AB 307, as amended, 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.
begin delete By expanding the scope of an existing crime, the bill would impose a state-mandated local program.end delete
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
begin delete revise those provisions toend delete
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:
Section 136.2 of the Penal Code is amended to
(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
10(2) An order that a defendant shall not violate any provision of
P3 1(3) An order that a person before
the court other than a
2defendant, including, but not limited to, a subpoenaed witness or
3other person entering the courtroom of the court, shall not violate
4any provisions of Section 136.1.
5(4) An order that a person described in this section shall have
6no communication whatsoever with a specified witness or a victim,
7except through an attorney under reasonable restrictions that the
8court may impose.
9(5) An order calling for a hearing to determine if an order as
10described in paragraphs (1) to (4), inclusive, should be issued.
11(6) (A) An order that a particular law enforcement agency
12within the jurisdiction of the court provide protection for a victim
13or a witness, or both, or for immediate family members of a victim
14or a witness who reside in the same household as the victim or
15witness or within reasonable proximity of the victim’s or witness’
16household, as determined by the court. The order shall not be made
17without the consent of the law enforcement agency except for
18limited and specified periods of time and upon an express finding
19by the court of a clear and present danger of harm to the victim or
20witness or immediate family members of the victim or witness.
21(B) For purposes of this paragraph, “immediate family
22members” include the spouse, children, or parents of the victim
24(7) (A) An order protecting victims of violent crime from all
25contact by the defendant, or contact, with the intent to annoy,
26harass, threaten, or commit acts of violence, by the defendant. The
27court or its designee shall transmit orders made under this
28paragraph to law enforcement personnel within one business day
29of the issuance, modification, extension, or termination of the
30order, pursuant to subdivision (a) of Section 6380 of the Family
31Code. It is the responsibility of the court to transmit the
32modification, extension, or termination orders made under this
33paragraph to the same agency that entered the original protective
34order into the Domestic Violence Restraining Order System.
35(B) (i) If a court does not issue an order pursuant to
36subparagraph (A) in a case in which the defendant is charged with
37a crime of domestic violence as defined in Section 13700, the court
38on its own motion shall consider issuing a protective order upon
39a good cause belief that harm to, or intimidation or dissuasion of,
P4 1a victim or witness has occurred or is reasonably likely to occur,
2that provides as follows:
3(I) The defendant shall not own, possess, purchase, receive, or
4attempt to purchase or receive, a firearm while the protective order
5is in effect.
6(II) The defendant shall relinquish any firearms that he or she
7owns or possesses pursuant to Section 527.9 of the Code of Civil
9(ii) Every person who owns, possesses, purchases, or receives,
10or attempts to purchase or receive, a firearm while this protective
11order is in effect is punishable pursuant to Section 29825.
12(C) An order issued, modified, extended, or terminated by a
13court pursuant to this paragraph shall be issued on forms adopted
14by the Judicial Council of California and that have been approved
15by the Department of Justice pursuant to subdivision (i) of Section
166380 of the Family Code. However, the fact that an order issued
17by a court pursuant to this section was not issued on forms adopted
18by the Judicial Council and approved by the Department of Justice
19shall not, in and of itself, make the order unenforceable.
20(D) A protective order under this paragraph may require the
21 defendant to be placed on electronic monitoring if the local
22government, with the concurrence of the county sheriff or the chief
23probation officer with jurisdiction, adopts a policy to authorize
24electronic monitoring of defendants and specifies the agency with
25jurisdiction for this purpose. If the court determines that the
26defendant has the ability to pay for the monitoring program, the
27court shall order the defendant to pay for the monitoring. If the
28court determines that the defendant does not have the ability to
29pay for the electronic monitoring, the court may order electronic
30monitoring to be paid for by the local government that adopted
31the policy to authorize electronic monitoring. The duration of
32electronic monitoring shall not exceed one year from the date the
33order is issued. At no time shall the electronic monitoring be in
34place if the protective order is not in place.
35(b) A person violating an order made pursuant to paragraphs
36(1) to (7), inclusive, of subdivision (a) may be punished for any
37substantive offense described in Section 136.1, or for a contempt
38of the court making the order. A finding of contempt shall not be
39a bar to prosecution for a violation of Section 136.1. However, a
40person so held in contempt shall be entitled to credit for punishment
P5 1imposed therein against a sentence imposed upon conviction of
2an offense described in Section 136.1. A conviction or acquittal
3for a substantive offense under Section 136.1 shall be a bar to a
4subsequent punishment for contempt arising out of the same act.
5(c) (1) Notwithstanding subdivisions (a) and (e), an emergency
6protective order issued pursuant to Chapter 2 (commencing with
7Section 6250) of Part 3 of Division 10 of the Family Code or
8Section 646.91 of the Penal Code shall have precedence in
9enforcement over any other restraining or protective order, provided
10the emergency protective order meets all of the following
12(A) The emergency protective order is issued to protect one or
13more individuals who are already protected persons under another
14restraining or protective order.
15(B) The emergency protective order restrains the individual who
16is the restrained person in the other restraining or protective order
17specified in subparagraph (A).
18(C) The provisions of the emergency protective order are more
19restrictive in relation to the restrained person than are the provisions
20of the other restraining or protective order specified in
22(2) An emergency protective order that meets the requirements
23of paragraph (1) shall have precedence in enforcement over the
24provisions of any other restraining or protective order only with
25 respect to those provisions of the emergency protective order that
26are more restrictive in relation to the restrained person.
27(d) (1) A person subject to a protective order issued under this
28section shall not own, possess, purchase, receive, or attempt to
29purchase or receive a firearm while the protective order is in effect.
30(2) The court shall order a person subject to a protective order
31issued under this section to relinquish any firearms he or she owns
32or possesses pursuant to Section 527.9 of the Code of Civil
34(3) A person who owns, possesses, purchases or receives, or
35attempts to purchase or receive a firearm while the protective order
36is in effect is punishable pursuant to Section 29825.
37(e) (1) In all cases where the defendant is charged with a crime
38of domestic violence, as defined in Section 13700, the court shall
39consider issuing the above-described orders on its own motion.
40All interested parties shall receive a copy of those orders. In order
P6 1to facilitate this, the court’s records of all criminal cases involving
2domestic violence shall be marked to clearly alert the court to this
4(2) In those cases in which a complaint, information, or
5indictment charging a crime of domestic violence, as defined in
6Section 13700, has been issued, a restraining order or protective
7order against the defendant issued by the criminal court in that
8case has precedence in enforcement over a civil court order against
9the defendant, unless a court issues an emergency protective order
10pursuant to Chapter 2 (commencing with Section 6250) of Part 3
11of Division 10 of the Family Code or Section 646.91 of the Penal
12Code, in which case the emergency protective order shall have
13precedence in enforcement over any other restraining or protective
14order, provided the emergency protective order meets the following
16(A) The emergency protective order is issued to protect one or
17more individuals who are already protected persons under another
18restraining or protective order.
19(B) The emergency protective order restrains the individual who
20is the restrained person in the other restraining or protective order
21specified in subparagraph (A).
provisions of the emergency protective order are more
23restrictive in relation to the restrained person than are the provisions
24of the other restraining or protective order specified in
26(3) Custody and visitation with respect to the defendant and his
27or her minor children may be ordered by a family or juvenile court
28consistent with the protocol established pursuant to subdivision
29(f), but if ordered after a criminal protective order has been issued
30pursuant to this section, the custody and visitation order shall make
31reference to, and acknowledge the precedence of enforcement of,
32an appropriate criminal protective order. On or before July 1, 2006,
33the Judicial Council shall modify the criminal and civil court forms
34consistent with this subdivision.
35(f) On or
before January 1, 2003, the Judicial Council shall
36promulgate a protocol, for adoption by each local court in
37substantially similar terms, to provide for the timely coordination
38of all orders against the same defendant and in favor of the same
39named victim or victims. The protocol shall include, but shall not
40be limited to, mechanisms for assuring appropriate communication
P7 1and information sharing between criminal, family, and juvenile
2courts concerning orders and cases that involve the same parties,
3and shall permit a family or juvenile court order to coexist with a
4criminal court protective order subject to the following conditions:
5(1) An order that permits contact between the restrained person
6and his or her children shall provide for the safe exchange of the
7children and shall not contain language either printed or
8handwritten that violates a “no contact order” issued by a criminal
10(2) Safety of all parties shall be the courts’ paramount concern.
11The family or juvenile court shall specify the time, day, place, and
12manner of transfer of the child, as provided in Section 3100 of the
14(g) On or before January 1, 2003, the Judicial Council shall
15modify the criminal and civil court protective order forms
16consistent with this section.
17(h) In any case in which a complaint, information, or indictment
18charging a crime of domestic violence, as defined in Section 13700,
19has been filed, the court may consider, in determining whether
20good cause exists to issue an order under paragraph (1) of
21subdivision (a), the underlying nature of the offense charged, and
22the information provided to the court pursuant to Section 273.75.
23(i) (1) In all cases in which a criminal defendant has been
24convicted of a crime of domestic violence as defined in Section
2513700, a violation of Section 261, 261.5, or 262, or any crime that
26requires the defendant to register pursuant to subdivision (c) of
27Section 290, the court, at the time of sentencing, shall consider
28issuing an order restraining the defendant from any contact with
29the victim. The order may be valid for up to 10 years, as determined
30by the court. This protective order may be issued by the court
31regardless of whether the defendant is sentenced to the state prison
32or a county jail, or whether imposition of sentence is suspended
33and the defendant is placed on probation. It is the intent of the
34Legislature in enacting this subdivision that the duration of any
35restraining order issued by the court be based upon the seriousness
36of the facts before the court, the probability of future violations,
37and the safety of the victim and his or her immediate family.
38(2) An order under this subdivision may include provisions for
39electronic monitoring if the local government, upon receiving the
40concurrence of the county sheriff or the chief probation officer
P8 1with jurisdiction, adopts a policy authorizing electronic monitoring
2of defendants and specifies the agency with jurisdiction for this
3purpose. If the court determines that the defendant has the ability
4to pay for the monitoring program, the court shall order the
5defendant to pay for the monitoring. If the court determines that
6the defendant does not have the ability to pay for the electronic
7monitoring, the court may order the electronic monitoring to be
8paid for by the local government that adopted the policy authorizing
9electronic monitoring. The duration of the electronic monitoring
10shall not exceed one year from the date the order is issued.
11(j) For purposes of this section, “local government” means the
12county that has jurisdiction over the protective order.
Section 166 of the Penal Code is amended to read:
(a) Except as provided in subdivisions (b), (c), and (d),
15a person guilty of any of the following contempts of court is guilty
16of a misdemeanor:
17(1) Disorderly, contemptuous, or insolent behavior committed
18during the sitting of a court of justice, in the immediate view and
19presence of the court, and directly tending to interrupt its
20proceedings or to impair the respect due to its authority.
21(2) Behavior specified in paragraph (1) that is committed in the
22presence of a referee, while actually engaged in a trial or hearing,
23pursuant to the order of a court, or in the presence of any jury while
24actually sitting for the trial of a cause, or upon an inquest or other
25proceeding authorized by law.
26(3) A breach of the peace, noise, or other disturbance directly
27tending to interrupt the proceedings of the court.
28(4) Willful disobedience of the terms as written of any process
29or court order or out-of-state court order, lawfully issued by a
30court, including orders pending trial.
31(5) Resistance willfully offered by any person to the lawful
32order or process of a court.
33(6) Willful disobedience by a juror of a court admonishment
34related to the prohibition on any form of communication or research
35about the case, including all forms of electronic or wireless
36communication or research.
37(7) The contumacious and unlawful refusal of a person to be
38sworn as a witness or, when so sworn, the like refusal to answer
39a material question.
P9 1(8) The publication of a false or grossly inaccurate report of the
2proceedings of a court.
3(9) Presenting to a court having power to pass sentence upon a
4prisoner under conviction, or to a member of the court, an affidavit,
5testimony, or representation of any kind, verbal or written, in
6aggravation or mitigation of the punishment to be imposed upon
7the prisoner, except as provided in this code.
8(10) Willful disobedience of the terms of an injunction that
9restrains the activities of a criminal street gang or any of its
10members, lawfully issued by a court, including an order pending
12(b) (1) A person who is guilty of contempt of court under
13paragraph (4) of subdivision (a) by willfully contacting a victim
14by telephone or mail, or directly, and who has been previously
15convicted of a violation of Section 646.9 shall be punished by
16imprisonment in a county jail for not more than one year, by a fine
17of five thousand dollars ($5,000), or by both that fine and
19(2) For the purposes of sentencing under this subdivision, each
20contact shall constitute a separate violation of this subdivision.
21(3) The present incarceration of a person who makes contact
22with a victim in violation of paragraph (1) is not a defense to a
23violation of this subdivision.
24(c) (1) Notwithstanding paragraph (4) of subdivision (a), a
25willful and knowing violation of a protective order or stay-away
begin delete issued pursuant to Section
136.2 or paragraph (2) of
27subdivision (a) of Section 1203.097 in a criminal proceeding
28involving domestic violence, as defined in Section 13700, or elder
29or dependent adult abuse, as defined in Section 368, or an order
30described in paragraph (3),end delete
31contempt of court, a misdemeanor, punishable by imprisonment
32in a county jail for not more than one year, by a fine of not more
33than one thousand dollars ($1,000), or by both that imprisonment
begin delete fine.end delete
3(2) If a violation of paragraph (1) results in a physical injury,
4the person shall be imprisoned in a county jail for at least 48 hours,
5whether a fine or imprisonment is imposed, or the sentence is
7(3) Paragraphs (1) and (2) apply to the following court orders:
8(A) An order issued pursuant to Section 6320 or 6389 of the
order excluding one party from the family dwelling or
11from the dwelling of the other.
12(C) An order enjoining a party from specified behavior that the
13court determined was necessary to effectuate the orders described
14in paragraph (1).
15(4) A second or subsequent conviction for a violation of an order
16described in paragraph (1) occurring within seven years of a prior
17conviction for a violation of any of those orders and involving an
18act of violence or “a credible threat” of violence, as provided in
begin delete subdivisionsend delete (c) begin delete and (d)end delete of
Section 139, is punishable
20by imprisonment in a county jail not to exceed one year, or in the
21state prison for 16 months or two or three years.
22(5) The prosecuting agency of each county shall have the
23primary responsibility for the enforcement of the orders described
24in paragraph (1).
25(d) (1) A person who owns, possesses, purchases, or receives
26a firearm knowing he or she is prohibited from doing so by the
27provisions of a protective order as defined in Section 136.2 of this
28code, Section 6218 of the Family Code, or Section 527.6 or 527.8
29of the Code of Civil Procedure, shall be punished under Section
31(2) A person subject to a protective order described in paragraph
32(1) shall not be prosecuted under this section for owning,
33possessing, purchasing, or receiving a firearm to the extent that
34firearm is granted an exemption pursuant to subdivision (h) of
35Section 6389 of the Family Code.
36(e) (1) If probation is granted upon conviction of a violation of
37subdivision (c), the court shall impose probation consistent with
P11 1(2) If probation is granted upon conviction of a violation of
2subdivision (c), the conditions of probation may include, in lieu
3of a fine, one or both of the following requirements:
4(A) That the defendant make payments to a battered women’s
5shelter, up to a maximum of one thousand dollars ($1,000).
6(B) That the defendant provide restitution to reimburse the
7victim for reasonable costs of counseling and other reasonable
8expenses that the court finds are the direct result of the defendant’s
10(3) For an order to pay a fine, make payments to a battered
11women’s shelter, or pay restitution as a condition of probation
12under this subdivision or subdivision (c), the court shall make a
13determination of the defendant’s ability to pay. In no event shall
14an order to make payments to a battered women’s shelter be made
15if it would impair the ability of the defendant to pay direct
16restitution to the victim or court-ordered child support.
17(4) If the injury to a married person is caused in whole, or in
18part, by the criminal acts of his or her spouse in violation of
19subdivision (c), the community property shall not be used to
20discharge the liability of the offending spouse for restitution to the
21injured spouse required by Section 1203.04, as operative on or
22before August 2, 1995, or Section 1202.4, or to a shelter for costs
23with regard to the injured spouse and dependents required by this
24subdivision, until all separate property of the offending spouse is
26(5) A person violating an order described in subdivision (c) may
27be punished for any substantive offenses described under Section
28136.1 or 646.9. A finding of contempt shall not be a bar to
29prosecution for a violation of Section 136.1 or 646.9. However, a
30person held in contempt for a violation of subdivision (c) shall be
31entitled to credit for any punishment imposed as a result of that
32violation against any sentence imposed upon conviction of an
33offense described in Section 136.1 or 646.9. A conviction or
34acquittal for a substantive offense under Section 136.1 or 646.9
35shall be a bar to a subsequent punishment for contempt arising out
36of the same act.
No reimbursement is required by this act pursuant to
38Section 6 of Article XIII B of the California Constitution because
39the only costs that may be incurred by a local agency or school
40district will be incurred because this act creates a new crime or
P12 1infraction, eliminates a crime or infraction, or changes the penalty
2for a crime or infraction, within the meaning of Section 17556 of
3the Government Code, or changes the definition of a crime within
4the meaning of Section 6 of Article XIII B of the California