California Legislature—2013–14 Regular Session

Assembly Bill No. 176

Introduced by Assembly Member Campos

January 24, 2013

An act to amend Sections 3100, 6383, and 6405 of the Family Code, and to amend Section 136.2 of the Penal Code, relating to family law.

LEGISLATIVE COUNSEL’S DIGEST

AB 176, as introduced, Campos. Family law: protective and restraining orders.

Existing law requires, if there is more than one civil protective or restraining order regarding the same parties, a peace officer to enforce the order issued last. If both criminal and civil protective or restraining orders have been issued regarding the same parties, existing law generally requires an officer to enforce the criminal order issued last.

This bill would instead provide that, when there are both civil and criminal orders an officer must enforce the order that is more restrictive in relation to the restrained person. This bill would also make related, conforming changes.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 3100 of the Family Code is amended to
read:

3100.  

(a) In making an order pursuant to Chapter 4
(commencing with Section 3080), the court shall grant reasonable
visitation rights to a parent unless it is shown that the visitation
would be detrimental to the best interest of the child. In the
discretion of the court, reasonable visitation rights may be granted
to any other person having an interest in the welfare of the child.

(b) If a protective order, as defined in Section 6218, has been
directed to a parent, the court shall consider whether the best
interest of the child requires that any visitation by that parent shall
be limited to situations in which a third person, specified by the
court, is present, or whether visitation shall be suspended or denied.
The court shall include in its deliberations a consideration of the
nature of the acts from which the parent was enjoined and the
period of time that has elapsed since that order. A parent may
submit to the court the name of a person that the parent deems
suitable to be present during visitation.

(c)  If visitation is ordered in a case in which domestic violence
is alleged and an emergency protective order, protective order, or
other restraining order has been issued, the visitation order shall
specify the time, day, place, and manner of transfer of the child,
so as to limit the child’s exposure to potential domestic conflict
or violence and to ensure the safety of all family members. If a
criminal protective order has been issued pursuant to Section 136.2
of the Penal Code, the visitation order shall make reference begin delete to, and end delete
begin delete acknowledge the precedence of enforcement of, end delete begin insert to end insert any appropriate
criminal protective order.

(d)  If the court finds a party is staying in a place designated as
a shelter for victims of domestic violence or other confidential
location, the court’s order for time, day, place, and manner of
transfer of the child for visitation shall be designed to prevent
disclosure of the location of the shelter or other confidential
location.

SEC. 2.  

Section 6383 of the Family Code is amended to read:

6383.  

(a) A temporary restraining order or emergency
protective order issued under this part shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by begin delete any end delete begin insert a end insert law enforcement
officer who is present at the scene of reported domestic violence
involving the parties to the proceeding.

(b) The petitioner shall provide the officer with an endorsed
copy of the order and a proof of service that the officer shall
complete and transmit to the issuing court.

(c) It is a rebuttable presumption that the proof of service was
signed on the date of service.

(d) Upon receiving information at the scene of a domestic
violence incident that a protective order has been issued under this
part, or that a person who has been taken into custody is the
respondent to that order, if the protected person cannot produce
an endorsed copy of the order, a law enforcement officer shall
immediately inquire of the Department of Justice Domestic
Violence Restraining Order System to verify the existence of the
order.

(e) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained and the officer shall, at that time,
also enforce the order. The law enforcement officer’s verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Sections 273.6 and 29825 of the Penal Code.

(f) If a report is required under Section 13730 of the Penal Code,
or if no report is required, then in the daily incident log, the officer
shall provide the name and assignment of the officer notifying the
respondent pursuant to subdivision (e) and the case number of the
order.

(g) Upon service of the order outside of the court, a law
enforcement officer shall advise the respondent to go to the local
court to obtain a copy of the order containing the full terms and
conditions of the order.

(h) There shall be no civil liability on the part of, and no cause
of action for, false arrest or false imprisonment against begin delete any end delete begin insert a end insert peace
officer who makes an arrest pursuant to a protective or restraining
order that is regular upon its face, if the peace officer in making
the arrest acts in good faith and has reasonable cause to believe
that the person against whom the order is issued has notice of the
order and has committed an act in violation of the order. If there
is more than one civil order regarding the same parties, the peace
officer shall enforce the order that was issued last. If there are both
civil and criminal orders regarding the same parties, the peace
officer shall enforce the begin delete criminal order issued last, subject to the end delete
begin delete provisions of subdivisions (h) and (i) of Section 136.2 of the Penal end delete
begin delete Code end delete begin insert order that is more restrictive in relation to the restrained end insert
begin insert person end insert . Nothing in this section shall be deemed to exonerate a
peace officer from liability for the unreasonable use of force in
the enforcement of the order. The immunities afforded by this
section shall not affect the availability of any other immunity which
may apply, including, but not limited to, Sections 820.2 and 820.4
of the Government Code.

SEC. 3.  

Section 6405 of the Family Code is amended to read:

6405.  

There shall be no civil liability on the part of, and no
cause of action for false arrest or false imprisonment against, begin delete any end delete
begin insert a end insert peace officer who makes an arrest pursuant to a foreign protection
order that is regular upon its face, if the peace officer in making
the arrest acts in good faith and has reasonable cause to believe
that the person against whom the order is issued has notice of the
order and has committed an act in violation of the order. If there
is more than one civil order regarding the same parties, the peace
officer shall enforce the order that was issued last. If there are both
civil and criminal orders regarding the same parties, the peace
officer shall enforce the begin delete criminal order issued last end delete begin insert order that is end insert
begin insert more restrictive in relation to the restrained person end insert . Nothing in
this section shall be deemed to exonerate a peace officer from
liability for the unreasonable use of force in the enforcement of
the order. The immunities afforded by this section shall not affect
the availability of any other immunity that may apply, including,
but not limited to, Sections 820.2 and 820.4 of the Government
Code.

SEC. 4.  

Section 136.2 of the Penal Code is amended to read:

136.2.  

(a)  begin delete Except as provided in subdivision (c), upon end delete begin insert Upon end insert
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:

(1) An 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 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.

(5) An order calling for a hearing to determine if an order as
described in paragraphs (1) to (4), inclusive, should be issued.

(6) (A) 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.

(B) For purposes of this paragraph, “immediate family
members” include the spouse, children, or parents of the victim
or witness.

(7) (A) An 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 Section 29825.

(C) An 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.

(D) A protective order begin insert issued end insert under this paragraph 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.

(b) A person violating an 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, 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.

begin delete

(c) (1) Notwithstanding subdivisions (a) and (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 of the Penal 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) 

end delete

begin insert (c) end insert begin insert   end insert (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) 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.

begin delete

(e) 

end delete

begin insert (d) end insert begin insert   end insert (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 begin delete , a end delete begin insert and there is more than one end insert
restraining order or protective order begin delete against the defendant issued end delete
begin delete by the criminal court in that case has precedence in enforcement end delete
begin delete over a civil court order against the defendant, unless a court issues end delete
begin delete an emergency protective order pursuant to Chapter 2 (commencing end delete
begin delete with Section 6250) of Part 3 of Division 10 of the Family Code or end delete
begin delete Section 646.91 of the Penal Code, in which case the emergency end delete
begin delete protective order shall have precedence in enforcement over any end delete
begin delete other restraining or protective order, provided the emergency end delete
begin delete protective order meets the following requirements: end delete begin insert regarding the end insert
begin insert same parties and issued against the same defendant, the order that end insert
begin insert is more restrictive relative to the defendant has precedence in end insert
begin insert enforcement. end insert

begin delete

(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.

end delete begin delete

(B) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective order
specified in subparagraph (A).

end delete begin delete

(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).

end delete

(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
begin delete (f) end delete begin insert (e) end insert , but if ordered after a criminal protective order has been
issued pursuant to this section, the custody and visitation order
shall make reference begin delete to, and acknowledge the precedence of
enforcement of, end delete begin insert to end insert an appropriate criminal protective order. On or
before July 1, begin delete 2006, end delete begin insert 2014, end insert the Judicial Council shall modify the
criminal and civil court forms consistent with this subdivision.

begin delete

(f) 

end delete

begin insert (e) end insert begin insert   end insert 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) 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) 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.

begin delete

(g) 

end delete

begin insert (f) end insert begin insert   end insert On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms
consistent with this section.

begin delete

(h) 

end delete

begin insert (g) end insert begin insert   end insert 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.

begin delete

(i) 

end delete

begin insert (h) end insert begin insert   end insert (1) In all cases in which a criminal defendant has been
convicted of a crime of domestic violence as defined in Section
13700, the court, at the time of sentencing, shall consider issuing
an order restraining the defendant from any contact with the victim.
The order 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 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 and his or her immediate family.

(2) 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.

begin delete

(j) 

end delete

begin insert (i) end insert begin insert   end insert For purposes of this section, “local government” means the
county that has jurisdiction over the protective order.