BILL NUMBER: AB 1850 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 11, 2014
AMENDED IN ASSEMBLY MAY 5, 2014
AMENDED IN ASSEMBLY MARCH 17, 2014
INTRODUCED BY Assembly Member Waldron
( Coauthor: Assembly Member
Gonzalez Coauthors: Assembly
Members Gonzalez and Skinner )
FEBRUARY 19, 2014
An act to amend Section 136.2 of the Penal Code, relating to
restraining orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 1850, as amended, Waldron. Restraining orders.
Existing law authorizes a court with jurisdiction over a criminal
matter to issue specified protective orders upon a good cause belief
that harm to, or intimidation or dissuasion of, a victim or witness
has occurred or is reasonably likely to occur, including an order
protecting a victim of violent crime from all contact by the
defendant. The violation of a restraining order issued pursuant to
these provisions is a crime.
This bill would additionally authorize a court with jurisdiction
over a criminal matter to issue an order protecting a witness of
violent crime from all contact by the defendant upon a good cause
belief that harm to, or intimidation or dissuasion of, that witness
has occurred or is reasonably likely to occur. The bill would also,
for the purposes of these provisions, provide that a minor who was
not a victim of, but who was physically present at the time of, an
act of domestic violence, is a witness and is deemed to have suffered
harm. By expanding the scope of a crime, this bill would impose a
state-mandated local program.
This bill would incorporate additional changes to Section 136.2 of
the Penal Code, proposed by AB 1498 and SB 910, that would become
operative only if this bill and either or both of those bills are
chaptered and become effective January 1, 2015, and this bill is
chaptered last.
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.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 136.2 of the Penal Code, as amended by Section
1.5 of Chapter 291 of the Statutes of 2013, is amended to read:
136.2. (a) (1) Upon a good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has occurred or is
reasonably likely to occur, a court with jurisdiction over a
criminal matter may issue orders, including, but not limited to, the
following:
(A) An order issued pursuant to Section 6320 of the Family Code.
(B) An order that a defendant shall not violate any provision of
Section 136.1.
(C) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1.
(D) An order that a person described in this section shall have no
communication whatsoever with a specified witness or a victim,
except through an attorney under reasonable restrictions that the
court may impose.
(E) An order calling for a hearing to determine if an order as
described in subparagraphs (A) to (D), inclusive, should be issued.
(F) (i) An order that a particular law enforcement agency within
the jurisdiction of the court provide protection for a victim or a
witness, or both, or for immediate family members of a victim or a
witness who reside in the same household as the victim or witness or
within reasonable proximity of the victim's or witness' household, as
determined by the court. The order shall not be made without the
consent of the law enforcement agency except for limited and
specified periods of time and upon an express finding by the court of
a clear and present danger of harm to the victim or witness or
immediate family members of the victim or witness.
(ii) For purposes of this paragraph, "immediate family members"
include the spouse, children, or parents of the victim or witness.
(G) (i) An order protecting a victim or witness of violent crime
from all contact by the defendant, or contact, with the intent to
annoy, harass, threaten, or commit acts of violence, by the
defendant. The court or its designee shall transmit orders made under
this paragraph to law enforcement personnel within one business day
of the issuance, modification, extension, or termination of the
order, pursuant to subdivision (a) of Section 6380 of the Family
Code. It is the responsibility of the court to transmit the
modification, extension, or termination orders made under this
paragraph to the same agency that entered the original protective
order into the Domestic Violence Restraining Order System.
(ii) (I) If a court does not issue an order pursuant to clause (i)
in a case in which the defendant is charged with a crime of domestic
violence as defined in Section 13700, the court on its own motion
shall consider issuing a protective order upon a good cause belief
that harm to, or intimidation or dissuasion of, a victim or witness
has occurred or is reasonably likely to occur, that provides as
follows:
(ia) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(ib) The defendant shall relinquish any firearms that he or she
owns or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(II) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm while this protective
order is in effect is punishable pursuant to Section 29825.
(iii) An order issued, modified, extended, or terminated by a
court pursuant to this subparagraph shall be issued on forms adopted
by the Judicial Council of California and that have been approved by
the Department of Justice pursuant to subdivision (i) of Section 6380
of the Family Code. However, the fact that an order issued by a
court pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall
not, in and of itself, make the order unenforceable.
(iv) A protective order issued under this subparagraph may require
the defendant to be placed on electronic monitoring if the local
government, with the concurrence of the county sheriff or the chief
probation officer with jurisdiction, adopts a policy to authorize
electronic monitoring of defendants and specifies the agency with
jurisdiction for this purpose. If the court determines that the
defendant has the ability to pay for the monitoring program, the
court shall order the defendant to pay for the monitoring. If the
court determines that the defendant does not have the ability to pay
for the electronic monitoring, the court may order electronic
monitoring to be paid for by the local government that adopted the
policy to authorize electronic monitoring. The duration of electronic
monitoring shall not exceed one year from the date the order is
issued. At no time shall the electronic monitoring be in place if the
protective order is not in place.
(2) For purposes of this subdivision, a minor who was not a victim
of, but who was physically present at the time of, an act of
domestic violence, is a witness and is deemed to have suffered harm
within the meaning of paragraph (1).
(b) A person violating an order made pursuant to subparagraphs (A)
to (G), inclusive, of paragraph (1) of subdivision (a) may be
punished for any substantive offense described in Section 136.1, or
for a contempt of the court making the order. A finding of contempt
shall not be a bar to prosecution for a violation of Section 136.1.
However, a person so held in contempt shall be entitled to credit for
punishment imposed therein against a sentence imposed upon
conviction of an offense described in Section 136.1. A conviction or
acquittal for a substantive offense under Section 136.1 shall be a
bar to a subsequent punishment for contempt arising out of the same
act.
(c) (1) (A) Notwithstanding subdivision (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 shall have precedence in enforcement over any other
restraining or protective order, provided the emergency protective
order meets all of the following requirements:
(i) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(ii) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective order
specified in clause (i).
(iii) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
clause (i).
(B) An emergency protective order that meets the requirements of
subparagraph (A) shall have precedence in enforcement over the
provisions of any other restraining or protective order only with
respect to those provisions of the emergency protective order that
are more restrictive in relation to the restrained person.
(2) Except as described in paragraph (1), a no-contact order, as
described in Section 6320 of the Family Code, shall have precedence
in enforcement over any other restraining or protective order.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, or receive, or
attempt to purchase or receive receive
, a firearm while the protective order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) A person who owns, possesses, purchases
purchases, or receives, or attempts to purchase or
receive receive , a firearm
while the protective order is in effect is punishable pursuant to
Section 29825.
(e) (1) In all cases where in which
the defendant is charged with a crime of domestic violence, as
defined in Section 13700, the court shall consider issuing the
above-described orders 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.
(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, except as described in subdivision
(c), a restraining order or protective order against the defendant
issued by the criminal court in that case has precedence in
enforcement over a civil court order against the defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and, if there is not an emergency protective order
that has precedence in enforcement pursuant to paragraph (1) of
subdivision (c), or a no-contact order, as described in Section 6320
of the Family Code, acknowledge the precedence of enforcement of, an
appropriate criminal protective order. On or before July 1, 2014, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for ensuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) An order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no-contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) In any case in which a complaint, information, or indictment
charging a crime of domestic violence, as defined in Section 13700,
has been filed, the court may consider, in determining whether good
cause exists to issue an order under subparagraph (A) of paragraph
(1) of subdivision (a), the underlying nature of the offense charged,
and the information provided to the court pursuant to Section
273.75.
(i) (1) In all cases in which a criminal defendant has been
convicted of a crime of domestic violence as defined in Section
13700, a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision (c) of
Section 290, 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. This protective order may be issued by the court
regardless of whether the defendant is sentenced to the state prison
or a county jail, or whether imposition of sentence is suspended and
the defendant is placed on probation. It is the intent of the
Legislature in enacting this subdivision that the duration of any
restraining order issued by the court be based upon the seriousness
of the facts before the court, the probability of future violations,
and the safety of the victim and his or her immediate family.
(2) An order under this subdivision may include provisions for
electronic monitoring if the local government, upon receiving the
concurrence of the county sheriff or the chief probation officer with
jurisdiction, adopts a policy authorizing electronic monitoring of
defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order the electronic monitoring to be paid
for by the local government that adopted the policy authorizing
electronic monitoring. The duration of the electronic monitoring
shall not exceed one year from the date the order is issued.
(j) For purposes of this section, "local government" means the
county that has jurisdiction over the protective order.
SEC. 1.1. Section 136.2 of the Penal
Code , as amended by Section 1.5 of Chapter 291 of the
Statutes of 2013, is amended to read:
136.2. (a) (1) Upon a good cause belief
that harm to, or intimidation or dissuasion of, a victim or witness
has occurred or is reasonably likely to occur, a court with
jurisdiction over a criminal matter may issue orders, including, but
not limited to, the following:
(1)
( A) An order issued pursuant to Section
6320 of the Family Code.
(2)
( B) An order that a defendant shall not
violate any provision of Section 136.1.
(3)
( C) An order that a person before the court
other than a defendant, including, but not limited to, a subpoenaed
witness or other person entering the courtroom of the court, shall
not violate any provisions of Section 136.1.
(4)
( D) An order that a person described in
this section shall have no communication whatsoever with a specified
witness or a victim, except through an attorney under reasonable
restrictions that the court may impose.
(5)
( E) An order calling for a hearing to
determine if an order as described in paragraphs (1) to (4),
subparagraphs (A) to (D), inclusive, should be
issued.
(6) (A )
(F) (i) An order that a
particular law enforcement agency within the jurisdiction of the
court provide protection for a victim or a witness, or both, or for
immediate family members of a victim or a witness who reside in the
same household as the victim or witness or within reasonable
proximity of the victim's or witness' household, as determined by the
court. The order shall not be made without the consent of the law
enforcement agency except for limited and specified periods of time
and upon an express finding by the court of a clear and present
danger of harm to the victim or witness or immediate family members
of the victim or witness.
(B)
(ii) For purposes of this paragraph, "immediate family
members" include the spouse, children, or parents of the victim or
witness.
(7) (A )
(G) (i) An order protecting
victims a victim or witness of violent
crime from all contact by the defendant, or contact, with the intent
to annoy, harass, threaten, or commit acts of violence, by the
defendant. The court or its designee shall transmit orders made under
this paragraph to law enforcement personnel within one business day
of the issuance, modification, extension, or termination of the
order, pursuant to subdivision (a) of Section 6380 of the Family
Code. It is the responsibility of the court to transmit the
modification, extension, or termination orders made under this
paragraph to the same agency that entered the original protective
order into the Domestic Violence Restraining Order System.
(B) (i )
(ii) (I) If a court does not
issue an order pursuant to subparagraph (A)
clause (i) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, the court on
its own motion shall consider issuing a protective order upon a good
cause belief that harm to, or intimidation or dissuasion of, a victim
or witness has occurred or is reasonably likely to occur, that
provides as follows:
(I)
(ia) The defendant shall not own, possess, purchase,
receive, or attempt to purchase or receive, a firearm while the
protective order is in effect.
(II)
(ib) The defendant shall relinquish any firearms that
he or she owns or possesses pursuant to Section 527.9 of the Code of
Civil Procedure.
(ii)
(II) Every person who owns, possesses, purchases, or
receives, or attempts to purchase or receive, a firearm while this
protective order is in effect is punishable pursuant to Section
29825.
(C)
(iii) An order issued, modified, extended, or
terminated by a court pursuant to this paragraph
subparagraph shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(D)
(iv) A protective order issued under this
paragraph subparagraph may require the defendant
to be placed on electronic monitoring if the local government, with
the concurrence of the county sheriff or the chief probation officer
with jurisdiction, adopts a policy to authorize electronic monitoring
of defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order electronic monitoring to be paid for
by the local government that adopted the policy to authorize
electronic monitoring. The duration of electronic monitoring shall
not exceed one year from the date the order is issued. At no time
shall the electronic monitoring be in place if the protective order
is not in place.
(2) For purposes of this subdivision, a minor who was not a victim
of, but who was physically present at the time of, an act of
domestic violence, is a witness and is deemed to have suffered harm
within the meaning of paragraph (1).
(b) A person violating an order made pursuant to
paragraphs (1) to (7), subparagraphs (A) to (G),
inclusive, of paragraph (1) of subdivision (a) may be
punished for any substantive offense described in Section 136.1, or
for a contempt of the court making the order. A finding of contempt
shall not be a bar to prosecution for a violation of Section 136.1.
However, a person so held in contempt shall be entitled to credit for
punishment imposed therein against a sentence imposed upon
conviction of an offense described in Section 136.1. A conviction or
acquittal for a substantive offense under Section 136.1 shall be a
bar to a subsequent punishment for contempt arising out of the same
act.
(c) (1) (A) Notwithstanding subdivision (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 shall have precedence in enforcement over any other
restraining or protective order, provided the emergency protective
order meets all of the following requirements:
(i) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(ii) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective order
specified in subparagraph (A). clause (i).
(iii) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A). clause (i).
(B) An emergency protective order that meets the requirements of
paragraph (1) subparagraph (A) shall
have precedence in enforcement over the provisions of any other
restraining or protective order only with respect to those provisions
of the emergency protective order that are more restrictive in
relation to the restrained person.
(2) Except as described in paragraph (1), a no-contact order, as
described in Section 6320 of the Family Code, shall have precedence
in enforcement over any other restraining or protective order.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, or receive, or
attempt to purchase or receive receive
, a firearm while the protective order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) A person who owns, possesses, purchases
purchases, or receives, or attempts to purchase or
receive receive , a firearm
while the protective order is in effect is punishable pursuant to
Section 29825.
(e) (1) In all cases where in which
the defendant is charged with a crime of domestic violence, as
defined in Section 13700, or a violation of Section 261, 261.5,
or 262, or any crime that requires the defendant to register pursuant
to subdivision (c) of Section 290, the court shall consider
issuing the above-described orders 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 or a violation of Section 261, 261.5, or 262, or any
crime that requires the defendant to register pursuant to subdivision
(c) of Section 290, shall be marked to clearly alert the court
to this issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, or a violation of Section 261, 261.5, or 262, or
any crime that requires the defendant to register pursuant to
subdivision (c) of Section 290, has been issued, except as
described in subdivision (c), a restraining order or protective order
against the defendant issued by the criminal court in that case has
precedence in enforcement over a civil court order against the
defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and, if there is not an emergency protective order
that has precedence in enforcement pursuant to paragraph (1) of
subdivision (c), or a no-contact order, as described in Section 6320
of the Family Code, acknowledge the precedence of enforcement of, an
appropriate criminal protective order. On or before July 1, 2014, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for ensuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) An order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no-contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) (1) In any case in which a complaint,
information, or indictment charging a crime of domestic violence, as
defined in Section 13700, has been filed, the court may consider, in
determining whether good cause exists to issue an order under
subparagraph (A) of paragraph (1) of subdivision (a), the
underlying nature of the offense charged, and the information
provided to the court pursuant to Section 273.75.
(2) In any case in which a complaint, information, or indictment
charging a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision (c) of
Section 290, has been filed, the court may consider, in determining
whether good cause exists to issue an order under paragraph (1) of
subdivision (a), the underlying nature of the offense charged, the
defendant's relationship to the victim, the likelihood of continuing
harm to the victim, any current restraining order or protective order
issued by any civil or criminal court involving the defendant, and
the defendant's criminal history, including, but not limited to,
prior convictions for a violation of Section 261, 261.5, or 262, or
any crime that requires the defendant to register pursuant to
subdivision (c) of Section 290, or any other forms of violence, or
any weapons offenses.
(i) (1) In all cases in which a criminal defendant has been
convicted of a crime of domestic violence as defined in Section
13700, a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision
(c) of Section 290, 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. This protective
order may be issued by the court regardless of whether the defendant
is sentenced to the state prison or a county jail, or whether
imposition of sentence is suspended and the defendant is placed on
probation. It is the intent of the Legislature in enacting this
subdivision that the duration of any restraining order issued by the
court be based upon the seriousness of the facts before the court,
the probability of future violations, and the safety of the victim
and his or her immediate family.
(2) An order under this subdivision may include provisions for
electronic monitoring if the local government, upon receiving the
concurrence of the county sheriff or the chief probation officer with
jurisdiction, adopts a policy authorizing electronic monitoring of
defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order the electronic monitoring to be paid
for by the local government that adopted the policy authorizing
electronic monitoring. The duration of the electronic monitoring
shall not exceed one year from the date the order is issued.
(j) For purposes of this section, "local government" means the
county that has jurisdiction over the protective order.
SEC. 1.2. Section 136.2 of the Penal
Code , as amended by Section 1.5 of Chapter 291 of the
Statutes of 2013, is amended to read:
136.2. (a) (1) Upon a good cause belief
that harm to, or intimidation or dissuasion of, a victim or witness
has occurred or is reasonably likely to occur, a court with
jurisdiction over a criminal matter may issue orders, including, but
not limited to, the following:
(1)
( A) An order issued pursuant to Section
6320 of the Family Code.
(2)
( B) An order that a defendant shall not
violate any provision of Section 136.1.
(3)
( C) An order that a person before the court
other than a defendant, including, but not limited to, a subpoenaed
witness or other person entering the courtroom of the court, shall
not violate any provisions of Section 136.1.
(4)
( D) An order that a person described in
this section shall have no communication whatsoever with a specified
witness or a victim, except through an attorney under reasonable
restrictions that the court may impose.
(5)
( E) An order calling for a hearing to
determine if an order as described in paragraphs (1) to (4),
subparagraphs (A) to (D), inclusive, should be
issued.
(6) (A )
(F) (i) An order that a
particular law enforcement agency within the jurisdiction of the
court provide protection for a victim or a witness, or both, or for
immediate family members of a victim or a witness who reside in the
same household as the victim or witness or within reasonable
proximity of the victim's or witness' household, as determined by the
court. The order shall not be made without the consent of the law
enforcement agency except for limited and specified periods of time
and upon an express finding by the court of a clear and present
danger of harm to the victim or witness or immediate family members
of the victim or witness.
(B)
(ii) For purposes of this paragraph, "immediate family
members" include the spouse, children, or parents of the victim or
witness.
(7) (A )
(G) (i) An order protecting
victims a victim or witness of violent
crime from all contact by the defendant, or contact, with the intent
to annoy, harass, threaten, or commit acts of violence, by the
defendant. The court or its designee shall transmit orders made under
this paragraph to law enforcement personnel within one business day
of the issuance, modification, extension, or termination of the
order, pursuant to subdivision (a) of Section 6380 of the Family
Code. It is the responsibility of the court to transmit the
modification, extension, or termination orders made under this
paragraph to the same agency that entered the original protective
order into the Domestic Violence Restraining Order System.
(B) (i )
(ii) (I) If a court does not
issue an order pursuant to subparagraph (A)
clause (i) in a case in which the defendant is charged with a
crime of involving domestic violence as
defined in Section 13700, 13700 or in
Section 6211 of the Family Code, the court on its own motion
shall consider issuing a protective order upon a good cause belief
that harm to, or intimidation or dissuasion of, a victim or witness
has occurred or is reasonably likely to occur, that provides as
follows:
(I)
(ia) The defendant shall not own, possess, purchase,
receive, or attempt to purchase or receive, a firearm while the
protective order is in effect.
(II)
(ib) The defendant shall relinquish any firearms that
he or she owns or possesses pursuant to Section 527.9 of the Code of
Civil Procedure.
(ii)
(II) Every person who owns, possesses, purchases, or
receives, or attempts to purchase or receive, a firearm while this
protective order is in effect is punishable pursuant to Section
29825.
(C)
(iii) An order issued, modified, extended, or
terminated by a court pursuant to this paragraph
subparagraph shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(D)
(iv) A protective order issued under this
paragraph subparagraph may require the defendant
to be placed on electronic monitoring if the local government, with
the concurrence of the county sheriff or the chief probation officer
with jurisdiction, adopts a policy to authorize electronic monitoring
of defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order electronic monitoring to be paid for
by the local government that adopted the policy to authorize
electronic monitoring. The duration of electronic monitoring shall
not exceed one year from the date the order is issued. At no time
shall the electronic monitoring be in place if the protective order
is not in place.
(2) For purposes of this subdivision, a minor who was not a victim
of, but who was physically present at the time of, an act of
domestic violence, is a witness and is deemed to have suffered harm
within the meaning of paragraph (1).
(b) A person violating an order made pursuant to
paragraphs (1) to (7), subparagraphs (A) to (G),
inclusive, of paragraph (1) of subdivision (a) may be
punished for any substantive offense described in Section 136.1, or
for a contempt of the court making the order. A finding of contempt
shall not be a bar to prosecution for a violation of Section 136.1.
However, a person so held in contempt shall be entitled to credit for
punishment imposed therein against a sentence imposed upon
conviction of an offense described in Section 136.1. A conviction or
acquittal for a substantive offense under Section 136.1 shall be a
bar to a subsequent punishment for contempt arising out of the same
act.
(c) (1) (A) Notwithstanding subdivision (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 shall have precedence in enforcement over any other
restraining or protective order, provided the emergency protective
order meets all of the following requirements:
(i) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(ii) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective order
specified in subparagraph (A). clause (i).
(iii) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A). clause (i).
(B) An emergency protective order that meets the requirements of
paragraph (1) subparagraph (A) shall
have precedence in enforcement over the provisions of any other
restraining or protective order only with respect to those provisions
of the emergency protective order that are more restrictive in
relation to the restrained person.
(2) Except as described in paragraph (1), a no-contact order, as
described in Section 6320 of the Family Code, shall have precedence
in enforcement over any other restraining or protective order.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, or receive, or
attempt to purchase or receive receive
, a firearm while the protective order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) A person who owns, possesses, purchases
purchases, or receives, or attempts to purchase or
receive receive , a firearm
while the protective order is in effect is punishable pursuant to
Section 29825.
(e) (1) In all cases where in which
the defendant is charged with a crime of
involving domestic violence, as defined in Section
13700, 13700 or in Section 6211 of the Family Code,
the court shall consider issuing the above-described orders 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.
(2) In those cases in which a complaint, information, or
indictment charging a crime of involving
domestic violence, as defined in Section 13700,
13700 or in Section 6211 of the Family Code, has been
issued, except as described in subdivision (c), a restraining order
or protective order against the defendant issued by the criminal
court in that case has precedence in enforcement over a civil court
order against the defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and, if there is not an emergency protective order
that has precedence in enforcement pursuant to paragraph (1) of
subdivision (c), or a no-contact order, as described in Section 6320
of the Family Code, acknowledge the precedence of enforcement of, an
appropriate criminal protective order. On or before July 1, 2014, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for ensuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) An order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no-contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) In any case in which a complaint, information, or indictment
charging a crime of involving domestic
violence, as defined in Section 13700, 13700
or in Section 6211 of the Family Code, has been filed, the
court may consider, in determining whether good cause exists to issue
an order under subparagraph (A) of paragraph (1) of
subdivision (a), the underlying nature of the offense charged, and
the information provided to the court pursuant to Section 273.75.
(i) (1) In all cases in which a criminal defendant has been
convicted of a crime of involving
domestic violence as defined in Section 13700,
13700 or in Section 6211 of the Family Code, a violation
of Section 261, 261.5, or 262, or any crime that requires the
defendant to register pursuant to subdivision (c) of Section 290, 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. This
protective order may be issued by the court regardless of whether the
defendant is sentenced to the state prison or a county jail, or
whether imposition of sentence is suspended and the defendant is
placed on probation. It is the intent of the Legislature in enacting
this subdivision that the duration of any restraining order issued by
the court be based upon the seriousness of the facts before the
court, the probability of future violations, and the safety of the
victim and his or her immediate family.
(2) An order under this subdivision may include provisions for
electronic monitoring if the local government, upon receiving the
concurrence of the county sheriff or the chief probation officer with
jurisdiction, adopts a policy authorizing electronic monitoring of
defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order the electronic monitoring to be paid
for by the local government that adopted the policy authorizing
electronic monitoring. The duration of the electronic monitoring
shall not exceed one year from the date the order is issued.
(j) For purposes of this section, "local government" means the
county that has jurisdiction over the protective order.
SEC. 1.3. Section 136.2 of the Penal
Code , as amended by Section 1.5 of Chapter 291 of the
Statutes of 2013, is amended to read:
136.2. (a) (1) Upon a good cause belief
that harm to, or intimidation or dissuasion of, a victim or witness
has occurred or is reasonably likely to occur, a court with
jurisdiction over a criminal matter may issue orders, including, but
not limited to, the following:
(1)
( A) An order issued pursuant to Section
6320 of the Family Code.
(2)
( B) An order that a defendant shall not
violate any provision of Section 136.1.
(3)
( C) An order that a person before the court
other than a defendant, including, but not limited to, a subpoenaed
witness or other person entering the courtroom of the court, shall
not violate any provisions of Section 136.1.
(4)
( D) An order that a person described in
this section shall have no communication whatsoever with a specified
witness or a victim, except through an attorney under reasonable
restrictions that the court may impose.
(5)
( E) An order calling for a hearing to
determine if an order as described in paragraphs (1) to (4),
subparagraphs (A) to (D), inclusive, should be
issued.
(6) (A )
(F) (i) An order that a
particular law enforcement agency within the jurisdiction of the
court provide protection for a victim or a witness, or both, or for
immediate family members of a victim or a witness who reside in the
same household as the victim or witness or within reasonable
proximity of the victim's or witness' household, as determined by the
court. The order shall not be made without the consent of the law
enforcement agency except for limited and specified periods of time
and upon an express finding by the court of a clear and present
danger of harm to the victim or witness or immediate family members
of the victim or witness.
(B)
(ii) For purposes of this paragraph, "immediate family
members" include the spouse, children, or parents of the victim or
witness.
(7) (A )
(G) (i) An order protecting
victims a victim or witness of violent
crime from all contact by the defendant, or contact, with the intent
to annoy, harass, threaten, or commit acts of violence, by the
defendant. The court or its designee shall transmit orders made under
this paragraph to law enforcement personnel within one business day
of the issuance, modification, extension, or termination of the
order, pursuant to subdivision (a) of Section 6380 of the Family
Code. It is the responsibility of the court to transmit the
modification, extension, or termination orders made under this
paragraph to the same agency that entered the original protective
order into the Domestic Violence Restraining Order System.
(B) (i )
(ii) (I) If a court does not
issue an order pursuant to subparagraph (A)
clause (i) in a case in which the defendant is charged with a
crime of involving domestic violence as
defined in Section 13700, 13700 or in
Section 6211 of the Family Code, the court on its own motion
shall consider issuing a protective order upon a good cause belief
that harm to, or intimidation or dissuasion of, a victim or witness
has occurred or is reasonably likely to occur, that provides as
follows:
(I)
(ia) The defendant shall not own, possess, purchase,
receive, or attempt to purchase or receive, a firearm while the
protective order is in effect.
(II)
(ib) The defendant shall relinquish any firearms that
he or she owns or possesses pursuant to Section 527.9 of the Code of
Civil Procedure.
(ii)
(II) Every person who owns, possesses, purchases, or
receives, or attempts to purchase or receive, a firearm while this
protective order is in effect is punishable pursuant to Section
29825.
(C)
(iii) An order issued, modified, extended, or
terminated by a court pursuant to this paragraph
subparagraph shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(D)
(iv) A protective order issued under this
paragraph subparagraph may require the defendant
to be placed on electronic monitoring if the local government, with
the concurrence of the county sheriff or the chief probation officer
with jurisdiction, adopts a policy to authorize electronic monitoring
of defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order electronic monitoring to be paid for
by the local government that adopted the policy to authorize
electronic monitoring. The duration of electronic monitoring shall
not exceed one year from the date the order is issued. At no time
shall the electronic monitoring be in place if the protective order
is not in place.
(2) For purposes of this subdivision, a minor who was not a victim
of, but who was physically present at the time of, an act of
domestic violence, is a witness and is deemed to have suffered harm
within the meaning of paragraph (1).
(b) A person violating an order made pursuant to
paragraphs (1) to (7), subparagraphs (A) to (G),
inclusive, of paragraph (1) of subdivision (a) may be
punished for any substantive offense described in Section 136.1, or
for a contempt of the court making the order. A finding of contempt
shall not be a bar to prosecution for a violation of Section 136.1.
However, a person so held in contempt shall be entitled to credit for
punishment imposed therein against a sentence imposed upon
conviction of an offense described in Section 136.1. A conviction or
acquittal for a substantive offense under Section 136.1 shall be a
bar to a subsequent punishment for contempt arising out of the same
act.
(c) (1) (A) Notwithstanding subdivision (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 shall have precedence in enforcement over any other
restraining or protective order, provided the emergency protective
order meets all of the following requirements:
(i) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(ii) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective order
specified in subparagraph (A). clause (i).
(iii) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A). clause (i).
(B) An emergency protective order that meets the requirements of
paragraph (1) subparagraph (A) shall
have precedence in enforcement over the provisions of any other
restraining or protective order only with respect to those provisions
of the emergency protective order that are more restrictive in
relation to the restrained person.
(2) Except as described in paragraph (1), a no-contact order, as
described in Section 6320 of the Family Code, shall have precedence
in enforcement over any other restraining or protective order.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, or receive, or
attempt to purchase or receive receive
, a firearm while the protective order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) A person who owns, possesses, purchases
purchases, or receives, or attempts to purchase or
receive receive, a firearm while the
protective order is in effect is punishable pursuant to Section
29825.
(e) (1) In all cases where in which
the defendant is charged with a crime of
involving domestic violence, as defined in Section
13700, 13700 or in Section 6211 of the Family Code,
or a violation of Section 261, 261.5, or 262, or any crime
that requires the defendant to register pursuant to subdivision (c)
of Section 290, the court shall consider issuing the
above-described orders 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
or a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision (c) of
Section 290 , shall be marked to clearly
alert the court to this issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime of involving
domestic violence, as defined in Section 13700,
13700 or in Section 6211 of the Family Code,
or a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision (c) of
Section 290, has been issued, except as described in
subdivision (c), a restraining order or protective order against the
defendant issued by the criminal court in that case has precedence in
enforcement over a civil court order against the defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and, if there is not an emergency protective order
that has precedence in enforcement pursuant to paragraph (1) of
subdivision (c), or a no-contact order, as described in Section 6320
of the Family Code, acknowledge the precedence of enforcement of, an
appropriate criminal protective order. On or before July 1, 2014, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for
the timely coordination of all orders against the
same defendant and in favor of the same named victim or victims. The
protocol shall include, but shall not be limited to, mechanisms for
ensuring appropriate communication and information sharing between
criminal, family, and juvenile courts concerning orders and cases
that involve the same parties, and shall permit a family or juvenile
court order to coexist with a criminal court protective order subject
to the following conditions:
(1) An order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no-contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) (1) In any case in which a complaint,
information, or indictment charging a crime of
involving domestic violence, as defined in Section
13700, 13700 or in Section 6211 of the Family
Code, has been filed, the court may consider, in determining
whether good cause exists to issue an order under subparagraph
(A) of paragraph (1) of subdivision (a), the underlying nature
of the offense charged, and the information provided to the court
pursuant to Section 273.75.
(2) In any case in which a complaint, information, or indictment
charging a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision (c) of
Section 290, has been filed, the court may consider, in determining
whether good cause exists to issue an order under paragraph (1) of
subdivision (a), the underlying nature of the offense charged, the
defendant's relationship to the victim, the likelihood of continuing
harm to the victim, any current restraining order or protective order
issued by any civil or criminal court involving the defendant, and
the defendant's criminal history, including, but not limited to,
prior convictions for a violation of Section 261, 261.5, or 262, or
any crime that requires the defendant to register pursuant to
subdivision (c) of Section 290, or any other forms of violence, or
any weapons offenses.
(i) (1) In all cases in which a criminal defendant has been
convicted of a crime of involving
domestic violence as defined in Section 13700,
13700 or in Section 6211 of the Family Code, a violation
of Section 261, 261.5, or 262, or any crime that requires the
defendant to register pursuant to subdivision (c) of Section 290, 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. This
protective order may be issued by the court regardless of whether the
defendant is sentenced to the state prison or a county jail, or
whether imposition of sentence is suspended and the defendant is
placed on probation. It is the intent of the Legislature in enacting
this subdivision that the duration of any restraining order issued by
the court be based upon the seriousness of the facts before the
court, the probability of future violations, and the safety of the
victim and his or her immediate family.
(2) An order under this subdivision may include provisions for
electronic monitoring if the local government, upon receiving the
concurrence of the county sheriff or the chief probation officer with
jurisdiction, adopts a policy authorizing electronic monitoring of
defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order the electronic monitoring to be paid
for by the local government that adopted the policy authorizing
electronic monitoring. The duration of the electronic monitoring
shall not exceed one year from the date the order is issued.
(j) For purposes of this section, "local government" means the
county that has jurisdiction over the protective order.
SEC. 2. (a) Section 1.1 of this bill
incorporates amendments to Section 136.2 of the Penal Code proposed
by both this bill and Assembly Bill 1498. It shall only become
operative if (1) both bills are enacted and become effective on or
before January 1, 2015, (2) each bill amends Section 136.2 of the
Penal Code, and (3) Senate Bill 910 is not enacted or as enacted does
not amend that section, and (4) this bill is enacted after Assembly
Bill 1498, in which case Sections 1, 1.2, and 1.3 of this bill shall
not become operative.
(b) Section 1.2 of this bill incorporates amendments to Section
136.2 of the Penal Code proposed by both this bill and Senate Bill
910. It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2015, (2) each bill amends
Section 136.2 of the Penal Code, (3) Assembly Bill 1498 is not
enacted or as enacted does not amend that section, and (4) this bill
is enacted after Senate Bill 910 in which case Sections 1, 1.1, and
1.3 of this bill shall not become operative.
(c) Section 1.3 of this bill incorporates amendments to Section
136.2 of the Penal Code proposed by this bill, Assembly Bill 1498,
and Senate Bill 910. It shall only become operative if (1) all three
bills are enacted and become effective on or before January 1, 2015,
(2) all three bills amend Section 136.2 of the Penal Code, and (3)
this bill is enacted after Assembly Bill 1498 and Senate Bill 910, in
which case Sections 1, 1.1, and 1.2 of this bill shall not become
operative.
SEC. 2. SEC. 3. 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.