BILL NUMBER: SB 1433	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 11, 2012
	AMENDED IN SENATE  MARCH 27, 2012

INTRODUCED BY   Senator Alquist

                        FEBRUARY 24, 2012

   An act to amend Sections 6306 and 6389 of the Family Code, and to
amend Section 18250 of the Penal Code, relating to domestic violence.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1433, as amended, Alquist. Domestic violence: protective
orders.
   The Domestic Violence Prevention Act requires the court, prior to
a hearing on the issuance or denial of a protective order, to ensure
that a search of specified records and databases is or has been made
to determine if the proposed subject of the order has any specified
prior criminal convictions or outstanding warrants, is on parole or
probation, or is or was the subject of other protective or
restraining orders.
   This bill would further require the court to ensure that the
search described above also includes a determination of whether the
proposed subject of the order has a registered firearm.
   Existing law prohibits a person subject to a protective order, as
defined, from owning, possessing, purchasing, or receiving a firearm
while that protective order is in effect and makes a willful and
knowing violation of a protective order a crime. Existing law also
requires the court, upon issuance of a protective order, to order the
respondent to relinquish any firearm in the respondent's immediate
control. Existing law requires the respondent to immediately
surrender the firearm in a safe manner, upon request of any law
enforcement officer, or 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. Under existing law, a person ordered to relinquish any
firearm is required to file with the court a receipt showing the
firearm was surrendered or sold within 48 hours after receiving the
order.
   This bill would require a peace officer serving a protective order
that indicates a respondent possesses weapons or ammunition to
request that the firearm be immediately surrendered. The bill would
also require a person ordered to relinquish a firearm to file a copy
of the receipt described above with the local law enforcement agency
that served the protective order within 48 hours after being served
with the order. Because a willful and knowing violation of a
protective order is a crime, the bill would expand the scope of an
existing crime, resulting in a state-mandated local program. 
   The bill would require that the above provisions be implemented in
those courts identified by the Judicial Council as having resources
currently available for those purposes. The bill would require that
its provisions be implemented in other courts to the extent that
funds are appropriated for the purposes of the act in the annual
Budget Act. 
   Existing law requires specified law enforcement officers to take
temporary custody of any firearm or other deadly weapon in plain
sight or discovered pursuant to a lawful search, as specified, when
present at the scene of a domestic violence incident involving a
threat to human life or physical assault.
   This bill would apply the requirements described above to law
enforcement officers serving a protective order, as defined. By
imposing additional duties on local law enforcement officers, 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 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 6306 of the Family Code is amended to read:
   6306.  (a) Prior to a hearing on the issuance or denial of an
order under this part, the court shall ensure that a search is or has
been conducted to determine if the subject of the proposed order has
any prior criminal conviction for a violent felony specified in
Section 667.5 of the Penal Code or a serious felony specified in
Section 1192.7 of the Penal Code; has any misdemeanor conviction
involving domestic violence, weapons, or other violence; has any
outstanding warrant; is currently on parole or probation; has a
registered firearm; or has any prior restraining order or any
violation of a prior restraining order. The search shall be conducted
of all records and databases readily available and reasonably
accessible to the court, including, but not limited to, the
following:
   (1) The Violent Crime Information Network (VCIN).
   (2) The Supervised Release File.
   (3) State summary criminal history information maintained by the
Department of Justice pursuant to Section 11105 of the Penal Code.
   (4) The Federal Bureau of Investigation's nationwide database.
   (5) Locally maintained criminal history records or databases.
   However, a record or database need not be searched if the
information available in that record or database can be obtained as a
result of a search conducted in another record or database.
   (b) (1) Prior to deciding whether to issue an order under this
part or when determining appropriate temporary custody and visitation
orders, the court shall consider the following information obtained
pursuant to a search conducted under subdivision (a): any conviction
for a violent felony specified in Section 667.5 of the Penal Code or
a serious felony specified in Section 1192.7 of the Penal Code; any
misdemeanor conviction involving domestic violence, weapons, or other
violence; any outstanding warrant; parole or probation status; any
prior restraining order; and any violation of a prior restraining
order.
   (2) Information obtained as a result of the search that does not
involve a conviction described in this subdivision shall not be
considered by the court in making a determination regarding the
issuance of an order pursuant to this part. That information shall be
destroyed and shall not become part of the public file in this or
any other civil proceeding.
   (c) (1) After issuing its ruling, the court shall advise the
parties that they may request the information described in
subdivision (b) upon which the court relied. The court shall admonish
the party seeking the proposed order that it is unlawful, pursuant
to Sections 11142 and 13303 of the Penal Code, to willfully release
the information, except as authorized by law.
   (2) Upon the request of either party to obtain the information
described in subdivision (b) upon which the court relied, the court
shall release the information to the parties or, upon either party's
request, to his or her attorney in that proceeding.
   (3) The party seeking the proposed order may release the
information to his or her counsel, court personnel, and
court-appointed mediators for the purpose of seeking judicial review
of the court's order or for purposes of court proceedings under
Section 213.5 of the Welfare and Institutions Code.
   (d) Any information obtained as a result of the search conducted
pursuant to subdivision (a) and relied upon by the court shall be
maintained in a confidential case file and shall not become part of
the public file in the proceeding or any other civil proceeding.
However, the contents of the confidential case file shall be
disclosed to the court-appointed mediator assigned to the case or to
a child custody evaluator appointed by the court pursuant to Section
3111 of the Family Code or Section 730 of the Evidence Code. All
court-appointed mediators and child custody evaluators appointed or
contracted by the court pursuant to Section 3111 of the Family Code
or Section 730 of the Evidence Code who may receive information from
the search conducted pursuant to subdivision (a) shall be subject to,
and shall comply with, the California Law Enforcement
Telecommunications System policies, practices, and procedures adopted
pursuant to Section 15160 of the Government Code.
   (e) If the results of the search conducted pursuant to subdivision
(a) indicate that an outstanding warrant exists against the subject
of the order, the court shall order the clerk of the court to
immediately notify, by the most effective means available,
appropriate law enforcement officials of the issuance and contents of
any protective order and of any other information obtained through
the search that the court determines is appropriate. The law
enforcement officials so notified shall take all actions necessary to
execute any outstanding warrants or any other actions, with respect
to the restrained person, as appropriate and as soon as practicable.
   (f) If the results of the search conducted pursuant to subdivision
(a) indicate that the subject of the order is currently on parole or
probation, the court shall order the clerk of the court to
immediately notify, by the most effective means available, the
appropriate parole or probation officer of the issuance and contents
of any protective order issued by the court and of any other
information obtained through the search that the court determines is
appropriate. That officer shall take all actions necessary to revoke
any parole or probation, or any other actions, with respect to the
restrained person, as appropriate and as soon as practicable.
   (g) Nothing in this section shall delay the granting of an
application for an order that may otherwise be granted without the
information resulting from the database search. If the court finds
that a protective order under this part should be granted on the
basis of the affidavit presented with the petition, the court shall
issue the protective order and shall then ensure that a search is
conducted pursuant to subdivision (a) prior to the hearing.
  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
or ammunition while that protective order is in effect. Every person
who owns, possesses, purchases or receives, or attempts to purchase
or receive a firearm or ammunition while the protective order is in
effect is punishable pursuant to Section 29825 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) (1) Upon issuance of a protective order, as defined in Section
6218, the court shall order the respondent to relinquish any firearm
in the respondent's immediate possession or control or subject to
the respondent's immediate possession or control.
   (2) The relinquishment ordered pursuant to paragraph (1) shall
occur by immediately surrendering the firearm in a safe manner, upon
request of any law enforcement officer, to the control of the
officer, after being served with the protective order. A law
enforcement officer serving a protective order that indicates that
the respondent possesses weapons or ammunition shall request that the
firearm be immediately surrendered. Alternatively, if no request is
made by a law enforcement officer, the relinquishment shall occur
within 24 hours of being served with the order, by either
surrendering the firearm in a safe manner to the control of local law
enforcement officials, or by selling the firearm to a licensed gun
dealer, as specified in Article 1 (commencing with Section 26700) and
Article 2 (commencing with Section 26800) of Chapter 2 of Division 6
of Title 4 of Part 6 of the Penal Code. The law enforcement officer
or licensed gun dealer taking possession of the firearm pursuant to
this subdivision shall issue a receipt to the person relinquishing
the firearm at the time of relinquishment. A person ordered to
relinquish any firearm pursuant to this subdivision shall, within 48
hours  of  after being served with the order, do
both of the following:
   (A) File, with the court that issued the protective order, the
receipt showing the firearm was surrendered to a local law
enforcement agency or sold to a licensed gun dealer. Failure to
timely file a receipt shall constitute a violation of the protective
order.
   (B) File a copy of the receipt described in subparagraph (A) with
the law enforcement agency that served the protective order. Failure
to timely file a copy of the receipt shall constitute a violation of
the protective order.
   (3) The forms for protective orders adopted by the Judicial
Council and approved by the Department of Justice shall require the
petitioner to describe the number, types, and locations of any
firearms presently known by the petitioner to be possessed or
controlled by the respondent.
   (4) It is recommended that every law enforcement agency in the
state develop, adopt, and implement written policies and standards
for law enforcement officers who request immediate relinquishment of
firearms. 
   (5) Upon a showing of probable cause, the family court may order a
law enforcement officer to serve the protective order and issue a
warrant for the search and seizure of any firearm in the possession
of the respondent. 
   (d) If the respondent declines to relinquish possession of any
firearm based on 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
26700 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 Chapter 2
(commencing with Section 29800) and Chapter 3 (commencing with
Section 29900) of Division 9 of Title 4 of Part 6 of the Penal Code
and Sections 8100 and 8103 of the Welfare and Institutions Code, or
(3) another successive restraining order is issued 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
26700 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 Section 27545 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 Section 29825 of the Penal Code.
  SEC. 3.  Section 18250 of the Penal Code is amended to read:
   18250.  If any of the following persons is at the scene of a
domestic violence incident involving a threat to human life or a
physical assault, or is serving a protective order as defined in
Section 6218 of the Family Code, that person shall take temporary
custody of any firearm or other deadly weapon in plain sight or
discovered pursuant to a consensual or other lawful search as
necessary for the protection of the peace officer or other persons
present:
   (a) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1.
   (b) A peace officer of the Department of the California Highway
Patrol, as defined in subdivision (a) of Section 830.2.
   (c) A member of the University of California Police Department, as
defined in subdivision (b) of Section 830.2.
   (d) An officer listed in Section 830.6, while acting in the course
and scope of the officer's employment as a peace officer.
   (e) A member of a California State University Police Department,
as defined in subdivision (c) of Section 830.2.
   (f) A peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2.
   (g) A peace officer, as defined in subdivision (d) of Section
830.31.
   (h) A peace officer, as defined in subdivisions (a) and (b) of
Section 830.32.
   (i) A peace officer, as defined in Section 830.5.
   SEC. 4.    Section 1 of this act shall be implemented
pursuant to the provisions of Section 7 of Chapter 572 of the
Statutes of 2001. 
   SEC. 4.   SEC. 5.   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 and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.