BILL ANALYSIS
SB 169
Date of Hearing: June 6, 1995
Consultant: Natasha Fooman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
SB 169 (Hayden) - As Amended: June 15, 1995
ISSUES: I. SHOULD DIVERSION BE ELIMINATED AS AN OPTION FOR A
DEFENDANT CHARGED WITH A MISDEMEANOR IN DOMESTIC VIOLENCE CASES?
II. SHOULD SPECIFIED CONDITIONS OF PROBATION IN DOMESTIC
VIOLENCE
CASES BE STATUTORILY DETERMINED?
DIGEST
Under current law:
1) Permits the diversion of certain defendants charged with
misdemeanor domestic violence offenses. (Penal Code Section
1000.6.) No admission of guilt is required in a diverted case.
(Penal Code Section 1000.6(c).) Eligibility for diversion
requires that the charge be a misdemeanor; the assault did not
involve a deadly weapon, as specified; the defendant has not
been convicted of any offense involving violence or diverted
within 10 years; and that the defendant's record does not
indicate that probation or parole has ever been revoked without
having been completed. (Penal Code Section 1000.6.)
2) Requires courts to consider certain specified factors in
determining if a defendant is eligible for diversion, including
the nature and extent of the injury, any prior incidents of
domestic violence, any information provided by the victim, and any
factors which would adversely influence the likelihood of
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successful completion of the diversion program. (Penal Code
Section 1000.8.)
3) Requires that diverted defendants be required to complete at
least 32 batterer program sessions within nine months, subject to
increase by the court upon a program's recommendation. (Penal
Code Section 1000.95.)
4) Sets specified standards for batterer programs to which
diverted defendants can be referred. (Penal Code Section
1000.93.) If a court finds that a diverted defendant is not
performing satisfactorily in an assigned batterer program, is not
benefiting from diversion, or has engaged in criminal conduct
rendering the defendant unsuitable for diversion, diversion is
terminated and criminal proceedings against the defendant proceed.
(Penal Code Section 1000.9.)
5) In diversion cases, batterer programs provide periodic
progress reports concerning a divertee, among other information,
directly to the probation department. (Penal Code Section
1000.93(b)(15).) In prosecuted domestic violence cases when
probation has been granted, current law now mandates participation
in a batterer program as a condition of probation, requires that
batterer programs provide periodic progress reports to the court
at least every three months, and that programs must immediately
report any violation of the terms of the protective orders to the
court, as specified. (Penal Code Section 1203.097 (AB 93X
(Burton).) The probation department shall document evidence of
this hospital or residential treatment participation in the
participant's program file.
This bill:
1) Repeals diversion as an option for a defendant charged with a
misdemeanor in domestic violence cases.
2) Makes technical changes to conform and consolidate existing
mandatory batterer programs and domestic violence probation
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requirements to reflect the repeal of diversion statutes.
COMMENTS
1) Purpose. According to the author:
The dismissal of charges reinforces the myth that family
violence is a private matter to be dealt with in a private way.
Domestic violence
is a crime the first time it happens. Diversion programs
are based on the model of victimless crimes, such as drug and
alcohol abuse, and is
inappropriate in domestic violence cases. Pretrial
diversion is also problematic because the cases are so difficult
to prosecute when diversion fails.
2) Potential Effect. This bill repeals diversion in domestic
violence cases and thereby treats domestic violence crimes similar
to other crimes involving a victim. This bill provides a greater
incentive for completion of the program and easier conviction for
failure to complete the diversion program. In addition, SB 169
would require that a batterer's record not be expunged following
completion of the diversion program. This would permit easier
detection of repeat offender's for law enforcement. It also
requires the probation department to document evidence of hospital
or residential treatment participation in the defendant's program
file. In addition, this bill requires the probationer to file
proof of enrollment in a batterer's program with the court
within 30 days of conviction. This bill also requires the
probationer to attend weekly sessions of a minimum of two hours
class-time duration.
3) The Policy Behind Diversion in Domestic Violence Cases. The
domestic violence diversion statutes were enacted in 1979.
According to the Senate
Judiciary Committee analysis, diversion in domestic violence cases
was viewed as an opportunity to break the cycle of violence:
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The Family Law Advisory Committee Report on Domestic
Violence recommends the creation of diversion programs in which
persons who are charged with acts constituting domestic violence
may participate. Such programs, according to the report, would be
beneficial for those offenders who choose to work positively at
breaking their cycle of violence. Added to the benefits of
counseling, and other rehabilitative programs, would be the
avoidance of the trauma and resulting stigma of having been a
defendant in a criminal case.
4) Background. Presently, courts may "divert" first-time abusers
to counseling programs instead of pursuing prosecution. If the
batterer fails to successfully complete the program, or if
he/she assaults his/her partner again, the batterer faces a
mandatory hearing and may possibly be prosecuted on the
original charge. If, however, the program is completed
successfully, the original charge is dropped and the record is
expunged in spite of the fact that all parties agree that a
violent crime has been committed.
5) Proponents of this Bill. Proponents argue that domestic
violence diversion does not work. According to sources cited by
the author, 50% of domestic violence diversion cases (in Los
Angeles) failed outright; of these, when they tried to charge the
case, 80% had to be dropped because the cases were too stale. The
author also points out that five years ago, the Auditor General
reviewed diversion in five counties (Glenn, Los Angeles,
Sacramento, San Diego and San Francisco) and concluded that
probation departments did not regularly monitor diverted
defendants. The report found that 54% of the 304 cases active for
longer than four months had no evidence of contact between the
probation department and the divertee.
The report further concluded that without regular monitoring,
probation departments may be unaware of instances when
divertees do not comply with diversion conditions and may,
therefore, lack relevant information to report promptly to the
court. Without timely reporting from probation, the report
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found, courts cannot respond effectively to cases where
diversion should be terminated and criminal proceedings
initiated. The report also criticized the absence of uniform
standards for diversion programs, which subsequently were
created by legislation enacted in 1993 (AB 226 (Burton)
(Chapter 221, Statutes of 1993).)
6) Concerns to this Bill. The California District Attorney
Association (CDAA) has adopted a neutral position. However,
CDAA has expressed concerns and urges an amendment to convert
the current diversion system to a deferred entry of judgment
program as proposed in the pre-print of SB 3 from the 1993-94
Legislative Session. CDAA states:
While domestic violence diversion certainly has its
shortcomings, we do not believe eliminating diversion
altogether is the solution. In many cases, diversion plays
an important role in the successful
resolution of domestic violence offenses. Thousands of victims
have been spared the ordeal of testifying before a jury about this
very painful subject. Victims are also more inclined to remain
cooperative with law enforcement and prosecutors upon learning
that their spouse will not suffer a conviction and potential loss
of employment.
Moreover, we believe that changing diversion to a system of
deferred entry of judgment, as proposed in AB 168 (Alpert),
will help eliminate many of the deficiencies in the
diversion system. These deficiencies include abusers
failing to take seriously the terms of diversion imposed
and the inherent proof problems encountered when diversion
is unsuccessfully terminated 12 or 18 months later. Under
a deferred entry of judgment, a defendant must enter a
guilty please before being placed on diversion. If the
defendant is not successful in completing the diversion
program, then judgment is entered against the defendant and
the conviction stands. The prospect of having the
conviction imposed should create much greater incentive for
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the offender to complete the diversion program. Moreover,
it eliminates the need to have a jury trail in the event
the offender does not successfully complete the program.
7) Opponents to the Bill. The California Probation, Parole and
Correctional Association (CPPCA) opposes SB 169 and states the
following:
The bill seeks to eliminate diversion for misdemeanor
domestic violence offenses, which CPPCA could support if it
were accomplished thoughtfully and with full regard for the
funding ramifications. However, as amended, SB 169 not
only creates an unfunded mandate for probation departments,
it also seeks to micromanage both the punishment and the
sentencing of the offenders in question. By requiring
specified conditions of probation in all cases under all
circumstances, SB 169 takes from the court and the
probation professionals who make recommendations to the
court, the discretion to sentence offenders and levy terms
of probation based on the individual offense and offender.
SB 169 removes the ability for the court of the officer to
make case by case treatment or punishment decisions.
Additionally, SB 169 vests considerable control and
authority in the non-peace officer, non-court officer
personnel of the batterers' or other treatment program.
They appear to have significantly more authority with
regard to the misdemeanor domestic violence offender than
do either the court of the probation officer. For example,
on page 5, lines 10-13, the court is required to provide
the defendant's arrest report prior incidents of violence,
and treatment history to the program upon a program's
request; at line 29-34, the court is required to order a
defendant to participate in additional counseling sessions
if the program says there ought to be such sessions.
Programs will tell probation departments that the
probationer is enrolled, how he (or she) is doing or that
someone is not suitable for placement. While probation
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departments are charged, as under current law, with
determining suitable programs, once that determination is
made the probation department is apparently stripped of any
control over or input to the case.
This bill deals with misdemeanants; probation departments
are overflowing with felony defendants both in presentence
and post adjudication status. The number of requirements
and the degree of detail contained in SB 169 - the
micromanaging of these cases which would be written into
the law were this bill to pass - would force probation
departments to draw critically necessary resources away
from felony matters and would require them to treat all
misdemeanor domestic violence offenders alike, regardless
of the severity of their cases, the circumstances of the
abuse, or the particular characteristics of the offender.
This is not good law nor is it good corrections.
CCPCA asks that the provisions of SB 169 be reconsidered.
We would be please to work with your committee and Senator
Hayden to amend the measure in ways that might allow us to
remove our opposition. However, as currently written, we
cannot support this measure.
8) Other Legislation. AB 168 (Alpert) allows defense attorneys
representing eligible offenders to request a "deferred entry of
judgment" (commonly referred to as "diversion") in lieu of a
criminal trial for certain domestic violence charges. AB 168
is now on Senate Third Reading passed out of this Committee
7-0.
SB 132 (Watson), which was heard in this Committee on June 13,
1995 and passed out of this Committee 8-0, requires law
enforcement officers below the rank of supervisor to complete
updated training on domestic violence every two years, the
nature of which would be determined by POST in consultation
with specified experts, as specified.
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SB 591 (Solis), which was heard in this Committee on June 13,
1995 passed out of this Committee 8-0. This bill makes
agencies in California eligible for millions of dollars in
extra federal funding under the Violence Against Women Act over
the next five years. The money is earmarked for a variety of
law enforcement and advocacy services for victims of domestic
violence and sexual assault crimes. Attempts to standardize
the patchwork of arrest policies in domestic violence
situations in California. SB 591 requires all law enforcement
agencies in the state to adopt policies encouraging arrest for
domestic violence crimes based on probable cause. SB 591
create confusion for officers responding to domestic violence
situations concerning who should be arrested when both persons
were aggressors.
SOURCE: Author
SUPPORT: American Association of University Women (AAUW)
Commission on the Status of Women
Office of the City Attorney, Los Angeles, California
Support Network for Battered Women
Commission of the Status of Women
Santa Clara County Municipal Court, Jerome S. Nadler,
Judge
California Alliance Against Domestic Violence
Chief Probation Officers of California
Commission on the Status of Women, Santa Monica,
California
American College of Emergency Physicians (CAL/ACEP)
Committee On Moral Concerns
Soroptimist International of Alamo
Department of Social Services, Shasta County
Tri-Valley Haven For Women
California Probation, Parole and Correctional
Association
Interval House Crisis Shelters
Battered Women Alternatives (BWA)
California National Organization for Women
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OPPOSITION: American Civil Liberties Union (ACLU)
Judicial Council of California
California Probation, Parole and Correctional
Association (CPPCA)
California Attorneys for Criminal Justice (CACJ)
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