BILL NUMBER: AB 238 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 29, 2013
AMENDED IN SENATE MAY 15, 2013
AMENDED IN ASSEMBLY MARCH 20, 2013
INTRODUCED BY Assembly Member Gomez
(Coauthors: Assembly Members Bonilla, Brown, Fox, Maienschein, and
Quirk-Silva)
FEBRUARY 5, 2013
An act to add Section 6250.7 to, and to
amend Section 6271 of, and to repeal Section 6273 of, the
Family Code, and to amend Section 646.91 of the Penal Code, relating
to protective orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 238, as amended, Gomez. Protective and restraining
orders: California Restraining and Protective Order System.
computer database 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 requires a law
enforcement officer, as defined, for purposes of court proceedings
relating to domestic violence, or a peace officer, in criminal
proceedings relating to stalking, who requests an emergency
protective order, to 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, 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 the law enforcement agency to
enter have that order entered into
the California Restraining and Protective Order System
computer database system for protective and
restraining orders maintained by the Department of Justice . By
imposing additional duties on local law enforcement agencies, 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 1. Section 6250.7 is added to the
Family Code, to read:
6250.7. When an emergency protective order is issued, the law
enforcement agency shall enter the order into the California
Restraining and Protective Order System.
SECTION 1. Section 6271 of the Family
Code is amended to read:
6271. A law enforcement officer who requests an emergency
protective order shall do all of the following:
(a) Serve the order on the restrained person, if the restrained
person can reasonably be located.
(b) Give a copy of the order to the protected person or, if the
protected person is a minor child, to a parent or guardian of the
endangered child who is not a restrained person, if the parent or
guardian can reasonably be located, or to a person having temporary
custody of the endangered child.
(c) File a copy of the order with the court as soon as practicable
after issuance.
(d) Have the order entered into the computer database system for
protective and restraining orders maintained by the Department of
Justice.
SEC. 2. Section 6273 of the Family Code is repealed.
SEC. 3. Section 646.91 of the Penal Code is amended to read:
646.91. (a) Notwithstanding any other law, a judicial officer may
issue an ex parte emergency protective order if a peace officer, as
defined in Section 830.1, 830.2, or 830.32, asserts reasonable
grounds to believe that a person is in immediate and present danger
of stalking based upon the person's allegation that he or she has
been willfully, maliciously, and repeatedly followed or harassed by
another person who has made a credible threat with the intent of
placing the person who is the target of the threat in reasonable fear
for his or her safety, or the safety of his or her immediate family,
within the meaning of Section 646.9.
(b) A peace officer who requests an emergency protective order
shall reduce the order to writing and sign it.
(c) An emergency protective order shall include all of the
following:
(1) A statement of the grounds asserted for the order.
(2) The date and time the order expires.
(3) The address of the superior court for the district or county
in which the protected party resides.
(4) The following statements, which shall be printed in English
and Spanish:
(A) "To the protected person: This order will last until the date
and time noted above. If you wish to seek continuing protection, you
will have to apply for an order from the court at the address noted
above. You may seek the advice of an attorney as to any matter
connected with your application for any future court orders. The
attorney should be consulted promptly so that the attorney may assist
you in making your application."
(B) "To the restrained person: This order will last until the date
and time noted above. The protected party may, however, obtain a
more permanent restraining order from the court. You may seek the
advice of an attorney as to any matter connected with the
application. The attorney should be consulted promptly so that the
attorney may assist you in responding to the application. You may not
own, possess, purchase , or receive, or attempt to
purchase or receive , a firearm while this order is in
effect."
(d) An emergency protective order may be issued under this section
only if the judicial officer finds both of the following:
(1) That reasonable grounds have been asserted to believe that an
immediate and present danger of stalking, as defined in Section
646.9, exists.
(2) That an emergency protective order is necessary to prevent the
occurrence or reoccurrence of the stalking activity.
(e) An emergency protective order may include either of the
following specific orders as appropriate:
(1) A harassment protective order as described in Section 527.6 of
the Code of Civil Procedure.
(2) A workplace violence protective order as described in Section
527.8 of the Code of Civil Procedure.
(f) An emergency protective order shall be issued without
prejudice to any person.
(g) An emergency protective order expires at the earlier of the
following times:
(1) The close of judicial business on the fifth court day
following the day of its issuance.
(2) The seventh calendar day following the day of its issuance.
(h) A peace officer who requests an emergency protective order
shall do all of the following:
(1) Serve the order on the restrained person, if the restrained
person can reasonably be located.
(2) Give a copy of the order to the protected person, or, if the
protected person is a minor child, to a parent or guardian of the
protected child if the parent or guardian can reasonably be located,
or to a person having temporary custody of the child.
(3) File a copy of the order with the court as soon as practicable
after issuance.
(4) Have the order entered into the computer database system for
protective and restraining orders maintained by the Department of
Justice.
(i) A peace officer shall use every reasonable means to enforce an
emergency protective order.
(j) A peace officer who acts in good faith to enforce an emergency
protective order is not civilly or criminally liable.
(k) When an emergency protective order is issued pursuant to this
section, the law enforcement agency shall enter the order into the
California Restraining and Protective Order System .
( l )
(k) A peace officer described in subdivision (a) or (b)
of Section 830.32 who requests an emergency protective order
pursuant to this section shall also notify the sheriff or police
chief of the city in whose jurisdiction the peace officer's college
or school is located after issuance of the order.
(m)
(l) "Judicial officer," as used in this section, means
a judge, commissioner, or referee.
(n)
(m) A person subject to an emergency protective order
under this section shall not own, possess, purchase, or receive a
firearm while the order is in effect.
(o)
(n) Nothing in this section shall be construed to
permit a court to issue an emergency protective order prohibiting
speech or other activities that are constitutionally protected or
protected by the laws of this state or by the United States or
activities occurring during a labor dispute, as defined by Section
527.3 of the Code of Civil Procedure, including, but not limited to,
picketing and hand billing.
(p)
( o) The Judicial Council shall develop
forms, instructions, and rules for the scheduling of hearings and
other procedures established pursuant to this section.
(q)
( p) Any intentional disobedience of any
emergency protective order granted under this section is punishable
pursuant to Section 166. Nothing in this subdivision shall be
construed to prevent punishment under Section 646.9, in lieu of
punishment under this section, if a violation of Section 646.9 is
also pled and proven.
SEC. 4. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.