Amended in Assembly June 17, 2015

Amended in Assembly June 9, 2015

Senate Bill No. 307

Introduced by Senator Pavley

February 23, 2015

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

LEGISLATIVE COUNSEL’S DIGEST

SB 307, as amended, 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 begin delete the imposition of sentence is suspended and end delete the defendant is begin delete placed on end delete begin insert subject to end insert 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:

SECTION 1.  

Section 136.2 of the Penal Code is amended to
read:

136.2.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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