BILL ANALYSIS �
SB 910
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Date of Hearing: June 10, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 910 (Pavley) - As Amended: March 24, 2014
SUMMARY : Expands the definition of domestic violence for
purposes of a court's ability to issue restraining orders in
domestic violence cases during the pendency of criminal
proceedings and upon conviction of a crime of a domestic
violence offense. Specifically, this bill :
1)Includes abuse perpetrated against any of the additional
following persons:
a) Cohabitants and former cohabitants, defined more
broadly;
b) 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;
c) 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,
d) Any other person related by consanguinity or affinity
within the second degree.
2)Revises existing law to provide that these restraining orders
apply in cases involving domestic violence, rather than in
cases of domestic violence.
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).)
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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)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 information provided to the court through
a background check, including 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.)
5)Provides in all cases in which a criminal defendant has been
convicted of a crime of domestic violence, as defined in
relevant sections of the Family Code, or any crime that
requires the defendant to register as a sex offender, the
court, at the time of sentencing, shall consider issuing an
order restraining the defendant from any contact with the
victim. The order may be valid for up to 10 years, as
determined by the court. (Pen. Code, � 136.2, subd. (i)(1).)
6)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. (Pen. Code, � 13700, subd.
(a).)
7)Defines "domestic violence" in the Penal Code 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
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engagement relationship. For purposes of this subdivision,
"cohabitant" means two unrelated 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 (Pen. Code, �
13700, subd. (b)):
a) Sexual relations between the parties while sharing the
same living quarters,
b) Sharing of income or expenses,
c) Joint use or ownership of property,
d) Whether the parties hold themselves out as husband and
wife,
e) The continuity of the relationship; and,
f) The length of the relationship.
8)Defines "domestic violence" in the Family Code as abuse
perpetrated against any of the following persons (Fam. Code, �
6211):
a) A spouse or former spouse;
b) A cohabitant or former cohabitant, as defined;
c) A person with whom the respondent is having or has had a
dating or engagement relationship.
d) 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 under the Uniform
Parentage Act;
e) 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; or,
f) Any other person related by consanguinity or affinity
within the second degree.
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9)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 (Fam. Code,
� 6218):
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; or,
c) An order enjoining other specified behavior necessary to
effectuate the first two orders, as described.
10)Authorizes, under the Domestic Violence Prevention Act
(DVPA), a court to issue and enforce a domestic violence
restraining order, including an emergency protective order, a
temporary restraining order and a permanent restraining order.
(Fam. Code, �� 6300 et seq.)
11)Provides that a permanent order made after hearing under the
DVPA may have a duration of no more than five years, subject
to termination or modification. An order may be renewed, upon
request of either party, for either five years or permanently,
without a showing of any further abuse since issuance of the
original order. (Fam. Code, � 6345.)
12)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.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Tragically,
children are often the first target for abuse when a domestic
violence offender is released from prison or jail. SB 910
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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.
"SB 910 is needed to protect children from domestic abusers
during court proceedings and after offenders are released from
prison or jail. In California, domestic violence fatalities
account for 12 percent of homicides. Offering children the
same protections we give to adult victims may mean the
difference of life and death for a child.
"Currently, courts may issue orders to protect spouses during
criminal proceedings, and for up to 10 years after abusers are
convicted. However, this protection does not extend to all
children because of a narrow legal definition of domestic
violence. This 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.
"As a result of this interpretation, the only recourse
available is for family members to request a new order to
protect children in family court, which is often
time-consuming and difficult, putting children at risk unless
and until a new order to protect children in family court,
which is often time-consuming and difficult, putting children
at risk unless and until a new order is issued. The most
vulnerable victims, including infants, are the only category
of people that are left unprotected by current law. They
deserve the same protection as adult victims of family
violence.
"SB 910 closes a loophole in California to ensure that
children are a protected category in the issuance of criminal
protective orders. Specifically SB 910 amends Penal Code
Section 136.2 by adding the definition of domestic violence
contained in Family Code Section 6211.
"Family Code Section 6211 includes the same victims listed in
existing PC Section 13700, but broadens the definition of
cohabitants to "the child of a party" and anyone related by
"consanguinity or affinity within the second degree."
"The bill pertains only to pre-sentencing and post-sentencing
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protective orders. Even with the clear inclusion of children,
courts will retain the discretion to not issue a
pre-sentencing or post-sentencing protective order if the
facts do not justify it.
"The Family Code definition is already used in relation to
several other sections of the Penal Code related to domestic
violence. This bill merely updates the protective order law
to conform to the broader definition."
2)Expanding the Definition of Domestic Violence : This bill
expands the definition of domestic violence for purposes of
issuing a restraining order in a domestic violence criminal
case, both during the pendency of the criminal proceedings and
upon conviction.
Under existing law, the Penal Code defines "domestic violence"
as "abuse committed against an adult or a minor who is a
spouse, former spouse, cohabitant or former cohabitant, as
defined, or person with whom the suspect has had a child or is
having or has had a dating or engagement relationship. (Pen.
Code, � 13700, subd. (b).) The statute defines "cohabitant" as
two unrelated adult persons living together for a substantial
period of time, resulting in some permanency of relationship."
According to the author of the bill, this definition is too
narrow because it does not cover children, either related by
consanguinity (blood) or affinity (marriage). In order to
address this issue, the author adds a reference to Family Code
section 6211 which defines "domestic violence" as abuse
perpetrated against any of the following persons: spouse or
former spouse, a cohabitant or former cohabitant, as defined,
a person with whom the respondent has had a child, 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, or any other person related by
consanguinity or affinity within the second degree. (Fam.
Code, � 6211.) The Family Code defines "cohabitant" as "a
person who regularly resides in the household." (Fam. Code, �
6209.)
The difference between the Penal Code section's definition of
"domestic violence" and the Family Code section's definition
is that children, as well as other persons related by marriage
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or blood within the second degree (e.g., grandparents, nieces,
nephews, etc.) are included in the Family Code.
The Family Code also defines "cohabitant" more broadly than the
Penal Code, which requires that the two persons must be
unrelated adults living together for a substantial period of
time. The Family Code merely requires that the person must
have regularly resided in the home, without stating that the
persons must be unrelated or both adults.
This bill will add the same protections provided in the Family
Code definition to the Penal Code for purposes of restraining
orders.
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
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the criminal order is different from another restraining
order, it will supersede any other orders as the primary order
that must be obeyed. (Pen. Code, � 136.2, subd. (e)(2).) But
the Legislature has also made clear that courts must have a
protocol to coordinate appropriate communication and
information sharing between criminal, family, and juvenile
courts concerning orders and cases that involve the same
parties. (Pen. Code, � 136.2, subd. (f).)
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 : According to the Los Angeles County
District Attorney's Office , the sponsor of this bill, "Under
current law, a criminal court may issue an order protecting an
alleged victim of domestic violence from contact with the
defendant during the pendency of the criminal case. However,
this protection does not extend to all child victims living in
the household, such as the children of adult victims, other
child family members or the children or stepchildren of the
defendant. This is because the narrow definition of domestic
violence contained in this law does not apply to these child
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victims, who are not considered 'cohabitants.'
"Current law also provides for a protective order of up to 10
years to be entered after the defendant has been convicted of
a crime of domestic violence. The duration of the order is
based upon the seriousness of facts before the court, the
probability of future violations, and the safety of the victim
and his or her immediate family. However, because of the
narrow definition of domestic violence and in particular,
'cohabitants,' this protection is also unavailable to protect
all child victims in the home.
"SB 910 solves this problem by incorporating the more broadly
accepted definition of who can be included as a victim of
domestic violence which is set forth in Family Code Section
6211. The Family Code defines a cohabitant as a person who
regularly resides in the household, which includes the
children, not just unrelated adults who are in a serious
relationship. Second, Family Code Section 6211 explicitly
adds 'child of a party' (and any 'other person related by
consanguinity or affinity within the second degree') to the
current law that protects 'spouses, former spouses,
cohabitants, former cohabitants, and persons in a current or
former dating or engagement relationship.'"
6)Argument in Opposition : According to Legal Services for
Prisoners with Children , "Although we do not condone violence,
especially when it hurts children, protective orders by a
criminal court can be very long, up to ten years, with no
contact at all between the parties. This time is
irreplaceable in a parent-child relation, especially if the
child is young. From what seems to be a commendable act to
protect children, we can easily end up doing more harm than
good by breaking down challenged families. Offender and
children sometimes both need and ask for visitation rights to
help them move forward and grow up more peacefully.
"SB 910 would expand the definition of domestic violence to the
definition provided in California Family Code Section 6211 to
include children of any of the partners involved in domestic
violence when issuing a protective order. The problem is that
this definition has been put together for family law purposes,
in relevant courts, not for criminal matters. Family courts
can issue a restraining order themselves, and when they do so,
they take the children's will and bonding issues in account
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and can issue visitation rights under strict conditions, with
some mediation for example. Criminal courts' focus is on the
crime itself and a strict choice is made between not issuing
any order at all, or ordering a non-contact visit. Our main
concern is that Criminal Protective Orders take precedence
over other conflicting orders including family protective
orders of visitation rights, and that it could easily be
prejudicial both to the offender and to the children."
7)Related Legislation :
a) AB 1498 (Campos) requires 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 of
the criminal proceedings. AB 1498 is pending hearing by
the Senate Committee on Public Safety.
b) AB 1850 (Waldron) 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. AB 1850 is pending
hearing by the Senate Committee on Public Safety.
c) 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 Senate Committee
on Judiciary.
8)Prior Legislation :
a) AB 176 (Campos), Chapter 263, Statutes of 2013, requires
that if more than one order (excluding Emergency Protective
Orders) has been issued and any of the orders is a
no-contact order, as described, an officer must enforce a
no-contact order.
b) AB 307 (Campos), Chapter 291, Statutes of 2013, allows a
court to issue a protective order for up to 10 years when a
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defendant is convicted of specified sex crimes, regardless
of the sentence imposed.
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.
d) SB 723 (Pavley), Chapter 155, Statutes of 2011, 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.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office (Sponsor)
American Federation of State, County and Municipal Employees
California District Attorneys Association
California Partnership to End Domestic Violence
Crime Victims United of California
Jewish Family Service of Los Angeles
Jewish Public Affairs Committee of California
National Association of Social Workers, California Chapter
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744