BILL NUMBER: AB 1596 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Hayashi
JANUARY 4, 2010
An act to add Section 527.11 to the Code of Civil Procedure, to
add Section 6390 to the Family Code, to amend Section 136.2 of, and
to add Section 269.1 to, the Penal Code, and to add Sections 213.8
and 15657.08 to the Welfare and Institutions Code, relating to
protective orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 1596, as introduced, Hayashi. Protective orders: emergency
protective orders: enforcement priority: sexual assault.
(1) Existing law authorizes a court to issue various types of
restraining and protective orders to enjoin a person from engaging in
specified acts against another person.
This bill would provide that, in the event multiple restraining or
protective orders are issued for the protection of the same person,
all of the outstanding orders are to be interpreted and enforced in a
manner that provides the greatest amount of protection to the person
protected under the operative protective or restraining orders.
(2) Existing law authorizes a judicial officer to issue an ex
parte emergency protective order, as specified, to prevent the
occurrence or recurrence of domestic violence, child abuse, child
abduction, or stalking.
This bill would authorize a judicial officer to issue an ex parte
emergency protective order where a peace officer, as defined, asserts
reasonable grounds to believe that a person is likely to become a
victim of a sexual assault. The bill would specify the procedures for
issuance of an ex parte emergency protective order on this basis
that would be similar to the procedures used for issuance of those
orders under the law relating to prevention of domestic violence and
stalking.
(3) Existing law provides that an emergency protective order
issued under specified provisions and meeting specified requirements
relating to domestic violence, child abuse, child abduction, and
stalking shall have precedence in enforcement over the provisions of
any other restraining or protective order, if the emergency
protective order is the more restrictive order in relation to the
restrained party.
This bill would include emergency protective orders relating to
sexual assault as emergency protective orders that would also have
precedence in enforcement over the provisions of any other
restraining or protective order if the emergency protective order is
the more restrictive order in relation to the restrained party. The
bill would also require the Judicial Council to adopt forms,
instructions, and rules for carrying out its provisions.
The bill would make intentional disobedience of any emergency
protective order authorized by the bill punishable as a contempt of
court, and would provide that, if the conduct underlying the contempt
is also pled and proved to be one of certain sexual crimes, it is
punishable under the provisions defining the sexual offense. By
creating a new crime, this bill would impose a state-mandated local
program.
(4) 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 527.11 is added to the Code of Civil Procedure,
to read:
527.11. (a) In the event that a restraining order or injunction
issued pursuant to Section 527.6 or 527.8 is in conflict with, or in
addition to, any other protective or restraining order issued
pursuant to this code, the Family Code, the Penal Code, or the
Welfare and Institutions Code that also protects the same individual,
all of the operative protective or restraining orders issued for the
protection of that individual shall be interpreted and enforced in a
manner that provides the greatest amount of protection to the
individual protected under the operative protective or restraining
orders.
(b) This section does not apply to a conflicting or additional
emergency protective order issued pursuant to Chapter 2 (commencing
with Section 6250) of Part 3 of Division 10 of the Family Code, or
Section 136.2, 269.1, or 646.91 of the Penal Code, or Section 213.5
of the Welfare and Institutions Code. Any emergency protective order
issued under these provisions shall have precedence in enforcement in
accordance with subdivision (c) of Section 136.2 of the Penal Code.
SEC. 2. Section 6390 is added to the Family Code, to read:
6390. (a) In the event that a protective or restraining order
issued pursuant to this part is in conflict with, or in addition to,
any other protective or restraining order issued pursuant to this
code, the Code of Civil Procedure, the Penal Code, or the Welfare and
Institutions Code that also protects the same individual, all of the
operative protective or restraining orders issued for the protection
of that individual shall be interpreted and enforced in a manner
that provides the greatest amount of protection to the individual
protected under the operative protective or restraining orders.
(b) This section does not apply to a conflicting or additional
emergency protective order issued pursuant to Chapter 2 (commencing
with Section 6250) of this code, Section 136.2, 269.1, or 646.91 of
the Penal Code, or Section 213.5 of the Welfare and Institutions
Code. Any emergency protective order issued under these provisions
shall have precedence in enforcement in accordance with subdivision
(c) of Section 136.2 of the Penal Code.
SEC. 3. Section 136.2 of the Penal Code is amended to read:
136.2. (a) Except as provided in subdivision (c), 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, any court
with jurisdiction over a criminal matter may issue orders including,
but not limited to, the following:
(1) Any 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 any person described in this section shall have
no communication whatsoever with any specified witness or any victim,
except through an attorney under any 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) 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.
For purposes of this paragraph, "immediate family members" include
the spouse, children, or parents of the victim or witness.
(7) (A) Any 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 subdivision (g) of
Section 12021.
(C) Any 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.
(b) Any person violating any 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, any person
so held in contempt shall be entitled to credit for any punishment
imposed therein against any sentence imposed upon conviction of an
offense described in Section 136.1. Any conviction or acquittal for
any substantive offense under Section 136.1 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
(c) (1) Notwithstanding subdivisions (a) and (e), an emergency
protective order issued pursuant to Section 269.1 or 646.91,
Chapter 2 (commencing with Section 6250) of Part 3 of Division
10 of the Family Code , or Section 646.91 of the
Penal 213.5 of the Welfare and Institutions Code
shall have precedence in enforcement over any other restraining or
protective order, provided the emergency protective order meets all
of the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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).
(2) 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.
(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) 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.
(e) (1) In all cases where the defendant is charged with a crime
of domestic violence, as defined in Section 13700, 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 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, has been issued, a restraining order or protective
order against the defendant issued by the criminal court in that case
has precedence in enforcement over any civil court order against the
defendant, unless a court issues an emergency protective order
pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of
Division 10 of the Family Code or Section 646.91 of the Penal Code,
in which case the emergency protective order shall have precedence in
enforcement over any other restraining or protective order, provided
the emergency protective order meets the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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).
(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 acknowledge the precedence of enforcement of, any
appropriate criminal protective order. On or before July 1, 2006, 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 assuring 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) Any 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) 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.
SEC. 4. Section 269.1 is added to the Penal Code, to read:
269.1. (a) Notwithstanding any other law, a judicial officer may
issue an ex parte emergency protective order where a peace officer,
as defined in Section 830.1, 830.2, or 830.32, asserts reasonable
grounds to believe that a person is in immediate and present danger
of being a victim of an act that is punishable as a crime under this
chapter based upon the person's allegation, supported by a recitation
of applicable facts, that he or she is in reasonable fear that an
act that is punishable as a crime under this chapter will be
committed against him or her.
(b) A peace officer who requests an emergency protective order
shall reduce the order to writing and sign it.
(c) An emergency protective order shall include all of the
following:
(1) A statement of the grounds asserted for the order.
(2) The date and time the order expires.
(3) The address of the superior court for the district or county
in which the protected party resides.
(4) The following statements, which shall be printed in English
and Spanish:
(A) "To the protected person: This order will last until the date
and time noted above. If you wish to seek continuing protection, you
will have to apply for an order from the court at the address noted
above. You may seek the advice of an attorney as to any matter
connected with your application for any future court orders. The
attorney should be consulted promptly so that the attorney may assist
you in making your application."
(B) "To the restrained person: This order will last until the date
and time noted above. The protected party may, however, obtain a
more permanent restraining order from the court. You may seek the
advice of an attorney as to any matter connected with the
application. The attorney should be consulted promptly so that the
attorney may assist you in responding to the application. You may not
own, possess, purchase or receive, or attempt to purchase or receive
a firearm while this order is in effect."
(d) An emergency protective order may be issued under this section
only if the judicial officer finds both of the following:
(1) That reasonable grounds have been asserted to believe that an
immediate and present danger of the protected person becoming a
victim of an act that is punishable as a crime under this chapter
exists.
(2) That an emergency protective order is necessary to prevent the
occurrence or reoccurrence of an act that is punishable as a crime
under this chapter by the restrained person.
(e) An emergency protective order may include either of the
following specific orders as appropriate:
(1) A harassment protective order as described in Section 527.6 of
the Code of Civil Procedure.
(2) A workplace violence protective order as described in Section
527.8 of the Code of Civil Procedure.
(f) An emergency protective order shall be issued without
prejudice to any person.
(g) An emergency protective order expires at the earlier of the
following times:
(1) The close of judicial business on the fifth court day
following the day of its issuance.
(2) The seventh calendar day following the day of its issuance.
(h) A peace officer who requests an emergency protective order
shall do all of the following:
(1) Serve the order on the restrained person, if the restrained
person can reasonably be located.
(2) Give a copy of the order to the protected person, or, if the
protected person is a minor child, to a parent or guardian of the
protected child if the parent or guardian can reasonably be located,
or to a person having temporary custody of the child.
(3) File a copy of the order with the court as soon as practicable
after issuance.
(i) A peace officer shall use every reasonable means to enforce an
emergency protective order.
(j) A peace officer who acts in good faith to enforce an emergency
protective order is not civilly or criminally liable.
(k) A peace officer who requests an emergency protective order
under this section shall carry copies of the order while on duty.
(l) A peace officer described in subdivision (a) or (b) of Section
830.32 who requests an emergency protective order pursuant to this
section shall also notify the sheriff or police chief of the city in
whose jurisdiction the peace officer's college or school is located
after issuance of the order.
(m) "Judicial officer," as used in this section, means a judge,
commissioner, or referee.
(n) A person subject to an emergency protective order under this
section shall not own, possess, purchase, or receive a firearm while
the order is in effect.
(o) Nothing in this section shall be construed to permit a court
to issue an emergency protective order prohibiting speech or other
activities that are constitutionally protected or protected by the
laws of this state or by the United States or activities occurring
during a labor dispute, as defined by Section 527.3 of the Code of
Civil Procedure, including, but not limited to, picketing and
handbilling.
(p) The Judicial Council shall develop forms, instructions, and
rules for the scheduling of hearings and other procedures established
pursuant to this section.
(q) Any intentional disobedience of any emergency protective order
granted under this section is punishable pursuant to Section 166.
Nothing in this subdivision shall be construed to prevent punishment
under this chapter, in lieu of punishment under this section, if an
act that is punishable as a crime under this chapter is also pled and
proven.
SEC. 5. Section 213.8 is added to the Welfare and Institutions
Code, to read:
213.8. (a) In the event that a protective or restraining order
issued pursuant to this article is in conflict with, or in addition
to, any other protective or restraining order issued pursuant to this
code, the Code of Civil Procedure, the Family Code, or the Penal
Code that also protects the same individual, all of the operative
protective or restraining orders issued for the protection of that
individual shall be interpreted and enforced in a manner that
provides the greatest amount of protection to the individual
protected under the operative protective or restraining orders.
(b) This section does not apply to a conflicting or additional
emergency protective order issued pursuant to Section 213.5, Chapter
2 (commencing with Section 6250) of Part 3 of Division 10 of the
Family Code, or Section 136.2, 269.1, or 646.91 of the Penal Code.
Any emergency protective order issued under these provisions shall
have precedence in enforcement in accordance with subdivision (c) of
Section 136.2 of the Penal Code.
SEC. 6. Section 15657.08 is added to the Welfare and Institutions
Code, to read:
15657.08. (a) In the event that a protective or restraining order
issued pursuant to this article is in conflict with, or in addition
to, any other protective or restraining order issued pursuant to this
code, the Code of Civil Procedure, the Family Code, or the Penal
Code that also protects the same individual, all of the operative
protective or restraining orders issued for the protection of that
individual shall be interpreted and enforced in a manner that
provides the greatest amount of protection to the individual
protected under the operative protective or restraining orders.
(b) This section does not apply to a conflicting or additional
emergency protective order issued pursuant to Section 213.5, Chapter
2 (commencing with Section 6250) of Part 3 of Division 10 of the
Family Code, or Section 136.2, 269.1, or 646.91 of the Penal Code.
Any emergency protective order issued under these provisions shall
have precedence in enforcement in accordance with subdivision (c) of
Section 136.2 of the Penal Code.
SEC. 7. 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.