Bill Text: CA SB188 | 2009-2010 | Regular Session | Amended

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

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Bill Title: Temporary restraining orders: private postsecondary

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2009-10-11 - Chaptered by Secretary of State. Chapter 566, Statutes of 2009. [SB188 Detail]

Download: California-2009-SB188-Amended.html

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BILL NUMBER: SB 188	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  SEPTEMBER 4, 2009
	AMENDED IN ASSEMBLY  JULY 2, 2009
	AMENDED IN ASSEMBLY  JUNE 24, 2009
	AMENDED IN SENATE  MAY 20, 2009

INTRODUCED BY   Senator Runner

                        FEBRUARY 18, 2009

   An act to add Section 527.85 to the Code of Civil Procedure, and
to amend Section 273.6 of the Penal Code, relating to temporary
restraining orders.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 188, as amended, Runner. Temporary restraining orders: private
postsecondary institutions.
   Existing law authorizes any employer, whose employee has suffered
unlawful violence or a credible threat of violence from any
individual, which can reasonably be construed to be carried out or to
have been carried out at the workplace, to seek a temporary
restraining order and an injunction on behalf of the employee and, at
the discretion of the court, other employees, as specified. Any
intentional and knowing violation of the temporary restraining order
is a misdemeanor, punishable as specified.
   This bill would similarly authorize any chief administrative
officer of a private postsecondary educational institution, or an
officer or employee designated by the chief administrative officer to
maintain order on the school campus or facility,  a
  whose  student  of which  has
suffered  unlawful violence or  a credible threat of
violence made off the school campus or facility from any individual,
which can reasonably be construed to be carried out or to have been
carried out at the school campus or facility, to, with the written
consent of the student, seek a temporary restraining order and an
injunction, on behalf of the student and, at the discretion of the
court, any number of other students at the campus or facility, as
specified. The bill would provide that any intentional and knowing
violation of the temporary restraining order is a misdemeanor,
punishable as specified. By creating new duties for local law
enforcement officials and expanding the scope of an existing crime,
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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   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 527.85 is added to the Code of Civil Procedure,
to read:
   527.85.  (a) Any chief administrative officer of a postsecondary
educational institution, or an officer or employee designated by the
chief administrative officer to maintain order on the school campus
or facility,  a student of which has suffered  
whose student has suffered unlawful violence or  a credible
threat of violence made off the school campus or facility from any
individual, which can reasonably be construed to be carried out or to
have been carried out at the school campus or facility, may, with
the written consent of the student, seek a temporary restraining
order and an injunction, on behalf of the student and, at the
discretion of the court, any number of other students at the campus
or facility who are similarly situated.
   (b) For the purposes of this section, the following definitions
shall apply:
   (1) "Chief administrative officer" means the principal, president,
or highest ranking official of the postsecondary educational
institution.
   (2) "Course of conduct" means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including any of the following:
   (A) Following or stalking a student to or from school.
   (B) Entering the school campus or facility.
   (C) Following a student during school hours.
   (D) Making telephone calls to a student.
   (E) Sending correspondence to a student by any means, including,
but not limited to, the use of the public or private mails,
interoffice mail, fax, or computer e-mail.
   (3) "Credible threat of violence" means a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
   (4) "Postsecondary educational institution" means a private
institution of vocational, professional, or postsecondary education.
   (5) "Student" means an adult currently enrolled in or applying for
admission to a postsecondary educational institution.
   (6) "Unlawful violence" means any assault or battery, or stalking
as prohibited in Section 646.9 of the Penal Code, but shall not
include lawful acts of self-defense or defense of others.
   (c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
   (d) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the plaintiff also files an
affidavit that, to the satisfaction of the court, shows reasonable
proof that a student has suffered  unlawful violence or  a
credible threat of violence made off the school campus or facility by
the defendant, and that great or irreparable harm would result to
the student. In the discretion of the court, and on a showing of good
cause, a temporary restraining order or injunction issued under this
section may include other named family or household members who
reside with the student, or other students at the campus or facility.
A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 15 days, unless otherwise modified or terminated by the court.

   (e) Within 15 days of the filing of the petition, a hearing shall
be held on the petition for the injunction. The defendant may file a
response that explains, excuses, justifies, or denies the alleged
 unlawful violence   or  credible threats of
violence or may file a cross-complaint under this section. At the
hearing, the judge shall receive any testimony that is relevant and
may make an independent inquiry. Moreover, if the defendant is a
current student of the entity requesting the injunction, the judge
shall receive evidence concerning the decision of the postsecondary
educational institution decision to retain, terminate, or otherwise
discipline the defendant. If the judge finds by clear and convincing
evidence that the defendant  engaged in unlawful violence or
 made a credible threat of violence off the school campus or
facility, an injunction shall be issued prohibiting further 
unlawful violence or  threats of violence. An injunction issued
pursuant to this section shall have a duration of not more than three
years. At any time within three months before the expiration of the
injunction, the plaintiff may apply for a renewal of the injunction
by filing a new petition for an injunction under this section.
   (f) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
   (g) Upon filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the plaintiff or
on its own motion, shorten the time for service on the defendant.
   (h) (1) The court shall order the plaintiff or the attorney for
the plaintiff to deliver a copy of each temporary restraining order
or injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was
granted, to the law enforcement agencies within the court's
discretion as are requested by the plaintiff. Each appropriate law
enforcement agency shall make available information as to the
existence and current status of these orders to law enforcement
officers responding to the scene of reported unlawful violence or a
credible threat of violence.
   (2) At the request of the plaintiff, an order issued under this
section shall be served on the defendant, regardless of whether the
defendant has been taken into custody, by any law enforcement officer
who is present at the scene of reported unlawful violence or a
credible threat of violence involving the parties to the proceedings.
The plaintiff shall provide the officer with an endorsed copy of the
order and proof of service that the officer shall complete and send
to the issuing court.
   (3) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective
order has been issued under this section, or that a person who has
been taken into custody is the subject of an order, if the plaintiff
or the protected person cannot produce an endorsed copy of the order,
a law enforcement officer shall immediately attempt to verify the
existence of the order.
   (4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the defendant of the terms of the order and obtain the
defendant's address. The law enforcement officer shall at that time
also enforce the order, but may not arrest or take the defendant into
custody for acts in violation of the order that were committed prior
to the verbal notice of the terms and conditions of the order. The
law enforcement officer's verbal notice of the terms of the order
shall constitute service of the order and constitutes sufficient
notice for the purposes of this section, and Section 273.6 and
subdivision (g) of Section 12021 of the Penal Code. The plaintiff
shall mail an endorsed copy of the order to the defendant's mailing
address provided to the law enforcement officer within one business
day of the reported incident of unlawful violence or a credible
threat of violence at which a verbal notice of the terms of the order
was provided by a law enforcement officer.
   (i) (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.
   (3) Every 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 subdivision (g) of Section
12021 of the Penal Code.
   (j) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
   (k) Nothing in this section may be construed as expanding,
diminishing, altering, or modifying the duty, if any, of a
postsecondary educational institution to provide a safe environment
for students and other persons.
   (l) The Judicial Council shall develop forms, instructions, and
rules for scheduling of hearings and other procedures established
pursuant to this section. The forms for the petition and response
shall be simple and concise, and their use by parties in actions
brought pursuant to this section shall be mandatory.
   (m) A temporary restraining order or injunction relating to
harassment or domestic violence issued by a court pursuant to this
section shall be issued on forms adopted by the Judicial Council 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.
   (n) Information on any temporary restraining order or injunction
relating to harassment or domestic violence issued by a court
pursuant to this section shall be transmitted to the Department of
Justice in accordance with subdivision (b) of Section 6380 of the
Family Code.
   (o) There is no filing fee for a petition that alleges that a
person has  inflicted or  threatened violence against a
student of the petitioner, or stalked the student, or acted or spoken
in any other manner that has placed the student in reasonable fear
of violence, and that seeks a protective or restraining order or
injunction restraining stalking or future  violence or 
threats of violence, in any action brought pursuant to this section.
No fee shall be paid for a subpoena filed in connection with a
petition alleging these acts. No fee shall be paid for filing a
response to a petition alleging these acts.
   (p) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process of a temporary restraining order or injunction to be
issued pursuant to this section if either of the following conditions
apply:
   (A) The temporary restraining order or injunction issued pursuant
to this section is based upon stalking, as prohibited by Section
646.9 of the Penal Code.
   (B) The temporary restraining order or injunction issued pursuant
to this section is based upon a credible threat of violence.
   (2) The Judicial Council shall prepare and develop application
forms for applicants who wish to avail themselves of the services
described in this subdivision.
  SEC. 2.  Section 273.6 of the Penal Code is amended to read:
   273.6.  (a) Any intentional and knowing violation of a protective
order, as defined in Section 6218 of the Family Code, or of an order
issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of
Civil Procedure, or Section 15657.03 of the Welfare and Institutions
Code, is a misdemeanor punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in a county jail for
not more than one year, or by both that fine and imprisonment.
   (b) In the event of a violation of subdivision (a) that results in
physical injury, the person shall be punished by a fine of not more
than two thousand dollars ($2,000), or by imprisonment in a county
jail for not less than 30 days nor more than one year, or by both
that fine and imprisonment. However, if the person is imprisoned in a
county jail for at least 48 hours, the court may, in the interest of
justice and for reasons stated on the record, reduce or eliminate
the 30-day minimum imprisonment required by this subdivision. In
determining whether to reduce or eliminate the minimum imprisonment
pursuant to this subdivision, the court shall consider the
seriousness of the facts before the court, whether there are
additional allegations of a violation of the order during the
pendency of the case before the court, the probability of future
violations, the safety of the victim, and whether the defendant has
successfully completed or is making progress with counseling.
   (c) Subdivisions (a) and (b) shall apply to the following court
orders:
   (1) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
   (2) An order excluding one party from the family dwelling or from
the dwelling of the other.
   (3) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the order described in
subdivision (a).
   (4) Any order issued by another state that is recognized under
Part 5 (commencing with Section 6400) of Division 10 of the Family
Code.
   (d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving  an act of violence or  "a credible threat" of
violence, as defined in subdivision (c) of Section 139, is
punishable by imprisonment in a county jail not to exceed one year,
or in the state prison.
   (e) In the event of a subsequent conviction for a violation of an
order described in subdivision (a) for an act occurring within one
year of a prior conviction for a violation of an order described in
subdivision (a) that results in physical injury to a victim, the
person shall be punished by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in a county jail for not less
than six months nor more than one year, by both that fine and
imprisonment, or by imprisonment in the state prison. However, if the
person is imprisoned in a county jail for at least 30 days, the
court may, in the interest of justice and for reasons stated in the
record, reduce or eliminate the six-month minimum imprisonment
required by this subdivision. In determining whether to reduce or
eliminate the minimum imprisonment pursuant to this subdivision, the
court shall consider the seriousness of the facts before the court,
whether there are additional allegations of a violation of the order
during the pendency of the case before the court, the probability of
future violations, the safety of the victim, and whether the
defendant has successfully completed or is making progress with
counseling.
   (f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders described in
subdivisions (a), (b), (d), and (e).
   (g) (1) Every person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, or Section 15657.03 of the Welfare and
Institutions Code, shall be punished under subdivision (g) of Section
12021.
   (2) Every person subject to a protective order described in
paragraph (1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (f) of
Section 527.9 of the Code of Civil Procedure, or subdivision (h) of
Section 6389 of the Family Code.
   (h) If probation is granted upon conviction of a violation of
subdivision (a), (b), (c), (d), or (e), the court shall impose
probation consistent with Section 1203.097, and the conditions of
probation may include, in lieu of a fine, one or both of the
following requirements:
   (1) That the defendant make payments to a battered women's shelter
or to a shelter for abused elder persons or dependent adults, up to
a maximum of five thousand dollars ($5,000), pursuant to Section
1203.097.
   (2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
   (i) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under
subdivision (e), the court shall make a determination of the
defendant's ability to pay. In no event shall any order to make
payments to a battered women's shelter be made if it would impair the
ability of the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, 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.
   However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.