Bill Text: CA AB2290 | 2017-2018 | Regular Session | Amended
Bill Title: Restraining orders: minor witness: visitation.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-05-25 - In committee: Held under submission. [AB2290 Detail]
Download: California-2017-AB2290-Amended.html
|
Amended
IN
Assembly
April 02, 2018 |
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Assembly Bill | No. 2290 |
| Introduced by Assembly Member Gallagher |
February 13, 2018 |
An act to amend Section 136.2 of the Penal Code, relating to restraining orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 2290, as amended, Gallagher.
Restraining orders: minor witness: visitation.
Existing law requires a court to consider issuing a protective order restraining the defendant from contact with a percipient witness in all cases in which a criminal defendant has been convicted of a crime involving domestic violence, rape, unlawful sexual intercourse, participation in a criminal street gang, or any crime requiring registration as a sex offender, if it can be established by clear and convincing evidence that the witness has been harassed by the defendant. Existing law makes a violation of a protective order punishable as contempt, a misdemeanor.
This bill would instead additionally require the court to consider issuing an order
restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a minor who is a witness, as defined. The bill would allow the order to include an order authorizing a family or juvenile court to make a subsequent order for safe and appropriate visitation with the defendant’s minor child who is a witness, as provided, and would require this order to have precedence in enforcement over a civil court order against the defendant, except as provided. Because a violation of the protective order would be a 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.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
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) (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 provision 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 involving domestic violence as defined in Section 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:
(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 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, 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 in which the defendant is charged with a crime involving domestic violence, as defined in Section 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 involving domestic violence, as defined in Section 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) The 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 involving domestic violence, as defined in Section 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, a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, any other forms of violence, or any weapons offense.
(i) (1) In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, a violation of Section 186.22, or a 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.
(2) In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, a violation of Section 186.22, or a 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 a percipient witness to the crime if it can be established by clear and convincing evidence that the witness has been harassed, as defined in paragraph (3) of subdivision (b) of Section 527.6 of the Code of Civil Procedure, by the defendant.
(2)
(3) (A) The court shall, at the time of sentencing, consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence, as defined in
Section 13700 or in Section 6211 of the Family Code, from any contact with a minor who is a witness as defined in paragraph (2) of subdivision (a).
(B) A no-contact order issued pursuant to this paragraph may include, either at the time of sentencing or on subsequent application upon a showing of good cause at a noticed hearing, an order authorizing a family or juvenile court to make a subsequent order for safe and appropriate visitation with the defendant’s minor child who is a witness, subject to standards and protocols set forth in paragraph (3) of subdivision (e) and subdivision (f). Any hearing of the criminal court to consider an exception for visitation as described in this paragraph shall require notice of the hearing to the protected minor and to the office of the prosecuting attorney in the case. Notice to the
protected minor shall be provided to the person with primary legal custody of that minor other than the criminal defendant.
(3)The
(4) An order made pursuant to this subdivision paragraph (1) or (3) 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 subject to mandatory supervision, 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, his or her immediate family, and a minor who is a witness as defined in paragraph (2) of subdivision (a).
(4)
(5) 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.
(5)
(6) Except as provided in subdivision (c), an order issued pursuant to this subdivision paragraph (3) shall have precedence in enforcement over a civil court order against the defendant.
(j) For purposes of this section, “local government” means the county that has jurisdiction over the protective order.
