BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1850|
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THIRD READING
Bill No: AB 1850
Author: Waldron (R), et al.
Amended: 8/11/14 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/10/14
AYES: Hancock, Anderson, De Le�n, Knight, Liu, Steinberg
NO VOTE RECORDED: Mitchell
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 74-0, 5/8/14 - See last page for vote
SUBJECT : Restraining orders in criminal cases
SOURCE : Conference of California Bar Associations
DIGEST : This bill provides that a minor who was not a victim
but was physically present at the time of an act of domestic
violence, is deemed to have suffered harm for the purpose of
issuing a protective order in a pending criminal case, as
specified.
Senate Floor Amendments of 8/11/14 add double-jointing language
with SB 910 (Pavley) and AB 1498 (Campos), make technical
changes, and add coauthors.
ANALYSIS :
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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.
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
contempt of the court making the order.
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.
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.
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.
6.Defines a "protective order" as 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
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described; or
C. An order enjoining other specified behavior necessary to
effectuate the first two orders, as described.
1.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.
This bill:
1.Provides that a minor who was not a victim of, but who was
physically present at the time of 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.
2.Authorizes the court to issue an order protecting a witness of
violent crime from all contact by the defendant, or contact,
with the intent to annoy, harass, threaten, or commit acts of
violence, by the defendant.
3.Contains double-jointing language with SB 910 (Pavley) and AB
1498 (Campos).
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/12/14)
Conference of California Bar Associations (source)
California District Attorneys Association
California Police Chiefs Association
California State Sheriff's Association
Peace Officers Research Association
OPPOSITION : (Verified 8/12/14)
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California Attorneys for Criminal Justice
ARGUMENTS IN SUPPORT : The author states:
AB 1850 clarifies that children who are physically present at
the time of acts of domestic violence are, by definition,
witnesses to the domestic violence and have suffered harm within
the meaning of the statute, thereby permitting the court to
issue orders to protect them.
Minors who are present during domestic violence are almost
always the children of the abusee, abuser, or both, and almost
invariably the emotional and psychological victims of the abuse.
Some of these are infants and young children who cannot attest
to the abuse, which is a requirement for protection under
existing 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.
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.
ARGUMENTS IN OPPOSITION : California Attorneys for Criminal
Justice states:
The reason for our continued opposition is, as before, due to
the fact that "harm" to a minor cannot be presumed from implied
(as the bill was formerly drafted) or actual (as the bill is
currently drafted) presence at the time of an act of domestic
violence. On the contrary, sentient knowledge that such an act
has been committed in one's presence may cause some amorphous
"harm." But this bill goes well beyond that, by simply
presuming "harm" where none may have occurred.
Subdivision (a) of the law already provides: "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. It is unnecessary,
conflicting and over-inclusive for a penal law to presume harm
in one section, when another requires a good faith belief (one
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that ought to be fact based) that "harm" has been done.
ASSEMBLY FLOOR : 74-0, 5/8/14
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Ch�vez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,
Gray, Grove, Hagman, Hall, Harkey, Roger Hern�ndez, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Medina, Melendez, Mullin, Muratsuchi, Nazarian,
Nestande, Olsen, Pan, Patterson, Perea, Quirk, Quirk-Silva,
Rendon, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A.
P�rez
NO VOTE RECORDED: Eggman, Gorell, Mansoor, V. Manuel P�rez,
Ridley-Thomas, Vacancy
JG:e 8/12/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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