Amended in Senate May 29, 2013

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 begin delete to add Section 6250.7 to, and end delete begin insert to amend Section 6271 of, and end insert 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 begin insert and restraining end insert orders: begin delete California Restraining and Protective Order System. end delete begin insert computer database system. end 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 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, to carry copies of the order while on duty.

Existing law also requires the Department of Justice to maintain a computer database begin delete system, known as the California Restraining and Protective Order System, end delete begin insert system end insert 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 law enforcement agency to begin delete enter end delete begin insert have end insert that order begin insert entered end insert into the begin delete California Restraining and Protective Order System end delete begin insert computer database system for protective and restraining orders maintained by the Department of Justice end insert . By imposing additional duties on local law enforcement agencies, 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

SECTION 1.  

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

6250.7.  

When an emergency protective order is issued, the law
enforcement agency shall enter the order into the California
Restraining and Protective Order System.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 6271 of the end insert begin insert Family Code end insert begin insert is amended to
read: end insert

6271.  

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

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

(b) 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
endangered child who is not a restrained person, if the parent or
guardian can reasonably be located, or to a person having
temporary custody of the endangered child.

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

begin insert

(d) Have the order entered into the computer database system
for protective and restraining orders maintained by the Department
of Justice.

end insert

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 if 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 begin insert , end insert or receive, or attempt to purchase or
receive begin insert , end insert 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.

begin insert

(4) Have the order entered into the computer database system
for protective and restraining orders maintained by the Department
of Justice.

end insert

(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.

begin delete

(k) When an emergency protective order is issued pursuant to
this section, the law enforcement agency shall enter the order into
the California Restraining and Protective Order System .

(l)

end delete

begin insert (k) end insert  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.

begin delete

(m)

end delete

begin insert (l) end insert  “Judicial officer,” as used in this section, means a judge,
commissioner, or referee.

begin delete

(n)

end delete

begin insert (m) end insert  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.

begin delete

(o)

end delete

begin insert (n) end insert  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.

begin delete

(p)

end delete

begin insert ( end insert begin insert o) end insert  The Judicial Council shall develop forms, instructions, and
rules for the scheduling of hearings and other procedures
established pursuant to this section.

begin delete

(q)

end delete

begin insert ( end insert begin insert p) end insert  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.