Amended in Assembly June 9, 2015

Senate BillNo. 307


Introduced by Senator Pavley

February 23, 2015


An act to amendbegin delete Sections 136.2, 273.5, and 646.9end deletebegin insert Section 136.2end insert of the Penal Code, relating to restraining orders.

LEGISLATIVE COUNSEL’S DIGEST

SB 307, as amended, Pavley. Restraining orders.

Existing lawbegin delete requiresend deletebegin insert requires,end insert 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
P2    1is reasonably likely to occur, a court with jurisdiction over a
2criminal matter may issue orders, including, but not limited to, the
3following:

4(A) An order issued pursuant to Section 6320 of the Family
5Code.

6(B) An order that a defendant shall not violate any provision of
7Section 136.1.

8(C) An order that a person before the court other than a
9defendant, including, but not limited to, a subpoenaed witness or
10other person entering the courtroom of the court, shall not violate
11any provisions of Section 136.1.

12(D) An order that a person described in this section shall have
13no communication whatsoever with a specified witness or a victim,
14except through an attorney under reasonable restrictions that the
15court may impose.

16(E) An order calling for a hearing to determine if an order as
17described in subparagraphs (A) to (D), inclusive, should be issued.

18(F) (i) An order that a particular law enforcement agency within
19the jurisdiction of the court provide protection for a victim or a
20witness, or both, or for immediate family members of a victim or
21a witness who reside in the same household as the victim or witness
22or within reasonable proximity of the victim’s or witness’
23household, as determined by the court. The order shall not be made
24without the consent of the law enforcement agency except for
25 limited and specified periods of time and upon an express finding
26by the court of a clear and present danger of harm to the victim or
27witness or immediate family members of the victim or witness.

28(ii) For purposes of this paragraph, “immediate family members”
29include the spouse, children, or parents of the victim or witness.

30(G) (i) An order protecting a victim or witness of violent crime
31from all contact by the defendant, or contact, with the intent to
32annoy, harass, threaten, or commit acts of violence, by the
33defendant. The court or its designee shall transmit orders made
34under this paragraph to law enforcement personnel within one
35business day of the issuance, modification, extension, or
36termination of the order, pursuant to subdivision (a) of Section
37 6380 of the Family Code. It is the responsibility of the court to
38transmit the modification, extension, or termination orders made
39under this paragraph to the same agency that entered the original
P3    1protective order into the Domestic Violence Restraining Order
2System.

3(ii) (I) If a court does not issue an order pursuant to clause (i)
4in a case in which the defendant is charged with a crime involving
5domestic violence as defined in Section 13700 or in Section 6211
6of the Family Code, the court on its own motion shall consider
7issuing a protective order upon a good cause belief that harm to,
8or intimidation or dissuasion of, a victim or witness has occurred
9or is reasonably likely to occur, that provides as follows:

10(ia) The defendant shall not own, possess, purchase, receive, or
11attempt to purchase or receive, a firearm while the protective order
12is in effect.

13(ib) The defendant shall relinquish any firearms that he or she
14owns or possesses pursuant to Section 527.9 of the Code of Civil
15Procedure.

16(II) Every person who owns, possesses, purchases, or receives,
17or attempts to purchase or receive, a firearm while this protective
18order is in effect is punishable pursuant to Section 29825.

19(iii) An order issued, modified, extended, or terminated by a
20court pursuant to this subparagraph shall be issued on forms
21adopted by the Judicial Council of California and that have been
22approved by the Department of Justice pursuant to subdivision (i)
23of Section 6380 of the Family Code. However, the fact that an
24order issued by a court pursuant to this section was not issued on
25forms adopted by the Judicial Council and approved by the
26Department of Justice shall not, in and of itself, make the order
27unenforceable.

28(iv) A protective order issued under this subparagraph may
29require the defendant to be placed on electronic monitoring if the
30local government, with the concurrence of the county sheriff or
31the chief probation officer with jurisdiction, adopts a policy to
32authorize electronic monitoring of defendants and specifies the
33agency with jurisdiction for this purpose. If the court determines
34that the defendant has the ability to pay for the monitoring program,
35the court shall order the defendant to pay for the monitoring. If
36the court determines that the defendant does not have the ability
37to pay for the electronic monitoring, the court may order electronic
38monitoring to be paid for by the local government that adopted
39the policy to authorize electronic monitoring. The duration of
40electronic monitoring shall not exceed one year from the date the
P4    1order is issued. At no time shall the electronic monitoring be in
2place if the protective order is not in place.

3(2) For purposes of this subdivision, a minor who was not a
4victim of, but who was physically present at the time of, an act of
5domestic violence, is a witness and is deemed to have suffered
6harm within the meaning of paragraph (1).

7(b) A person violating an order made pursuant to subparagraphs
8(A) to (G), inclusive, of paragraph (1) of subdivision (a) may be
9punished for any substantive offense described in Section 136.1,
10or for a contempt of the court making the order. A finding of
11contempt shall not be a bar to prosecution for a violation of Section
12136.1. However, a person so held in contempt shall be entitled to
13credit for punishment imposed therein against a sentence imposed
14upon conviction of an offense described in Section 136.1. A
15conviction or acquittal for a substantive offense under Section
16136.1 shall be a bar to a subsequent punishment for contempt
17arising out of the same act.

18(c) (1) (A) Notwithstanding subdivision (e), an emergency
19protective order issued pursuant to Chapter 2 (commencing with
20Section 6250) of Part 3 of Division 10 of the Family Code or
21Section 646.91 shall have precedence in enforcement over any
22other restraining or protective order, provided the emergency
23protective order meets all of the following requirements:

24(i) The emergency protective order is issued to protect one or
25more individuals who are already protected persons under another
26restraining or protective order.

27(ii) The emergency protective order restrains the individual who
28is the restrained person in the other restraining or protective order
29specified in clause (i).

30(iii) The provisions of the emergency protective order are more
31restrictive in relation to the restrained person than are the provisions
32of the other restraining or protective order specified in clause (i).

33(B) An emergency protective order that meets the requirements
34of subparagraph (A) shall have precedence in enforcement over
35 the provisions of any other restraining or protective order only
36with respect to those provisions of the emergency protective order
37that are more restrictive in relation to the restrained person.

38(2) Except as described in paragraph (1), a no-contact order, as
39described in Section 6320 of the Family Code, shall have
P5    1precedence in enforcement over any other restraining or protective
2order.

3(d) (1) A person subject to a protective order issued under this
4section shall not own, possess, purchase, or receive, or attempt to
5purchase or receive, a firearm while the protective order is in effect.

6(2) The court shall order a person subject to a protective order
7issued under this section to relinquish any firearms he or she owns
8or possesses pursuant to Section 527.9 of the Code of Civil
9Procedure.

10(3) A person who owns, possesses, purchases, or receives, or
11attempts to purchase or receive, a firearm while the protective
12order is in effect is punishable pursuant to Section 29825.

13(e) (1) In all cases in which the defendant is charged with a
14crime involving domestic violence, as defined in Section 13700
15or in Section 6211 of the Family Code, or a violation of Section
16261, 261.5, or 262, or any crime that requires the defendant to
17register pursuant to subdivision (c) of Section 290, the court shall
18consider issuing the above-described orders on its own motion.
19All interested parties shall receive a copy of those orders. In order
20to facilitate this, the court’s records of all criminal cases involving
21domestic violence or a violation of Section 261, 261.5, or 262, or
22any crime that requires the defendant to register pursuant to
23subdivision (c) of Section 290, shall be marked to clearly alert the
24court to this issue.

25(2) In those cases in which a complaint, information, or
26indictment charging a crime involving domestic violence, as
27defined in Section 13700 or in Section 6211 of the Family Code,
28or a violation of Section 261, 261.5, or 262, or any crime that
29requires the defendant to register pursuant to subdivision (c) of
30Section 290, has been issued, except as described in subdivision
31(c), a restraining order or protective order against the defendant
32issued by the criminal court in that case has precedence in
33enforcement over a civil court order against the defendant.

34(3) Custody and visitation with respect to the defendant and his
35or her minor children may be ordered by a family or juvenile court
36consistent with the protocol established pursuant to subdivision
37(f), but if ordered after a criminal protective order has been issued
38pursuant to this section, the custody and visitation order shall make
39reference to, and, if there is not an emergency protective order that
40has precedence in enforcement pursuant to paragraph (1) of
P6    1subdivision (c), or a no-contact order, as described in Section 6320
2of the Family Code, acknowledge the precedence of enforcement
3of, an appropriate criminal protective order. On or before July 1,
42014, the Judicial Council shall modify the criminal and civil court
5forms consistent with this subdivision.

6(f) On or before January 1, 2003, the Judicial Council shall
7promulgate a protocol, for adoption by each local court in
8substantially similar terms, to provide for the timely coordination
9of all orders against the same defendant and in favor of the same
10named victim or victims. The protocol shall include, but shall not
11be limited to, mechanisms for ensuring appropriate communication
12and information sharing between criminal, family, and juvenile
13courts concerning orders and cases that involve the same parties,
14and shall permit a family or juvenile court order to coexist with a
15criminal court protective order subject to the following conditions:

16(1) An order that permits contact between the restrained person
17and his or her children shall provide for the safe exchange of the
18children and shall not contain language either printed or
19handwritten that violates a “no-contact order” issued by a criminal
20court.

21(2) Safety of all parties shall be the courts’ paramount concern.
22The family or juvenile court shall specify the time, day, place, and
23manner of transfer of the child, as provided in Section 3100 of the
24Family Code.

25(g) On or before January 1, 2003, the Judicial Council shall
26modify the criminal and civil court protective order forms
27consistent with this section.

28(h) (1) In any case in which a complaint, information, or
29indictment charging a crime involving domestic violence, as
30defined in Section 13700 or in Section 6211 of the Family Code,
31has been filed, the court may consider, in determining whether
32good cause exists to issue an order under subparagraph (A) of
33paragraph (1) of subdivision (a), the underlying nature of the
34offense charged, and the information provided to the court pursuant
35to Section 273.75.

36(2) In any case in which a complaint, information, or indictment
37charging a violation of Section 261, 261.5, or 262, or any crime
38that requires the defendant to register pursuant to subdivision (c)
39of Section 290, has been filed, the court may consider, in
40determining whether good cause exists to issue an order under
P7    1paragraph (1) of subdivision (a), the underlying nature of the
2offense charged, the defendant’s relationship to the victim, the
3likelihood of continuing harm to the victim, any current restraining
4order or protective order issued by any civil or criminal court
5involving the defendant, and the defendant’s criminal history,
6including, but not limited to, prior convictions for a violation of
7Section 261, 261.5, or 262,begin delete or anyend deletebegin insert aend insert crime that requires the
8defendant to register pursuant to subdivision (c) of Section 290,
9begin delete orend delete any other forms of violence, or any weaponsbegin delete offenses.end deletebegin insert offense.end insert

10(i) (1) In all cases in which a criminal defendant has been
11convicted of a crime involving domestic violence as defined in
12Section 13700 or in Section 6211 of the Family Code, a violation
13of Section 261, 261.5, or 262, or any crime that requires the
14defendant to register pursuant to subdivision (c) of Section 290,
15the court, at the time of sentencing, shall consider issuing an order
16restraining the defendant from any contact with the victim. The
17order may be valid for up to 10 years, as determined by the court.
18This protective order may be issued by the court regardless of
19whether the defendant is sentenced to the state prison or a county
20jail, or whether imposition of sentence is suspended and the
21defendant is placed on probation or mandatory supervision. It is
22the intent of the Legislature in enacting this subdivision that the
23duration of any restraining order issued by the court be based upon
24the seriousness of the facts before the court, the probability of
25future violations, and the safety of the victim and his or her
26immediate family.

27(2) An order under this subdivision may include provisions for
28electronic monitoring if the local government, upon receiving the
29concurrence of the county sheriff or the chief probation officer
30with jurisdiction, adopts a policy authorizing electronic monitoring
31of defendants and specifies the agency with jurisdiction for this
32purpose. If the court determines that the defendant has the ability
33to pay for the monitoring program, the court shall order the
34defendant to pay for the monitoring. If the court determines that
35the defendant does not have the ability to pay for the electronic
36monitoring, the court may order the electronic monitoring to be
37paid for by the local government that adopted the policy authorizing
38electronic monitoring. The duration of the electronic monitoring
39shall not exceed one year from the date the order is issued.

P8    1(j) For purposes of this section, “local government” means the
2county that has jurisdiction over the protective order.

begin delete
3

SEC. 2.  

Section 273.5 of the Penal Code is amended to read:

4

273.5.  

(a) Any person who willfully inflicts corporal injury
5resulting in a traumatic condition upon a victim described in
6subdivision (b) is guilty of a felony, and upon conviction thereof
7shall be punished by imprisonment in the state prison for two,
8three, or four years, or in a county jail for not more than one year,
9or by a fine of up to six thousand dollars ($6,000), or by both that
10fine and imprisonment.

11(b) Subdivision (a) shall apply if the victim is or was one or
12more of the following:

13(1) The offender’s spouse or former spouse.

14(2) The offender’s cohabitant or former cohabitant.

15(3) The offender’s fiancé or fiancée, or someone with whom
16the offender has, or previously had, an engagement or dating
17relationship, as defined in paragraph (10) of subdivision (f) of
18Section 243.

19(4) The mother or father of the offender’s child.

20(c) Holding oneself out to be the husband or wife of the person
21with whom one is cohabiting is not necessary to constitute
22cohabitation as the term is used in this section.

23(d) As used in this section, “traumatic condition” means a
24condition of the body, such as a wound, or external or internal
25injury, including, but not limited to, injury as a result of
26strangulation or suffocation, whether of a minor or serious nature,
27caused by a physical force. For purposes of this section,
28“strangulation” and “suffocation” include impeding the normal
29breathing or circulation of the blood of a person by applying
30pressure on the throat or neck.

31(e) For the purpose of this section, a person shall be considered
32the father or mother of another person’s child if the alleged male
33parent is presumed the natural father under Sections 7611 and 7612
34of the Family Code.

35(f) (1) Any person convicted of violating this section for acts
36occurring within seven years of a previous conviction under
37subdivision (a), or subdivision (d) of Section 243, or Section 243.4,
38244, 244.5, or 245, shall be punished by imprisonment in a county
39jail for not more than one year, or by imprisonment in the state
P9    1prison for two, four, or five years, or by both imprisonment and a
2fine of up to ten thousand dollars ($10,000).

3(2) Any person convicted of a violation of this section for acts
4 occurring within seven years of a previous conviction under
5subdivision (e) of Section 243 shall be punished by imprisonment
6in the state prison for two, three, or four years, or in a county jail
7for not more than one year, or by a fine of up to ten thousand
8dollars ($10,000), or by both that imprisonment and fine.

9(g) If probation is granted to any person convicted under
10subdivision (a), the court shall impose probation consistent with
11the provisions of Section 1203.097.

12(h) If probation is granted, or the execution or imposition of a
13sentence is suspended, for any defendant convicted under
14subdivision (a) who has been convicted of any prior offense
15specified in subdivision (f), the court shall impose one of the
16following conditions of probation:

17(1) If the defendant has suffered one prior conviction within the
18 previous seven years for a violation of any offense specified in
19subdivision (f), it shall be a condition of probation, in addition to
20the provisions contained in Section 1203.097, that he or she be
21imprisoned in a county jail for not less than 15 days.

22(2) If the defendant has suffered two or more prior convictions
23within the previous seven years for a violation of any offense
24specified in subdivision (f), it shall be a condition of probation, in
25addition to the provisions contained in Section 1203.097, that he
26or she be imprisoned in a county jail for not less than 60 days.

27(3) The court, upon a showing of good cause, may find that the
28mandatory imprisonment required by this subdivision shall not be
29imposed and shall state on the record its reasons for finding good
30cause.

31(i) If probation is granted upon conviction of a violation of
32subdivision (a), the conditions of probation may include, consistent
33with the terms of probation imposed pursuant to Section 1203.097,
34in lieu of a fine, one or both of the following requirements:

35(1) That the defendant make payments to a battered women’s
36shelter, up to a maximum of five thousand dollars ($5,000),
37pursuant to Section 1203.097.

38(2) (A) That the defendant reimburse the victim for reasonable
39costs of counseling and other reasonable expenses that the court
40finds are the direct result of the defendant’s offense.

P10   1(B) For any order to pay a fine, make payments to a battered
2women’s shelter, or pay restitution as a condition of probation
3under this subdivision, the court shall make a determination of the
4defendant’s ability to pay. An order to make payments to a battered
5women’s shelter shall not be made if it would impair the ability
6of the defendant to pay direct restitution to the victim or
7court-ordered child support. If the injury to a married person is
8caused in whole or in part by the criminal acts of his or her spouse
9in violation of this section, the community property may not be
10used to discharge the liability of the offending spouse for restitution
11to the injured spouse, required by Section 1203.04, as operative
12on or before August 2, 1995, or Section 1202.4, or to a shelter for
13costs with regard to the injured spouse and dependents, required
14by this section, until all separate property of the offending spouse
15is exhausted.

16(j) Upon conviction under subdivision (a), the sentencing court
17shall also consider issuing an order restraining the defendant from
18any contact with the victim, which may be valid for up to 10 years,
19as determined by the court. It is the intent of the Legislature that
20the length of any restraining order be based upon the seriousness
21of the facts before the court, the probability of future violations,
22and the safety of the victim and his or her immediate family. This
23protective order may be issued by the court whether the defendant
24is sentenced to state prison or county jail, or if imposition of
25sentence is suspended and the defendant is placed on probation or
26 mandatory supervision.

27(k) If a peace officer makes an arrest for a violation of this
28section, the peace officer is not required to inform the victim of
29his or her right to make a citizen’s arrest pursuant to subdivision
30(b) of Section 836.

31

SEC. 3.  

Section 646.9 of the Penal Code is amended to read:

32

646.9.  

(a) Any person who willfully, maliciously, and
33repeatedly follows or willfully and maliciously harasses another
34person and who makes a credible threat with the intent to place
35that person in reasonable fear for his or her safety, or the safety of
36his or her immediate family is guilty of the crime of stalking,
37punishable by imprisonment in a county jail for not more than one
38year, or by a fine of not more than one thousand dollars ($1,000),
39or by both that fine and imprisonment, or by imprisonment in the
40state prison.

P11   1(b) Any person who violates subdivision (a) when there is a
2temporary restraining order, injunction, or any other court order
3in effect prohibiting the behavior described in subdivision (a)
4against the same party, shall be punished by imprisonment in the
5state prison for two, three, or four years.

6(c) (1) Every person who, after having been convicted of a
7felony under Section 273.5, 273.6, or 422, commits a violation of
8subdivision (a) shall be punished by imprisonment in a county jail
9for not more than one year, or by a fine of not more than one
10thousand dollars ($1,000), or by both that fine and imprisonment,
11or by imprisonment in the state prison for two, three, or five years.

12(2) Every person who, after having been convicted of a felony
13under subdivision (a), commits a violation of this section shall be
14punished by imprisonment in the state prison for two, three, or
15five years.

16(d) In addition to the penalties provided in this section, the
17sentencing court may order a person convicted of a felony under
18this section to register as a sex offender pursuant to Section
19290.006.

20(e) For the purposes of this section, “harasses” means engages
21in a knowing and willful course of conduct directed at a specific
22person that seriously alarms, annoys, torments, or terrorizes the
23person, and that serves no legitimate purpose.

24(f) For the purposes of this section, “course of conduct” means
25two or more acts occurring over a period of time, however short,
26evidencing a continuity of purpose. Constitutionally protected
27activity is not included within the meaning of “course of conduct.”

28(g) For the purposes of this section, “credible threat” means a
29verbal or written threat, including that performed through the use
30of an electronic communication device, or a threat implied by a
31pattern of conduct or a combination of verbal, written, or
32electronically communicated statements and conduct, made with
33the intent to place the person that is the target of the threat in
34reasonable fear for his or her safety or the safety of his or her
35family, and made with the apparent ability to carry out the threat
36so as to cause the person who is the target of the threat to
37reasonably fear for his or her safety or the safety of his or her
38family. It is not necessary to prove that the defendant had the intent
39to actually carry out the threat. The present incarceration of a
40person making the threat shall not be a bar to prosecution under
P12   1this section. Constitutionally protected activity is not included
2within the meaning of “credible threat.”

3(h) For purposes of this section, the term “electronic
4communication device” includes, but is not limited to, telephones,
5cellular phones, computers, video recorders, fax machines, or
6pagers. “Electronic communication” has the same meaning as the
7 term defined in Subsection 12 of Section 2510 of Title 18 of the
8United States Code.

9(i) This section shall not apply to conduct that occurs during
10labor picketing.

11(j) If probation is granted, or the execution or imposition of a
12sentence is suspended, for any person convicted under this section,
13it shall be a condition of probation that the person participate in
14counseling, as designated by the court. However, the court, upon
15a showing of good cause, may find that the counseling requirement
16shall not be imposed.

17(k) (1) The sentencing court also shall consider issuing an order
18restraining the defendant from any contact with the victim, that
19may be valid for up to 10 years, as determined by the court. It is
20the intent of the Legislature that the length of any restraining order
21be based upon the seriousness of the facts before the court, the
22probability of future violations, and the safety of the victim and
23his or her immediate family.

24(2) This protective order may be issued by the court whether
25the defendant is sentenced to state prison, county jail, or if
26imposition of sentence is suspended and the defendant is placed
27on probation or mandatory supervision.

28(l) For purposes of this section, “immediate family” means any
29spouse, parent, child, any person related by consanguinity or
30affinity within the second degree, or any other person who regularly
31resides in the household, or who, within the prior six months,
32regularly resided in the household.

33(m) The court shall consider whether the defendant would
34benefit from treatment pursuant to Section 2684. If it is determined
35to be appropriate, the court shall recommend that the Department
36of Corrections and Rehabilitation make a certification as provided
37in Section 2684. Upon the certification, the defendant shall be
P13   1evaluated and transferred to the appropriate hospital for treatment
2pursuant to Section 2684.

end delete


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