Amended in Senate May 15, 2013

Amended in Assembly March 20, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 238

Introduced by Assembly Member Gomez

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

February 5, 2013

An act to add Section 6250.7 to, and to repeal Section 6273 of, the Family Code, and to amend Section 646.91 of the Penal Code, relating to protective orders.

LEGISLATIVE COUNSEL’S DIGEST

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

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 begin delete that end delete a law enforcement officer, as defined, for purposes of court proceedings relating to domestic violence, or a peace officer begin insert , end insert in criminal proceedings relating to stalking, who requests an emergency protective order begin insert , to end insert carry copies of the order while on duty.

Existing law also requires the Department of Justice to 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.

This bill would delete the requirement that a law enforcement officer or a peace officer, as described above, who requests an emergency protective order carry copies of the order while on duty. The bill would instead require the begin delete professional staff of the end delete law enforcement agency begin delete employing the officer who requests an emergency protective order end delete begin insert to end insert enter that order into the California Restraining and Protective Order System begin delete within 2 hours of the issuance of the order end delete . By imposing additional duties on begin insert local end insert law enforcement begin delete employees end delete begin insert agencies end 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:

SECTION 1.  

Section 6250.7 is added to the Family Code, to
read:

6250.7.  

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

SEC. 2.  

Section 6273 of the Family Code is repealed.

SEC. 3.  

Section 646.91 of the Penal Code is amended to read:

646.91.  

(a) Notwithstanding any other law, a judicial officer
may issue an ex parte emergency protective order begin delete where end delete begin insert if end insert 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 stalking based upon the person’s allegation that
he or she has been willfully, maliciously, and repeatedly followed
or harassed by another person who has made a credible threat with
the intent of placing the person who is the target of the threat in
reasonable fear for his or her safety, or the safety of his or her
immediate family, within the meaning of Section 646.9.

(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 stalking, as defined in Section
646.9, exists.

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

(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) When an emergency protective order is issued pursuant to
this section, begin delete the professional staff of end delete the law enforcement agency
begin delete employing the officer who requested the order end delete shall enter the order
into the California Restraining and Protective Order System begin delete within
two hours of the issuance of the order end delete .

(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 hand
billing.

(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 Section 646.9, in lieu of punishment under this
section, if a violation of Section 646.9 is also pled and proven.

SEC. 4.  

If the Commission on State Mandates determines that
this act contains 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.