Amended in Assembly April 16, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1272

Introduced by Assembly Member Grove

February 27, 2015

An act begin delete to add Section 729 to the Business and Professions Code, end delete to amend Sections 6250 and 6251 of begin delete , and to add Section 6211.1 to, end delete the Family Code, begin delete and to amend Section 836 of, and to add Section 268 to, the Penal Code, end delete relating to begin delete developmental disabilities. end delete begin insert protective orders. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1272, as amended, Grove. begin delete Persons end delete begin insert Protective orders: persons end insert with developmental disabilities: sexual exploitation.

begin delete

(1) Existing law establishes that the crime of sexual exploitation by a physician and surgeon, psychotherapist, or alcohol and drug abuse counselor has occurred when any physician and surgeon, psychotherapist, alcohol and drug abuse counselor engages in specified sexual acts with a patient or client, or with a former patient or client, as provided.

end delete begin delete

This bill would provide that a developmental disability residential service provider is guilty of sexual exploitation when he or she engages in specified sexual acts with a person with a developmental disability who is an inpatient or resident of a treatment or care facility, unless the person is his or her spouse or domestic partner. Because this bill would create a new crime, it would impose a state-mandated local program.

end delete begin delete

(2) Existing

end delete

begin insert Existing end insert law authorizes a judicial officer to issue an ex parte emergency protective order when a law enforcement officer begin delete has end delete begin insert asserts end insert reasonable grounds to believe begin insert , or the judicial officer finds, end insert that a person is in immediate and present danger of domestic violence, a child is in immediate and present danger of abuse by a family or household member or may be abducted by a parent or relative, or begin delete when end delete an elder or dependant adult is in immediate and present danger of abuse, as specified.

This bill would also authorize a judicial officer to issue an ex parte emergency protective order when a law enforcement officer begin delete has end delete begin insert asserts end insert reasonable grounds to believe begin insert , or the judicial officer finds, end insert that a person with a developmental disability is in immediate and present danger of sexual exploitation by a developmental disability residential service provider.

begin delete

(3) Existing law requires that any time a peace officer is called out on a domestic violence call, the officer make a good faith effort to inform the victim of his or her right to make a citizen’s arrest, except as specified.

end delete begin delete

This bill would, among other things, also require a peace officer who receives a call alleging that a person with a developmental disability is being sexually exploited by a developmental disability residential service provider, to inform the victim of his or her right to make a citizen’s arrest, except as specified. By imposting additional duties on local authorities, the bill would create a state-mandated local program.

end delete begin delete

(6)  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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program:  begin delete yes end delete begin insert no end insert .

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

begin delete

SECTION 1.  

Section 729 of the Business and Professions Code
is amended to read:

729.  

(a) (1) Any physician and surgeon, psychotherapist,
alcohol and drug abuse counselor or any person holding himself
or herself out to be a physician and surgeon, psychotherapist, or
alcohol and drug abuse counselor, who engages in an act of sexual
intercourse, sodomy, oral copulation, or sexual contact with a
patient or client, or with a former patient or client when the
relationship was terminated primarily for the purpose of engaging
in those acts, is guilty of sexual exploitation, unless the physician
and surgeon, psychotherapist, or alcohol and drug abuse counselor
has referred the patient or client to an independent and objective
physician and surgeon, psychotherapist, or alcohol and drug abuse
counselor recommended by a third-party physician and surgeon,
psychotherapist, or alcohol and drug abuse counselor for treatment.

(2) Any developmental disability residential service provider
who engages in an act of sexual intercourse, sodomy, oral
copulation, or sexual contact with a person with a developmental
disability who is an inpatient or resident of a treatment or care
facility where the provider is employed or holds himself or herself
out to be employed, or any former developmental disability
residential service provider who engages in any of those acts with
an inpatient or resident when the inpatient or resident has not been
informed or does not understand that the former provider is not
employed by the treatment or care facility, is guilty of sexual
exploitation.

(b) Sexual exploitation by a physician and surgeon,
psychotherapist, alcohol and drug abuse counselor, or a
developmental disability residential service provider is a public
offense:

(1) An act in violation of subdivision (a) shall be punishable by
imprisonment in a county jail for a period of not more than six
months, or a fine not exceeding one thousand dollars ($1,000), or
by both that imprisonment and fine.

(2) Multiple acts in violation of subdivision (a) with a single
victim, when the offender has no prior conviction for sexual
exploitation, shall be punishable by imprisonment in a county jail
for a period of not more than six months, or a fine not exceeding
one thousand dollars ($1,000), or by both that imprisonment and
fine.

(3) An act or acts in violation of subdivision (a) with two or
more victims shall be punishable by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for a period of
16 months, two years, or three years, and a fine not exceeding ten
thousand dollars ($10,000); or the act or acts shall be punishable
by imprisonment in a county jail for a period of not more than one
year, or a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine.

(4) Two or more acts in violation of subdivision (a) with a single
victim, when the offender has at least one prior conviction for
sexual exploitation, shall be punishable by imprisonment pursuant
to subdivision (h) of Section 1170 of the Penal Code for a period
of 16 months, two years, or three years, and a fine not exceeding
ten thousand dollars ($10,000); or the act or acts shall be punishable
by imprisonment in a county jail for a period of not more than one
year, or a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine.

(5) An act or acts in violation of subdivision (a) with two or
more victims, and the offender has at least one prior conviction
for sexual exploitation, shall be punishable by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for
a period of 16 months, two years, or three years, and a fine not
exceeding ten thousand dollars ($10,000).

(c) For purposes of subdivision (a), consent of the alleged victim
is not a defense. However, physicians and surgeons shall not be
guilty of sexual exploitation for touching any intimate part of a
patient or client unless the touching is outside the scope of medical
examination and treatment, or the touching is done for sexual
gratification. In addition, developmental disability residential
service providers shall not be guilty of sexual exploitation for
touching any intimate part of an inpatient or resident unless the
touching is outside the scope of his or her care or treatment
responsibilities or the touching is done for sexual gratification.

(d) For purposes of this section:

(1) “Psychotherapist” has the same meaning as defined in
Section 728.

(2) “Alcohol and drug abuse counselor” means an individual
who holds himself or herself out to be an alcohol or drug abuse
professional or paraprofessional.

(3) “Sexual contact” means sexual intercourse or the touching
of an intimate part of a patient for the purpose of sexual arousal,
gratification, or abuse.

(4) “Intimate part” and “touching” have the same meanings as
defined in Section 243.4 of the Penal Code.

(5) “Developmental disability” has the same meaning as defined
in Section 4512 of the Welfare and Institutions Code.

(6) “Developmental disability residential service provider”
means either of the following:

(A) A person who is, or holds himself or herself out to be, an
employee, contractor, or volunteer of a treatment or care facility
for persons with developmental disabilities and who provides
treatment or care to inpatients or residents of the facility.

(B) A person who is, or holds himself or herself out to be, an
owner, officer, manager, or supervisor of a treatment or care facility
that provides treatment or care to inpatients or residents who are
persons with developmental disabilities.

(e) In the investigation and prosecution of a violation of this
section, a person shall not seek to obtain disclosure of any
confidential files of other patients, clients, or former patients or
clients of the physician and surgeon, psychotherapist, alcohol and
drug abuse counselor, or developmental disability residential
service provider.

(f) (1) This section does not apply to sexual contact between a
physician and surgeon and his or her spouse or person in an
equivalent domestic relationship when that physician and surgeon
provides medical treatment, other than psychotherapeutic treatment,
to his or her spouse or person in an equivalent domestic
relationship.

(2) This section does not apply to sexual contact between a
developmental disability residential service provider and his or
her spouse or person in an equivalent domestic relationship when
that service provider provides care or treatment to, or is an owner,
officer, manager, or supervisor of the facility that provides care
or treatment to, his or her spouse or person in an equivalent
domestic relationship.

(g) If a physician and surgeon, psychotherapist, alcohol and
drug abuse counselor, or developmental disability residential
service provider in a professional partnership or similar group has
sexual contact with a patient, client, or resident in violation of this
section, another physician and surgeon, psychotherapist, alcohol
and drug abuse counselor, or developmental disability residential
service provider in the partnership or group shall not be subject to
action under this section solely because of the occurrence of that
sexual contact.

(h) This section does not preclude arrest, prosecution, or
conviction of any person under any other law.

(i) This section and Section 268 of the Penal Code are
substantially identical. It is the intent of Legislature that this section
and Section 268 of the Penal Code remain substantially identical
following any future amendments.

SEC. 2.  

Section 6211.1 is added to the Family Code, to read:

6211.1.  

Nothing in this division shall be interpreted to define
as domestic violence any crimes against children, elders, dependent
adults, or persons with developmental disabilities who are not
described in Section 6211.

end delete

begin delete SEC. 3. end delete
begin insert SECTION 1. end insert   

Section 6250 of the Family Code is amended to
read:

6250.  

A judicial officer may issue an ex parte emergency
protective order if a law enforcement officer asserts reasonable
grounds to believe any of the following:

(a) That a person is in immediate and present danger of domestic
violence, based on the person’s allegation of a recent incident of
abuse or threat of abuse by the person against whom the order is
sought.

(b) That a child is in immediate and present danger of abuse by
a family or household member, based on an allegation of a recent
incident of abuse or threat of abuse by the family or household
member.

(c) That a child is in immediate and present danger of being
abducted by a parent or relative, based on a reasonable belief that
a person has an intent to abduct the child or flee with the child
from the jurisdiction or based on an allegation of a recent threat
to abduct the child or flee with the child from the jurisdiction.

(d) That an elder or dependent adult is in immediate and present
danger of abuse as defined in Section 15610.07 of the Welfare and
Institutions Code, based on an allegation of a recent incident of
abuse or threat of abuse by the person against whom the order is
sought, except that no emergency protective order shall be issued
based solely on an allegation of financial abuse.

(e) That a person with a developmental disability, as defined in
Section 4512 of the Welfare and Institutions Code, is in immediate
and present danger of sexual exploitation by a developmental
disability residential service begin delete provider, as described in Section 729
of the Business and Professions Code and Section 268 of the Penal
Code. end delete begin insert provider. end insert

begin delete SEC. 4. end delete
begin insert SEC. 2. end insert   

Section 6251 of the Family Code is amended to read:

6251.  

An emergency protective order may be issued only if
the judicial officer finds both of the following:

(a) That reasonable grounds have been asserted to believe that
an immediate and present danger of domestic violence exists, that
a child is in immediate and present danger of abuse or abduction,
that an elder or dependent adult is in immediate and present danger
of abuse as defined in Section 15610.07 of the Welfare and
Institutions Code, or that a person with a developmental disability
is in immediate and present danger of sexual exploitation by a
developmental disability residential service begin delete provider as described
in Section 729 of the Business and Professions Code and Section
268 of the Penal Code. end delete begin insert provider. end insert

(b) That an emergency protective order is necessary to prevent
the occurrence or recurrence of domestic violence, child abuse,
child abduction, abuse of an elder or dependent adult, or sexual
exploitation of a person with a developmental disability.

begin delete

SEC. 5.  

Section 268 is added to the Penal Code, to read:

268.  

(a) (1) Any physician and surgeon, psychotherapist,
alcohol and drug abuse counselor or any person holding himself
or herself out to be a physician and surgeon, psychotherapist, or
alcohol and drug abuse counselor, who engages in an act of sexual
intercourse, sodomy, oral copulation, or sexual contact with a
patient or client, or with a former patient or client when the
relationship was terminated primarily for the purpose of engaging
in those acts, is guilty of sexual exploitation, unless the physician
and surgeon, psychotherapist, or alcohol and drug abuse counselor
has referred the patient or client to an independent and objective
physician and surgeon, psychotherapist, or alcohol and drug abuse
counselor recommended by a third-party physician and surgeon,
psychotherapist, or alcohol and drug abuse counselor for treatment.

(2) Any developmental disability residential service provider
who engages in an act of sexual intercourse, sodomy, oral
copulation, or sexual contact with a person with a developmental
disability who is an inpatient or resident of a treatment or care
facility where the provider is employed or holds himself or herself
out to be employed, or any former developmental disability
residential service provider who engages in any of those acts with
an inpatient or resident when the inpatient or resident has not been
informed or does not understand that the former provider is not
employed by the treatment or care facility, is guilty of sexual
exploitation.

(b) Sexual exploitation by a physician and surgeon,
psychotherapist, alcohol and drug abuse counselor, or a
developmental disability residential service provider is a public
offense:

(1) An act in violation of subdivision (a) shall be punishable by
imprisonment in a county jail for a period of not more than six
months, or a fine not exceeding one thousand dollars ($1,000), or
by both that imprisonment and fine.

(2) Multiple acts in violation of subdivision (a) with a single
victim, when the offender has no prior conviction for sexual
exploitation, shall be punishable by imprisonment in a county jail
for a period of not more than six months, or a fine not exceeding
one thousand dollars ($1,000), or by both that imprisonment and
fine.

(3) An act or acts in violation of subdivision (a) with two or
more victims shall be punishable by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for a period of
16 months, two years, or three years, and a fine not exceeding ten
thousand dollars ($10,000); or the act or acts shall be punishable
by imprisonment in a county jail for a period of not more than one
year, or a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine.

(4) Two or more acts in violation of subdivision (a) with a single
victim, when the offender has at least one prior conviction for
sexual exploitation, shall be punishable by imprisonment pursuant
to subdivision (h) of Section 1170 of the Penal Code for a period
of 16 months, two years, or three years, and a fine not exceeding
ten thousand dollars ($10,000); or the act or acts shall be punishable
by imprisonment in a county jail for a period of not more than one
year, or a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine.

(5) An act or acts in violation of subdivision (a) with two or
more victims, and the offender has at least one prior conviction
for sexual exploitation, shall be punishable by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for
a period of 16 months, two years, or three years, and a fine not
exceeding ten thousand dollars ($10,000).

(c) For purposes of subdivision (a), consent of the alleged victim
is not a defense. However, physicians and surgeons shall not be
guilty of sexual exploitation for touching any intimate part of a
patient or client unless the touching is outside the scope of medical
examination and treatment, or the touching is done for sexual
gratification. In addition, developmental disability residential
service providers shall not be guilty of sexual exploitation for
touching any intimate part of an inpatient or resident unless the
touching is outside the scope of his or her care or treatment
responsibilities or the touching is done for sexual gratification.

(d) For purposes of this section:

(1) “Psychotherapist” has the same meaning as defined in
Section 728 of the Business Professions Code.

(2) “Alcohol and drug abuse counselor” means an individual
who holds himself or herself out to be an alcohol or drug abuse
professional or paraprofessional.

(3) “Sexual contact” means sexual intercourse or the touching
of an intimate part of a patient for the purpose of sexual arousal,
gratification, or abuse.

(4) “Intimate part” and “touching” have the same meanings as
defined in Section 243.4.

(5) “Developmental disability” has the same meaning as defined
in Section 4512 of the Welfare and Institutions Code.

(6) “Developmental disability residential service provider”
means either of the following:

(A) A person who is, or holds himself or herself out to be, an
employee, contractor, or volunteer of a treatment or care facility
for persons with developmental disabilities who provides treatment
or care to inpatients or residents of the facility.

(B) A person who is, or holds himself or herself out to be, an
owner, officer, manager, or supervisor of a treatment or care facility
that provides treatment or care to inpatients or residents who are
persons with developmental disabilities.

(e) In the investigation and prosecution of a violation of this
section, a person shall not seek to obtain disclosure of any
confidential files of other patients, clients, or former patients or
clients of the physician and surgeon, psychotherapist, alcohol and
drug abuse counselor, or developmental disability residential
service provider.

(f) (1) This section does not apply to sexual contact between a
physician and surgeon and his or her spouse or person in an
equivalent domestic relationship when that physician and surgeon
provides medical treatment, other than psychotherapeutic treatment,
to his or her spouse or person in an equivalent domestic
relationship.

(2) This section does not apply to sexual contact between a
developmental disability residential service provider and his or
her spouse or person in an equivalent domestic relationship when
that service provider provides care or treatment to, or is an owner,
officer, manager, or supervisor of the facility that provides care
or treatment to, his or her spouse or person in an equivalent
domestic relationship.

(g) If a physician and surgeon, psychotherapist, alcohol and
drug abuse counselor, or developmental disability residential
service provider in a professional partnership or similar group has
sexual contact with a patient, client, or resident in violation of this
section, another physician and surgeon, psychotherapist, alcohol
and drug abuse counselor, or developmental disability residential
service provider in the partnership or group shall not be subject to
action under this section solely because of the occurrence of that
sexual contact.

(h) This section does not preclude arrest, prosecution, or
conviction of any person under any other law.

(i) This section and Section 729 of the Business and Professions
Code are substantially identical. It is the intent of Legislature that
this section and Section 729 of the Business and Professions Code
remain substantially identical following any future amendments.

SEC. 6.  

Section 836 of the Penal Code is amended to read:

836.  

(a) A peace officer may arrest a person in obedience to
a warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the
following circumstances occur:

(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer’s presence.

(2) The person arrested has committed a felony, although not
in the officer’s presence.

(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in
fact, has been committed.

(b) (1) Any time a peace officer is called out on a domestic
violence call, it shall be mandatory that the officer make a good
faith effort to inform the victim of his or her right to make a
citizen’s arrest, unless the peace officer makes an arrest for a
violation of paragraph (1) of subdivision (e) of Section 243 or
273.5. This information shall include advising the victim how to
safely execute the arrest.

(2) Any time a peace officer receives a call alleging a violation
of Section 729 of the Business and Professions Code and Section
268 of this code, the officer shall make a good faith effort to inform
the victim of his or her right to make a citizen’s arrest, unless the
peace officer makes an arrest. This information shall include
advising the victim or other person how to safely execute the arrest.
If the call was made by a person other than the victim and the
victim is unable to understand the information or is unable to
execute the citizen’s arrest, the officer shall make a good faith
effort to inform the person who made the call of his or her right
to make the citizen’s arrest.

(c) (1) (A) When a peace officer is responding to a call alleging
a violation of a domestic violence protective or restraining order
issued under Section 527.6 of the Code of Civil Procedure, the
Family Code, Section 136.2, 646.91, or paragraph (2) of
subdivision (a) of Section 1203.097 of this code, Section 213.5 or
15657.03 of the Welfare and Institutions Code, or of a domestic
violence protective or restraining order issued by the court of
another state, tribe, or territory and the peace officer has probable
cause to believe that the person against whom the order is issued
has notice of the order and has committed an act in violation of
the order, the officer shall, consistent with subdivision (b) of
Section 13701, make a lawful arrest of the person without a warrant
and take that person into custody whether or not the violation
occurred in the presence of the arresting officer. The officer shall,
as soon as possible after the arrest, confirm with the appropriate
authorities or the Domestic Violence Protection Order Registry
maintained pursuant to Section 6380 of the Family Code that a
true copy of the protective order has been registered, unless the
victim provides the officer with a copy of the protective order.

(B) When a peace officer is responding to a call alleging
violation of a protective or restraining order against a
developmental disability residential service provider issued under
Section 6250 of the Family Code, and the peace officer has
probable cause to believe that the person against whom the order
is issued has notice of the order and has committed an act in
violation of the order, the officer shall make a lawful arrest of the
person without a warrant and take that person into custody whether
or not the violation occurred in the presence of the arresting officer.
The officer shall, as soon as possible after the arrest, confirm with
the appropriate authorities that a true copy of the protective or
restraining order has been registered, unless the victim or another
person provides the officer with a copy of the order.

(2) The person against whom a protective order has been issued
shall be deemed to have notice of the order if the victim or, in the
case of a person with a developmental disability, another person
presents to the officer proof of service of the order, the officer
confirms with the appropriate authorities that a true copy of the
proof of service is on file, or the person against whom the
protective order was issued was present at the protective order
hearing or was informed by a peace officer of the contents of the
protective order.

(3) In situations where mutual protective orders have been issued
under Division 10 (commencing with Section 6200) of the Family
Code, liability for arrest under this subdivision applies only to
those persons who are reasonably believed to have been the
dominant aggressor. In those situations, prior to making an arrest
under this subdivision, the peace officer shall make reasonable
efforts to identify, and may arrest, the dominant aggressor involved
in the incident. The dominant aggressor is the person determined
to be the most significant, rather than the first, aggressor. In
identifying the dominant aggressor, an officer shall consider (A)
the intent of the law to protect victims of domestic violence from
continuing abuse, (B) the threats creating fear of physical injury,
(C) the history of domestic violence between the persons involved,
and (D) whether either person involved acted in self-defense.

(d) (1) Notwithstanding paragraph (1) of subdivision (a), if a
suspect commits an assault or battery upon a current or former
spouse, fiancé, fiancée, a current or former cohabitant as defined
in Section 6209 of the Family Code, a person with whom the
suspect currently is having or has previously had an engagement
or dating relationship, as defined in paragraph (10) of subdivision
(f) of Section 243, a person with whom the suspect has parented
a child, or is presumed to have parented a child pursuant to the
Uniform Parentage Act (Part 3 (commencing with Section 7600)
of Division 12 of the Family Code), a child of the suspect, a child
whose parentage by the suspect is the subject of an action under
the Uniform Parentage Act, a child of a person in one of the above
categories, any other person related to the suspect by consanguinity
or affinity within the second degree, or any person who is 65 years
of age or older and who is related to the suspect by blood or legal
guardianship, a peace officer may arrest the suspect without a
warrant where both of the following circumstances apply:

(A) The peace officer has probable cause to believe that the
person to be arrested has committed the crime, whether or not it
has in fact been committed.

(B) The peace officer makes the arrest as soon as probable cause
arises to believe that the person to be arrested has committed the
crime, whether or not it has in fact been committed.

(2) If a suspect violates Section 729 of the Business and
Professions Code and Section 268 of this code, a peace officer
may arrest the suspect without a warrant if the conditions of
subparagraphs (A) and (B) of paragraph (1) are satisfied.

(e) In addition to the authority to make an arrest without a
warrant pursuant to paragraphs (1) and (3) of subdivision (a), a
peace officer may, without a warrant, arrest a person for a violation
of Section 25400 when all of the following apply:

(1) The officer has reasonable cause to believe that the person
to be arrested has committed the violation of Section 25400.

(2) The violation of Section 25400 occurred within an airport,
as defined in Section 21013 of the Public Utilities Code, in an area
to which access is controlled by the inspection of persons and
property.

(3) The peace officer makes the arrest as soon as reasonable
cause arises to believe that the person to be arrested has committed
the violation of Section 25400.

SEC. 7.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, 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.

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end delete