California Legislature—2013–14 Regular Session

Assembly Bill No. 1850

Introduced by Assembly Member Waldron

February 19, 2014

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

LEGISLATIVE COUNSEL’S DIGEST

AB 1850, as introduced, Waldron. Restraining orders.

Existing law authorizes a court with jurisdiction over a criminal matter to issue specified protective 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 an order protecting a victim of violent crime from all contact by the defendant. The violation of a restraining order issued pursuant to these provisions is a crime.

This bill would additionally authorize a court with jurisdiction over a criminal matter to issue an order protecting a witness of violent crime from all contact by the defendant upon a good cause belief that harm to, or intimidation or dissuasion of, that witness has occurred or is reasonably likely to occur. The bill would also, for the purposes of these provisions, include within the meaning of the term “harm” the harm to a minor resulting from his or her physical presence at, proximity to, or location near, an act of domestic violence. By expanding the scope of a 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 1.  

Section 136.2 of the Penal Code, as amended by
Chapter 291 of the Statutes of 2013, is amended to read:

136.2.  

(a) 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, a court with jurisdiction over a
criminal matter may issue orders, including, but not limited to, the
following:

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

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

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

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

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

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

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

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

(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with
a crime of domestic violence as defined in Section 13700, the court
on its own motion shall consider issuing 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,
that provides as follows:

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

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

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

(C) An order issued, modified, extended, or terminated by a
court pursuant to this paragraph shall be issued on forms adopted
by the Judicial Council of California and that have been approved
by the Department of Justice pursuant to subdivision (i) of Section
6380 of the Family Code. However, the fact that an order issued
by a court pursuant to this section was not issued on forms adopted
by the Judicial Council and approved by the Department of Justice
shall not, in and of itself, make the order unenforceable.

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

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

(c) (1) (A) Notwithstanding subdivision (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or
Section 646.91 shall have precedence in enforcement over any
other restraining or protective order, provided the emergency
protective order meets all of the following requirements:

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

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

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

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

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

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

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

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

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

(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, except as described in subdivision
(c), a restraining order or protective order against the defendant
issued by the criminal court in that case has precedence in
enforcement over a civil court order against the defendant.

(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision
(f), but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and, if there is not an emergency protective order that
has precedence in enforcement pursuant to paragraph (1) of
subdivision (c), or a no-contact order, as described in Section 6320
of the Family Code, acknowledge the precedence of enforcement
of, an appropriate criminal protective order. On or before July 1,
2014, the Judicial Council shall modify the criminal and civil court
forms consistent with this subdivision.

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

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

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

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

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

(i) (1) In all cases in which a criminal defendant has been
convicted of a crime of domestic violence as defined in Section
13700, a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision (c) of
Section 290, the court, at the time of sentencing, shall consider
issuing an order restraining the defendant from any contact with
the victim. The order may be valid for up to 10 years, as determined
by the court. This protective order may be issued by the court
regardless of whether the defendant is sentenced to the state prison
or a county jail, or whether imposition of sentence is suspended
and the defendant is placed on probation. It is the intent of the
Legislature in enacting this subdivision that the duration of any
restraining order issued by the court be based upon the seriousness
of the facts before the court, the probability of future violations,
and the safety of the victim and his or her immediate family.

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

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

begin insert

(k) For purposes of this section, the term “harm” includes the
harm to a minor resulting from his or her physical presence at,
proximity to, or location near, an act of domestic violence.

end insert

SEC. 2.  

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