Senate BillNo. 307


Introduced by Senator Pavley

February 23, 2015


An act to amend Sections 136.2, 273.5, and 646.9 of the Penal Code, relating to restraining orders.

LEGISLATIVE COUNSEL’S DIGEST

SB 307, as introduced, Pavley. Restraining orders.

Existing law requires in all cases in which a criminal defendant is convicted of specified crimes, including any crime for which the defendant must register as a sex offender, the court to consider issuing an order, valid for up to 10 years, restraining the defendant from any contact with the victim. Existing law authorizes the order to be issued by the court regardless of whether the defendant is sentenced to state prison or a county jail, or whether the imposition of sentence is suspended and the defendant is placed on probation.

This bill would additionally authorize the order to be issued by the court regardless of whether the imposition of sentence is suspended and the defendant is placed on mandatory supervision.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

P1    1

SECTION 1.  

Section 136.2 of the Penal Code is amended to
2read:

3

136.2.  

(a) (1) 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
P2    1criminal matter may issue orders, including, but not limited to, the
2following:

3(A) An order issued pursuant to Section 6320 of the Family
4Code.

5(B) An order that a defendant shall not violate any provision of
6Section 136.1.

7(C) An order that a person before the court other than a
8defendant, including, but not limited to, a subpoenaed witness or
9other person entering the courtroom of the court, shall not violate
10any provisions of Section 136.1.

11(D) An order that a person described in this section shall have
12no communication whatsoever with a specified witness or a victim,
13except through an attorney under reasonable restrictions that the
14court may impose.

15(E) An order calling for a hearing to determine if an order as
16described in subparagraphs (A) to (D), inclusive, should be issued.

17(F) (i) An order that a particular law enforcement agency within
18the jurisdiction of the court provide protection for a victim or a
19witness, or both, or for immediate family members of a victim or
20a witness who reside in the same household as the victim or witness
21or within reasonable proximity of the victim’s or witness’
22household, as determined by the court. The order shall not be made
23without the consent of the law enforcement agency except for
24 limited and specified periods of time and upon an express finding
25by the court of a clear and present danger of harm to the victim or
26witness or immediate family members of the victim or witness.

27(ii) For purposes of this paragraph, “immediate family members”
28include the spouse, children, or parents of the victim or witness.

29(G) (i) An order protecting a victim or witness of violent crime
30from all contact by the defendant, or contact, with the intent to
31annoy, harass, threaten, or commit acts of violence, by the
32defendant. The court or its designee shall transmit orders made
33under this paragraph to law enforcement personnel within one
34business day of the issuance, modification, extension, or
35termination of the order, pursuant to subdivision (a) of Section
366380 of the Family Code. It is the responsibility of the court to
37transmit the modification, extension, or termination orders made
38under this paragraph to the same agency that entered the original
39protective order into the Domestic Violence Restraining Order
40System.

P3    1(ii) (I) If a court does not issue an order pursuant to clause (i)
2in a case in which the defendant is charged with a crime involving
3domestic violence as defined in Section 13700 or in Section 6211
4of the Family Code, the court on its own motion shall consider
5issuing a protective order upon a good cause belief that harm to,
6or intimidation or dissuasion of, a victim or witness has occurred
7or is reasonably likely to occur, that provides as follows:

8(ia) The defendant shall not own, possess, purchase, receive, or
9attempt to purchase or receive, a firearm while the protective order
10is in effect.

11(ib) The defendant shall relinquish any firearms that he or she
12owns or possesses pursuant to Section 527.9 of the Code of Civil
13Procedure.

14(II) Every person who owns, possesses, purchases, or receives,
15or attempts to purchase or receive, a firearm while this protective
16order is in effect is punishable pursuant to Section 29825.

17(iii) An order issued, modified, extended, or terminated by a
18court pursuant to this subparagraph shall be issued on forms
19adopted by the Judicial Council of California and that have been
20approved by the Department of Justice pursuant to subdivision (i)
21of Section 6380 of the Family Code. However, the fact that an
22order issued by a court pursuant to this section was not issued on
23forms adopted by the Judicial Council and approved by the
24Department of Justice shall not, in and of itself, make the order
25unenforceable.

26(iv) A protective order issued under this subparagraph may
27require the defendant to be placed on electronic monitoring if the
28local government, with the concurrence of the county sheriff or
29the chief probation officer with jurisdiction, adopts a policy to
30authorize electronic monitoring of defendants and specifies the
31agency with jurisdiction for this purpose. If the court determines
32that the defendant has the ability to pay for the monitoring program,
33the court shall order the defendant to pay for the monitoring. If
34the court determines that the defendant does not have the ability
35to pay for the electronic monitoring, the court may order electronic
36monitoring to be paid for by the local government that adopted
37the policy to authorize electronic monitoring. The duration of
38electronic monitoring shall not exceed one year from the date the
39order is issued. At no time shall the electronic monitoring be in
40place if the protective order is not in place.

P4    1(2) For purposes of this subdivision, a minor who was not a
2victim of, but who was physically present at the time of, an act of
3domestic violence, is a witness and is deemed to have suffered
4harm within the meaning of paragraph (1).

5(b) A person violating an order made pursuant to subparagraphs
6(A) to (G), inclusive, of paragraph (1) of subdivision (a) may be
7punished for any substantive offense described in Section 136.1,
8or for a contempt of the court making the order. A finding of
9contempt shall not be a bar to prosecution for a violation of Section
10136.1. However, a person so held in contempt shall be entitled to
11credit for punishment imposed therein against a sentence imposed
12upon conviction of an offense described in Section 136.1. A
13conviction or acquittal for a substantive offense under Section
14136.1 shall be a bar to a subsequent punishment for contempt
15arising out of the same act.

16(c) (1) (A) Notwithstanding subdivision (e), an emergency
17protective order issued pursuant to Chapter 2 (commencing with
18Section 6250) of Part 3 of Division 10 of the Family Code or
19Section 646.91 shall have precedence in enforcement over any
20other restraining or protective order, provided the emergency
21protective order meets all of the following requirements:

22(i) The emergency protective order is issued to protect one or
23more individuals who are already protected persons under another
24restraining or protective order.

25(ii) The emergency protective order restrains the individual who
26is the restrained person in the other restraining or protective order
27specified in clause (i).

28(iii) The provisions of the emergency protective order are more
29restrictive in relation to the restrained person than are the provisions
30of the other restraining or protective order specified in clause (i).

31(B) An emergency protective order that meets the requirements
32of subparagraph (A) shall have precedence in enforcement over
33the provisions of any other restraining or protective order only
34with respect to those provisions of the emergency protective order
35that are more restrictive in relation to the restrained person.

36(2) Except as described in paragraph (1), a no-contact order, as
37described in Section 6320 of the Family Code, shall have
38precedence in enforcement over any other restraining or protective
39order.

P5    1(d) (1) A person subject to a protective order issued under this
2section shall not own, possess, purchase, or receive, or attempt to
3purchase or receive, a firearm while the protective order is in effect.

4(2) The court shall order a person subject to a protective order
5issued under this section to relinquish any firearms he or she owns
6or possesses pursuant to Section 527.9 of the Code of Civil
7Procedure.

8(3) A person who owns, possesses, purchases, or receives, or
9attempts to purchase or receive, a firearm while the protective
10order is in effect is punishable pursuant to Section 29825.

11(e) (1) In all cases in which the defendant is charged with a
12crime involving domestic violence, as defined in Section 13700
13or in Section 6211 of the Family Code, or a violation of Section
14261, 261.5, or 262, or any crime that requires the defendant to
15register pursuant to subdivision (c) of Section 290, the court shall
16consider issuing the above-described orders on its own motion.
17All interested parties shall receive a copy of those orders. In order
18to facilitate this, the court’s records of all criminal cases involving
19domestic violence or a violation of Section 261, 261.5, or 262, or
20any crime that requires the defendant to register pursuant to
21subdivision (c) of Section 290, shall be marked to clearly alert the
22court to this issue.

23(2) In those cases in which a complaint, information, or
24indictment charging a crime involving domestic violence, as
25defined in Section 13700 or in Section 6211 of the Family Code,
26or a violation of Section 261, 261.5, or 262, or any crime that
27requires the defendant to register pursuant to subdivision (c) of
28Section 290, has been issued, except as described in subdivision
29(c), a restraining order or protective order against the defendant
30issued by the criminal court in that case has precedence in
31enforcement over a civil court order against the defendant.

32(3) Custody and visitation with respect to the defendant and his
33or her minor children may be ordered by a family or juvenile court
34consistent with the protocol established pursuant to subdivision
35(f), but if ordered after a criminal protective order has been issued
36pursuant to this section, the custody and visitation order shall make
37reference to, and, if there is not an emergency protective order that
38has precedence in enforcement pursuant to paragraph (1) of
39subdivision (c), or a no-contact order, as described in Section 6320
40of the Family Code, acknowledge the precedence of enforcement
P6    1of, an appropriate criminal protective order. On or before July 1,
22014, the Judicial Council shall modify the criminal and civil court
3forms consistent with this subdivision.

4(f) On or before January 1, 2003, the Judicial Council shall
5promulgate a protocol, for adoption by each local court in
6substantially similar terms, to provide for the timely coordination
7of all orders against the same defendant and in favor of the same
8named victim or victims. The protocol shall include, but shall not
9be limited to, mechanisms for ensuring appropriate communication
10and information sharing between criminal, family, and juvenile
11courts concerning orders and cases that involve the same parties,
12and shall permit a family or juvenile court order to coexist with a
13criminal court protective order subject to the following conditions:

14(1) An order that permits contact between the restrained person
15and his or her children shall provide for the safe exchange of the
16children and shall not contain language either printed or
17handwritten that violates a “no-contact order” issued by a criminal
18court.

19(2) Safety of all parties shall be the courts’ paramount concern.
20The family or juvenile court shall specify the time, day, place, and
21manner of transfer of the child, as provided in Section 3100 of the
22Family Code.

23(g) On or before January 1, 2003, the Judicial Council shall
24modify the criminal and civil court protective order forms
25consistent with this section.

26(h) (1) In any case in which a complaint, information, or
27indictment charging a crime involving domestic violence, as
28defined in Section 13700 or in Section 6211 of the Family Code,
29has been filed, the court may consider, in determining whether
30good cause exists to issue an order under subparagraph (A) of
31paragraph (1) of subdivision (a), the underlying nature of the
32offense charged, and the information provided to the court pursuant
33to Section 273.75.

34(2) In any case in which a complaint, information, or indictment
35charging a violation of Section 261, 261.5, or 262, or any crime
36that requires the defendant to register pursuant to subdivision (c)
37of Section 290, has been filed, the court may consider, in
38determining whether good cause exists to issue an order under
39paragraph (1) of subdivision (a), the underlying nature of the
40offense charged, the defendant’s relationship to the victim, the
P7    1likelihood of continuing harm to the victim, any current restraining
2order or protective order issued by any civil or criminal court
3involving the defendant, and the defendant’s criminal history,
4including, but not limited to, prior convictions for a violation of
5Section 261, 261.5, or 262, or any crime that requires the defendant
6to register pursuant to subdivision (c) of Section 290, or any other
7forms of violence, or any weapons offenses.

8(i) (1) In all cases in which a criminal defendant has been
9convicted of a crime involving domestic violence as defined in
10Section 13700 or in Section 6211 of the Family Code, a violation
11of Section 261, 261.5, or 262, or any crime that requires the
12defendant to register pursuant to subdivision (c) of Section 290,
13the court, at the time of sentencing, shall consider issuing an order
14restraining the defendant from any contact with the victim. The
15order may be valid for up to 10 years, as determined by the court.
16This protective order may be issued by the court regardless of
17whether the defendant is sentenced to the state prison or a county
18jail, or whether imposition of sentence is suspended and the
19defendant is placed onbegin delete probation.end deletebegin insert probation or mandatory
20supervision.end insert
It is the intent of the Legislature in enacting this
21subdivision that the duration of any restraining order issued by the
22court be based upon the seriousness of the facts before the court,
23the probability of future violations, and the safety of the victim
24and his or her immediate family.

25(2) An order under this subdivision may include provisions for
26electronic monitoring if the local government, upon receiving the
27concurrence of the county sheriff or the chief probation officer
28with jurisdiction, adopts a policy authorizing electronic monitoring
29of defendants and specifies the agency with jurisdiction for this
30purpose. If the court determines that the defendant has the ability
31to pay for the monitoring program, the court shall order the
32defendant to pay for the monitoring. If the court determines that
33the defendant does not have the ability to pay for the electronic
34monitoring, the court may order the electronic monitoring to be
35paid for by the local government that adopted the policy authorizing
36electronic monitoring. The duration of the electronic monitoring
37shall not exceed one year from the date the order is issued.

38(j) For purposes of this section, “local government” means the
39county that has jurisdiction over the protective order.

40

SEC. 2.  

Section 273.5 of the Penal Code is amended to read:

P8    1

273.5.  

(a) Any person who willfully inflicts corporal injury
2resulting in a traumatic condition upon a victim described in
3subdivision (b) is guilty of a felony, and upon conviction thereof
4shall be punished by imprisonment in the state prison for two,
5three, or four years, or in a county jail for not more than one year,
6or by a fine of up to six thousand dollars ($6,000), or by both that
7fine and imprisonment.

8(b) Subdivision (a) shall apply if the victim is or was one or
9more of the following:

10(1) The offender’s spouse or former spouse.

11(2) The offender’s cohabitant or former cohabitant.

12(3) The offender’s fiancé or fiancée, or someone with whom
13the offender has, or previously had, an engagement or dating
14relationship, as defined in paragraph (10) of subdivision (f) of
15Section 243.

16(4) The mother or father of the offender’s child.

17(c) Holding oneself out to be the husband or wife of the person
18with whom one is cohabiting is not necessary to constitute
19cohabitation as the term is used in this section.

20(d) As used in this section, “traumatic condition” means a
21condition of the body, such as a wound, or external or internal
22injury, including, but not limited to, injury as a result of
23strangulation or suffocation, whether of a minor or serious nature,
24caused by a physical force. For purposes of this section,
25“strangulation” and “suffocation” include impeding the normal
26breathing or circulation of the blood of a person by applying
27pressure on the throat or neck.

28(e) For the purpose of this section, a person shall be considered
29the father or mother of another person’s child if the alleged male
30parent is presumed the natural father under Sections 7611 and 7612
31of the Family Code.

32(f) (1) Any person convicted of violating this section for acts
33occurring within seven years of a previous conviction under
34subdivision (a), or subdivision (d) of Section 243, or Section 243.4,
35244, 244.5, or 245, shall be punished by imprisonment in a county
36jail for not more than one year, or by imprisonment in the state
37prison for two, four, or five years, or by both imprisonment and a
38fine of up to ten thousand dollars ($10,000).

39(2) Any person convicted of a violation of this section for acts
40 occurring within seven years of a previous conviction under
P9    1subdivision (e) of Section 243 shall be punished by imprisonment
2in the state prison for two, three, or four years, or in a county jail
3for not more than one year, or by a fine of up to ten thousand
4dollars ($10,000), or by both that imprisonment and fine.

5(g) If probation is granted to any person convicted under
6subdivision (a), the court shall impose probation consistent with
7the provisions of Section 1203.097.

8(h) If probation is granted, or the execution or imposition of a
9sentence is suspended, for any defendant convicted under
10subdivision (a) who has been convicted of any prior offense
11specified in subdivision (f), the court shall impose one of the
12following conditions of probation:

13(1) If the defendant has suffered one prior conviction within the
14 previous seven years for a violation of any offense specified in
15subdivision (f), it shall be a condition of probation, in addition to
16the provisions contained in Section 1203.097, that he or she be
17imprisoned in a county jail for not less than 15 days.

18(2) If the defendant has suffered two or more prior convictions
19within the previous seven years for a violation of any offense
20specified in subdivision (f), it shall be a condition of probation, in
21addition to the provisions contained in Section 1203.097, that he
22or she be imprisoned in a county jail for not less than 60 days.

23(3) The court, upon a showing of good cause, may find that the
24mandatory imprisonment required by this subdivision shall not be
25imposed and shall state on the record its reasons for finding good
26cause.

27(i) If probation is granted upon conviction of a violation of
28subdivision (a), the conditions of probation may include, consistent
29with the terms of probation imposed pursuant to Section 1203.097,
30in lieu of a fine, one or both of the following requirements:

31(1) That the defendant make payments to a battered women’s
32shelter, up to a maximum of five thousand dollars ($5,000),
33pursuant to Section 1203.097.

34(2) (A) That the defendant reimburse the victim for reasonable
35costs of counseling and other reasonable expenses that the court
36finds are the direct result of the defendant’s offense.

37(B) For any order to pay a fine, make payments to a battered
38women’s shelter, or pay restitution as a condition of probation
39under this subdivision, the court shall make a determination of the
40defendant’s ability to pay. An order to make payments to a battered
P10   1women’s shelter shall not be made if it would impair the ability
2of the defendant to pay direct restitution to the victim or
3court-ordered child support. If the injury to a married person is
4caused in whole or in part by the criminal acts of his or her spouse
5in violation of this section, the community property may not be
6used to discharge the liability of the offending spouse for restitution
7to the injured spouse, required by Section 1203.04, as operative
8on or before August 2, 1995, or Section 1202.4, or to a shelter for
9costs with regard to the injured spouse and dependents, required
10by this section, until all separate property of the offending spouse
11is exhausted.

12(j) Upon conviction under subdivision (a), the sentencing court
13shall also consider issuing an order restraining the defendant from
14any contact with the victim, which may be valid for up to 10 years,
15as determined by the court. It is the intent of the Legislature that
16the length of any restraining order 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. This
19protective order may be issued by the court whether the defendant
20is sentenced to state prison or county jail, or if imposition of
21sentence is suspended and the defendant is placed onbegin delete probation.end delete
22begin insert probation or mandatory supervision.end insert

23(k) If a peace officer makes an arrest for a violation of this
24section, the peace officer is not required to inform the victim of
25his or her right to make a citizen’s arrest pursuant to subdivision
26(b) of Section 836.

27

SEC. 3.  

Section 646.9 of the Penal Code is amended to read:

28

646.9.  

(a) Any person who willfully, maliciously, and
29repeatedly follows or willfully and maliciously harasses another
30person and who makes a credible threat with the intent to place
31that person in reasonable fear for his or her safety, or the safety of
32his or her immediate family is guilty of the crime of stalking,
33punishable by imprisonment in a county jail for not more than one
34year, or by a fine of not more than one thousand dollars ($1,000),
35or by both that fine and imprisonment, or by imprisonment in the
36state prison.

37(b) Any person who violates subdivision (a) when there is a
38temporary restraining order, injunction, or any other court order
39in effect prohibiting the behavior described in subdivision (a)
P11   1against the same party, shall be punished by imprisonment in the
2state prison for two, three, or four years.

3(c) (1) Every person who, after having been convicted of a
4felony under Section 273.5, 273.6, or 422, commits a violation of
5subdivision (a) shall be punished by imprisonment in a county jail
6for not more than one year, or by a fine of not more than one
7thousand dollars ($1,000), or by both that fine and imprisonment,
8or by imprisonment in the state prison for two, three, or five years.

9(2) Every person who, after having been convicted of a felony
10under subdivision (a), commits a violation of this section shall be
11punished by imprisonment in the state prison for two, three, or
12five years.

13(d) In addition to the penalties provided in this section, the
14sentencing court may order a person convicted of a felony under
15this section to register as a sex offender pursuant to Section
16290.006.

17(e) For the purposes of this section, “harasses” means engages
18in a knowing and willful course of conduct directed at a specific
19person that seriously alarms, annoys, torments, or terrorizes the
20person, and that serves no legitimate purpose.

21(f) For the purposes of this section, “course of conduct” means
22two or more acts occurring over a period of time, however short,
23evidencing a continuity of purpose. Constitutionally protected
24activity is not included within the meaning of “course of conduct.”

25(g) For the purposes of this section, “credible threat” means a
26verbal or written threat, including that performed through the use
27of an electronic communication device, or a threat implied by a
28pattern of conduct or a combination of verbal, written, or
29electronically communicated statements and conduct, made with
30the intent to place the person that is the target of the threat in
31reasonable fear for his or her safety or the safety of his or her
32family, and made with the apparent ability to carry out the threat
33so as to cause the person who is the target of the threat to
34reasonably fear for his or her safety or the safety of his or her
35family. It is not necessary to prove that the defendant had the intent
36to actually carry out the threat. The present incarceration of a
37person making the threat shall not be a bar to prosecution under
38this section. Constitutionally protected activity is not included
39within the meaning of “credible threat.”

P12   1(h) For purposes of this section, the term “electronic
2communication device” includes, but is not limited to, telephones,
3cellular phones, computers, video recorders, fax machines, or
4pagers. “Electronic communication” has the same meaning as the
5 term defined in Subsection 12 of Section 2510 of Title 18 of the
6United States Code.

7(i) This section shall not apply to conduct that occurs during
8labor picketing.

9(j) If probation is granted, or the execution or imposition of a
10sentence is suspended, for any person convicted under this section,
11it shall be a condition of probation that the person participate in
12counseling, as designated by the court. However, the court, upon
13a showing of good cause, may find that the counseling requirement
14shall not be imposed.

15(k) (1) The sentencing court also shall consider issuing an order
16restraining the defendant from any contact with the victim, that
17may be valid for up to 10 years, as determined by the court. It is
18the intent of the Legislature that the length of any restraining order
19be based upon the seriousness of the facts before the court, the
20probability of future violations, and the safety of the victim and
21his or her immediate family.

22(2) This protective order may be issued by the court whether
23the defendant is sentenced to state prison, county jail, or if
24imposition of sentence is suspended and the defendant is placed
25onbegin delete probation.end deletebegin insert probation or mandatory supervision.end insert

26(l) For purposes of this section, “immediate family” means any
27spouse, parent, child, any person related by consanguinity or
28affinity within the second degree, or any other person who regularly
29resides in the household, or who, within the prior six months,
30regularly resided in the household.

31(m) The court shall consider whether the defendant would
32benefit from treatment pursuant to Section 2684. If it is determined
33to be appropriate, the court shall recommend that the Department
34of Corrections and Rehabilitation make a certification as provided
35in Section 2684. Upon the certification, the defendant shall be
36evaluated and transferred to the appropriate hospital for treatment
37pursuant to Section 2684.



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