California Legislature—2013–14 Regular Session

Assembly BillNo. 1498


Introduced by Assembly Member Campos

January 9, 2014


An act to amend Section 136.2 of the Penal Code, relating to protective orders.

LEGISLATIVE COUNSEL’S DIGEST

AB 1498, as introduced, Campos. Protective orders.

Existing law authorizes a court with jurisdiction over a criminal matter to issue certain orders 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 a protective order enjoining a party from, among other things, molesting, attacking, threatening, sexually assaulting, harassing, contacting, or coming within a specified distance of the other party, as specified.

Existing law requires a court to consider issuing a protective order on its own motion in all cases where the defendant is charged with a crime of domestic violence, as defined, and requires the court’s records of all criminal cases involving domestic violence be clearly marked to alert the court of the issue. Existing law provides that a restraining order or protective order issued in a domestic violence case has precedence in enforcement over a civil court order, except as provided. Existing law authorizes the court, in any case in which a complaint, information, or indictment charging domestic violence has been filed, to consider the underlying nature of the offense charged and other specified information in determining whether good cause exists to issue a protective order.

This bill would apply these provisions to all cases where the defendant is charged with specified sex crimes, including rape, spousal rape, and crimes for which a person is required to register as a sex offender. The bill would further authorize the court, in any case in which a complaint, information, or indictment charging any of the above-described sex crimes has been filed, to consider the defendant’s relationship to the victim, the likelihood of continuing harm to the victim, the defendant’s criminal history, as specified, and any current protective or restraining order issued by any civil or criminal court involving the defendant.

Existing law provides that a willful and knowing violation of a protective order issued pursuant to the above-described provisions 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) Upon a good cause belief that harm to, or
4intimidation or dissuasion of, a victim or witness has occurred or
5is reasonably likely to occur, a court with jurisdiction over a
6criminal matter may issue orders, including, but not limited to, the
7following:

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 issued under this paragraph may require
19the 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) (A) Notwithstanding subdivision (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 shall have precedence in enforcement over any
7other restraining or protective order, provided the emergency
8protective order meets all of the following requirements:

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

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

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

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

24(2) Except as described in paragraph (1), a no-contact order, as
25described in Section 6320 of the Family Code, shall have
26precedence in enforcement over any other restraining or protective
27order.

28(d) (1) A person subject to a protective order issued under this
29section shall not own, possess, purchase, receive, or attempt to
30purchase or receive a firearm while the protective order is in effect.

31(2) The court shall order a person subject to a protective order
32issued under this section to relinquish any firearms he or she owns
33or possesses pursuant to Section 527.9 of the Code of Civil
34Procedure.

35(3) A person who owns, possesses, purchases or receives, or
36attempts to purchase or receive a firearm while the protective order
37is in effect is punishable pursuant to Section 29825.

38(e) (1) In all cases where the defendant is charged with a crime
39of domestic violence, as defined in Section 13700,begin insert or a violation
40of Section 261, 261.5, or 262, or any crime that requires the
P6    1defendant to register pursuant to subdivision (c) of Section 290,end insert

2 the court shall consider issuing the above-described orders on its
3own motion. All interested parties shall receive a copy of those
4orders. In order to facilitate this, the court’s records of all criminal
5cases involving domestic violencebegin insert or a violation of Section 261,
6261.5, or 262, or any crime that requires the defendant to register
7pursuant to subdivision (c) of Section 290end insert
shall be marked to
8clearly alert the court to this issue.

9(2) In those cases in which a complaint, information, or
10indictment charging a crime of domestic violence, as defined in
11Section 13700,begin insert or a violation of Section 261, 261.5, or 262, or any
12crime that requires the defendant to register pursuant to
13subdivision (c) of Section 290end insert
has been issued, except as described
14in subdivision (c), a restraining order or protective order against
15the defendant issued by the criminal court in that case has
16precedence in enforcement over a civil court order against the
17defendant.

18(3) Custody and visitation with respect to the defendant and his
19or her minor children may be ordered by a family or juvenile court
20consistent with the protocol established pursuant to subdivision
21(f), but if ordered after a criminal protective order has been issued
22pursuant to this section, the custody and visitation order shall make
23reference to, and, if there is not an emergency protective order that
24has precedence in enforcement pursuant to paragraph (1) of
25subdivision (c), or a no-contact order, as described in Section 6320
26of the Family Code, acknowledge the precedence of enforcement
27of, an appropriate criminal protective order. On or before July 1,
282014, the Judicial Council shall modify the criminal and civil court
29forms consistent with this subdivision.

30(f) On or before January 1, 2003, the Judicial Council shall
31promulgate a protocol, for adoption by each local court in
32substantially similar terms, to provide for the timely coordination
33of all orders against the same defendant and in favor of the same
34named victim or victims. The protocol shall include, but shall not
35be limited to, mechanisms for ensuring appropriate communication
36and information sharing between criminal, family, and juvenile
37courts concerning orders and cases that involve the same parties,
38and shall permit a family or juvenile court order to coexist with a
39criminal court protective order subject to the following conditions:

P7    1(1) An order that permits contact between the restrained person
2and his or her children shall provide for the safe exchange of the
3children and shall not contain language either printed or
4handwritten that violates a “no-contact order” issued by a criminal
5court.

6(2) Safety of all parties shall be the courts’ paramount concern.
7The family or juvenile court shall specify the time, day, place, and
8manner of transfer of the child, as provided in Section 3100 of the
9Family Code.

10(g) On or before January 1, 2003, the Judicial Council shall
11modify the criminal and civil court protective order forms
12consistent with this section.

13(h) begin insert(1)end insertbegin insertend insert In any case in which a complaint, information, or
14indictment charging a crime of domestic violence, as defined in
15Section 13700, has been filed, the court may consider, in
16determining whether good cause exists to issue an order under
17paragraph (1) of subdivision (a), the underlying nature of the
18offense charged, and the information provided to the court pursuant
19to Section 273.75.

begin insert

20(2) In any case in which a complaint, information, or indictment
21charging a violation of Section 261, 261.5, or 262, or any crime
22that requires the defendant to register pursuant to subdivision (c)
23of Section 290 has been filed, the court may consider, in
24determining whether good cause exists to issue an order under
25paragraph (1) of subdivision (a), the underlying nature of the
26offense charged, the defendant’s relationship to the victim, the
27likelihood of continuing harm to the victim, any current restraining
28order or protective order issued by any civil or criminal court
29involving the defendant, and the defendant’s criminal history,
30including, but not limited to, prior convictions for a violation of
31Section 261, 261.5, or 262, or any crime that requires the defendant
32to register pursuant to subdivision (c) of Section 290, or any other
33forms of violence, or any weapons offenses.

end insert

34(i) (1) In all cases in which a criminal defendant has been
35convicted of a crime of domestic violence as defined in Section
3613700, a violation of Section 261, 261.5, or 262, or any crime that
37requires the defendant to register pursuant to subdivision (c) of
38Section 290, the court, at the time of sentencing, shall consider
39issuing an order restraining the defendant from any contact with
40the victim. The order may be valid for up to 10 years, as determined
P8    1by the court. This protective order may be issued by the court
2regardless of whether the defendant is sentenced to the state prison
3or a county jail, or whether imposition of sentence is suspended
4and the defendant is placed on probation. It is the intent of the
5Legislature in enacting this subdivision that the duration of any
6restraining order issued by the court be based upon the seriousness
7of the facts before the court, the probability of future violations,
8and the safety of the victim and his or her immediate family.

9(2) An order under this subdivision may include provisions for
10electronic monitoring if the local government, upon receiving the
11concurrence of the county sheriff or the chief probation officer
12with jurisdiction, adopts a policy authorizing electronic monitoring
13of defendants and specifies the agency with jurisdiction for this
14purpose. If the court determines that the defendant has the ability
15to pay for the monitoring program, the court shall order the
16defendant to pay for the monitoring. If the court determines that
17the defendant does not have the ability to pay for the electronic
18monitoring, the court may order the electronic monitoring to be
19paid for by the local government that adopted the policy authorizing
20electronic monitoring. The duration of the electronic monitoring
21shall not exceed one year from the date the order is issued.

22(j) For purposes of this section, “local government” means the
23county that has jurisdiction over the protective order.

24

SEC. 2.  

No reimbursement is required by this act pursuant to
25Section 6 of Article XIII B of the California Constitution because
26the only costs that may be incurred by a local agency or school
27district will be incurred because this act creates a new crime or
28infraction, eliminates a crime or infraction, or changes the penalty
29for a crime or infraction, within the meaning of Section 17556 of
30the Government Code, or changes the definition of a crime within
31the meaning of Section 6 of Article XIII B of the California
32Constitution.



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