Amended in Assembly March 20, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 238


Introduced by Assembly Member Gomez

(Coauthors: Assembly Members Bonilla, Brown, Fox, Maienschein, and Quirk-Silva)

February 5, 2013


An act tobegin delete amendend deletebegin insert addend insert Sectionbegin delete 6271 of,end deletebegin insert 6250.7 to,end insert and to repeal Section 6273 of, the Family Code,begin insert and to amend Section 646.91 of the Penal Code,end insert relating to protective orders.

LEGISLATIVE COUNSEL’S DIGEST

AB 238, as amended, Gomez. Protective orders: California Restraining and Protective Order System.

begin insert

Existing law authorizes a judicial officer in a civil proceeding relating to domestic violence to issue an emergency protective order if there is an immediate and present danger of domestic violence, abuse, or abduction of a child, or abuse of an elder or dependent adult. Existing law also authorizes a court in a criminal proceeding to issue an emergency protective order if there is an immediate and present danger of stalking, as specified. Existing law requires that a law enforcement officer, as defined, for purposes of court proceedings relating to domestic violence, or a peace officer in criminal proceedings relating to stalking, who requests an emergency protective order carry copies of the order while on duty.

end insert

Existing lawbegin insert alsoend insert requiresbegin delete thatend delete the Department of Justicebegin insert toend insert maintain a computer database system, known as the California Restraining and Protective Order System, for protective and restraining orders and injunctions and make that information available to court clerks and law enforcement personnel.begin delete Existing law requires that a law enforcement officer who requests an emergency protective order carry copies of the order while on duty.end delete

This bill would delete the requirement that a law enforcement officerbegin insert or a peace officer, as described above,end insert who requests an emergency protective order carry copies of the order while on duty. The bill would instead requirebegin delete that aend deletebegin insert the professional staff of theend insert law enforcementbegin insert agency employing theend insert officer who requests an emergency protective order enter that order into the California Restraining and Protective Order System within 2 hours of the issuance of the order. By imposing additional duties on law enforcementbegin delete officersend deletebegin insert employeesend insert, 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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

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

begin delete
P2    1

SECTION 1.  

Section 6271 of the Family Code is amended to
2read:

3

6271.  

A law enforcement officer who requests an emergency
4protective order shall do all of the following:

5(a) Serve the order on the restrained person, if the restrained
6person can reasonably be located.

7(b) Give a copy of the order to the protected person or, if the
8protected person is a minor child, to a parent or guardian of the
9endangered child who is not a restrained person, if the parent or
10guardian can reasonably be located, or to a person having
11temporary custody of the endangered child.

12(c) File a copy of the order with the court as soon as practicable
13after issuance.

14(d) Enter the order into the California Restraining and Protective
15Order System within two hours of the issuance of the order.

end delete
P3    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 6250.7 is added to the end insertbegin insertFamily Codeend insertbegin insert, to
2read:end insert

begin insert
3

begin insert6250.7.end insert  

When an emergency protective order is issued, the
4professional staff of the law enforcement agency employing the
5officer who requested the order shall enter the order into the
6California Restraining and Protective Order System within two
7hours of the issuance of the order.

end insert
8

SEC. 2.  

Section 6273 of the Family Code is repealed.

9begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 646.91 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

10

646.91.  

(a) Notwithstanding any other law, a judicial officer
11may issue an ex parte emergency protective order where a peace
12officer, as defined in Section 830.1, 830.2, or 830.32, asserts
13reasonable grounds to believe that a person is in immediate and
14present danger of stalking based upon the person’s allegation that
15he or she has been willfully, maliciously, and repeatedly followed
16or harassed by another person who has made a credible threat with
17the intent of placing the person who is the target of the threat in
18reasonable fear for his or her safety, or the safety of his or her
19immediate family, within the meaning of Section 646.9.

20(b) A peace officer who requests an emergency protective order
21shall reduce the order to writing and sign it.

22(c) An emergency protective order shall include all of the
23following:

24(1) A statement of the grounds asserted for the order.

25(2) The date and time the order expires.

26(3) The address of the superior court for the district or county
27in which the protected party resides.

28(4) The following statements, which shall be printed in English
29and Spanish:

30(A) “To the protected person: This order will last until the date
31and time noted above. If you wish to seek continuing protection,
32you will have to apply for an order from the court at the address
33noted above. You may seek the advice of an attorney as to any
34matter connected with your application for any future court orders.
35The attorney should be consulted promptly so that the attorney
36may assist you in making your application.”

37(B) “To the restrained person: This order will last until the date
38and time noted above. The protected party may, however, obtain
39a more permanent restraining order from the court. You may seek
40the advice of an attorney as to any matter connected with the
P4    1application. The attorney should be consulted promptly so that the
2attorney may assist you in responding to the application. You may
3not own, possess, purchase or receive, or attempt to purchase or
4receive a firearm while this order is in effect.”

5(d) An emergency protective order may be issued under this
6section only if the judicial officer finds both of the following:

7(1) That reasonable grounds have been asserted to believe that
8an immediate and present danger of stalking, as defined in Section
9646.9, exists.

10(2) That an emergency protective order is necessary to prevent
11the occurrence or reoccurrence of the stalking activity.

12(e) An emergency protective order may include either of the
13following specific orders as appropriate:

14(1) A harassment protective order as described in Section 527.6
15of the Code of Civil Procedure.

16(2) A workplace violence protective order as described in
17Section 527.8 of the Code of Civil Procedure.

18(f) An emergency protective order shall be issued without
19prejudice to any person.

20(g) An emergency protective order expires at the earlier of the
21following times:

22(1) The close of judicial business on the fifth court day following
23the day of its issuance.

24(2) The seventh calendar day following the day of its issuance.

25(h) A peace officer who requests an emergency protective order
26shall do all of the following:

27(1) Serve the order on the restrained person, if the restrained
28person can reasonably be located.

29(2) Give a copy of the order to the protected person, or, if the
30protected person is a minor child, to a parent or guardian of the
31protected child if the parent or guardian can reasonably be located,
32or to a person having temporary custody of the child.

33(3) File a copy of the order with the court as soon as practicable
34after issuance.

35(i) A peace officer shall use every reasonable means to enforce
36an emergency protective order.

37(j) A peace officer who acts in good faith to enforce an
38emergency protective order is not civilly or criminally liable.

39(k) begin deleteA peace officer who requests end deletebegin insertWhen end insertan emergency protective
40orderbegin delete underend deletebegin insert is issued pursuant toend insert thisbegin delete section shall carry copies of
P5    1the order while on duty.end delete
begin insert section, the professional staff of the law
2enforcement agency employing the officer who requested the order
3shall enter the order into the California Restraining and Protective
4Order System within two hours of the issuance of the order.end insert

5(l) A peace officer described in subdivision (a) or (b) of Section
6830.32 who requests an emergency protective order pursuant to
7this section shall also notify the sheriff or police chief of the city
8in whose jurisdiction the peace officer’s college or school is located
9after issuance of the order.

10(m) “Judicial officer,” as used in this section, means a judge,
11commissioner, or referee.

12(n) A person subject to an emergency protective order under
13this section shall not own, possess, purchase, or receive a firearm
14while the order is in effect.

15(o) Nothing in this section shall be construed to permit a court
16to issue an emergency protective order prohibiting speech or other
17activities that are constitutionally protected or protected by the
18laws of this state or by the United States or activities occurring
19during a labor dispute, as defined by Section 527.3 of the Code of
20Civil Procedure, including, but not limited to, picketing and hand
21billing.

22(p) The Judicial Council shall develop forms, instructions, and
23rules for the scheduling of hearings and other procedures
24established pursuant to this section.

25(q) Any intentional disobedience of any emergency protective
26order granted under this section is punishable pursuant to Section
27166. Nothing in this subdivision shall be construed to prevent
28punishment under Section 646.9, in lieu of punishment under this
29section, if a violation of Section 646.9 is also pled and proven.

30

begin deleteSEC. 3.end delete
31begin insertSEC. 4.end insert  

If the Commission on State Mandates determines that
32this act contains costs mandated by the state, reimbursement to
33local agencies and school districts for those costs shall be made
34pursuant to Part 7 (commencing with Section 17500) of Division
354 of Title 2 of the Government Code.



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