BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 910 (Pavley)
As Amended March 24, 2014
Hearing date: April 1, 2014
Penal Code
AA:mc
DOMESTIC VIOLENCE:
CRIMINAL PROTECTIVE ORDERS
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: AB 1771 (Ma) - Ch. 86, Stats. 2008
Support: National Association of Social Workers, California
Chapter; California District Attorneys Association; AFSCME,
AFL-CIO
Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association; Legal Services for
Prisoners with Children
KEY ISSUE
SHOULD THE EXISTING STATUTE AUTHORIZING COURTS TO ISSUE CRIMINAL
PROTECTIVE ORDERS IN DOMESTIC VIOLENCE CASES BE BROADENED, AS
SPECIFIED?
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PURPOSE
The purpose of this bill is to expand the definition of domestic
violence for purposes of a court's ability to issue restraining
orders in domestic violence cases, including an order that may
be valid for up to 10 years, generally to include abuse
allegedly perpetrated against 1) a child, as specified; 2) a
relative, as specified; and 3) cohabitants or former cohabitants
more broadly described, as specified.
Current law generally authorizes courts to issue a civil or
criminal protective order to protect victims of domestic
violence 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, and authorizes courts to issue a
no-contact order for the protected party and, in the discretion
of the court, for other named family or household members.
(Family Code � 6320 et seq.; Penal Code � 136.2.)
Current law authorizes courts to issue an "order protecting
victims 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," as specified. (Penal Code
� 136.2(a)(7)(A).
Current law further provides that if a court does not issue the
no-contact order described above, the court "on its own motion
shall consider issuing a protective order 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" in
cases where the defendant is charged with a crime of domestic
violence as defined in Section 13700<1>:
"Domestic violence" means 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. For purposes of
this subdivision, "cohabitant" means two unrelated
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<1> Penal Code � 136.2(a)(7)(B)(i).
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adult persons living together for a substantial period
of time, resulting in some permanency of relationship.
Factors that may determine whether persons are
cohabiting include, but are not limited to, (1) sexual
relations between the parties while sharing the same
living quarters, (2) sharing of income or expenses,
(3) joint use or ownership of property, (4) whether
the parties hold themselves out as husband and wife,
(5) the continuity of the relationship, and (6) the
length of the relationship.
Current law provides that in determining whether good cause
exists to issue a protective order in a domestic violence case,
the court may consider the underlying nature of the offense
charged, and the defendant's history of domestic violence, prior
restraining orders and other forms of violence or weapons
offenses. (Penal Code � 136.2(h).)
This bill would expand the description of domestic violence for
purposes of the issuance of a protective order, including an
order that may be valid for up to 10 years, where a defendant is
charged with the crime of domestic violence to include domestic
violence as defined in Family Code section 6211, which includes
abuse against the following persons in addition to those
contained in section 13700:
a cohabitant or former cohabitant, defined to mean a
person who regularly resides in the household or a person
who formerly regularly resided in the household (derived
from Family Code section 6209;
a person with whom the respondent has had a child, where
the presumption applies that the male parent is the father
of the child of the female parent, as specified;
a child of a party or a child who is the subject of an
action under the Uniform Parentage Act, where the
presumption applies that the male parent is the father of
the child to be protected; and
any other person related by consanguinity or affinity
within the second degree.
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This bill additionally would revise this language to provide it
applies to a case in which the defendant is charged with a crime
involving domestic violence.
This bill also reflects changes to Penal Code section 136.2
enacted by AB 307 (Campos) (Ch. 291, Stats. 2014), which will
become operative on July 1, 2014.
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
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has been reduced by over 24,000 inmates since October 2011 when
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 February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 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:
Existing law allows criminal courts to issue
protective orders for up to 10 years based on any
domestic violence conviction, misdemeanor or felony,
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but the law does not include children as a protected
category. Unfortunately, while current law has been
expanded to include cases of domestic violence as
defined in Penal Code Section 13700, this section
limits domestic violence to abuse perpetrated by the
suspect's current or former spouse, mother/father of a
child in common, a person with whom the suspect has
had or has a dating or engagement relationship, or a
current or former cohabitant. A cohabitant is defined
as an unrelated adult living with the suspect in a
relationship of a sexual nature.
The narrow definition in the law has led to an equally
narrow interpretation by judges when issuing
protection orders in domestic violence cases with
child victims, with some refusing to issue
pre-sentencing protective orders for child abuse
victims.
Tragically, children are often the first target for
abuse when a domestic violence offender is released
from prison or jail. SB 910 addresses this
potentially life threatening gap in the law by giving
sentencing judges a tool to protect all potential
victims from abuse regardless of their age.
Specifically, SB 910 amends Penal Code Section 136.2
by replacing the narrow definition of domestic
violence under Penal Code Section 13700 with the
broader definition provided in Family Code Section
6211. Family Code Section 6211 includes the same
victims listed in P.C. Section 13700 but broadens the
definition of cohabitants to include a person who
regularly resides in the household and adds "the child
of a party" and anyone related by consanguinity or
affinity within the second degree. The bill merely
conforms the protective order law to the broader
definition and ensures that existing laws treat all
domestic violence victims - including children -
equally.
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The bill pertains only to presentencing and
post-sentencing protective orders. Even with the
clear inclusion of children, courts will retain the
discretion to not issue a protective order if the
facts do not justify it.
In California, there are more than 430 domestic abuse
incidents reported every day, according to the
Department of Justice. There were 147 domestic
violence fatalities - 11 percent of all California
homicides - in 2011, the latest year for which data is
available.
2. What This Bill Would Do
As explained in detail above, this bill would expand the
definition of domestic violence for purposes of a court's
ability to issue restraining orders in domestic violence cases.
Specifically, this bill would include abuse perpetrated against
any of the additional following persons:
cohabitants and former cohabitants, defined more
broadly;
a person with whom the respondent has had a child,
where the presumption applies that the male parent is the
father of the child of the female parent, as specified;
a child of a party or a child who is the subject of an
action under the Uniform Parentage Act, where the
presumption applies that the male parent is the father of
the child to be protected; and
any other person related by consanguinity<2> or
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<2> Kinship; blood relationship; the connection or relation of
persons descended from the same stock or common ancestor.
(Black's Law Dictionary Free Online Legal Dictionary 2d Ed.)
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affinity<3> within the second degree.
3. Opposition
Opponents argue this bill would broaden too greatly the narrow
exception afforded in domestic violence cases which allows
courts to issue protective orders based on past harm.
California Attorneys for Criminal Justice argue in part that
this bill "would broadly expand the narrow domestic violence
exception to the rules against baseless and un-noticed
preliminary injunctions." Similarly, the California Public
Defenders submit in part:
The broad discretion to restrain the defendant from
the complaining witness' dependents and relatives
within two degrees of consanguinity effectively
alienates the defendant from resources, housing, and
property without the right to a hearing. The court
already has the power to restrain a defendant from
appropriate persons on a case by case basis when the
reason is articulated in the charging
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<3> Affinity: At common law. Relationship by marriage
between the husband and the blood relations of the wife, and
between the wife and the blood relations of the husband. . . .
Affinity is distinguished into three kinds: (1) Direct, or that
subsisting between the husband and his wife's relations by
blood, or between the wife and the husband's relations by blood;
(2) secondary, or that which subsists between the husband and
his wife's relations by marriage; (3) collateral, or that which
subsists between the husband and the relations of his wife's
relations. Wharton. JJ In the civil law. The connection which
arises by marriage between each person of the married pair and
the kindred of the other. (Id.)
documents, or on the record in the pretrial stage.
After conviction, the terms and conditions of
sentencing, probation, or parole address the same; and
the defendant is guaranteed to a have a voice through
counsel.
4. Background; Protective Orders
California's laws concerning protective orders have evolved
significantly over the last 30 years. Their use in cases of
domestic violence has been a particular focus of the
Legislature. As explained in Babalola v. Superior Court (2011)
192 Cal. App. 4th 948, 963:
The separate-and greater-protection afforded victims
of domestic violence is fully consistent with the
Legislature's consistent and repeated efforts to
ensure the courts utilize all available tools,
including section 136.2, to safeguard victims of
domestic abuse. (See, e.g., Stats. 2001, Ch. 698, �
1, p. 5476 ["The Legislature recognizes that both
criminal courts and civil courts may issue protective
orders or restraining orders to prevent domestic
violence. Orders issued by the criminal
court also serve to protect the safety of a victim or
a witness in a criminal proceeding."].) Evidence of
past harm to the victim of domestic violence may
constitute good cause for issuance of a criminal
protective order.
This bill would expand this greater protection to the broader
definition of abuse against the additional persons described
above.
In 2008, the Legislature enacted AB 1771 (Ma), which responded
to a court of appeal decision which interpreted the basis for
restraining orders issued by a criminal court very narrowly. In
People v. Stone, 123 Cal.App.4th 153 (2004), the court of appeal
considered the jurisdiction of the criminal court to issue
restraining orders protecting two persons who had been assaulted
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by the appellant. The underlying criminal case involved assault
by means likely to produce great bodily injury. After the jury
had been instructed, prosecutors sought and the trial court
issued orders restricting appellant's contact with the victim
and a witness who previously had been assaulted by the
appellant. The court of appeal affirmed the appellant's assault
conviction, but reversed the restraining orders. (People v.
Stone, supra, at 156.)
The court reasoned that because the assaults occurred before the
criminal proceedings, and "presented no direct threat to the
administration of any criminal proceedings or to their
participation in them," the restraining orders were unjustified:
. . . (T)he restraining orders authorized by section
136.2 are those aimed at preserving the integrity of
the administration of criminal court proceedings and
protecting those involved in them. It therefore
follows that the required good cause must show a
threat, or likely threat to criminal proceedings or
participation in them.
. . . The fact that (appellant) had assaulted both of
them before there were any criminal proceedings, and
without any intent to interfere with such proceedings,
is insufficient to justify the restraining orders.
Stone technically did not apply to domestic violence protective
orders; however, there was some indication that some trial
courts construed Stone to limit the grounds upon which
restraining orders in domestic violence cases could be based.
AB 1771 addressed this by enacting subdivision (h) in Section
136.2 to expressly authorize courts in domestic violence cases
to consider the underlying nature of the offense charged, and
the defendant's history of domestic violence, prior restraining
orders and other forms of violence or weapons offenses in
determining whether to issue a protective order. As explained
above, this bill would broaden the application of this
provision.
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DOES THIS BILL PROPOSE TO BROADEN THE CRIMINAL PROTECTIVE ORDER
EXCEPTION ALLOWED FOR DOMESTIC VIOLENCE CASES TOO BROADLY? OR,
IS THIS BILL CONSISTENT WITH THE POLICY GOALS OF THE LEGISLATURE
WITH RESPECT TO PROTECTING VICTIMS OF DOMESTIC VIOLENCE?
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