California Legislature—2013–14 Regular Session

Assembly BillNo. 307


Introduced by Assembly Member Campos

February 12, 2013


An act to amend Sections 136.2 and 166 of the Penal Code, relating to protective orders.

LEGISLATIVE COUNSEL’S DIGEST

AB 307, as introduced, Campos. Protective orders.

Existing law authorizes a court with jurisdiction over a criminal matter to issue 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, including an order protecting victims of violent crime from all contact, or contact with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. Under existing law, the court is required to consider, at the time of sentencing, issuing a protective order, which may be valid for up to 10 years, in a case in which a criminal defendant has been convicted of a crime of domestic violence. Under existing law, contempt of a court order is a misdemeanor, as specified.

This bill would require the court to also consider issuing a protective order in a case in which the defendant has been convicted of specified sex crimes, including rape, spousal rape, and crimes for which a person is required to register as a sex offender. By expanding the scope of an existing crime, the bill would impose a state-mandated local program.

Under existing law, a willful and knowing violation of a protective order or stay-away court order issued relating to a victim or witness in a pending criminal proceeding involving domestic violence, issued as a condition of probation after a conviction in a criminal proceeding involving domestic violence or elder or dependent adult abuse, or issued under other specified conditions, constitutes contempt of court, a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, a fine not exceeding $1,000, or by both the imprisonment and the fine, except as specified.

This bill would revise those provisions to provide that a willful and knowing violation of a protective order or stay-away court order issued relating to a victim or witness in a criminal proceeding, including a proceeding when the conditions of probation are determined, involving domestic violence or elder or dependent adult abuse, or issued under other specified conditions, constitutes contempt of court, a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, a fine not exceeding $1,000, or by both the imprisonment and the fine, except as specified.

By expanding the scope of an existing crime, 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 no reimbursement is required by this act for a specified reason.

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

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

P2    1

SECTION 1.  

Section 136.2 of the Penal Code is amended to
2read:

3

136.2.  

(a) Except as provided in subdivision (c), upon a good
4cause belief that harm to, or intimidation or dissuasion of, a victim
5or witness has occurred or is reasonably likely to occur, a court
6with jurisdiction over a criminal matter may issue orders including,
7but not limited to, the following:

8(1) An order issued pursuant to Section 6320 of the Family
9Code.

10(2) An order that a defendant shall not violate any provision of
11Section 136.1.

12(3) An order that a person before the court other than a
13defendant, including, but not limited to, a subpoenaed witness or
P3    1other person entering the courtroom of the court, shall not violate
2any provisions of Section 136.1.

3(4) An order that a person described in this section shall have
4no communication whatsoever with a specified witness or a victim,
5except through an attorney under reasonable restrictions that the
6court may impose.

7(5) An order calling for a hearing to determine if an order as
8described in paragraphs (1) to (4), inclusive, should be issued.

9(6) (A) An order that a particular law enforcement agency
10within the jurisdiction of the court provide protection for a victim
11or a witness, or both, or for immediate family members of a victim
12or a witness who reside in the same household as the victim or
13witness or within reasonable proximity of the victim’s or witness’
14household, as determined by the court. The order shall not be made
15without the consent of the law enforcement agency except for
16limited and specified periods of time and upon an express finding
17by the court of a clear and present danger of harm to the victim or
18witness or immediate family members of the victim or witness.

19(B) For purposes of this paragraph, “immediate family
20members” include the spouse, children, or parents of the victim
21or witness.

22(7) (A) An order protecting victims of violent crime from all
23contact by the defendant, or contact, with the intent to annoy,
24harass, threaten, or commit acts of violence, by the defendant. The
25court or its designee shall transmit orders made under this
26paragraph to law enforcement personnel within one business day
27of the issuance, modification, extension, or termination of the
28order, pursuant to subdivision (a) of Section 6380 of the Family
29Code. It is the responsibility of the court to transmit the
30modification, extension, or termination orders made under this
31paragraph to the same agency that entered the original protective
32order into the Domestic Violence Restraining Order System.

33(B) (i) If a court does not issue an order pursuant to
34subparagraph (A) in a case in which the defendant is charged with
35a crime of domestic violence as defined in Section 13700, the court
36on its own motion shall consider issuing a protective order upon
37a good cause belief that harm to, or intimidation or dissuasion of,
38a victim or witness has occurred or is reasonably likely to occur,
39that provides as follows:

P4    1(I) The defendant shall not own, possess, purchase, receive, or
2attempt to purchase or receive, a firearm while the protective order
3is in effect.

4(II) The defendant shall relinquish any firearms that he or she
5owns or possesses pursuant to Section 527.9 of the Code of Civil
6Procedure.

7(ii) Every person who owns, possesses, purchases, or receives,
8or attempts to purchase or receive, a firearm while this protective
9order is in effect is punishable pursuant to Section 29825.

10(C) An order issued, modified, extended, or terminated by a
11court pursuant to this paragraph shall be issued on forms adopted
12by the Judicial Council of California and that have been approved
13by the Department of Justice pursuant to subdivision (i) of Section
146380 of the Family Code. However, the fact that an order issued
15by a court pursuant to this section was not issued on forms adopted
16by the Judicial Council and approved by the Department of Justice
17shall not, in and of itself, make the order unenforceable.

18(D) A protective order under this paragraph may require the
19 defendant to be placed on electronic monitoring if the local
20government, with the concurrence of the county sheriff or the chief
21probation officer with jurisdiction, adopts a policy to authorize
22electronic monitoring of defendants and specifies the agency with
23jurisdiction for this purpose. If the court determines that the
24defendant has the ability to pay for the monitoring program, the
25court shall order the defendant to pay for the monitoring. If the
26court determines that the defendant does not have the ability to
27pay for the electronic monitoring, the court may order electronic
28monitoring to be paid for by the local government that adopted
29the policy to authorize electronic monitoring. The duration of
30electronic monitoring shall not exceed one year from the date the
31order is issued. At no time shall the electronic monitoring be in
32place if the protective order is not in place.

33(b) A person violating an order made pursuant to paragraphs
34(1) to (7), inclusive, of subdivision (a) may be punished for any
35substantive offense described in Section 136.1, or for a contempt
36of the court making the order. A finding of contempt shall not be
37a bar to prosecution for a violation of Section 136.1. However, a
38person so held in contempt shall be entitled to credit for punishment
39imposed therein against a sentence imposed upon conviction of
40an offense described in Section 136.1. A conviction or acquittal
P5    1for a substantive offense under Section 136.1 shall be a bar to a
2subsequent punishment for contempt arising out of the same act.

3(c) (1) Notwithstanding subdivisions (a) and (e), an emergency
4protective order issued pursuant to Chapter 2 (commencing with
5Section 6250) of Part 3 of Division 10 of the Family Code or
6Section 646.91 of the Penal Code shall have precedence in
7enforcement over any other restraining or protective order, provided
8the emergency protective order meets all of the following
9requirements:

10(A) The emergency protective order is issued to protect one or
11more individuals who are already protected persons under another
12restraining or protective order.

13(B) The emergency protective order restrains the individual who
14is the restrained person in the other restraining or protective order
15specified in subparagraph (A).

16(C) The provisions of the emergency protective order are more
17restrictive in relation to the restrained person than are the provisions
18of the other restraining or protective order specified in
19subparagraph (A).

20(2) An emergency protective order that meets the requirements
21of paragraph (1) shall have precedence in enforcement over the
22provisions of any other restraining or protective order only with
23 respect to those provisions of the emergency protective order that
24are more restrictive in relation to the restrained person.

25(d) (1) A person subject to a protective order issued under this
26section shall not own, possess, purchase, receive, or attempt to
27purchase or receive a firearm while the protective order is in effect.

28(2) The court shall order a person subject to a protective order
29issued under this section to relinquish any firearms he or she owns
30or possesses pursuant to Section 527.9 of the Code of Civil
31Procedure.

32(3) A person who owns, possesses, purchases or receives, or
33attempts to purchase or receive a firearm while the protective order
34is in effect is punishable pursuant to Section 29825.

35(e) (1) In all cases where the defendant is charged with a crime
36of domestic violence, as defined in Section 13700, the court shall
37consider issuing the above-described orders on its own motion.
38All interested parties shall receive a copy of those orders. In order
39to facilitate this, the court’s records of all criminal cases involving
P6    1domestic violence shall be marked to clearly alert the court to this
2issue.

3(2) In those cases in which a complaint, information, or
4indictment charging a crime of domestic violence, as defined in
5Section 13700, has been issued, a restraining order or protective
6order against the defendant issued by the criminal court in that
7case has precedence in enforcement over a civil court order against
8the defendant, unless a court issues an emergency protective order
9pursuant to Chapter 2 (commencing with Section 6250) of Part 3
10of Division 10 of the Family Code or Section 646.91 of the Penal
11Code, in which case the emergency protective order shall have
12precedence in enforcement over any other restraining or protective
13order, provided the emergency protective order meets the following
14requirements:

15(A) The emergency protective order is issued to protect one or
16more individuals who are already protected persons under another
17restraining or protective order.

18(B) The emergency protective order restrains the individual who
19is the restrained person in the other restraining or protective order
20specified in subparagraph (A).

21(C) The provisions of the emergency protective order are more
22restrictive in relation to the restrained person than are the provisions
23of the other restraining or protective order specified in
24subparagraph (A).

25(3) Custody and visitation with respect to the defendant and his
26or her minor children may be ordered by a family or juvenile court
27consistent with the protocol established pursuant to subdivision
28(f), but if ordered after a criminal protective order has been issued
29pursuant to this section, the custody and visitation order shall make
30reference to, and acknowledge the precedence of enforcement of,
31an appropriate criminal protective order. On or before July 1, 2006,
32the Judicial Council shall modify the criminal and civil court forms
33consistent with this subdivision.

34(f) On or before January 1, 2003, the Judicial Council shall
35promulgate a protocol, for adoption by each local court in
36substantially similar terms, to provide for the timely coordination
37of all orders against the same defendant and in favor of the same
38named victim or victims. The protocol shall include, but shall not
39be limited to, mechanisms for assuring appropriate communication
40and information sharing between criminal, family, and juvenile
P7    1courts concerning orders and cases that involve the same parties,
2and shall permit a family or juvenile court order to coexist with a
3criminal court protective order subject to the following conditions:

4(1) An order that permits contact between the restrained person
5and his or her children shall provide for the safe exchange of the
6children and shall not contain language either printed or
7handwritten that violates a “no contact order” issued by a criminal
8court.

9(2) Safety of all parties shall be the courts’ paramount concern.
10The family or juvenile court shall specify the time, day, place, and
11manner of transfer of the child, as provided in Section 3100 of the
12Family Code.

13(g) On or before January 1, 2003, the Judicial Council shall
14modify the criminal and civil court protective order forms
15consistent with this section.

16(h) In any case in which a complaint, information, or indictment
17charging a crime of domestic violence, as defined in Section 13700,
18has been filed, the court may consider, in determining whether
19good cause exists to issue an order under paragraph (1) of
20subdivision (a), the underlying nature of the offense charged, and
21the information provided to the court pursuant to Section 273.75.

22(i) (1) In all cases in which a criminal defendant has been
23convicted of a crime of domestic violence as defined in Section
2413700,begin insert a violation of Section 261, 261.5, or 262, or any crime that
25requires the defendant to register pursuant to subdivision (c) of
26Section 290,end insert
the court, at the time of sentencing, shall consider
27issuing an order restraining the defendant from any contact with
28the victim. The order may be valid for up to 10 years, as determined
29by the court. This protective order may be issued by the court
30regardless of whether the defendant is sentenced to the state prison
31or a county jail, or whether imposition of sentence is suspended
32and the defendant is placed on probation. It is the intent of the
33Legislature in enacting this subdivision that the duration of any
34restraining order issued by the court be based upon the seriousness
35of the facts before the court, the probability of future violations,
36and the safety of the victim and his or her immediate family.

37(2) An order under this subdivision may include provisions for
38electronic monitoring if the local government, upon receiving the
39concurrence of the county sheriff or the chief probation officer
40with jurisdiction, adopts a policy authorizing electronic monitoring
P8    1of defendants and specifies the agency with jurisdiction for this
2purpose. If the court determines that the defendant has the ability
3to pay for the monitoring program, the court shall order the
4defendant to pay for the monitoring. If the court determines that
5the defendant does not have the ability to pay for the electronic
6monitoring, the court may order the electronic monitoring to be
7paid for by the local government that adopted the policy authorizing
8electronic monitoring. The duration of the electronic monitoring
9shall not exceed one year from the date the order is issued.

10(j) For purposes of this section, “local government” means the
11county that has jurisdiction over the protective order.

12

SEC. 2.  

Section 166 of the Penal Code is amended to read:

13

166.  

(a) Except as provided in subdivisions (b), (c), and (d),
14a person guilty of any of the following contempts of court is guilty
15of a misdemeanor:

16(1) Disorderly, contemptuous, or insolent behavior committed
17during the sitting of a court of justice, in the immediate view and
18presence of the court, and directly tending to interrupt its
19proceedings or to impair the respect due to its authority.

20(2) Behavior specified in paragraph (1) that is committed in the
21presence of a referee, while actually engaged in a trial or hearing,
22pursuant to the order of a court, or in the presence of any jury while
23actually sitting for the trial of a cause, or upon an inquest or other
24proceeding authorized by law.

25(3) A breach of the peace, noise, or other disturbance directly
26tending to interrupt the proceedings of the court.

27(4) Willful disobedience of the terms as written of any process
28or court order or out-of-state court order, lawfully issued by a
29court, including orders pending trial.

30(5) Resistance willfully offered by any person to the lawful
31order or process of a court.

32(6) Willful disobedience by a juror of a court admonishment
33related to the prohibition on any form of communication or research
34about the case, including all forms of electronic or wireless
35communication or research.

36(7) The contumacious and unlawful refusal of a person to be
37sworn as a witness or, when so sworn, the like refusal to answer
38a material question.

39(8) The publication of a false or grossly inaccurate report of the
40proceedings of a court.

P9    1(9) Presenting to a court having power to pass sentence upon a
2prisoner under conviction, or to a member of the court, an affidavit,
3testimony, or representation of any kind, verbal or written, in
4aggravation or mitigation of the punishment to be imposed upon
5the prisoner, except as provided in this code.

6(10) Willful disobedience of the terms of an injunction that
7restrains the activities of a criminal street gang or any of its
8members, lawfully issued by a court, including an order pending
9trial.

10(b) (1) A person who is guilty of contempt of court under
11paragraph (4) of subdivision (a) by willfully contacting a victim
12by telephone or mail, or directly, and who has been previously
13convicted of a violation of Section 646.9 shall be punished by
14imprisonment in a county jail for not more than one year, by a fine
15of five thousand dollars ($5,000), or by both that fine and
16imprisonment.

17(2) For the purposes of sentencing under this subdivision, each
18contact shall constitute a separate violation of this subdivision.

19(3) The present incarceration of a person who makes contact
20with a victim in violation of paragraph (1) is not a defense to a
21violation of this subdivision.

22(c) (1) Notwithstanding paragraph (4) of subdivision (a), a
23willful and knowing violation of a protective order or stay-away
24court order issued pursuant to Sectionbegin delete 136.2,end deletebegin insert 136.2 or paragraph
25(2) of subdivision (a) of Section 1203.097end insert
in abegin delete pendingend delete criminal
26proceeding involving domestic violence, as defined in Section
2713700,begin delete or issued as a condition of probation after a conviction in
28a criminal proceeding involving domestic violence, as defined in
29Section 13700,end delete
or elder or dependent adult abuse, as defined in
30Section 368, orbegin delete that isend delete an order described in paragraph (3), shall
31constitute contempt of court, a misdemeanor, punishable by
32imprisonment in a county jail for not more than one year, by a fine
33of not more than one thousand dollars ($1,000), or by both that
34imprisonment and fine.

35(2) If a violation of paragraph (1) results in a physical injury,
36the person shall be imprisoned in a county jail for at least 48 hours,
37whether a fine or imprisonment is imposed, or the sentence is
38suspended.

39(3) Paragraphs (1) and (2) apply to the following court orders:

P10   1(A) An order issued pursuant to Section 6320 or 6389 of the
2Family Code.

3(B) An order excluding one party from the family dwelling or
4from the dwelling of the other.

5(C) An order enjoining a party from specified behavior that the
6court determined was necessary to effectuate the orders described
7in paragraph (1).

8(4) A second or subsequent conviction for a violation of an order
9described in paragraph (1) occurring within seven years of a prior
10conviction for a violation of any of those orders and involving an
11act of violence or “a credible threat” of violence, as provided in
12subdivisions (c) and (d) of Section 139, is punishable by
13imprisonment in a county jail not to exceed one year, or in the
14state prison for 16 months or two or three years.

15(5) The prosecuting agency of each county shall have the
16primary responsibility for the enforcement of the orders described
17in paragraph (1).

18(d) (1) A person who owns, possesses, purchases, or receives
19a firearm knowing he or she is prohibited from doing so by the
20provisions of a protective order as defined in Section 136.2 of this
21code, Section 6218 of the Family Code, or Section 527.6 or 527.8
22of the Code of Civil Procedure, shall be punished underbegin delete subdivision
23(g) ofend delete
Sectionbegin delete 12021end deletebegin insert 29825end insert.

24(2) A person subject to a protective order described in paragraph
25(1) shall not be prosecuted under this section for owning,
26possessing, purchasing, or receiving a firearm to the extent that
27firearm is granted an exemption pursuant to subdivision (h) of
28Section 6389 of the Family Code.

29(e) (1) If probation is granted upon conviction of a violation of
30subdivision (c), the court shall impose probation consistent with
31Section 1203.097.

32(2) If probation is granted upon conviction of a violation of
33subdivision (c), the conditions of probation may include, in lieu
34of a fine, one or both of the following requirements:

35(A) That the defendant make payments to a battered women’s
36shelter, up to a maximum of one thousand dollars ($1,000).

37(B) That the defendant provide restitution to reimburse the
38victim for reasonable costs of counseling and other reasonable
39expenses that the court finds are the direct result of the defendant’s
40offense.

P11   1(3) For an order to pay a fine, make payments to a battered
2women’s shelter, or pay restitution as a condition of probation
3under this subdivision or subdivision (c), the court shall make a
4determination of the defendant’s ability to pay. In no event shall
5an order to make payments to a battered women’s shelter be made
6if it would impair the ability of the defendant to pay direct
7restitution to the victim or court-ordered child support.

8(4) If the injury to a married person is caused in whole, or in
9part, by the criminal acts of his or her spouse in violation of
10subdivision (c), the community property shall not be used to
11discharge the liability of the offending spouse for restitution to the
12injured spouse required by Section 1203.04, as operative on or
13before August 2, 1995, or Section 1202.4, or to a shelter for costs
14with regard to the injured spouse and dependents required by this
15subdivision, until all separate property of the offending spouse is
16exhausted.

17(5) A person violating an order described in subdivision (c) may
18be punished for any substantive offenses described under Section
19136.1 or 646.9. A finding of contempt shall not be a bar to
20prosecution for a violation of Section 136.1 or 646.9. However, a
21person held in contempt for a violation of subdivision (c) shall be
22entitled to credit for any punishment imposed as a result of that
23violation against any sentence imposed upon conviction of an
24offense described in Section 136.1 or 646.9. A conviction or
25acquittal for a substantive offense under Section 136.1 or 646.9
26shall be a bar to a subsequent punishment for contempt arising out
27of the same act.

28

SEC. 3.  

No reimbursement is required by this act pursuant to
29Section 6 of Article XIII B of the California Constitution because
30the only costs that may be incurred by a local agency or school
31district will be incurred because this act creates a new crime or
32infraction, eliminates a crime or infraction, or changes the penalty
33for a crime or infraction, within the meaning of Section 17556 of
34the Government Code, or changes the definition of a crime within
35the meaning of Section 6 of Article XIII B of the California
36Constitution.



O

    99