AB 238, as amended, Gomez. Protective orders: California Restraining and Protective Order System.
Existing law authorizes a judicial officer in a civil proceeding relating to domestic violence to issue an emergency protective order if there is an immediate and present danger of domestic violence, abuse, or abduction of a child, or abuse of an elder or dependent adult. Existing law also authorizes a court in a criminal proceeding to issue an emergency protective order if there is an immediate and present danger of stalking, as specified. Existing law requiresbegin delete thatend delete a law enforcement officer, as defined, for purposes of court proceedings relating to domestic violence, or a peace officerbegin insert,end insert in criminal proceedings relating to stalking, who requests an emergency protective orderbegin insert,
toend insert carry copies of the order while on duty.
Existing law also requires the Department of Justice to maintain a computer database system, known as the California Restraining and Protective Order System, for protective and restraining orders and injunctions and make that information available to court clerks and law enforcement personnel.
This bill would delete the requirement that a law enforcement officer or a peace officer, as described above, who requests an emergency protective order carry copies of the order while on duty. The bill would instead require thebegin delete professional staff of theend delete law enforcement agencybegin delete employing the officer who requests an emergency protective orderend deletebegin insert
toend insert enter that order into the California Restraining and Protective Order Systembegin delete within 2 hours of the issuance of the orderend delete. By imposing additional duties onbegin insert localend insert law enforcementbegin delete employeesend deletebegin insert agenciesend insert, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 6250.7 is added to the Family Code, to
2read:
When an emergency protective order is issued, the
4begin deleteprofessional staff of theend delete law enforcement agencybegin delete employing the shall enter the order into the
5officer who requested the orderend delete
6California Restraining and Protective Order Systembegin delete within two .
7hours of the issuance of the orderend delete
Section 6273 of the Family Code is repealed.
Section 646.91 of the Penal Code is amended to read:
(a) Notwithstanding any other law, a judicial officer
11may issue an ex parte emergency protective orderbegin delete whereend deletebegin insert ifend insert a peace
12officer, as defined in Section 830.1, 830.2, or 830.32, asserts
13reasonable grounds to believe that a person is in immediate and
14present danger of stalking based upon the person’s allegation that
15he or she has been willfully, maliciously, and repeatedly followed
16or harassed by another person who has made a credible threat with
P3 1the intent of placing the person who is the target of the threat in
2reasonable fear for his or
her safety, or the safety of his or her
3immediate family, within the meaning of Section 646.9.
4(b) A peace officer who requests an emergency protective order
5shall reduce the order to writing and sign it.
6(c) An emergency protective order shall include all of the
7following:
8(1) A statement of the grounds asserted for the order.
9(2) The date and time the order expires.
10(3) The address of the superior court for the district or county
11in which the protected party resides.
12(4) The following statements, which shall be printed in English
13and
Spanish:
14(A) “To the protected person: This order will last until the date
15and time noted above. If you wish to seek continuing protection,
16you will have to apply for an order from the court at the address
17noted above. You may seek the advice of an attorney as to any
18matter connected with your application for any future court orders.
19The attorney should be consulted promptly so that the attorney
20may assist you in making your application.”
21(B) “To the restrained person: This order will last until the date
22and time noted above. The protected party may, however, obtain
23a more permanent restraining order from the court. You may seek
24the advice of an attorney as to any matter connected with the
25application. The attorney should be consulted promptly so that the
26attorney may
assist you in responding to the application. You may
27not own, possess, purchase or receive, or attempt to purchase or
28receive a firearm while this order is in effect.”
29(d) An emergency protective order may be issued under this
30section only if the judicial officer finds both of the following:
31(1) That reasonable grounds have been asserted to believe that
32an immediate and present danger of stalking, as defined in Section
33646.9, exists.
34(2) That an emergency protective order is necessary to prevent
35the occurrence or reoccurrence of the stalking activity.
36(e) An emergency protective order may include either of the
37following specific orders as appropriate:
38(1) A harassment protective order as described in Section 527.6
39of the Code of Civil Procedure.
P4 1(2) A workplace violence protective order as described in
2Section 527.8 of the Code of Civil Procedure.
3(f) An emergency protective order shall be issued without
4prejudice to any person.
5(g) An emergency protective order expires at the earlier of the
6following times:
7(1) The close of judicial business on the fifth court day following
8the day of its issuance.
9(2) The seventh calendar day following the day of its issuance.
10(h) A peace officer who requests an emergency protective order
11shall do all of the following:
12(1) Serve the order on the restrained person, if the restrained
13person can reasonably be located.
14(2) Give a copy of the order to the protected person, or, if the
15protected person is a minor child, to a parent or guardian of the
16protected child if the parent or guardian can reasonably be located,
17or to a person having temporary custody of the child.
18(3) File a copy of the order with the court as soon as practicable
19after issuance.
20(i) A peace officer shall use every reasonable means to enforce
21an emergency
protective order.
22(j) A peace officer who acts in good faith to enforce an
23emergency protective order is not civilly or criminally liable.
24(k) When an emergency protective order is issued pursuant to
25this section,begin delete the professional staff ofend delete the law enforcement agency
26begin delete employing the officer who requested the orderend delete shall enter the order
27into the California Restraining and Protective Order Systembegin delete within .
28two hours of the issuance of the orderend delete
29(l) A peace officer described in subdivision (a) or
(b) of Section
30830.32 who requests an emergency protective order pursuant to
31this section shall also notify the sheriff or police chief of the city
32in whose jurisdiction the peace officer’s college or school is located
33after issuance of the order.
34(m) “Judicial officer,” as used in this section, means a judge,
35commissioner, or referee.
36(n) A person subject to an emergency protective order under
37this section shall not own, possess, purchase, or receive a firearm
38while the order is in effect.
39(o) Nothing in this section shall be construed to permit a court
40to issue an emergency protective order prohibiting speech or other
P5 1activities that are constitutionally protected or protected by the
2laws of this state or by the
United States or activities occurring
3during a labor dispute, as defined by Section 527.3 of the Code of
4Civil Procedure, including, but not limited to, picketing and hand
5billing.
6(p) The Judicial Council shall develop forms, instructions, and
7rules for the scheduling of hearings and other procedures
8established pursuant to this section.
9(q) Any intentional disobedience of any emergency protective
10order granted under this section is punishable pursuant to Section
11166. Nothing in this subdivision shall be construed to prevent
12punishment under Section 646.9, in lieu of punishment under this
13section, if a violation of Section 646.9 is also pled and proven.
If the Commission on State Mandates determines that
15this act contains costs mandated by the state, reimbursement to
16local agencies and school districts for those costs shall be made
17pursuant to Part 7 (commencing with Section 17500) of Division
184 of Title 2 of the Government Code.
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