BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
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|SB 218 | S|
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|Senator Solis | B|
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|As Amended March 22, 1999 | |
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|Hearing Date: April 6, 1999 | 2|
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|Code of Civil Procedure; Family Code; | 1|
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|Health & Safety Code; Penal Code | 8|
|GMO:jt | |
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SUBJECT
Domestic Violence
DESCRIPTION
This bill contains 14 different provisions affecting
enforcement of domestic violence restraining orders. Its
key provisions would do the following:
Permit a court to issue unofficial translations of court
documents pertaining to domestic violence proceedings and
require the Judicial Council to prepare said
translations.
Penalize violations of domestic violence restraining
orders issued by another state in the same manner as
orders issued in the state.
Require that a batterer's treatment program which a court
may order a restrained party to attend be approved by the
probation department.
Conform California law to federal law which strictly
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prohibits ownership or possession of any firearm by a
restrained party while a restraining order is in effect,
excepting only state or federal law enforcement officers
and military officials while on duty.
Require a peace officer responding to a call alleging a
violation of a domestic violence restraining order to
arrest the restrained party without a warrant and to take
such person into custody when the officer believes that a
person's safety is endangered, and to take custody of any
firearm in plain sight or found after a consensual search
at the scene of the domestic violence incident.
Remove restrictions on disclosures between agencies and
representatives of county death review teams regarding
otherwise confidential information on persons whose
deaths are allegedly caused by domestic violence.
Remove the sunset provision for the advisory council to
the Department of Health Services and the grants for
battered women's shelters administered by the department.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
Labeled the "1999 Domestic Violence Omnibus Bill" by the
author, this bill would make various changes to strengthen
the statutes relating to domestic violence. It was crafted
by the Los Angeles City Attorney and the California
Alliance Against Domestic Violence, who want to make
California law regarding the confiscation of firearm(s)
from the subject of a restraining order conform to federal
law, to make sure that a restraining order is understood by
the subject when the order is served and to improve the
protection provided victims of domestic violence.
This bill contains provisions affecting enforcement of
domestic violence restraining orders issued by state courts
and courts of other states, penalties for violations of a
restraining order, funding of battered women's shelters and
disclosure of confidential information to county death
review teams. This bill would increase penalties for
violations (and repeated violations) of domestic violence
restraining orders. Lastly, in criminal prosecutions
requiring the attendance of a minor, this bill would
authorize the court having jurisdiction of the case to
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appoint a guardian ad litem to receive service of a
subpoena and to produce the child ordered to court.
The bill is double-referred to the Public Safety Committee.
CHANGES TO EXISTING LAW
This analysis concerns only those provisions that are
within the purview of the Judiciary Committee.
1. Existing law requires all written proceedings to be in
no other language than English. Specified statements in
an emergency protective order are already required to be
printed in both English and Spanish (Family Code 6253).
This bill would allow all forms related to domestic
violence proceedings to be unofficially translated in
other languages and require the Judicial Council to
prepare said translations for uniformity in the state
courts.
2. Existing law authorizes a court to order a restrained
party to participate in batterer's counseling.
This bill would require that the batterer's treatment
program, that a restrained party is ordered to attend, be
one approved by the probation department for domestic
violence diversion programs under Penal Code 1203.097.
3. Existing law allows a court to order a person who is
the subject of a domestic violence protective order to
relinquish possession or control of any firearm during
the period covered by the order. Under existing law, a
person subject to a domestic violence restraining order
may be prohibited from owning or possessing any firearm.
This bill would conform California law to federal law by
strictly prohibiting ownership or possession of any
firearm by a restrained party while the order is in
effect, and by requiring the court to order
relinquishment of any firearm in that party's possession
or control within specified time periods. On-duty state
and federal law enforcement officers or military officers
acting within the scope and course of their duties would
be exempt from this ban, like federal law.
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4. Existing law gives a peace officer responding to a call
alleging a violation of a protective order the authority
to arrest the subject of the protective order if the
peace officer has probable cause to believe that the
subject has notice of the order and has committed an act
in violation of said order.
This bill would require the peace officer to make the
arrest and to take the subject of the restraining order
into custody, whether or not the violation occurred in
the presence of the arresting officer.
Author's amendments to be offered in committee would
require the peace officer to make the arrest where the
peace officer believes that there is danger to the
physical safety of persons in the domestic violence scene
or that a violation of a restraining order creating
likely and imminent harm to persons at the scene of the
domestic violence had occurred.
This bill would also require a peace officer responding
to a domestic violence call to take custody of a firearm
found at the scene, in plain sight or after a consensual
search.
5. Existing law makes it a misdemeanor, punishable by fine
and/or imprisonment or both, to violate a domestic
violence restraining order, a stay-away order, or an
order enjoining a party from "stalking" or harassing
another as defined.
This bill would add to this a violation of a domestic
violence restraining or protective order issued by
another state.
6. Existing law prohibits the disclosure of specified
information, such as medical records, child abuse
reports, juvenile court proceedings and others, by and
between government agencies and persons involved in the
investigation of deaths. Additionally, specific
provisions affecting privileged information prohibit
disclosure of information to third parties.
This bill would allow member agencies or their
representatives on a county death review team to disclose
to each other and to the team, specified information if
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the death being reviewed was the result of domestic
violence, and would make it a misdemeanor for a member
agency or representative to disclose such information to
an agency or person not a member of the death review
team.
7. This bill would remove the sunset provision for funding
domestic violence shelters (which actually expired on
January 1, 1998), allowing for the continued funding of
shelters under a grant program administered by the
Department of Health Services.
8. This bill would authorize a court to order a minor
produced in court and to appoint a guardian ad litem for
the minor for the purpose of receiving service of a
subpoena to produce the minor in court.
COMMENT
1. Stated need for the bill
Sponsors of the bill state that current laws provide
insufficient protection to domestic violence victims,
even after restraining orders had been issued. They
point to the lack of teeth in the enforcement of these
restraining orders. The provisions of this bill,
sponsors say, would ensure that a restrained party would
know the contents of a restraining order, would ensure
that a restrained party abides by the terms of the order
because an officer would be required to arrest a violator
on-the-spot, and would reduce the potential for death and
other injury from use of a firearm by requiring a
restrained party to relinquish a firearm.
2. Translation of Restraining Orders and other forms
Existing law requires every written proceeding in a
judicial court to be in the English language. (Code of
Civil Procedure 185.)
This bill would permit a court to issue an unofficial
translation of a court order or other document issued
under the Domestic Violence Prevention Act or under Penal
Code 136.2 (violations of restraining orders and other
orders regarding intimidation of witnesses) in a language
other than English. It would require the Judicial
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Council to standardize these court orders and forms in
languages other than English and make them available by
July 1, 2001 to all courts.
Certain statements in emergency protective (restraining)
orders are already required to be printed in both English
and Spanish. Some courts are using unofficially
translated forms related to domestic violence
proceedings. Sponsors of this bill say that translations
should be statewide and standardized, so courts in all
counties may use them, if the courts deem it desirable or
necessary. The intent of the bill here is to make sure
the subject of the restraining order would get a
comprehensible copy of the order and other papers related
to the proceeding, i.e., a monolingual Spanish-speaking
subject should get his notice of the hearing and the
order in Spanish.
The Judicial Council would be required, under this bill,
to make available by July 1, 2001 official forms relating
to domestic violence that have been translated into other
languages. It is not clear as to how Judicial Council
should decide into which languages the court forms should
be translated, except as it "deems appropriate."
SHOULD THE JUDICIAL COUNCIL BE DIRECTED TO FOLLOW THE
SAME GUIDELINES USED FOR THE PRINTING OF BALLOTS IN
LANGUAGES OTHER THAN ENGLISH?
It is hoped that the availability of translated orders
and forms would improve the effectiveness of restraining
orders when the subject is served with orders or forms
written in the language he or she understands better than
English. However, a subject in violation of a restraining
order may then claim that he or she did not understand
the order because it was not translated into the language
he or she understands.
WOULD THE UNAVAILABILITY OF AN ORDER OR FORM IN THE
LANGUAGE OF A RESTRAINED PARTY BECOME A DEFENSE TO A
VIOLATION OF THE ORDER?
2. Batterer treatment/counseling program to be approved by
Probation Department
Existing law authorizes a court, after notice and hearing
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on an application for a restraining order, to issue an
order requiring any party to participate in appropriate
counseling programs, where the parties intend to continue
to reside in the same household or have continued to
reside in the same household after previous incidents of
domestic violence. Under this provision, the court may
order the restrained party to attend "batterer's
treatment counseling," for up to one year if such a
program is available.
Existing law requires the county probation department to
establish a "batterer's treatment program" or to approve
such a program for convicted batterers who are sent to
the treatment program as a condition of probation under
Penal Code 1203.097.
This bill would require the counseling program to which a
court may send a restrained party to be a "batterer's
treatment program" approved by the probation department,
which would be the same diversion program required by
Penal Code 1203.097.
Proponents of the bill state that many counseling
programs to which courts send restrained parties do not
rise to the level of the treatment program for convicted
batterers approved by the probation department, and that
the result of sending people to those counseling programs
is much the same as if they never went to counseling at
all. On the other hand, they say, the diversion programs
designed for batterers and approved by the probation
department tend to be more effective in changing the
behavior of convicted batterers. Therefore, proponents
want this change in the law that would require the
program to which a court sends a restrained party to be
one approved by the probation department (i.e., one that
would meet the requirements of a diversion program under
Penal Code 1203.097).
The California Judges Association is concerned that this
provision of the bill would take away the court's
discretion whether or not to refer the restrained party
to a treatment program, and would take away discretion as
to which program the restrained party would be referred
(i.e., only to the program approved by the probation
department under Penal Code 1203.097).
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Proponents say that is not the intent of the bill. To
clarify this, the bill should be amended to state that
when a court decides to order a restrained party to
participate in a batterer's treatment program, said
program must be one approved by the probation department
as a program qualifying under Penal Code 1203.097 or is
equivalent in content and nature to such a program.
3. Restrained party to relinquish possession or control of
firearm
Under current law , a person subject to a restraining
order may not own or possess a firearm while the
protective order is in effect.
Under current law , a court may , at the noticed hearing on
an application for an order restraining a person from
harassing, stalking, or threatening an intimate partner
or child or restraining a person from engaging in conduct
that would place an intimate partner or a child in
reasonable danger of bodily injury, order that person
(respondent) to relinquish possession or control of any
firearm while the restraining order is in effect.
This bill would require the court to order the respondent
to relinquish possession or control of any firearm, and
the Judicial Council would be required to amend the
application form for a protective order to state that the
respondent shall be ordered to relinquish such firearm
for a period not to exceed the duration of the protective
order. The firearm would have to be relinquished within
24 hours if the respondent is present at the noticed
hearing and within 48 hours if respondent is not.
These and other provisions of the bill would conform
California law to federal law relating to possession or
control of firearms by persons subject to domestic
violence restraining orders of the kind described above.
Existing provisions for the respondent to resist or
comply with the surrender of the firearm will continue to
remain in effect.
Exempted from this prohibition against ownership or
possession of a firearm during the effective period of a
domestic violence protective order would be state and
federal law enforcement officers and military personnel,
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while on duty, and if said law enforcement officers or
military personnel are off duty, they are required to
carry firearms.
Proponents of this bill point out that since domestic
disputes are 12 times more likely to end in death when
there is a firearm in the home, removing a firearm from a
restrained party makes sense.
Another provision of the bill would include violations of
protective orders issued by another state as a punishable
crime. That provision will be reviewed by the Public
Safety Committee. This would, in addition to the above
protections, greatly increase the safety margin for those
who sought the orders in the first place, proponents
state.
4. Peace officer responding to domestic violence call must
arrest person in violation of a restraining order
Under existing law, a peace officer responding to a call
alleging violation of a domestic violence protective
order may arrest the subject of the restraining order, if
he or she has probable cause to believe that the subject
has notice of the order and that a violation has
occurred, even if the violation did not occur in the
presence of the peace officer.
Under this bill, the peace officer must make that arrest
and take the restrained person into custody, in
situations where the peace officer believes that the
situation endangers the physical safety of persons at the
domestic violence scene, or where the peace officer
believes that a violation creating likely and imminent
harm to persons present at the domestic violence scene
had occurred.
The amendments made by the author in committee will
ensure that some discretion is left to the peace officer
to be able to diffuse a domestic violence call without
making an arrest, if the situation does not present
imminent harm to anyone.
5. Peace officer to take custody of firearm at the
domestic violence scene
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Under existing law, a peace officer may take temporary
custody of a firearm or other deadly weapon in plain
sight of a domestic violence scene, or found after a
consensual search, if necessary for the protection of the
peace officer or other persons present. Said temporary
custody lasts no less than 48 hours, nor longer than 72
hours if the firearm is not retained for use as evidence
in criminal charges brought as a result of the domestic
violence incident or retained as an illegally possessed
weapon.
This bill would require the peace officer to take such
temporary custody of the firearm. The bill would not
distinguish whether the firearm required to be removed
belongs to the perpetrator or the victim of the domestic
violence.
This provision will be reviewed by the Public Safety
Committee.
6. Sunset provision for shelter funding removed
Grants to battered women's shelter programs have been
administered by the State Department of Health Services
and an advisory council. Both the funds and the advisory
council were to sunset by January 1, 1998. Apparently,
the advisory council and the programs continue to be in
effect to date. This bill would remove the sunset
provisions for these programs and the advisory council.
7. Sharing of information among members of death review
teams
Under existing law , there exist restrictions on
disclosure of information between a third party and
members of a county domestic violence death review team.
There are also restrictions on disclosure of information
between members of a death review team, based on
privilege and confidentiality provisions governing the
information.
This bill would remove the restrictions on disclosures
between agencies or persons represented on the death
review team, of information received from a third party
concerning the person whose death is being reviewed. The
information that may be disclosed under this bill include
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those related to medical or mental health information,
elder abuse or child abuse reports, state and local
summary criminal history, firearms-related injuries,
juvenile court proceedings, information maintained by the
family court, family conciliators and custody mediators,
probation reports, and in-home supportive services
records.
Further, the disclosure of information allowed under this
bill would apply notwithstanding the confidentiality of
communications between clients and their psychologist,
family counselor, attorney or physician, and
notwithstanding the protection available under the
following privileges: lawyer-client, physician-patient,
psychotherapist-patient, sexual assault victim-counselor,
domestic violence victim-counselor.
Designed to foster the free flow of information between
members of the review team and their respective agencies
or vice-versa, the bill would also create penalties for
knowing violations of the anti-disclosure and
limited-disclosure provisions or for disclosures done
without the approval of all members of the death review
team.
Support: Women's and Children's Crisis Shelter, Inc.;
Richard A. LeGarra,
Chief of Police of the City of Baldwin Park;
Older Women's League of
California; YWCA of Greater Los Angeles; Korean
Health, Education,
Information & Research Center; Jewish Family
Service of Los Angeles;
Los Angeles Commission on Assaults Against
Women; California
Women's Law Center; Women Against Gun Violence;
City of Los
Angeles; California State Sheriffs' Association;
Family Service Council
of California; California Psychiatric
Association; Frieda Rapoport
Caplan, Founder and Chairman of Frieda's; AVANCE
Human
Services, Inc.; California Alliance Against
Domestic Violence;
California Alliance Against Domestic Violence
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Communities of Color
Program; Law Offices of Nancy Hormachea; House
of Ruth; Family
Violence Project of Jewish Family Service; Peace
& Joy Care Center;
Napa Emergency Women's Services; Kamilat;
Alliance Against Family
Violence & Sexual Assault; Next Door Solutions
to Domestic
Violence; The Riley Center of St. Vincent De
Paul Society; Laura's
House; La Casa de las Madres; Haven Women's
Center of Stanislaus;
Coalition for Family Equity; Women Lawyers
Association of Los
Angeles; Junior League of Los Angeles, Inc.;
WomenShelter of Long
Beach; Support Network for Battered Women;
California Organization
for Women (NOW); California Commission on the
Status of Women;
Children's Advocacy Institute (CAI); Tri-Valley
Haven;
Judge Conrad R. Aragon, East Los Angeles
Municipal Court; Marin
Abused Women's Services; March of Dimes; Project
INFO Community
Services, Inc.; Defensa de Mujeres/Women's
Crisis Support; Human
Options: Alternatives for Abused Women and
their Children;
Women For:; YWCA Legal Advocacy Program;
California Women
Lawyers; Asian Law Alliance
Opposition: Coalition of Parent Support
HISTORY
Source: Los Angeles City Attorney and the California
Alliance Against
Domestic Violence
Related Pending Legislation: None Known
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Prior Legislation: None
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