Bill Text: CA AB1498 | 2013-2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Protective orders.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2014-09-27 - Chaptered by Secretary of State - Chapter 665, Statutes of 2014. [AB1498 Detail]

Download: California-2013-AB1498-Introduced.html

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BILL NUMBER: AB 1498	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Campos

                        JANUARY 9, 2014

   An act to amend Section 136.2 of the Penal Code, relating to
protective orders.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1498, as introduced, Campos. Protective orders.
   Existing law authorizes a court with jurisdiction over a criminal
matter to issue certain 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 a protective order
enjoining a party from, among other things, molesting, attacking,
threatening, sexually assaulting, harassing, contacting, or coming
within a specified distance of the other party, as specified.
   Existing law requires a court to consider issuing a protective
order on its own motion in all cases where the defendant is charged
with a crime of domestic violence, as defined, and requires the court'
s records of all criminal cases involving domestic violence be
clearly marked to alert the court of the issue. Existing law provides
that a restraining order or protective order issued in a domestic
violence case has precedence in enforcement over a civil court order,
except as provided. Existing law authorizes the court, in any case
in which a complaint, information, or indictment charging domestic
violence has been filed, to consider the underlying nature of the
offense charged and other specified information in determining
whether good cause exists to issue a protective order.
   This bill would apply these provisions to all cases where the
defendant is charged with specified sex crimes, including rape,
spousal rape, and crimes for which a person is required to register
as a sex offender. The bill would further authorize the court, in any
case in which a complaint, information, or indictment charging any
of the above-described sex crimes has been filed, to consider the
defendant's relationship to the victim, the likelihood of continuing
harm to the victim, the defendant's criminal history, as specified,
and any current protective or restraining order issued by any civil
or criminal court involving the defendant.
   Existing law provides that a willful and knowing violation of a
protective order issued pursuant to the above-described provisions
constitutes contempt of court, a misdemeanor, punishable by
imprisonment in a county jail not exceeding one year, a fine not
exceeding $1,000, or by both the imprisonment and the fine, except as
specified.
   By expanding the scope of an existing crime, this 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 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 is amended to read:
   136.2.  (a) 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) An order issued pursuant to Section 6320 of the Family Code.
   (2) An order that a defendant shall not violate any provision of
Section 136.1.
   (3) 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) 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) An order calling for a hearing to determine if an order as
described in paragraphs (1) to (4), inclusive, should be issued.
   (6) (A) 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) For purposes of this paragraph, "immediate family members"
include the spouse, children, or parents of the victim or witness.
   (7) (A) An order protecting victims 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) If a court does not issue an order pursuant to
subparagraph (A) 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) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
   (II) 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.
   (C) An order issued, modified, extended, or terminated by a court
pursuant to this paragraph 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) A protective order issued under this paragraph 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.
   (b) A person violating an order made pursuant to paragraphs (1) to
(7), inclusive, 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).
   (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).
   (B) An emergency protective order that meets the requirements of
paragraph (1) 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, receive, or attempt to
purchase or 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 or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to Section 29825.
   (e) (1) In all cases where 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
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. 2.  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.