Existing law generally punishes the willful disobedience of the terms of a court order as contempt of court by imprisonment in a county jail not exceeding 6 months, a fine not exceeding $1,000, or both that imprisonment and fine. Existing law makes the willful and knowing violation of specified protective orders or stay-away court orders punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than $1,000, or by both that imprisonment and fine for a first offense, and makes a 2nd or subsequent conviction for a violation of these specified protective orders or stay-away court orders occurring within 7 years of a prior conviction and involving an act of violence or credible threat of violence punishable as either a misdemeanor or a felony. If probation is granted upon conviction of a willful and knowing violation of these specified protective orders or stay-away court orders, existing law requires the court to impose a minimum period of probation of 36 months, a criminal protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, a minimum fine of $500, successful completion of a batterers program, and a specified amount of appropriate community service, among other requirements.

Under existing law, any person who willfully inflicts corporal injury resulting in a traumatic condition upon a spouse or former spouse, cohabitant or former cohabitant, fiance or fiancee, or someone with whom the offender has, or previously had, an engagement or dating relationship, or the mother or father of the offenders child, is guilty of a felony or a misdemeanor. Upon a conviction, existing law allows the sentencing court to issue an order restraining the defendant from any contact with the victim for up to 10 years.

This bill would make a violation of the above protective order issued for the conviction of inflicting a corporal injury resulting in a traumatic condition punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding $1,000, or by both that imprisonment and fine. The bill would make a 2nd or subsequent violation occurring within 7 years involving an act of violence or a credible threat of violence punishable as a felony or a misdemeanor. If probation is granted for a violation of these protective orders, this bill would require the court to impose a minimum period of probation of 36 months, a criminal protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, a minimum fine of $500, successful completion of a batterers program, and a specified amount of appropriate community service, among other requirements. By increasing the punishment for a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2078 (Kim) - Domestic violence: protective orders

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2078 would increase the penalty for a violation of a protection order issued after conviction of an offense involving domestic violence to conform to the penalty for violations of other similar protective orders.

Fiscal Impact:

• State prisons: Potential increase in state costs (General Fund) to the extent the greater penalty for violating protective orders issued for felony domestic violence convictions results in additional commitments to state prison for repeat violations that otherwise would have been subject to a misdemeanor charge. To the extent even two defendants statewide are impacted in any one year under the provisions of this bill could increase state incarceration costs by $58,000 based on the estimated contract bed rate of $29,000 per inmate.
• County jails: Potentially significant increase in local incarceration costs (Local Funds or General Fund*), for additional commitments to county jail, as well as longer lengths of stay for defendants that otherwise would have served shorter sentences in county jail under the six-month misdemeanor charge.

*Proposition 30 (2012) provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency, as specified, apply to local agencies only to the extent the State provides annual funding for the cost increase. Although legislation creating a new crime or revising the definition of an existing crime is exempt from Proposition 30 state funding requirements, legislation that changes the penalty for an existing crime is not similarly specifically exempt. Violating a protective order issued for domestic violence convictions is an existing crime. To the extent the greater penalties imposed for violating these orders is determined to change the penalty for this crime, any increase in costs to local agencies attributable to the provisions of this legislation could potentially require annual funding from the State.

Background:

Existing law makes the willful and knowing violation of specified protective orders or stay-away court orders a misdemeanor, punishable by imprisonment in a county jail for up to one year, or by a fine of up to $1,000, or by both that imprisonment and fine, for a first offense. (Penal Code (PC) §166(c)(1).)

A second or subsequent conviction for this offense occurring within seven years of a prior conviction for violating an order and involving an act of violence or credible threat of violence is punishable as an alternate felony/misdemeanor, punishable by imprisonment in county jail for up to one year or in the state prison for 16 months, two years, or three years. (PC § 166(c)(4).)

Existing law provides that for cases in which a criminal defendant has been convicted of felony domestic violence, the court is required to consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. (PC § 273.5(j)) However, a restraining order issued under this Penal Code section is not listed under the specified protective orders subject to misdemeanor penalties pursuant to PC § 166 described above. As a result, violations of felony domestic violence restraining orders are only punishable as a misdemeanor offense subject to imprisonment in county jail for up to six months, a fine of up to $1,000, or both.(PC § 166(a)(4).)

This bill seeks to add restraining orders issued by the sentencing court in felony domestic violence cases under PC § 273.5(j) to the list of protective orders subject to the greater penalties prescribed under PC § 166.

Proposed Law:

This bill would conform the punishment for a violation of a protection order issued after conviction of an offense involving domestic violence to the punishment for other similar protective orders. Specifically, this bill:

• States that the first violation of a post-conviction domestic violence restraining order is punishable by imprisonment in the county jail for up to one year, by a fine of up to $1,000, or both.
• Requires a first violation to include imprisonment in the county jail for at least 48 hours if the violation resulted in physical injury.
• States that a second or subsequent violation occurring within seven years and involving an act of violence, or a credible threat of violence, is punishable by imprisonment in the county jail not to exceed one year, or by 16 months, two or three years in state prison.

Related Legislation:

SB 883 (Roth) 2016 is identical to this measure. This bill is pending a vote on the Assembly Floor.

Prior Legislation: SB 352 (Block) Chapter 279/2015 authorizes a court to issue a post-conviction protective order in cases involving elder or dependent adult abuse.

SB 723 (Pavley) Chapter 155/2011 allows a court to issue a protective order for up to 10 years when a defendant is convicted of an offense involving domestic violence, regardless of the sentence imposed.

SB 289 (Spitzer) Chapter 582/2007 allows a court to issue a protective order for 10 years upon a defendant’s felony conviction of willful infliction of corporal injury.

Staff Comments:

By increasing the punishment for violations of a restraining order for domestic violence convictions under PC § 273.5, the provisions of this bill could result in increased state and local costs for incarceration.

Statistics from the Department of Justice (DOJ) indicate over 10,000 convictions annually for each of the past three years for domestic violence pursuant to PC § 273.5(a) that could potentially be subject to a restraining order upon issuance of the court. However, data is unavailable on the number of these convictions that additionally had protective orders issued by the court. For protective orders currently covered under existing law by the greater penalties proposed to be extended to domestic violence cases under this measure, DOJ data reflects over 2,400 convictions in 2015, and 116 convictions for repeat offenders.

CDCR data indicates an average of 21 commitments released from state prison each year over each of past three years under repeat violations of protective orders pursuant to PC § 166(c)(4). The number of additional commitments to state prison cannot be estimated with certainty given the numerous factors involved in charging and sentencing, including but not limited to judicial and prosecutorial discretion, the prior criminal history of the defendant, and the elements specific to each case. However, to the extent even two defendants are committed to state prison in any one year resulting from the provisions of this bill, state incarceration costs would increase by $58,000 (General Fund).

Staff notes that violating a protective order is a crime under existing law. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. Although Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state. To the extent increasing the penalty for violating protective orders issued for domestic violence convictions to conform to the penalty for violating other protective orders is determined to change the penalty for the existing crime, any increase in costs to local agencies attributable to provisions of this legislation could potentially require annual funding from the State.

The Three-Judge Court has ordered the State to reduce its prison population to 137.5 percent of the prison system’s design capacity by February 28, 2016. Pursuant to its February 10, 2014 order, the Court has ordered the CDCR to implement several population reduction measures, prohibited an increase in the population of inmates housed in out-of-state facilities, and indicated the Court will maintain jurisdiction over the State for as long as necessary to ensure that the State’s compliance with the 137.5 percent final benchmark is durable, and that such durability is firmly established. Any future increases to the State's prison population challenge the ability of the State to reach and maintain such a “durable solution,” and could require the State to pursue one of several options, including contracting-out for additional bed space or releasing current inmates earlier onto parole.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 2078 Hearing Date: June 21, 2016

Subject: Protective Orders

HISTORY

Source: Author

Prior Legislation: SB 352 (Block) – Chapter 279, Statutes of 2015

SB 723 (Pavley) – Chapter 155, Statutes of 2011

AB 289 (Spitzer) – Chapter 582, Statutes of 2007

Support: California District Attorneys Association; California State Sheriffs’ Association

Opposition: Legal Services for Prisoners with Children

Assembly Floor Vote: 72 - 0

PURPOSE

The purpose of this bill is to conform the misdemeanor punishment for a violation of a protection order issued after a conviction for felony domestic violence to the punishment for other similar protective orders.

Current law 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).)

Current law 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 are required to receive a copy of those orders, as specified. (Pen. Code, § 136.2, subd. (e)(1).)

Current law 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.)

Current law 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).)

Current law provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Pen. Code, § 136.2, subd. (b).)

Current law sets forth the following circumstances constituting misdemeanor contempt of court:

1. Disorderly, contemptuous, or insolent behavior committed during the sitting of a court of justice, in the immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority.
2. Behavior specified in paragraph (1) that is committed in the presence of a referee, while actually engaged in a trial or hearing, pursuant to the order of a court, or in the presence of any jury while actually sitting for the trial of a cause, or upon an inquest or other proceeding authorized by law.
3. A breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of the court.
4. Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by a court, including orders pending trial.
5. Resistance willfully offered by any person to the lawful order or process of a court.
6. The contumacious and unlawful refusal of a person to be sworn as a witness or, when so sworn, the like refusal to answer a material question.
7. The publication of a false or grossly inaccurate report of the proceedings of a court.
8. Presenting to a court having power to pass sentence upon a prisoner under conviction, or to a member of the court, an affidavit, testimony, or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon the prisoner, except as provided in this code.
9. Willful disobedience of the terms of an injunction that restrains the activities of a criminal street gang or any of its members, lawfully issued by a court, including an order pending trial. (Penal Code § 166(a).)

Current law provides generally that the penalty for these contempt misdemeanors is up to six months in jail and a fine, except that in specified cases the penalty is up to a year in jail, and a fine of not more than $1000 or both.

Current law provides that the willful and knowing violation of specified protective or stay-away orders are subject to the greater penalty of up to one year in jail and a fine of not more than $1000 or both. (Penal Code § 166 (b) and (c).) Where a violation results in physical injury, specified mandatory jail time applies. (Penal Code § 166(c)(2).) A second or subsequent conviction for a violation of these orders occurring within seven years of a prior conviction for a violation of any of those orders and involving an act of violence or “a credible threat” of violence, as defined, is punishable as a “wobbler,” (jail up to one year, or state prison for 16 months or two or three years).(Penal Code § 166(c)(4).)

This bill would add a restraining order issued by the sentencing court in a felony domestic violence case (Penal Code § 273.5(j)) to the list of protective or stay-away orders subject to these greater penalties.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 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.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Stated Need for This Bill

The author states in part:

Every nine seconds a woman is assaulted in the United States, and nearly 20 people per minute are physically abused by their intimate partner. The consequences of domestic violence are devastating and can cross generations and last a life-time. By making appropriate cross-references in the Penal Code, AB 2078 closes a loophole ensuring that all those who violate domestic violence restraining orders are held accountable. Restraining orders are one of the best ways to protect victims of domestic violence from further abuse and AB 2078 would provide more fitting sentencing guidelines than the general contempt of court guidelines it currently falls under.

Courts may issue a protective order to potential victims of domestic violence if the judge finds that there is good cause to believe that harm, intimidation, or dissuasion of a victim or witness has occurred or is likely to occur. But due to a drafting error in current law, if violators of restraining orders pursuant to PC 273.5(j) are not also listed in PC 166 the defense could argue that the perpetrator cannot be rightly charged under PC 166, which provides for stronger penalties for violations of court restraining and protective orders relating to sexual assault, elder abuse, and domestic violence-related crimes. . . .

Because criminal protective orders issued pursuant to Penal Code section 273.5(j) are always going to be domestic violence orders by definition of the charge, violation of such orders should be punishable as contempt under Penal Code section 166(c)(1). If orders issued pursuant to Penal Code section 273.5(j) are not listed in 166(c)(1), then the defense could argue that such violations cannot be charged under this subsection.

2. What This Bill Would Do

There are certain violations of protective orders that are punished with an enhanced misdemeanor sentence when a violation of that order is proven. These include: (1) protective orders based on the court's finding of good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur; (2) a protective order issued as a condition of probation in a domestic violence case; (3) an order issued after conviction in an elder or dependent adult abuse case; (4) a restraining order after conviction of a sex offense involving a minor; and (5) other family court protective orders.

In 2007, legislation was enacted authorizing a court to issue a protective order for 10 years upon a defendant's felony conviction of willful infliction of corporal injury. Subsequently, in 2011, the Legislature expanded this authority to cover all cases involving domestic violence, regardless of the sentence imposed. (SB 723 (Pavley), Chapter 155, Statutes of 2011.) However, a conforming cross reference was inadvertently omitted from the contempt of court statute, which among other things describes the punishment for violating restraining orders. (See Pen. Code, § 166.)

In contrast, last year when the legislature amended the elder abuse statute, Penal Code section 368, to allow for post-conviction restraining orders in all elder abuse cases regardless of whether probation was granted, the bill was amended to include a conforming cross reference to the statute that provides how a violation of the restraining order is punished, Penal Code section 166. (See SB 352 (Block), Chapter 279, Statutes of 2015, [June 17, 2015 amendments].)

This bill makes the punishment for a violation of a post-conviction domestic violence restraining order consistent with that for other post-conviction restraining orders against defendants convicted of abuse.

3. Background

As a general matter, courts 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. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)

When criminal proceedings have concluded, courts have authority to issue protective orders as a condition of probation. For example, when domestic violence criminal proceedings have concluded, the court can issue a "no-contact order" as a condition of probation. (Pen. Code, § 1203.097.)

In addition, in some cases in which probation has not been granted, courts also have the authority to issue post-conviction protective orders. Courts are authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic-violence-related offense, rape, spousal rape, statutory rape, or any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).) The same is true of stalking cases (Pen. Code, §646.9, subd. (k)). Similarly, in cases involving a criminal conviction or juvenile adjudication for a sex offense in which the victim was a minor, the court may issue an order "that would prohibit … harassing, intimidating, or threatening the victim or the victim's family members or spouse." (Pen. Code, § 1201.3, subd. (a).)

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.)

4. Opposition

Legal Services for Prisoners with Children opposes this bill, stating in part:

We do not believe that increasing punishments will increase public safety. . . Solutions to violence against others should be addressed at the root, instead of reactionary responses which punish people.

5. Related Legislation

This bill is identical to SB 883 (Roth) which currently is in the Assembly. That bill passed this Committee (7-0) on April 4^th of this year.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 2078

Author:(Kim)

As Introduced Ver:February 17, 2016

Majority vote

SUMMARY:

Conforms the punishment for a violation of a protection order issued after conviction of an offense involving domestic violence to the punishment for other similar protective orders. Specifically, this bill:

1. States that the first violation of a post-conviction domestic violence restraining order is punishable by imprisonment in the county jail for up to one year, by a fine of up to $1,000, or both.
2. Requires a first violation to include imprisonment in the county jail for at least 48 hours if the violation resulted in physical injury.
3. States that a second or subsequent violation occurring within seven years and involving an act of violence, or a credible threat of violence, is punishable by imprisonment in the county jail not to exceed one year, or by 16 months, two or three years in state prison.

EXISTING LAW:

1. Authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of a victim or witness has occurred or is reasonably likely to occur.
2. 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.
3. 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.
4. 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.
5. Provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court.
6. States that a violation of specified restraining orders, including elder abuse and domestic violence restraining orders issued as a condition of probation, is considered contempt of court and punishable as follows:
   1. The first violation is punishable as a misdemeanor with imprisonment in the county jail for up to one year, by a maximum fine of $1,000, or both; and,
   2. A second violation or subsequent violation occurring within seven years, and involving an act of violence or a credible threat of violence, is a wobbler, punishable by imprisonment in the county jail for up to one year, or in state prison for 16 months, or two or three years.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, according to the California Department of Corrections (CDCR), the contracted out-of-state bed rate is $29,000. In 2012-13, four individuals were admitted in state prison for violating a protective order within seven years of a prior conviction. If two more individuals are committed for two years, the first year cost (General Fund) will be $29,000, and annual ongoing cost will be $58,000.

COMMENTS:

According to the author, "Every nine seconds a woman is assaulted in the United States, and nearly 20 people per minute are physically abused by their intimate partner. The consequences of domestic violence are devastating and can cross generations and last a life-time. By making appropriate cross-references in the Penal Code, AB 2078 closes a loophole ensuring that all those who violate domestic violence restraining orders are held accountable. Restraining orders are one of the best ways to protect victims of domestic violence from further abuse and AB 2078 would provide more fitting sentencing guidelines than the general contempt of court guidelines it currently falls under."

Analysis Prepared by: Sandy Uribe/ PUB. S. / (916) 319-3744 FN: 0002946

Date of Hearing: May 11, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2078

Author:(Kim) – As Introduced Ver:February 17, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill conforms the punishment for violation of a protection order issued after conviction of an offense involving domestic violence to the punishment for other similar protective orders. Specifically, this bill:

1. States that the first violation of a post-conviction domestic violence restraining order is punishable by imprisonment in the county jail for up to one year, by a fine of up to $1,000, or both.
   
2. Requires a first violation to include imprisonment in the county jail for at least 48 hours if the violation resulted in physical injury.
   
3. States that a second or subsequent violation occurring within seven years and involving an act of violence, or a credible threat of violence, is punishable by imprisonment in county jail not to exceed one year, or by 16 months, two or three years in state prison.

FISCAL EFFECT:

According to the California Department of Corrections (CDCR), the contracted out-of-state bed rate is $29,000. In 2012-13, four individuals were admitted in state prison for violating a protective order within seven years of a prior conviction. If two more individuals are committed for two years, the first year cost (GF) will be $29,000, and annual ongoing cost will be $58,000.

Minor nonreimbursable local costs for incarceration, offset to a degree by fine revenue.

COMMENTS:

1. Background. Current law states that a violation of specified restraining orders, including elder abuse and domestic violence restraining orders issued as a condition of probation, is considered contempt of court and punishable as follows:
   
   1. The first violation is punishable as a misdemeanor with imprisonment in county jail for up to one year, by a maximum fine of $1,000, or both; and,
      
   2. A second violation or subsequent violation occurring within seven years, and involving an act of violence or a credible threat of violence, is a wobbler, punishable by imprisonment in county jail for up to one year, or in state prison for 16 months, or two or three years.
2. Purpose. According to the author, "Every nine seconds a woman is assaulted in the United States, and nearly 20 people per minute are physically abused by their intimate partner. The consequences of domestic violence are devastating and can cross generations and last a life-time. By making appropriate cross-references in the Penal Code, AB 2078 closes a loophole ensuring that all those who violate domestic violence restraining orders are held accountable. Restraining orders are one of the best ways to protect victims of domestic violence from further abuse and AB 2078 would provide more fitting sentencing guidelines than the general contempt of court guidelines it currently falls under."

This bill makes the punishment for a violation of a post-conviction domestic violence restraining order consistent with that for other post-conviction restraining orders against defendants convicted of abuse.

1. Argument in Support. According to the California District Attorneys Association, "[E]xisting law allows courts to issue criminal protective orders for up to ten years when a defendant is convicted of domestic violence under Penal Code section 273.5. AB 2078 simply updates California's Penal Code in order to provide the appropriate cross reference so that the willful violation of a domestic violence restraining order may be considered contempt of court under PC 166."
   
2. Argument in Opposition. According to Legal Services for Prisoners with Children, "We do not believe that increasing punishments will increase public safety.”
3. Related Legislation. SB 883 (Roth), currently in the Senate Appropriations Suspense file, is substantially similar to this bill, except with regard to stalking protective orders.
4. Prior Legislation:
   
   1. SB 352 (Block), Chapter 279, Statutes of 2015, authorizes a court to issue a post-conviction protective order in cases involving elder or dependent adult abuse.
      
   2. 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 of an offense involving domestic violence, regardless of the sentence imposed.
      
   3. AB 289 (Spitzer) Chapter 582, Statutes of 2007, allows a court to issue a protective order for 10 years upon a defendant's felony conviction of willful infliction of corporal injury.
      

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2078

Author:(Kim) – As Introduced Ver:February 17, 2016

SUMMARY:

Conforms the punishment for a violation of a protection order issued after conviction of an offense involving domestic violence to the punishment for other similar protective orders. Specifically, this bill:

1. States that the first violation of a post-conviction domestic violence restraining order is punishable by imprisonment in the county jail for up to one year, by a fine of up to $1,000, or both.
   
2. Requires a first violation to include imprisonment in the county jail for at least 48 hours if the violation resulted in physical injury.
   
3. States that a second or subsequent violation occurring within seven years and involving an act of violence, or a credible threat of violence, is punishable by imprisonment in the county jail not to exceed one year, or by 16 months, two or three years in state prison.

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).)
   
2. 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).)
   
3. 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.)
   
4. 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).)
   
5. Provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Pen. Code, § 136.2, subd. (b).)
   
6. States that a violation of specified restraining orders, including elder abuse and domestic violence restraining orders issued as a condition of probation, is considered contempt of court and punishable as follows:
   
   1. The first violation is punishable as a misdemeanor with imprisonment in the county jail for up to one year, by a maximum fine of $1,000, or both; and,
      
   2. A second violation or subsequent violation occurring within seven years, and involving an act of violence or a credible threat of violence, is a wobbler, punishable by imprisonment in the county jail for up to one year, or in state prison for 16 months, or two or three years. (Pen. Code, § 166, subd. (c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Every nine seconds a woman is assaulted in the United States, and nearly 20 people per minute are physically abused by their intimate partner. The consequences of domestic violence are devastating and can cross generations and last a life-time. By making appropriate cross-references in the Penal Code, AB 2078 closes a loophole ensuring that all those who violate domestic violence restraining orders are held accountable. Restraining orders are one of the best ways to protect victims of domestic violence from further abuse and AB 2078 would provide more fitting sentencing guidelines than the general contempt of court guidelines it currently falls under."
   
2. Domestic Violence Restraining Orders: As a general matter, the court can issue a protective order in any criminal proceeding, including domestic violence cases, 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. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)
   
   When criminal proceedings have concluded, the court has authority to issue protective orders as a condition of probation. For example, when domestic violence criminal proceedings have concluded, the court can issue a "no-contact order" as a condition of probation. (Pen. Code, § 1203.097.)
   
   Finally, in some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic-violence-related offense, rape, spousal rape, statutory rape, or any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).)
   
3. 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.4th 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.)

1. Necessity for this Bill: There are certain violations of protective orders that are punished with an enhanced misdemeanor sentence when a violation of that order is proven. These include: (1) protective orders based on the court's finding of good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur; (2) a protective order issued as a condition of probation in a domestic violence case; (3) an order issued after conviction in an elder or dependent adult abuse case; (4) a restraining order after conviction of a sex offense involving a minor; and (5) other family court protective orders.

In 2007, legislation was enacted authorizing a court to issue a protective order for 10 years upon a defendant's felony conviction of willful infliction of corporal injury. Subsequently, in 2011, the Legislature expanded this authority to cover all cases involving domestic violence, regardless of the sentence imposed. (SB 723 (Pavley), Chapter 155, Statutes of 2011.) However, a conforming cross reference was inadvertently omitted from the contempt of court statute, which among other things describes the punishment for violating restraining orders. (See Pen. Code, § 166.)

In contrast, last year when the legislature amended the elder abuse statute, Penal Code section 368, to allow for post-conviction restraining orders in all elder abuse cases regardless of whether probation was granted, the bill was amended to include a conforming cross reference to the statute that provides how a violation of the restraining order is punished, Penal Code section 166. (See SB 352 (Block), Chapter 279, Statutes of 2015, [June 17, 2015 amendments].)

This bill makes the punishment for a violation of a post-conviction domestic violence restraining orders consistent with that for other post-conviction restraining orders against defendants convicted of abuse.

1. Argument in Support: According to the California District Attorneys Association, "[E]xisting law allows courts to issue criminal protective orders for up to ten years when a defendant is convicted of domestic violence under Penal Code section 273.5. AB 2078 simply updates California's Penal Code in order to provide the appropriate cross reference so that the willful violation of a domestic violence restraining order may be considered contempt of court under PC 166."
   
2. Argument in Opposition: According to Legal Services for Prisoners with Children, "We do not believe that increasing punishments will increase public safety. Resources that will go towards arresting, prosecuting, and incarcerating someone could instead be put towards resources that might better prevent people from violating restraining orders, like counseling or mental health care. Restorative justice has been shown to be highly successful at reducing and eliminating domestic violence. Solutions to violence against others should be addressed at the root, instead of reactionary responses which punish people."
   
3. Related Legislation:
   
   1. AB 2340 (Gallagher) exempts from the gun-free school zone regulations a person holding a valid license to carry a concealed firearm who is also protected by a domestic violence protective order. AB 2340 will be heard in this committee today.
      
   2. SB 883 (Roth) is substantially similar to this bill, except with regard to stalking protective orders. SB 883 is pending in the Senate Public Safety Committee.
      
4. Prior Legislation:
   
   1. SB 352 (Block), Chapter 279, Statutes of 2015, authorizes a court to issue a post-conviction protective order in cases involving elder or dependent adult abuse.
      
   2. 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 of an offense involving domestic violence, regardless of the sentence imposed.
      
   3. AB 289 (Spitzer) Chapter 582, Statutes of 2007, allows a court to issue a protective order for 10 years upon a defendant's felony conviction of willful infliction of corporal injury.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association
California State Sheriffs' Association

Opposition

California Attorneys for Criminal Justice
Legal Services for Prisoners with Children

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744