Amended  IN  Senate  June 20, 2024
Amended  IN  Senate  June 04, 2024
Amended  IN  Assembly  May 16, 2024
Amended  IN  Assembly  April 01, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 3209

Introduced by Assembly Members Berman and Robert Rivas
(Coauthor: Assembly Member Gipson)

February 16, 2024

An act to amend, repeal and add Section 6380 of the Family Code, and to add and repeal Section 490.8 to of the Penal Code, relating to crimes. crimes, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 3209, as amended, Berman. Crimes: theft: retail theft restraining orders.
Existing law prohibits the theft of merchandise from a retail establishment. Existing law authorizes a court, upon sentencing a person for specified offenses, including stalking and elder abuse, to issue a criminal protective order prohibiting the person from contacting any victim of their offense.
This bill would authorize a court, when sentencing a person for an offense involving theft from a retail establishment, vandalism of a retail establishment, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting a person from entering the retail establishment, including any parking lots and including other franchise or chain locations of the retail establishment, as specified.
The bill would also authorize a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition for the issuance of a criminal protective order of this type against a person who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, 2 or more times for any of the offenses at the same retail establishment, as specified. The bill would also make conforming changes.
The bill would make a violation of these orders punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.
Existing law requires a person arrested for a misdemeanor to be issued a written notice to appear and to be released upon their signed promise to appear, except as otherwise provided.
This bill would exempt a violation of a retail establishment restraining order from that requirement.
The bill would make these changes inoperative if a specified initiative is approved by the voters.
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.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: MAJORITY2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 6380 of the Family Code is amended to read:

6380.
 (a) Each county, with the approval of the Department of Justice, shall, by July 1, 1996, develop a procedure, using existing systems, for the electronic transmission of data, as described in subdivision (b), to the Department of Justice. The data shall be electronically transmitted through the California Law Enforcement Telecommunications System (CLETS) of the Department of Justice by law enforcement personnel, or with the approval of the Department of Justice, court personnel, or another appropriate agency capable of maintaining and preserving the integrity of both the CLETS and the California Restraining and Protective Order System, as described in subdivision (e). Data entry is required to be entered only once under the requirements of this section, unless the order is served at a later time. A portion of all fees payable to the Department of Justice under subdivision (a) of Section 1203.097 of the Penal Code for the entry of the information required under this section, based upon the proportion of the costs incurred by the local agency and those incurred by the Department of Justice, shall be transferred to the local agency actually providing the data. All data with respect to criminal court protective orders issued, modified, extended, or terminated under Section 136.2 of the Penal Code, and all data filed with the court on the required Judicial Council forms with respect to protective orders, including their issuance, modification, extension, or termination, to which this division applies pursuant to Section 6221, shall be transmitted by the court or its designee within one business day to law enforcement personnel by either one of the following methods:
(1) Transmitting a physical copy of the order to a local law enforcement agency authorized by the Department of Justice to enter orders into CLETS.
(2) With the approval of the Department of Justice, entering the order into CLETS directly.
(b) Upon the issuance of a protective order to which this division applies pursuant to Section 6221, or the issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or the issuance of a criminal court protective order under Section 136.2 of the Penal Code, or a retail crime restraining order under Section 490.8 of the Penal Code, or the issuance of a juvenile court restraining order related to domestic violence pursuant to Section 213.5, 304, or 362.4 of the Welfare and Institutions Code, or the issuance of a protective order pursuant to Section 15657.03 of the Welfare and Institutions Code, or upon registration with the court clerk of a domestic violence protective or restraining order issued by the tribunal of another state, as defined in Section 6401, and including any of the foregoing orders issued in connection with an order for modification of a custody or visitation order issued pursuant to a dissolution, legal separation, nullity, or paternity proceeding the Department of Justice shall be immediately notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive information of the respondent as required by a form prescribed by the Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including stay-away, no-contact, residency exclusion, custody, and visitation provisions of the order.
(6) The department or division number and the address of the court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership or possession of firearms.
All available information shall be included; however, the inability to provide all categories of information shall not delay the entry of the information available.
(c) The information conveyed to the Department of Justice shall also indicate whether the respondent was present in court to be informed of the contents of the court order. The respondent’s presence in court shall provide proof of service of notice of the terms of the protective order. The respondent’s failure to appear shall also be included in the information provided to the Department of Justice.
(d) (1) Within one business day of service, a law enforcement officer who served a protective order shall submit the proof of service directly into the Department of Justice California Restraining and Protective Order System, including the officer’s name and law enforcement agency, and shall transmit the original proof of service form to the issuing court.
(2) Within one business day of receipt of proof of service by a person other than a law enforcement officer, the clerk of the court shall submit the proof of service of a protective order directly into the Department of Justice California Restraining and Protective Order System, including the name of the person who served the order. If the court is unable to provide this notification to the Department of Justice by electronic transmission, the court shall, within one business day of receipt, transmit a copy of the proof of service to a local law enforcement agency. The local law enforcement agency shall submit the proof of service directly into the Department of Justice California Restraining and Protective Order System within one business day of receipt from the court.
(e) The Department of Justice shall maintain a California Restraining and Protective Order System and shall make available to court clerks and law enforcement personnel, through computer access, all information regarding the protective and restraining orders and injunctions described in subdivision (b), whether or not served upon the respondent.
(f) If a court issues a modification, extension, or termination of a protective order, it shall be on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice, and the transmitting agency for the county shall immediately notify the Department of Justice, by electronic transmission, of the terms of the modification, extension, or termination.
(g) The Judicial Council shall assist local courts charged with the responsibility for issuing protective orders by developing informational packets describing the general procedures for obtaining a domestic violence restraining order and indicating the appropriate Judicial Council forms. The informational packets shall include a design, that local courts shall complete, that describes local court procedures and maps to enable applicants to locate filing windows and appropriate courts, and shall also include information on how to return proofs of service, including mailing addresses and fax numbers. The court clerk shall provide a fee waiver form to all applicants for domestic violence protective orders. The court clerk shall provide all Judicial Council forms required by this chapter to applicants free of charge. The informational packet shall also contain a statement that the protective order is enforceable in any state, as defined in Section 6401, and general information about agencies in other jurisdictions that may be contacted regarding enforcement of an order issued by a court of this state.
(h) For the purposes of this part, “electronic transmission” shall include computer access through the California Law Enforcement Telecommunications System (CLETS).
(i) Only protective and restraining orders issued on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice shall be transmitted to the Department of Justice. However, this provision does not apply to a valid protective or restraining order related to domestic or family violence issued by a tribunal of another state, as defined in Section 6401. Those orders shall, upon request, be registered pursuant to Section 6404.
(j) (1) All protective orders subject to transmittal to CLETS pursuant to this section are required to be so transmitted.
(2) This subdivision does not constitute a change in, but is declaratory of, existing law.
(k) If the proposed initiative measure titled “The Homelessness, Drug Addiction, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024, this section shall become inoperative on the fifth day after the Secretary of State files the statement of the vote for the election, and shall be repealed on January 1, 2025.

SEC. 2.

 Section 6380 is added to the Family Code, to read:

6380.
 (a) Each county, with the approval of the Department of Justice, shall, by July 1, 1996, develop a procedure, using existing systems, for the electronic transmission of data, as described in subdivision (b), to the Department of Justice. The data shall be electronically transmitted through the California Law Enforcement Telecommunications System (CLETS) of the Department of Justice by law enforcement personnel, or with the approval of the Department of Justice, court personnel, or another appropriate agency capable of maintaining and preserving the integrity of both the CLETS and the California Restraining and Protective Order System, as described in subdivision (e). Data entry is required to be entered only once under the requirements of this section, unless the order is served at a later time. A portion of all fees payable to the Department of Justice under subdivision (a) of Section 1203.097 of the Penal Code for the entry of the information required under this section, based upon the proportion of the costs incurred by the local agency and those incurred by the Department of Justice, shall be transferred to the local agency actually providing the data. All data with respect to criminal court protective orders issued, modified, extended, or terminated under Section 136.2 of the Penal Code, and all data filed with the court on the required Judicial Council forms with respect to protective orders, including their issuance, modification, extension, or termination, to which this division applies pursuant to Section 6221, shall be transmitted by the court or its designee within one business day to law enforcement personnel by either one of the following methods:
(1) Transmitting a physical copy of the order to a local law enforcement agency authorized by the Department of Justice to enter orders into CLETS.
(2) With the approval of the Department of Justice, entering the order into CLETS directly.
(b) Upon the issuance of a protective order to which this division applies pursuant to Section 6221, or the issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or the issuance of a criminal court protective order under Section 136.2 of the Penal Code, or the issuance of a juvenile court restraining order related to domestic violence pursuant to Section 213.5, 304, or 362.4 of the Welfare and Institutions Code, or the issuance of a protective order pursuant to Section 15657.03 of the Welfare and Institutions Code, or upon registration with the court clerk of a domestic violence protective or restraining order issued by the tribunal of another state, as defined in Section 6401, and including any of the foregoing orders issued in connection with an order for modification of a custody or visitation order issued pursuant to a dissolution, legal separation, nullity, or paternity proceeding the Department of Justice shall be immediately notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive information of the respondent as required by a form prescribed by the Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including stay-away, no-contact, residency exclusion, custody, and visitation provisions of the order.
(6) The department or division number and the address of the court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership or possession of firearms.
All available information shall be included; however, the inability to provide all categories of information shall not delay the entry of the information available.
(c) The information conveyed to the Department of Justice shall also indicate whether the respondent was present in court to be informed of the contents of the court order. The respondent’s presence in court shall provide proof of service of notice of the terms of the protective order. The respondent’s failure to appear shall also be included in the information provided to the Department of Justice.
(d) (1) Within one business day of service, a law enforcement officer who served a protective order shall submit the proof of service directly into the Department of Justice California Restraining and Protective Order System, including the officer’s name and law enforcement agency, and shall transmit the original proof of service form to the issuing court.
(2) Within one business day of receipt of proof of service by a person other than a law enforcement officer, the clerk of the court shall submit the proof of service of a protective order directly into the Department of Justice California Restraining and Protective Order System, including the name of the person who served the order. If the court is unable to provide this notification to the Department of Justice by electronic transmission, the court shall, within one business day of receipt, transmit a copy of the proof of service to a local law enforcement agency. The local law enforcement agency shall submit the proof of service directly into the Department of Justice California Restraining and Protective Order System within one business day of receipt from the court.
(e) The Department of Justice shall maintain a California Restraining and Protective Order System and shall make available to court clerks and law enforcement personnel, through computer access, all information regarding the protective and restraining orders and injunctions described in subdivision (b), whether or not served upon the respondent.
(f) If a court issues a modification, extension, or termination of a protective order, it shall be on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice, and the transmitting agency for the county shall immediately notify the Department of Justice, by electronic transmission, of the terms of the modification, extension, or termination.
(g) The Judicial Council shall assist local courts charged with the responsibility for issuing protective orders by developing informational packets describing the general procedures for obtaining a domestic violence restraining order and indicating the appropriate Judicial Council forms. The informational packets shall include a design, that local courts shall complete, that describes local court procedures and maps to enable applicants to locate filing windows and appropriate courts, and shall also include information on how to return proofs of service, including mailing addresses and fax numbers. The court clerk shall provide a fee waiver form to all applicants for domestic violence protective orders. The court clerk shall provide all Judicial Council forms required by this chapter to applicants free of charge. The informational packet shall also contain a statement that the protective order is enforceable in any state, as defined in Section 6401, and general information about agencies in other jurisdictions that may be contacted regarding enforcement of an order issued by a court of this state.
(h) For the purposes of this part, “electronic transmission” shall include computer access through the California Law Enforcement Telecommunications System (CLETS).
(i) Only protective and restraining orders issued on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice shall be transmitted to the Department of Justice. However, this provision does not apply to a valid protective or restraining order related to domestic or family violence issued by a tribunal of another state, as defined in Section 6401. Those orders shall, upon request, be registered pursuant to Section 6404.
(j) (1) All protective orders subject to transmittal to CLETS pursuant to this section are required to be so transmitted.
(2) This subdivision does not constitute a change in, but is declaratory of, existing law.
(k) If the proposed initiative measure titled “The Homelessness, Drug Addiction, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024, this section shall become operative on the fifth day after the Secretary of State files the statement of the vote for the election.

SECTION 1.SEC. 3.

 Section 490.8 is added to the Penal Code, to read:

490.8.
 (a) A court sentencing a defendant for any violation described in subdivision (b) shall consider issuing an order restraining the defendant from entering the premises of the retail establishment, that may be valid for up to two years, as determined by the court.
(b) Subdivision (a) shall apply to a person convicted of any of the following offenses:
(1) Shoplifting in violation of Section 459.5.
(2) Any theft, including a violation of Section 487 or 488, from a retail establishment.
(3) Organized retail theft in violation of Section 490.4.
(4) Any vandalism of a retail establishment in violation of Section 594.
(5) Any assault or battery of an employee of a retail establishment while that person is working at the retail establishment, including a violation of Section 240, 242, or 245.
(c) (1) An order issued pursuant to subdivision (a) shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to and used to service, the retail establishment.
(2) If the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
(d) In determining whether to impose a retail crime restraining order pursuant to subdivision (a) or (e), the court shall consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
(e) (1) A prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment may file a petition requesting a retail crime restraining order for an individual who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest pursuant to Section 853.6, two or more times for any of the offenses listed in subdivision (b) within the same retail establishment.
(2) An order issued pursuant to this subdivision shall be issued after a hearing.
(3) The respondent shall be personally served with notice of the hearing and shall be entitled to representation by court-appointed counsel.
(4) The petitioner shall bear the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed an offense described in subdivision (b) within the retail establishment or on the grounds thereof.
(5) The court may issue an order restraining the respondent from entering the premises of the retail establishment for a period not to exceed two years if the court finds by a preponderance of the evidence that both of the following are true:
(A) The respondent, on two or more separate occasions, committed an offense described in subdivision (b) within the retail establishment or on the grounds thereof.
(B) There is a substantial likelihood that the individual will return to the retail establishment.
(6) (A) An order issued pursuant to this subdivision shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to and used to service, the retail establishment.
(B) If the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
(f) A violation of an order issued pursuant to this section is punishable as a misdemeanor. Declarative of existing law, prosecution under this section shall not preclude prosecution for any other offenses committed during a violation of this section.
(g) Notwithstanding Section 853.6, an officer arresting a person for a violation of this section is not required to release the person pursuant to a written notice to appear.
(h) Declarative of existing law, a court may offer an individual charged with a violation of this section an opportunity to participate in a diversion program for which they are eligible, including those described in Title 6 (commencing with Section 976) of Part 2.
(i) If a person subject to a retail crime restraining order issued pursuant to this section was not present in court at the time the order was issued or renewed, the retail crime restraining order shall be personally served on the restrained person by a law enforcement officer, or by a person as provided in Section 414.10 of the Code of Civil Procedure.
(j) The Judicial Council may prescribe the form of the petitions and orders and any other documents, and may promulgate any rules of court, necessary to implement this section.
(k) If the proposed initiative measure titled “The Homelessness, Drug Addiction, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024, this section shall become inoperative on the fifth day after the Secretary of State files the statement of the vote for the election, and shall be repealed on January 1, 2025.

SEC. 2.SEC. 4.

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

SEC. 5.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
To address the increase in community-based crime and retail theft and to provide broader public safety, it is necessary that this act take effect immediately.