Amended in Assembly May 5, 2014

Amended in Assembly March 17, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 1850


Introduced by Assembly Member Waldron

(Coauthor: Assembly Member Gonzalez)

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 amended, 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, provide that a minor who was not a victim of, but who was physically presentbegin delete during or located nearend deletebegin insert at the time ofend insert, an act of domestic violence, is a witness and is deemed to have suffered harm. 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:

P2    1

SECTION 1.  

Section 136.2 of the Penal Code, as amended by
2Section 1.5 of Chapter 291 of the Statutes of 2013, is amended to
3read:

4

136.2.  

(a) (1) Upon a good cause belief that harm to, or
5intimidation or dissuasion of, a victim or witness has occurred or
6is reasonably likely to occur, a court with jurisdiction over a
7criminal matter may issue orders, including, but not limited to, the
8following:

9(A) An order issued pursuant to Section 6320 of the Family
10Code.

11(B) An order that a defendant shall not violate any provision of
12Section 136.1.

13(C) An order that a person before the court other than a
14defendant, including, but not limited to, a subpoenaed witness or
15other person entering the courtroom of the court, shall not violate
16any provisions of Section 136.1.

17(D) An order that a person described in this section shall have
18no communication whatsoever with a specified witness or a victim,
19except through an attorney under reasonable restrictions that the
20court may impose.

21(E) An order calling for a hearing to determine if an order as
22described in subparagraphs (A) to (D), inclusive, should be issued.

23(F) (i) An order that a particular law enforcement agency within
24the jurisdiction of the court provide protection for a victim or a
25witness, or both, or for immediate family members of a victim or
26a witness who reside in the same household as the victim or witness
27or within reasonable proximity of the victim’s or witness’
28household, as determined by the court. The order shall not be made
29without the consent of the law enforcement agency except for
30limited and specified periods of time and upon an express finding
P3    1by the court of a clear and present danger of harm to the victim or
2witness or immediate family members of the victim or witness.

3(ii) For purposes of this paragraph, “immediate family members”
4include the spouse, children, or parents of the victim or witness.

5(G) (i) An order protecting a victim or witness of violent crime
6from all contact by the defendant, or contact, with the intent to
7annoy, harass, threaten, or commit acts of violence, by the
8defendant. The court or its designee shall transmit orders made
9under this paragraph to law enforcement personnel within one
10business day of the issuance, modification, extension, or
11termination of the order, pursuant to subdivision (a) of Section
126380 of the Family Code. It is the responsibility of the court to
13transmit the modification, extension, or termination orders made
14under this paragraph to the same agency that entered the original
15protective order into the Domestic Violence Restraining Order
16System.

17(ii) (I) If a court does not issue an order pursuant to clause (i)
18in a case in which the defendant is charged with a crime of
19domestic violence as defined in Section 13700, the court on its
20own motion shall consider issuing a protective order upon a good
21cause belief that harm to, or intimidation or dissuasion of, a victim
22or witness has occurred or is reasonably likely to occur, that
23provides as follows:

24(ia) The defendant shall not own, possess, purchase, receive, or
25attempt to purchase or receive, a firearm while the protective order
26is in effect.

27(ib) The defendant shall relinquish any firearms that he or she
28owns or possesses pursuant to Section 527.9 of the Code of Civil
29Procedure.

30(II) Every person who owns, possesses, purchases, or receives,
31or attempts to purchase or receive, a firearm while this protective
32order is in effect is punishable pursuant to Section 29825.

33(iii) An order issued, modified, extended, or terminated by a
34court pursuant to this subparagraph shall be issued on forms
35adopted by the Judicial Council of California and that have been
36approved by the Department of Justice pursuant to subdivision (i)
37of Section 6380 of the Family Code. However, the fact that an
38order issued by a court pursuant to this section was not issued on
39forms adopted by the Judicial Council and approved by the
P4    1Department of Justice shall not, in and of itself, make the order
2unenforceable.

3(iv) A protective order issued under this subparagraph may
4require the defendant to be placed on electronic monitoring if the
5local government, with the concurrence of the county sheriff or
6the chief probation officer with jurisdiction, adopts a policy to
7authorize electronic monitoring of defendants and specifies the
8agency with jurisdiction for this purpose. If the court determines
9that the defendant has the ability to pay for the monitoring program,
10the court shall order the defendant to pay for the monitoring. If
11the court determines that the defendant does not have the ability
12to pay for the electronic monitoring, the court may order electronic
13monitoring to be paid for by the local government that adopted
14the policy to authorize electronic monitoring. The duration of
15electronic monitoring shall not exceed one year from the date the
16order is issued. At no time shall the electronic monitoring be in
17place if the protective order is not in place.

18(2) For purposes of this subdivision, a minor who was not a
19victim of, but who was physically presentbegin delete during or located nearend delete
20begin insert at the time ofend insert, an act of domestic violence, is a witness and is
21deemed to have suffered harm within the meaning of paragraph
22(1).

23(b) A person violating an order made pursuant to subparagraphs
24(A) to (G), inclusive, of paragraph (1) of subdivision (a) may be
25punished for any substantive offense described in Section 136.1,
26or for a contempt of the court making the order. A finding of
27contempt shall not be a bar to prosecution for a violation of Section
28136.1. However, a person so held in contempt shall be entitled to
29credit for punishment imposed therein against a sentence imposed
30upon conviction of an offense described in Section 136.1. A
31conviction or acquittal for a substantive offense under Section
32136.1 shall be a bar to a subsequent punishment for contempt
33arising out of the same act.

34(c) (1) (A) Notwithstanding subdivision (e), an emergency
35protective order issued pursuant to Chapter 2 (commencing with
36 Section 6250) of Part 3 of Division 10 of the Family Code or
37Section 646.91 shall have precedence in enforcement over any
38other restraining or protective order, provided the emergency
39protective order meets all of the following requirements:

P5    1(i) The emergency protective order is issued to protect one or
2more individuals who are already protected persons under another
3restraining or protective order.

4(ii) The emergency protective order restrains the individual who
5is the restrained person in the other restraining or protective order
6specified in clause (i).

7(iii) The provisions of the emergency protective order are more
8restrictive in relation to the restrained person than are the provisions
9of the other restraining or protective order specified in clause (i).

10(B) An emergency protective order that meets the requirements
11of subparagraph (A) shall have precedence in enforcement over
12the provisions of any other restraining or protective order only
13with respect to those provisions of the emergency protective order
14that are more restrictive in relation to the restrained person.

15(2) Except as described in paragraph (1), a no-contact order, as
16described in Section 6320 of the Family Code, shall have
17precedence in enforcement over any other restraining or protective
18order.

19(d) (1) A person subject to a protective order issued under this
20section shall not own, possess, purchase, receive, or attempt to
21 purchase or receive a firearm while the protective order is in effect.

22(2) The court shall order a person subject to a protective order
23issued under this section to relinquish any firearms he or she owns
24or possesses pursuant to Section 527.9 of the Code of Civil
25Procedure.

26(3) A person who owns, possesses, purchases or receives, or
27attempts to purchase or receive a firearm while the protective order
28is in effect is punishable pursuant to Section 29825.

29(e) (1) In all cases where the defendant is charged with a crime
30of domestic violence, as defined in Section 13700, the court shall
31consider issuing the above-described orders on its own motion.
32All interested parties shall receive a copy of those orders. In order
33to facilitate this, the court’s records of all criminal cases involving
34domestic violence shall be marked to clearly alert the court to this
35issue.

36(2) In those cases in which a complaint, information, or
37indictment charging a crime of domestic violence, as defined in
38Section 13700, has been issued, except as described in subdivision
39(c), a restraining order or protective order against the defendant
P6    1issued by the criminal court in that case has precedence in
2enforcement over a civil court order against the defendant.

3(3) Custody and visitation with respect to the defendant and his
4or her minor children may be ordered by a family or juvenile court
5consistent with the protocol established pursuant to subdivision
6(f), but if ordered after a criminal protective order has been issued
7pursuant to this section, the custody and visitation order shall make
8reference to, and, if there is not an emergency protective order that
9has precedence in enforcement pursuant to paragraph (1) of
10subdivision (c), or a no-contact order, as described in Section 6320
11of the Family Code, acknowledge the precedence of enforcement
12of, an appropriate criminal protective order. On or before July 1,
132014, the Judicial Council shall modify the criminal and civil court
14forms consistent with this subdivision.

15(f) On or before January 1, 2003, the Judicial Council shall
16promulgate a protocol, for adoption by each local court in
17substantially similar terms, to provide for the timely coordination
18of all orders against the same defendant and in favor of the same
19named victim or victims. The protocol shall include, but shall not
20be limited to, mechanisms for ensuring appropriate communication
21and information sharing between criminal, family, and juvenile
22courts concerning orders and cases that involve the same parties,
23and shall permit a family or juvenile court order to coexist with a
24criminal court protective order subject to the following conditions:

25(1) An order that permits contact between the restrained person
26and his or her children shall provide for the safe exchange of the
27children and shall not contain language either printed or
28handwritten that violates a “no-contact order” issued by a criminal
29court.

30(2) Safety of all parties shall be the courts’ paramount concern.
31The family or juvenile court shall specify the time, day, place, and
32manner of transfer of the child, as provided in Section 3100 of the
33Family Code.

34(g) On or before January 1, 2003, the Judicial Council shall
35modify the criminal and civil court protective order forms
36consistent with this section.

37(h) In any case in which a complaint, information, or indictment
38charging a crime of domestic violence, as defined in Section 13700,
39has been filed, the court may consider, in determining whether
40good cause exists to issue an order under subparagraph (A) of
P7    1paragraph (1) of subdivision (a), the underlying nature of the
2offense charged, and the information provided to the court pursuant
3to Section 273.75.

4(i) (1) In all cases in which a criminal defendant has been
5convicted of a crime of domestic violence as defined in Section
613700, a violation of Section 261, 261.5, or 262, or any crime that
7requires the defendant to register pursuant to subdivision (c) of
8Section 290, the court, at the time of sentencing, shall consider
9issuing an order restraining the defendant from any contact with
10the victim. The order may be valid for up to 10 years, as determined
11by the court. This protective order may be issued by the court
12regardless of whether the defendant is sentenced to the state prison
13or a county jail, or whether imposition of sentence is suspended
14and the defendant is placed on probation. It is the intent of the
15Legislature in enacting this subdivision that the duration of any
16restraining order issued by the court be based upon the seriousness
17of the facts before the court, the probability of future violations,
18and the safety of the victim and his or her immediate family.

19(2) An order under this subdivision may include provisions for
20electronic monitoring if the local government, upon receiving the
21concurrence of the county sheriff or the chief probation officer
22with jurisdiction, adopts a policy authorizing electronic monitoring
23of defendants and specifies the agency with jurisdiction for this
24purpose. If the court determines that the defendant has the ability
25to pay for the monitoring program, the court shall order the
26defendant to pay for the monitoring. If the court determines that
27the defendant does not have the ability to pay for the electronic
28monitoring, the court may order the electronic monitoring to be
29paid for by the local government that adopted the policy authorizing
30electronic monitoring. The duration of the electronic monitoring
31 shall not exceed one year from the date the order is issued.

32(j) For purposes of this section, “local government” means the
33county that has jurisdiction over the protective order.

34

SEC. 2.  

No reimbursement is required by this act pursuant to
35Section 6 of Article XIII B of the California Constitution because
36the only costs that may be incurred by a local agency or school
37district will be incurred because this act creates a new crime or
38infraction, eliminates a crime or infraction, or changes the penalty
39for a crime or infraction, within the meaning of Section 17556 of
40the Government Code, or changes the definition of a crime within
P8    1the meaning of Section 6 of Article XIII B of the California
2Constitution.



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