during the pendency of the
criminal proceedings. (Pen. Code, � 136, subd. (a)(1).)
A person may also seek a restraining order in family law or
civil court even when there is a criminal protective order.
These orders can be issued ex parte and can prohibit the
enjoined party from contacting the victim, and, on a showing
of good cause or other specified factors, any other family
member or household members and minor children. (Fam. Code,
�� 6320 and 6321.) However, the criminal protective order
takes precedence over other conflicting orders. That means if
the criminal order is different from another restraining
order, it will supersede any other orders as the primary order
AB 1850
Page 5
that must be obeyed. (Pen. Code, � 136.2, subd. (e)(2).)
4)Criminal Contempt : Disobedience of a court order may be
punished as criminal 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.)
5)Argument in Support : The Conference of California Bar
Associations , the sponsor of this bill writes, "Under current
law, if a defendant is charged with domestic violence and a
child is present during the crime, but not listed as a victim
of actual physical abuse, the court will not issue a
protective order for the child unless there is a showing of
good cause that the defendant will attempt to dissuade the
child from testifying. This ignores the reality that these
children are very often used as pawns by the abuser to
manipulate the abusee to drop the charges, to not testify in
court, or in other ways.
"Minors who are present during domestic violence are almost
always the children of the abusee, the abuser, or both, and
are almost invariably the emotional and psychological victims
of the abuse. Some of these are infants and young children who
AB 1850
Page 6
cannot attest to the abuse, which is a requirement for
protection under current law. However, there should not be
any requirement that even older minors re-live the abuse by
having to attest to what they have seen and heard, and to the
damaging effect that this abuse has had on their lives -
especially when to do so often requires them to choose between
their mother and their father. Anything that can be done to
keep these children protected from such inevitably damaging
contact with their abuser parent will help them heal from the
effects of the abuse, instead of allowing it to continue in
another form."
6)Current Legislation :
a) AB 2089 (Quirk) authorizes the issuance of a restraining
order on the basis of evidence of past abuse, without any
showing that the wrongful acts will be continued or
repeated and prohibits the court from denying an order
solely because of the length of time between an act of
abuse and the filing of the petition for the restraining
order. AB 2089 is pending hearing by the Committee on
Judiciary.
b) AB 1498 (Campos) requires, in all cases where a
defendant is charged with a specified sex offense, the
court to consider issuing a protective order, and requires
the court to consider specified factors in issuing the
order. AB 1498 will be heard by this Committee today.
c) SB 910 (Pavley) expands the definition of domestic
violence, for purposes of issuing protective orders, to
include abuse perpetrated against a child of a party to the
domestic violence proceedings or a child who is the subject
of an action under the Uniform Parentage Act, as specified,
or against any other person related to the defendant by
consanguinity or affinity within the 2nd degree. SB 910 is
pending hearing by the Senate Committee on Public Safety.
7)Prior Legislation :
a) AB 307 (Campos), Chapter 291, Statutes of 2013, allows a
court to issue a protective order up to 10 years when a
defendant is convicted of specified sex crimes, regardless
of the sentence imposed.
AB 1850
Page 7
b) SB 723 (Pavley), Chapter 155, Statutes of 2011,
requires, in all cases in which a criminal defendant has
been convicted of a crime of domestic violence, the court
to consider, at the time of sentencing, issuing an order
restraining the defendant from any contact with the victim,
for up to 10 years, 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.
c) AB 1771 (Ma), Chapter 86, Statutes of 2008, specifies
the information that a court may consider in determining
whether "good cause" exists to issue a domestic violence
restraining order, to include the underlying nature of the
offense charged as well as information provided to the
court pursuant to a criminal history search.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (Sponsor)
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744