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AB-1770 Crimes.(1999-2000)



Current Version: 04/24/00 - Amended Assembly

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AB1770:v97#DOCUMENT

Amended  IN  Assembly  March 23, 2000
Amended  IN  Assembly  April 24, 2000

CALIFORNIA LEGISLATURE— 1999–2000 REGULAR SESSION

Assembly Bill
No. 1770

Introduced  by  Assembly Member Pescetti
 (Coauthor(s): Assembly Member Ashburn, Bates, Battin, Cox, Cunneen, Dickerson, House, Leach, Maldonado, McClintock, Oller, Rod Pacheco, Zettel)
 (Coauthor(s): Senator Haynes, Morrow, Ortiz)

January 20, 2000

An act to amend Sections 166, 273.6, and Section 653f of the Penal Code, relating to sentencing.


LEGISLATIVE COUNSEL'S DIGEST


AB 1770, as amended, Pescetti. Crimes.

(1)Existing law provides that any willful and knowing violation of any protective order or stay away court order issued pursuant to a specified provision of law in a pending criminal proceeding involving domestic violence, or issued as a condition of probation after a conviction in such a proceeding, shall constitute contempt of court, punishable as a misdemeanor by imprisonment in a county jail for not more than one year, by a fine of not more that $1,000, or by both that fine and imprisonment.

This bill would instead provide that this violation constitutes aggravated contempt of court, punishable by imprisonment in a county jail for not more than one year, by imprisonment in the state prison, by a fine of not more than $1,000, or by both that imprisonment and fine. Because this bill would make this offense punishable as a felony, it would impose additional prosecutorial costs and thereby impose a state-mandated local program.

(2)Existing law punishes as either a misdemeanor or a felony a violation of specified court orders.

This bill would recast this provision to remove duplicative language.

(3)Existing law provides that a 2nd or subsequent conviction of any order described in (1) occurring within 7 years of a prior conviction under those provisions which involves an act of violence or a credible threat of violence, as defined, is punishable by imprisonment in a county jail not to exceed one year, or in the state prison for 16 months or 2 or 3 years.

This bill would delete the requirement of an act of violence or a credible threat of violence and would provide that a conviction under this provision is punishable only by imprisonment in the state prison for 16 months or 2 or 3 years. Because this bill would make this offense punishable only as a felony, it would impose additional prosecutorial costs and thereby impose a state-mandated local program.

(4)Existing law provides that any intentional and knowing violation of specified restraining orders and protective orders is a misdemeanor punishable by a fine of not more than $1,000, by imprisonment in a county jail for not more than one year, or by both the fine and imprisonment.

This bill would provide that a violation of a specified protective order in a domestic violence case is punishable by a fine of not more than $1,000, by imprisonment in a county jail for not more than one year, , or by both that fine and imprisonment, or by imprisonment in the state prison. A subsequent violation of this provision would be punishable by imprisonment in the state prison for a term of 16 months or 2 or 3 years. Because this bill would make this offense punishable as a felony, it would impose additional prosecutorial costs and thereby impose a state-mandated local program.

(5)Existing

Existing law provides that every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished by imprisonment in the state prison for 3, 6, or 9 years. Existing law also requires the court to order imposition of the middle term of imprisonment, unless there are circumstances in aggravation or mitigation of the crime that outweigh the other.

This bill would provide that notwithstanding any other provisions of law, any person convicted of soliciting a murder may receive no more than a 15% work time credit reduction towards the original term of imprisonment.

In addition, the

This bill would require the trial court, when imposing sentence upon a person convicted of soliciting a murder under any one of the following circumstances, to consider that circumstance as a circumstance in aggravation: when the crime is committed while the victim of the murder is under a protective order from the person who solicits the murder, when there is a preexisting marital or common law relationship between the victim and the person who solicits the murder, or when the solicitor’s motive for the crime is to obtain custody of a child.(6)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.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.Section 166 of the Penal Code is amended to read:
166.

(a)Except as provided in subdivisions (b), (c), and (d), every person guilty of any contempt of court, of any of the following kinds, is guilty of a misdemeanor:

(1)Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in 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 as specified in paragraph (1) committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law.

(3)Any breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of any court.

(4)Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by any court, including orders pending trial.

(5)Resistance willfully offered by any person to the lawful order or process of any court.

(6)The contumacious and unlawful refusal of any person to be sworn as a witness; or, when so sworn, the like refusal to answer any material question.

(7)The publication of a false or grossly inaccurate report of the proceedings of any court.

(8)Presenting to any court having power to pass sentence upon any prisoner under conviction, or to any member of the court, any affidavit or 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.

(b)(1)Any person who is guilty of contempt of court under paragraph (4) of subdivision (a) by willfully contacting a victim by phone, mail, or directly and who has been previously convicted of a violation of Section 646.9 shall be punished by imprisonment in a county jail for not more than one year, by a fine of five thousand dollars ($5,000), or by both that fine and imprisonment.

(2)For the purposes of sentencing under this subdivision, each contact shall constitute a separate violation of this subdivision.

(3)The present incarceration of a person who makes contact with a victim in violation of paragraph (1) is not a defense to a violation of this subdivision.

(c)(1)Notwithstanding paragraph (4) of subdivision (a), any willful and knowing violation of any protective order or stay away court order issued pursuant to Section 136.2, in a pending criminal proceeding involving domestic violence, as defined in Section 13700, or issued as a condition of probation after a conviction in a criminal proceeding involving domestic violence, as defined in Section 13700, which is an order described in paragraph (3), shall constitute aggravated contempt of court, punishable by imprisonment in a county jail for not more than one year, by imprisonment in the state prison, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine.

(2)If a violation of paragraph (1) results in a physical injury, the person shall be imprisoned in a county jail for at least 48 hours, whether a fine or imprisonment is imposed, or the sentence is suspended.

(3)Paragraphs (1) and (2) shall apply to the following court orders:

(A)Any order issued pursuant to Section 6320 or 6389 of the Family Code.

(B)An order excluding one party from the family dwelling or from the dwelling of the other.

(C)An order enjoining a party from specified behavior that the court determined was necessary to effectuate the orders described in paragraph (1).

(4)A second or subsequent conviction for a violation of any order described in paragraph (1) occurring within seven years of a prior conviction for a violation of any of those orders is punishable in the state prison for 16 months or two or three years.

(5)The prosecuting agency of each county shall have the primary responsibility for the enforcement of the orders described in paragraph (1).

(d)(1)Every person who owns, possesses, purchases, or receives a firearm knowing he or she is prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Sections 527.6 or 527.8 of the Code of Civil Procedure, shall be punished under the provisions of subdivision (g) of Section 12021.

(2)Every person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (h) of Section 6389 of the Family Code.

(e)(1)If probation is granted upon conviction of a violation of subdivision (c), the court shall impose probation consistent with the provisions of Section 1203.097 of the Penal Code.

(2)If probation is granted upon conviction of a violation of subdivision (c), the conditions of probation may include, in lieu of a fine, one or both of the following requirements:

(A)That the defendant make payments to a battered women’s shelter, up to a maximum of one thousand dollars ($1,000).

(B)That the defendant provide restitution to reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.

(3)For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under this subdivision or subdivision (c), the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support.

(4)Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of subdivision (c), the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this subdivision, until all separate property of the offending spouse is exhausted.

(5)Any person violating any order described in subdivision (c), may be punished for any substantive offenses described under Section 136.1 or 646.9. No finding of contempt shall be a bar to prosecution for a violation of Section 136.1 or 646.9. However, any person held in contempt for a violation of subdivision (c) shall be entitled to credit for any punishment imposed as a result of that violation against any sentence imposed upon conviction of an offense described in Section 136.1 or 646.9. Any conviction or acquittal for any substantive offense under Section 136.1 or 646.9 shall be a bar to a subsequent punishment for contempt arising out of the same act.
SEC. 2.Section 273.6 of the Penal Code is amended to read:
273.6.

(a)Any intentional and knowing violation of an order issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.

(b)(1)Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, is punishable by a fine of not more than one thousand dollars ($1,000), by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment, or by imprisonment in the state prison.

(2)A subsequent violation of a protective order as described in paragraph (1) shall be punished by imprisonment in the state prison for a term of 16 months or two or three years.

(c)In the event of a violation of subdivision (a) which results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interest of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

(d)Subdivisions (a), (b), and (c) shall apply to any order issued by another state that is recognized under Section 6380.5 of the Family Code.

(e)A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or “a credible threat” of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or in the state prison.

(f)In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) that results in physical injury to a victim, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than six months nor more than one year, by both that fine and imprisonment, or by imprisonment in the state prison. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interest of justice and for reasons stated in the record, reduce or eliminate the six-month minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

(g)The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders described in subdivisions (a), (b), (c), (e), and (f).

(h)(1)Every person who owns, possesses, purchases, or receives a firearm knowing he or she is prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Sections 527.6 or 527.8 of the Code of Civil Procedure, shall be punished under the provisions of subdivision (g) of Section 12021.

(2)Every person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (h) of Section 6389 of the Family Code.

(i)If probation is granted upon conviction of a violation of subdivision (a), (b), (c), (d), or (e), the court shall impose probation consistent with the provisions of Section 1203.097, and the conditions of probation may include, in lieu of a fine, one or both of the following requirements:

(1)That the defendant make payments to a battered women’s shelter or to a shelter for abused elder persons or dependent adults, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097.

(2)That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.

(j)For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.
SEC. 3.

Section 653f of the Penal Code is amended to read:

653f.
 (a) Every person who, with the intent that the crime be committed, solicits another to offer, accept, or join in the offer or acceptance of a bribe, or to commit or join in the commission of carjacking, robbery, burglary, grand theft, receiving stolen property, extortion, perjury, subornation of perjury, forgery, kidnapping, arson or assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury, or, by the use of force or a threat of force, to prevent or dissuade any person who is or may become a witness from attending upon, or testifying at, any trial, proceeding, or inquiry authorized by law, shall be punished by imprisonment in a county jail for not more than one year or in the state prison, or by a fine of not more than ten thousand dollars ($10,000), or the amount which could have been assessed for commission of the offense itself, whichever is greater, or by both the fine and imprisonment.
(b) (1) Every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished by imprisonment in the state prison for three, six, or nine years. Notwithstanding any other provision of law, any person convicted pursuant to this subdivision may accrue no more than 15 percent of work time credit, as defined in Section 2933.1. years.
(2) When imposing sentence upon a defendant convicted of a violation under paragraph (1), who has committed the offense under any of the circumstances specified in subparagraphs (A), (B), or (C), the court shall consider any of those circumstances to be circumstances in aggravation under subdivision (b) of Section 1170:
(A) If the crime is committed while the victim is under a protective order issued against the defendant.
(B) If there is a preexisting marital or common law relationship between the victim and the defendant.
(C) If the defendant’s motive for the crime was to obtain custody of a child.
(c) Every person who, with the intent that the crime be committed, solicits another to commit rape by force or violence, sodomy by force or violence, oral copulation by force or violence, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for two, three, or four years.
(d) Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 11352, 11379, 11379.5, 11379.6, or 11391 of the Health and Safety Code shall be punished by imprisonment in a county jail not exceeding six months. Every person, who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison.
This subdivision does not apply where the term of imprisonment imposed under other provisions of law would result in a longer term of imprisonment.
(e) Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 14014 of the Welfare and Institutions Code shall be punished by imprisonment in a county jail for not exceeding six months. Every person who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison.
(f) An offense charged in violation of subdivision (a), (b), or (c) shall be proven by the testimony of two witnesses, or of one witness and corroborating circumstances. An offense charged in violation of subdivision (d) or (e) shall be proven by the testimony of one witness and corroborating circumstances.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.