BILL NUMBER: SB 1391 CHAPTERED 08/23/04 CHAPTER 250 FILED WITH SECRETARY OF STATE AUGUST 23, 2004 APPROVED BY GOVERNOR AUGUST 23, 2004 PASSED THE ASSEMBLY AUGUST 4, 2004 PASSED THE SENATE MAY 19, 2004 AMENDED IN SENATE MAY 13, 2004 AMENDED IN SENATE APRIL 27, 2004 AMENDED IN SENATE APRIL 12, 2004 AMENDED IN SENATE MARCH 22, 2004 INTRODUCED BY Senator Romero (Coauthors: Assembly Members Chan, Koretz, Lieber, and Liu) FEBRUARY 18, 2004 An act to amend Sections 6240 and 6389 of the Family Code, and to amend Section 13700 of the Penal Code, relating to domestic violence. LEGISLATIVE COUNSEL'S DIGEST SB 1391, Romero. Domestic violence. Existing law provides that a judicial officer may issue an ex parte emergency protective order if a law enforcement officer asserts reasonable grounds to believe that a person, child, or elder or dependent adult is in immediate and present danger of domestic violence or abuse. Existing law excludes from the definition of law enforcement officer, for the purpose of these provisions, a peace officer of the Department of General Services of the City of Los Angeles. This bill would include a peace officer of the Department of General Services of the City of Los Angeles in the definition of law enforcement officer for the purpose of these provisions. Existing law requires every law enforcement agency in this state to develop, adopt, and implement written policies and standards for officers' responses to domestic violence calls requiring the arrest of an offender, absent exigent circumstances, if there is probable cause that a protective order, as specified, has been violated. Existing law excludes from the definition of law enforcement officer, for the purpose of these provisions, a peace officer of the Department of General Services of the City of Los Angeles. This bill would include a peace officer of the Department of General Services of the City of Los Angeles in the definition of law enforcement officer for the purpose of these provisions. Because this bill would require local agencies to provide a higher level of service, this bill would impose a state-mandated local program. Existing law provides that a person subject to a protective order, shall not own, possess, purchase, or receive a firearm while that protective order is in effect. Existing law provides that the Judicial Council shall provide a notice on all forms requesting a protective order that the respondent shall be required to relinquish possession or control of any firearms at the hearing for a protective order. Existing law provides that if the respondent is present in court at a duly noticed hearing, the court shall order the respondent to relinquish any firearm in that person's immediate possession or control, as specified, and if the respondent is not present at the hearing, the respondent shall relinquish the firearm within 48 hours after being served with the order. This bill would instead require the respondent to relinquish any firearm in his or her possession or control within 24 hours of being served with the order, and further clarify these provisions by providing that the Judicial Council shall include a notice on all forms providing notice that a protective order has been requested or granted that the respondent shall be required to relinquish possession or control of any firearms upon service of the protective order. Because this bill would change the definition of 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 specified reasons. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 6240 of the Family Code is amended to read: 6240. As used in this part: (a) "Judicial officer" means a judge, commissioner, or referee designated under Section 6241. (b) "Law enforcement officer" means one of the following officers who requests or enforces an emergency protective order under this part: (1) A police officer. (2) A sheriff's officer. (3) A peace officer of the Department of the California Highway Patrol. (4) A peace officer of the University of California Police Department. (5) A peace officer of the California State University and College Police Departments. (6) A peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2 of the Penal Code. (7) A peace officer of the Department of General Services of the City of Los Angeles, as defined in subdivision (c) of Section 830.31 of the Penal Code. (8) A housing authority patrol officer, as defined in subdivision (d) of Section 830.31 of the Penal Code. (9) A peace officer for a district attorney, as defined in Section 830.1 or 830.35 of the Penal Code. (10) A parole officer, probation officer, or deputy probation officer, as defined in Section 830.5 of the Penal Code. (11) A peace officer of a California Community College police department, as defined in subdivision (a) of Section 830.32. (12) A peace officer employed by a police department of a school district, as defined in subdivision (b) of Section 830.32. (c) "Abduct" means take, entice away, keep, withhold, or conceal. SEC. 2. Section 6389 of the Family Code is amended to read: 6389. (a) A person subject to a protective order, as defined in Section 6218, shall not own, possess, purchase, or receive a firearm while that protective order is in effect. 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. (b) On all forms providing notice that a protective order has been requested or granted, the Judicial Council, shall include a notice that, upon service of the order, the respondent shall be ordered to relinquish possession or control of any firearms and not to purchase or receive or attempt to purchase or receive any firearms for a period not to exceed the duration of the restraining order. (c) Upon issuance of a protective order, as defined in Section 6218, the court shall order the respondent to relinquish any firearm in that person's immediate possession or control, or subject to that person's immediate possession or control, within 24 hours of being served with the order, by either surrendering the firearm to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer, as specified in Section 12071 of the Penal Code. A person ordered to relinquish any firearm pursuant to this subdivision shall file with the court a receipt showing the firearm was surrendered to the local law enforcement agency or sold to a licensed gun dealer within 72 hours after receiving the order. (d) If the respondent declines to relinquish possession of any firearm based upon the assertion of the right against self-incrimination, as provided by the Fifth Amendment to the United States Constitution and Section 15 of Article I of the California Constitution, the court may grant use immunity for the act of relinquishing the firearm required under this section. (e) A local law enforcement agency may charge the respondent a fee for the storage of any firearm pursuant to this section. This fee shall not exceed the actual cost incurred by the local law enforcement agency for the storage of the firearm. For purposes of this subdivision, "actual cost" means expenses directly related to taking possession of a firearm, storing the firearm, and surrendering possession of the firearm to a licensed dealer as defined in Section 12071 of the Penal Code or to the respondent. (f) The restraining order requiring a person to relinquish a firearm pursuant to subdivision (c) shall state on its face that the respondent is prohibited from owning, possessing, purchasing, or receiving a firearm while the protective order is in effect and that the firearm shall be relinquished to the local law enforcement agency for that jurisdiction or sold to a licensed gun dealer, and that proof of surrender or sale shall be filed with the court within a specified period of receipt of the order. The order shall also state on its face the expiration date for relinquishment. Nothing in this section shall limit a respondent's right under existing law to petition the court at a later date for modification of the order. (g) The restraining order requiring a person to relinquish a firearm pursuant to subdivision (c) shall prohibit the person from possessing or controlling any firearm for the duration of the order. At the expiration of the order, the local law enforcement agency shall return possession of any surrendered firearm to the respondent, within five days after the expiration of the relinquishment order, unless the local law enforcement agency determines that (1) the firearm has been stolen, (2) the respondent is prohibited from possessing a firearm because the respondent is in any prohibited class for the possession of firearms, as defined in Sections 12021 and 12021.1 of the Penal Code and Sections 8100 and 8103 of the Welfare and Institutions Code, or (3) another successive restraining order is used against the respondent under this section. If the local law enforcement agency determines that the respondent is the legal owner of any firearm deposited with the local law enforcement agency and is prohibited from possessing any firearm, the respondent shall be entitled to sell or transfer the firearm to a licensed dealer as defined in Section 12071 of the Penal Code. If the firearm has been stolen, the firearm shall be restored to the lawful owner upon his or her identification of the firearm and proof of ownership. (h) The court may, as part of the relinquishment order, grant an exemption from the relinquishment requirements of this section for a particular firearm if the respondent can show that a particular firearm is necessary as a condition of continued employment and that the current employer is unable to reassign the respondent to another position where a firearm is unnecessary. If an exemption is granted pursuant to this subdivision, the order shall provide that the firearm shall be in the physical possession of the respondent only during scheduled work hours and during travel to and from his or her place of employment. In any case involving a peace officer who as a condition of employment and whose personal safety depends on the ability to carry a firearm, a court may allow the peace officer to continue to carry a firearm, either on duty or off duty, if the court finds by a preponderance of the evidence that the officer does not pose a threat of harm. Prior to making this finding, the court shall require a mandatory psychological evaluation of the peace officer and may require the peace officer to enter into counseling or other remedial treatment program to deal with any propensity for domestic violence. (i) During the period of the relinquishment order, a respondent is entitled to make one sale of all firearms that are in the possession of a local law enforcement agency pursuant to this section. A licensed gun dealer, who presents a local law enforcement agency with a bill of sale indicating that all firearms owned by the respondent that are in the possession of the local law enforcement agency have been sold by the respondent to the licensed gun dealer, shall be given possession of those firearms, at the location where a respondent's firearms are stored, within five days of presenting the local law enforcement agency with a bill of sale. (j) The disposition of any unclaimed property under this section shall be made pursuant to Section 1413 of the Penal Code. (k) The return of a firearm to any person pursuant to subdivision (g) shall not be subject to the requirements of subdivision (d) of Section 12072 of the Penal Code. (l) If the respondent notifies the court that he or she owns a firearm that is not in his or her immediate possession, the court may limit the order to exclude that firearm if the judge is satisfied the respondent is unable to gain access to that firearm while the protective order is in effect. (m) Any respondent to a protective order who violates any order issued pursuant to this section shall be punished under the provisions of subdivision (g) of Section 12021 of the Penal Code. SEC. 3. Section 13700 of the Penal Code is amended to read: 13700. As used in this title: (a) "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. (b) "Domestic violence" means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship. (c) "Officer" means any officer or employee of a local police department or sheriff's office, and any peace officer of the Department of the California Highway Patrol, the Department of Parks and Recreation, the University of California Police Department, or the California State University and College Police Departments, as defined in Section 830.2, a peace officer of the Department of General Services of the City of Los Angeles, as defined in subdivision (c) of Section 830.31, a housing authority patrol officer, as defined in subdivision (d) of Section 830.31, or a peace officer as defined in subdivisions (a) and (b) of Section 830.32. (d) "Victim" means a person who is a victim of domestic violence. SEC. 4. 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. For other costs imposed by this act, no reimbursement is required pursuant to Section 6 of Article XIII B of the California Constitution because the costs that may be incurred by a local agency or school district are the result of a program for which legislative authority was requested by that local agency or school district, within the meaning of Section 17556 of the Government Code and Section 6 of Article XIII B of the California Constitution.