BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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1
8
SB 218 (Solis)
As Amended April 12, 1999
Hearing date: April 13, 1999
Civil Procedure, Family, Health and Safety and Penal Codes
AA/SH:jm
DOMESTIC VIOLENCE :
FIREARM SEIZURES; PENALTIES; ADDITIONAL REFORMS
HISTORY
Source:Los Angeles City Attorney's Office
Prior Legislation: None
Support: Women's and Children's Crisis Shelter, Inc.;
Richard A. LeGarra,
Chief of Police, 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
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Caplan, Founder and Chairman of Frieda's;
AVANCE Human
Services, Inc.; California Alliance Against
Domestic Violence;
California Alliance Against Domestic
Violence 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:California Rifle and Pistol Association, Inc.;
Coalition of Parent Support
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KEY ISSUES
SHOULD A NEW FELONY BE ENACTED PROHIBITING A PERSON SUBJECT TO A DOMESTIC
VIOLENCE ORDER FROM POSSESSING A FIREARM OR AMMUNITION, AS SPECIFIED?
SHOULD LAW ENFORCEMENT BE REQUIRED, RATHER THAN AUTHORIZED, TO SEIZE FIREARMS
AND DEADLY WEAPONS AT DOMESTIC VIOLENCE SCENES, AS SPECIFIED?
SHOULD COURTS BE REQUIRED, RATHER THAN AUTHORIZED, TO SEIZE FIREARMS AND
AMMUNITION FROM PERSONS WHO ARE SUBJECTS OF DOMESTIC VIOLENCE PROTECTIVE
ORDERS, AS SPECIFIED?
SHOULD EXISTING FELONY DOMESTIC VIOLENCE STATUTES BE REVISED AND RECAST,
ESPECIALLY WITH REGARD TO MANDATORY MINIMUM JAIL TERMS FOR REPEAT OFFENSES?
SHOULD ADDITIONAL CHANGES RELATING TO DOMESTIC VIOLENCE DEATH REVIEW TEAMS,
UNOFFICIAL TRANSLATIONS OF COURT ORDERS, AND ADDITIONAL MISCELLANEOUS
PROVISIONS BE MADE TO CURRENT LAW?
PURPOSE
The purpose of this bill is to make several changes in
domestic violence law, including 1) creating a new felony
for a person subject to a domestic violence order to
possess a firearm or ammunition, as specified; 2)
requiring, rather than authorizing, law enforcement to
seize firearms and deadly weapons at domestic violence
scenes; 3) to require, rather than authorize, courts to
seize firearms and ammunition from persons subject of
domestic violence protective orders, as specified; 4) to
revise and recast existing felony domestic violence
statutes, especially with regard to mandatory minimum jail
terms for repeat offenses; and 5) to make additional
changes relating to domestic violence death review teams;
unofficial translations of a court order; and additional
miscellaneous provisions.
Domestic Violence Protective Orders: Possession of
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Firearms
Under existing law , persons who are subject to a temporary
restraining order issued pursuant to section 527.6 or 527.8
of the Civil Code for harassing behavior, or a protective
order under Family Code section 6218, may not purchase or
receive a firearm for the duration of the order. (Penal
Code 12021(g))
Under existing law, persons convicted of misdemeanor
violations of listed sections may not possess firearms
within 10 years of conviction. (Penal Code 12021(c)(1))
Specified peace officers may petition a court once for
relief due to employment or livelihood dependent of use of
firearm. (Penal Code 12021(c)(2))
Existing law authorizes courts 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. (Family
Code 6389)
Existing federal law provides that a person who is subject
to a court order that restrains the person from harassing,
stalking, or threatening an intimate partner or child of
such intimate partner cannot lawfully receive, possess,
ship, or transport a firearm or ammunition, as specified.
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(18 U.S.C. 922(g)<1>, 27 CFR 178.32.)
This bill would require courts to prohibit possession or
control of any firearm by a restrained party while the
order is in effect, and would require courts to order the
relinquishment of any firearm in that party's possession or
control within specified time periods.
This bill would exempt from this ban on-duty state and
federal law enforcement officers or military officers
acting within the scope and course of their duties. This
bill would make additional, conforming changes to this
statute.
Current law authorizes courts to extend or shorten time
requirements relating to firearms surrendered under this
provision.
This bill would delete this authority.
Domestic Violence Situations: Seizure of Firearms by Law
------------------------------
<1> g) "It shall be unlawful for any person . . . (8) who
is subject to a court order that (A) was issued after a
hearing of which such person received actual notice, and at
which such person had an opportunity to participate; (B)
restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of
such intimate partner or person, or engaging in other
conduct that would place an intimate partner in reasonable
fear of bodily injury to the partner or child; and (C)(i)
includes a finding that such person represents a credible
threat to the physical safety of such intimate partner or
child; or (ii) by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force against
such intimate partner or child that would reasonably be
expected to cause bodily injury, to ship or transport in
interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported
in interstate or foreign commerce." (18 U.S.C.A.
922(g).)
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Enforcement
Current law generally authorizes law enforcement at the
scene of a family violence incident involving a threat to
human life or a physical assault to take temporary custody
of any firearm or other deadly weapon in plain sight or
discovered pursuant to a consensual search as necessary for
the protection of the peace officer or other persons
present. (Penal Code 12028.5)
This bill would require law enforcement to seize a firearm
or other deadly weapon under this provision.
This bill also would revise and recast the definitions in
this code section as follows:
replace the term "family violence" with "domestic
violence";
add sexual assault;
add to the parent provisions language including
presumptive parents under the Uniform Parentage Act; and
add conduct specified in Family Code section 6320<2>
"that has been or could be enjoined."
Domestic Violence Protective Orders: Violations
Current law generally provides that violating domestic
violence protective and restraining orders is a
misdemeanor. (Penal Code 273.6)
This bill would provide that any person who is subject to a
------------------------------
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<2> Specifically, "molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering,
harassing, telephoning, including, but not limited to,
annoying telephone calls as described in Section 653m of
the Penal Code, 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, . . . ." (Family Code 6320)
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specified domestic violence court order,<3> who possesses
any firearm or ammunition or who receives any firearm or
ammunition is guilty of a felony.
This bill would include specified definitions,<4> and would
expressly provide that these provisions would "not apply to
any on-duty state or federal law enforcement officer or
military officer while on duty and acting within the scope
and course of his or her equipment."
This bill also would include in this provision a specific
cross-reference to the gun prohibition applicable to
domestic violence protective orders under Family Code
section 6389, and any other protective order under Family
Code 6380.5.
Felony Domestic Violence: Penalties
Under current law , corporal injury upon a "spouse, or . . .
any person with whom (the offender) is cohabiting, or . . .
any person who is the mother or father of (the offender's)
child" resulting in a traumatic condition is a felony
punishable by imprisonment in the state prison for two,
three, or four years, or in a county jail for not more than
one year, or by a fine of up to six thousand dollars or by
------------------------------
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<3> This bill specifically would require the following
characteristics of the court order: (A) The court order was
issued after a hearing where the person subject to the
order received actual notice of the hearing and an
opportunity to participate in the hearing. (B) The court
order restrains the person from harassing, stalking, or
threatening an intimate partner of that person or a child
of that person or of an intimate partner of that person, or
from engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to that
intimate partner or child of that person or of that
intimate partner. (C) The court order includes a finding
that the person represents a credible threat to the
physical safety of the intimate partner or child of either
the person or the inmate partner, or by its terms
explicitly prohibits the use, attempted use, or threatened
use of physical force against the intimate partner or child
of either the person or the intimate partner that would
reasonably be expected to cause bodily injury.
<4> Specifically, this bill would provide that "an
'intimate partner' under this subdivision means the spouse
or former spouse of the person, an individual who is a
parent of a child of the person, or an individual who
cohabitates or has cohabited, or is having or has had a
dating or engagement relationship, with the person."
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both.<5> For purposes of this felony offense, "'traumatic
condition' means a condition of the body, such as a wound
or external or internal injury, whether of a minor or
serious nature, caused by a physical force."<6>
Under current law , persons convicted of felony domestic
violence can be subject to an enhanced prison term of two,
four, or five years if the offense occurred within seven
years of one of the following offenses against a victim
designated in the felony domestic violence statute:<7>
battery inflicting serious bodily injury (Penal Code
243(d));
sexual battery (Penal Code 243.4);
assault with caustic chemicals or flammable substances
(Penal Code 244);
assault with a stun gun or taser (Penal Code 244.5);
assault with a deadly weapon likely to produce great
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<5> Penal Code 273.5(a).
<6> Penal Code 273.5(c).
<7> Penal Code 273.5.
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bodily injury (Penal Code 245); or
felony domestic violence (Penal Code 273.5)
Under current law , mandatory minimum jail terms are
required for certain repeat offenses if probation is
granted to a person convicted of felony domestic violence
(273.5):
1 prior 273.5 violation within 7 years: not less than
96-hour mandatory minimum<8>
2 or more 273.5 priors within 7 years: not less than
30-day mandatory minimum<9>
1 prior 273.5, 243(d), 243.4, 244, 244.5, 245 within 7
years, where prior victim spouse, cohabitant or parent of
child: not less than 15-day mandatory minimum<10>
2 or more priors of one of 273.5, 243(d), 243.4, 244,
244.5,245 within 7 years, where prior victim spouse,
cohabitant or parent of child: not less than 60
days.<11>
This bill would retain current imprisonment terms, but
would restructure and recast these mandatory minimum jail
time penalties if probation is granted as follows:
Repeal Penal Code sections 273.55 and 273.56;
1 prior 273.5 violation within 7 years: not less than 15
days; and
2 or more prior 273.5 violations within 7 years: not
less than 60 days.
This bill also would restructure the current provisions of
Section 273.55 into section 273.5. The punishment would
remain the same.
Arrests: Domestic Violence Protective Orders
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<8> Penal Code 273(f).
<9> Penal Code 273.5(g).
<10> Penal Code 273.56(a).
<11> Penal Code 273.56(b).
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Existing law gives peace officers 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. (Penal Code 836).
Existing law written also requires law enforcement to adopt
"policies (that) encourage the arrest of domestic violence
offenders if there is probable cause that an offense has
been committed. These policies also shall require the
arrest of an offender, absent exigent circumstances, if
there is probable cause that a protective order . . . has
been violated." (Penal Code 13701(b))
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, "consistent with Section
13701(b)."
County Domestic Violence Review Teams
Current law authorizes counties to establish an interagency
domestic violence death review team, as specified. (Penal
Code 11163.3)
This bill would require domestic violence death review
teams to show the statistical occurrence of all domestic
violence deaths in the team's county that occur under
specified circumstances.
Disclosure of Otherwise Confidential Information
Existing law generally 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
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information to third parties.
This bill would allow member agencies or their
representatives on a county domestic violence death review
team to disclose to each other and to the team, specified
information if 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.
Contempt of Court: Out of State Orders
Under current law , it is a misdemeanor to willfully disobey
"any process or order lawfully issued by any court."
(Penal Code 166)
This bill would revise this provision to include
out-of-state orders, and orders pending trial.
Current law expressly includes Family Code section 6320
orders in this section.
This bill also would add to this Family Code section 6389,
concerning the gun prohibition relating to domestic
violence protective orders.
Child Abuse
Current law provides that any "person who willfully
inflicts upon a child any cruel or inhuman corporal
punishment or injury resulting in a traumatic condition is
guilty of a felony," as specified. (Penal Code 273d)
This bill would clarify this to provide that any "person
who willfully inflicts upon a child any cruel or inhuman
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corporal punishment or an injury resulting in a traumatic
condition is guilty of a felony," as specified.
Shelter-Based Services Grant Program
Current law establishes in the Maternal and Child Health
Branch of the Department of Health Services a comprehensive
shelter-based services grant program. (Health and Safety
Code 124250)
This bill would restore an advisory council to the
Department which sunseted in current law on January 1,
1998, for purposes related to this grants program.
Court Transcripts
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 into
other languages and require the Judicial Council to prepare
said translations for uniformity in the state courts.
Restraining Orders: Batterer's Programs
Existing law authorizes a court to order certain persons to
participate in batterer's counseling. (Family Code 6343)
This bill would clarify this to a batterer's treatment
program approved by the probation department as provided in
Section 1203.097 of the Penal Code, as specified.
Subpoenas - Guardian ad litem
Existing law addresses service of subpoenas. (Penal Code
1328)
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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.
COMMENTS
1. Stated Need for This Bill
The author states:
SB 218 will strengthen and create various
domestic violence laws related to gun
prohibition, enforcement of out-of-state
restraining orders, counseling and sentencing
requirements, and domestic violence death
review teams.
2. Author's Amendments
The author intends to submit the following two amendments
to the Committee:
Revise the bill's amendments to Penal Code section
12028.5, concerning the seizure of firearms at a domestic
violence scene, (Section 15 of the bill) to delete
subparagraph (D) of paragraph (1) of subdivision (a)
(lines 10-11) and instead insert the following:
To molest, attack, strike, stalk, destroy
personal property, or violate the terms of
a domestic violence protective order
issued pursuant to Section 6300 et seq. of
the Family Code.
Shift the proposed language in Section 7 of the bill
concerning a new felony from Penal Code section 273.5,
and instead insert it in Penal Code section 273.6
(Section 10 of the bill).
3. Seizing Firearms in Domestic Violence Circumstances
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As discussed above, existing law generally authorizes
courts to order persons subject to a domestic violence
protective order to relinquish a firearm.<12> Existing law
also generally authorizes law enforcement to seize firearms
and other deadly weapons at a domestic violence scene.<13>
This bill would require, rather than permit, courts and law
enforcement to seize a firearm in these respective
settings.
As noted above, federal law currently prohibits the
possession of firearms and ammunition in these domestic
violence circumstances.<14> This bill generally tracks
federal law, with the exception that federal law applies
to guns and ammunition, while these provisions of this bill
apply only to firearms.
There are no federal provisions, through grant funds or
otherwise, that require state compliance with federal law.
Proponents of this measure submit these changes would
authorize local prosecutors to enforce these more strict
gun prohibitions based on state law, rather than relying on
federal prosecutions.
SHOULD CALIFORNIA LAW MIRROR FEDERAL LAW WITH RESPECT TO
MANDATORY PROHIBITIONS ON FIREARM POSSESSION IN SPECIFIED
DOMESTIC VIOLENCE CIRCUMSTANCES?
Under current law, both the courts and law enforcement have
the discretion to not seize a firearm in a domestic
violence setting. Especially with respect to the law
enforcement mandate, this bill warrants consideration of
its potential impact with respect to the seizure of
firearms from victims rather than offenders.
There appears to be significant data concerning the impact
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<12> Family Code 6389.
<13> Penal Code 12028.5.
<14> See fn. 1, supra.
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of firearms in domestic violence situations, and this bill
appears to be intended to address this particular and
serious correlation.<15> Nevertheless, because this bill
would remove any discretion by the courts or law
enforcement to not seize a firearm in any case, these
provisions could impact law-abiding citizens, such as
victims who lawfully possess firearms and otherwise would
not voluntarily relinquish their weapons.
SHOULD FIREARMS IN PLAIN SIGHT OR FOUND PURSUANT TO A
CONSENSUAL SEARCH BE SEIZED AUTOMATICALLY IN ALL DOMESTIC
VIOLENCE SETTINGS INVOLVING A THREAT TO HUMAN LIFE OR
PHYSICAL ASSAULT?
SHOULD THE DISCRETION OF LAW ENFORCEMENT AND THE COURTS TO
NOT SEIZE FIREARMS IN ALL DOMESTIC VIOLENCE SITUATION BE
TAKEN AWAY?
IS THERE NO FORESEEABLE SET OF CIRCUMSTANCES WHERE THE
DISCRETION TO NOT SEIZE A WEAPON IN A DOMESTIC VIOLENCE
SITUATION IS USEFUL AND MAKES SENSE?
SHOULD FIREARMS LAWFULLY OWNED AND POSSESSED BY A VICTIM BE
SUBJECT TO MANDATORY SEIZURE IN EVERY DOMESTIC VIOLENCE
SITUATION?
------------------------------
<15> See, e.g., the following internet sources:
http://www.childmmc.edu/help/famviol.htm; "Homicide
reports submitted by local police agencies across the
country for the years 1976-92 involving 36,000 female
victims ages 18-34 were analyzed to determine patterns and
trends in lethal domestic violence directed against women.
. . . The analysis revealed that among women in this age
group, the victim was the murderer s wife or ex-wife, or
was otherwise intimately involved, in 48 percent of those
cases in which the victim-offender relationship could be
determined, and in 34 percent of cases overall. The vast
majority of these homicides were committed with firearms."
(http: //www.jrsa.org/cgi-bin/w3-msql/database/search
_i.htm) (http: // www.silcom.com/~paladin/madv/stats.html)
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4. Creation of New Felony for Possessing a Firearm or
Ammunition While Subject to a Domestic Violence
Protection Order
This bill would create a new felony (base term, 16 months,
2 or 3 years) to possess a firearm or ammunition while
subject to a domestic violence protective or restraining
order. The proposed language mirrors federal law. The
maximum imprisonment under federal law is ten years. (18
U.S.C.A. 924(a)(2).)
As explained above, California law currently prohibits
persons subject to domestic violence protection orders from
owning or possessing a firearm; the penalty for violating
this section is a misdemeanor.<16> California law applies
only to firearms; this bill would extend to both firearms
and ammunition.
The California Rifle and Pistol Association, which opposes
this bill, submits that the federal law upon which this
proposed new felony is based recently was struck down as
unconstitutional by a U.S. District Court in Texas.
In United States v. Timothy Joe Emerson (N.D.Tx. March 30,
1999) ___ F.Supp. ___ [1999 U.S. Dist. LEXIS 4122], the
defendant was indicted for possession of a firearm while
being under a restraining order, in violation of 18 U.S.C.
section 922(g)(8).<17>
The court granted the defendant's motion to dismiss the
indictment, concluding:
18 U.S.C. section 922(g)(8) is unconstitutional
because it allows a state court divorce
proceeding, without particularized findings of
the threat of future violence, to automatically
deprive a citizen of his Second Amendment
rights. The statute allows, but does not
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<16> Family Code 6389.
<17> See fn. 1, supra.
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require, that the restraining order include a
finding that the person under the order
represents a credible threat to the physical
safety of the intimate partner or child. 18
U.S.C. 922(g)(8)(C)(i). If the statute only
criminalized gun possession based upon court
orders with particularized findings of the
likelihood of violence, then the statute would
not be so offensive, because there would be a
reasonable nexus between gun possession and the
threat of violence. However, the statute is
infirm because it allows one to be subject to
federal felony prosecution if the order merely
"prohibits the use, attempted use, or
threatened use of physical force against [an]
intimate partner." . . .
All that is required for prosecution under the
Act is a boilerplate order with no
particularized findings. Thus, the statute has
no real safeguards against an arbitrary
abridgement of Second Amendment rights.
Therefore, by criminalizing protected Second
Amendment activity based upon a civil state
court order with no particularized findings,
the statute is over-broad and in direct
violation of an individual's Second Amendment
rights. . . .
Because section 922(g)(8) is an obscure, highly
technical statute with no mens rea requirement,
it [also] violates Emerson's Fifth Amendment
due process rights to be subject to prosecution
without proof of knowledge that he was
violating the statute.<18>
SHOULD THE POSSESSION OF A FIREARM OR AMMUNITION BY A
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<18> United States v. Timothy Joe Emerson (N.D.Tx. March
30, 1999) ___ F.Supp. ___ [1999 U.S. Dist. LEXIS 4122,
4139-4140; 4145].
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PERSON SUBJECT TO A DOMESTIC VIOLENCE RESTRAINING OR
PROTECTIVE ORDER BE A FELONY?
SHOULD THIS PROVISION BE AMENDED TO BE LIMITED TO FIREARMS
ALONE?
HOW WOULD THIS PROVISION INTERRELATE WITH CURRENT FAMILY
LAW SECTION 6389?
IF THE FEDERAL LAW UPON WHICH THIS PROVISION IS BASED IS
CONSTITUTIONALLY SUSPECT, SHOULD THE ENACTMENT OF A
CALIFORNIA VERSION BE DELAYED UNTIL THE OUTSTANDING
CONSTITUTIONAL ISSUES ARE RESOLVED?
5." Three-Strikes "
By creating a new felony, this bill raises a
"Three-Strikes" issue. California's "Three Strikes" law,
AB 971 (Jones/Costa) Chapter 12, Statutes of 1994, provides
that the conviction of any felony with a prior conviction
of a violent or serious felony must result in twice the
term otherwise provided as punishment.
In addition, probation may not be granted, there is no
aggregate term limitation, conduct credits are limited to
20% of the term (instead of the usual 50%) and any
additional convictions must be imposed consecutively.
SHOULD A NEW "STRIKEABLE" OFFENSE BE ENACTED?
6. Felony Domestic Violence
This bill would recast three current statutes pertaining to
felony domestic violence - Penal Code section 273.5, 273.55
and 273.56 - by essentially collapsing them into one
provision. Proponents submit the current structure is
confusing and inconsistent, which is illustrated in the
following table:
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Current Felony Domestic Violence Statutes: Punishment
---------------------------------------------------------------
|Offense |Imprisonment |Probation |Mandatory Minimum |
| | | |Jail Term |
|--------------+-------------+-------------+--------------------|
|1st time |current law: |Current law: |Current law: (no |
|felony | wobbler: |If granted, |mandatory minimum |
|domestic |jail up to |batterer's |jail term for |
|violence |one year, or |program |misdemeanor) |
|("DV")<19> |prison |mandatory; | |
| |(2/3/4) &/or |good cause | |
| |fine |exception | |
|--------------+-------------+-------------+--------------------|
|Felony DV |current law: |Current law: |Current law: If |
|within 7 yrs. |(same) |If granted, |probation granted, |
|of a prior | |batterer's |mandatory minimum |
|felony DV<20> | |program |jail term of not |
| | |mandatory; |less than 96 |
| | |good cause |hours<21>; good |
| | |exception |cause exception. |
|--------------+-------------+-------------+--------------------|
|Felony DV |current law: |Current law: |Current law: If |
|within 7 yrs. |(same) |If granted, |probation granted, |
|of 2 or more | |batterer's |mandatory minimum |
|prior felony | |program |jail term of not |
|DVs<22> | |mandatory; |less than 30 |
| | |good cause |days<23>; good |
| | |exception |cause exception |
|--------------+-------------+-------------+--------------------|
|Felony DV |current law: |Current law: |Current law: If |
|within 7 |wobbler, |If granted, |probation granted, |
|years of one |jail up to 1 |batterer's |mandatory minimum |
|prior felony |yr., or |program |jail term of not |
------------------------------
<19> Penal Code 273.5.
<20> Penal Code 273.5(a).
<21> Penal Code 273(f).
<22> Penal Code 273(a).
<23> Penal Code 273.5(g).
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|DV or |state prison |mandatory; |less than 15 days; |
|additional |(2/4/5) or |good cause |good cause |
|crimes<24> |both |exception |exception<27> |
|against |imprisonment | | |
|felony DV |& fine<26> | | |
|victim<25> | | | |
|--------------+-------------+-------------+--------------------|
|Felony DV |current law: |Current law: |Current law: If |
|within 7 |(same as |If granted, |probation granted, |
|years of 2 |above) |batterer's |mandatory minimum |
|or more prior | |program |jail term of not |
|felony DV or | |mandatory; |less than 60 days; |
|additional | |good cause |good cause |
|crimes<28> | |exception |exception<30> |
|against | | | |
|felony DV | | | |
|victim<29> | | | |
---------------------------------------------------------------
This bill would replace this framework with one statute
that would retain the current state prison terms and, with
respect to mandatory minimum jail terms, would enact the
following:
1 prior 273.5 violation within 7 years: not less than 15
days; and
2 or more prior 273.5 violations within 7 years: not
------------------------------
<24> The additional crimes are: battery causing serious
injury (PC 243(d); sexual battery (PC 243.4); assault
with caustic chemicals or flammable substances (PC 244);
assault with a stun gun or taser (PC 244.5); and assault
with deadly weapon or force likely to cause great bodily
injury (PC 245).
<25> Penal Code 273.56(a).
<26> Penal Code 273.55.
<27> Penal Code 273.56(a).
<28> See fn. 24, supra.
<29> Penal Code 273.56(b).
<30> Penal Code 273.56(b).
SB 218 (Solis)
Page 23
less than 60 days.<31>
The bill's approach essentially would bump up the mandatory
minimum jail term for a 273.5 violation with one prior,
from 96 hours to 15 days under section 273.5(a), but would
duplicate the current 15 day mandatory minimum for 1 prior
under section 273.56, which includes a 273.5 violation.
Similarly, this approach would bump up the mandatory
minimum jail term for two or more 273.5 violations, from 30
days to 60 days, but would duplicate the current 60 day
maximum minimum for 2 or more priors under section 273.6,
which also includes a 273.5 violation.
One complexity built into the law as a result of piecemeal
changes is the distinction of priors: some categories
require a 273.5 prior, while others include a broader range
of crimes that would count as a prior.<32> The author
and/or the Committee may wish to consider collapsing these
two categories of priors to provide some additional clarity
to these provisions. It appears this kind of a revision
could be structured in the following manner:
-----------------------------------------------------------
|Offense |Imprisonment |Probation |Mandatory |
| | | |Minimum Jail |
| | | |Term |
|--------------+--------------+--------------+--------------|
|1st time |(no change) |(no change) |(no change) |
|felony | | | |
|domestic | | | |
|violence | | | |
------------------------------
------------------------------
<31> The bill in its current form does not include a
mandatory minimum jail term for repeat 273.55 offenses;
this appears to be an oversight on the part of the
drafters.
<32> See fn. 24, supra.
SB 218 (Solis)
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SB 218 (Solis)
Page 25
|("DV")<33> | | | |
|--------------+--------------+--------------+--------------|
|felony DV | (no |(no change) |If probation |
|within 7 |change)<36> | |granted, |
|years of one | | |mandatory |
|prior felony | | |minimum jail |
|DV or | | |term of not |
|additional | | |less than 15 |
|crimes<34> | | |days; good |
|against | | |cause |
|felony DV | | |exception.<37>|
|victim<35> | | | |
|--------------+--------------+--------------+--------------|
|felony DV | (no change) | (no change) |If probation |
|within 7 | | |granted, |
|years of 2 or | | |mandatory |
|more prior | | |minimum jail |
|felony DV or | | |term of not |
|additional | | |less than 60 |
|crimes<38> | | |days; good |
|against | | |cause |
|felony DV | | |exception.<40>|
------------------------------
<33> Penal Code 273.5.
<34> Under current law, this is Penal Code 273.55.
<35> The additional crimes would be the same as those
cited in current Penal Code section 273.55: battery causing
serious injury (PC 243(d); sexual battery (PC 243.4);
assault with caustic chemicals or flammable substances (PC
244); assault with a stun gun or taser (PC 244.5); and
assault with deadly weapon or force likely to cause great
bodily injury (PC 245).
<36> Under current law, this is Penal Code 273.56(a).
<37> Under current law, this is Penal Code 273.56(a).
<38> See fn. 24, supra.
<39> Under current law, this is Penal Code 273.56(b).
SB 218 (Solis)
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|victim<39> | | | |
-----------------------------------------------------------
------------------------------
<40> Under current law, this is Penal Code 273.56(b).