BILL NUMBER: SB 355 CHAPTERED 10/10/99 CHAPTER 659 FILED WITH SECRETARY OF STATE OCTOBER 10, 1999 APPROVED BY GOVERNOR OCTOBER 6, 1999 PASSED THE SENATE AUGUST 31, 1999 PASSED THE ASSEMBLY AUGUST 26, 1999 AMENDED IN ASSEMBLY AUGUST 24, 1999 AMENDED IN ASSEMBLY JULY 15, 1999 AMENDED IN ASSEMBLY JUNE 23, 1999 AMENDED IN SENATE APRIL 20, 1999 AMENDED IN SENATE APRIL 8, 1999 INTRODUCED BY Senator Hughes FEBRUARY 10, 1999 An act to amend Section 6240 of, and add Section 6250.5 to, the Family Code, and to amend Sections 646.91, 12028.5, 13519, 13700, and 13710 of the Penal Code, relating to peace officers. LEGISLATIVE COUNSEL'S DIGEST SB 355, Hughes. Peace officers: community colleges and school districts. (1) Existing law defines or describes certain peace officers who are authorized to respond to domestic violence calls or act in domestic violence cases, as specified, or are deemed eligible for a course or courses of instruction in the handling of domestic violence complaints. This bill would include among these peace officers any member of a California Community College police department and any person employed as a member of a police department of a school district. The bill also would require that these departments notify the sheriff or police chief of the city in whose jurisdiction the departments are located of any protection order served by the departments with respect to domestic violence incidents. Because this bill would increase the duties performed by a local agency, it would impose a state-mandated local program. (2) Existing law provides that a judicial officer may issue an ex parte emergency protective order where a peace officer, as defined, has reasonable grounds to believe that a person is in immediate and present danger of stalking. This bill would expand these provisions to include community college and school district police, as specified. The bill also would require any of these police who request this emergency protective order to also notify the sheriff or police chief of the city in whose jurisdiction the college or school district of the police is located after issuance of the order. Because this bill would increase the duties performed by a local agency, it would impose a state-mandated local program. (3) Existing law authorizes a court to issue emergency protective orders in specified situations. This bill would permit a court to issue an emergency protective order to community college and school district police if a specified memorandum of understanding exists and the police officer asserts that there is a demonstrated threat to campus safety. Because the bill would increase the duties performed by local officials, it would impose a state-mandated local program. (4) Existing law provides circumstances under which, among others, community college and school district peace officers may take custody of a firearm or other deadly weapon. This bill would require any of these officers who takes custody of a firearm or other deadly weapon under these circumstances to deliver the firearm within 24 hours to the city police department or county sheriff's office in the jurisdiction where the college or school is located. (5) 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, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 6240 of the Family Code is amended to read: 6240. As used in this part: (a) "Judicial officer" means a judge, commissioner, or referee designated under Section 6241. (b) "Law enforcement officer" means one of the following officers who requests or enforces an emergency protective order under this part: (1) A police officer. (2) A sheriff's officer. (3) A peace officer of the Department of the California Highway Patrol. (4) A peace officer of the University of California Police Department. (5) A peace officer of the California State University and College Police Departments. (6) A peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2 of the Penal Code. (7) A housing authority patrol officer, as defined in subdivision (d) of Section 830.31 of the Penal Code. (8) A peace officer for a district attorney, as defined in Section 830.1 or 830.35 of the Penal Code. (9) A parole officer, probation officer, or deputy probation officer, as defined in Section 830.5 of the Penal Code. (10) A peace officer of a California Community College police department, as defined in subdivision (a) of Section 830.32. (11) A peace officer employed by a police department of a school district, as defined in subdivision (b) of Section 830.32. (c) "Abduct" means take, entice away, keep, withhold, or conceal. SEC. 1.5. Section 6250.5 is added to the Family Code, to read: 6250.5. A judicial officer may issue an ex parte emergency protective order to a peace officer defined in subdivisions (a) and (b) of Section 830.32 if the issuance of that order is consistent with an existing memorandum of understanding between the college or school police department where the peace officer is employed and the sheriff or police chief of the city in whose jurisdiction the peace officer's college or school is located and the peace officer asserts reasonable grounds to believe that there is a demonstrated threat to campus safety. SEC. 2. Section 646.91 of the Penal Code is amended to read: 646.91. (a) Notwithstanding any other law, a judicial officer may issue an ex parte emergency protective order where a peace officer, as defined in Section 830.1, 830.2, or 830.32, asserts reasonable grounds to believe that a person is in immediate and present danger of stalking based upon the person's allegation that he or she has been willfully, maliciously, and repeatedly followed or harassed by another person who has made a credible threat with the intent of placing the person who is the target of the threat in reasonable fear for his or her safety, or the safety of his or her immediate family, within the meaning of Section 646.9. (b) A peace officer who requests an emergency protective order shall reduce the order to writing and sign it. (c) An emergency protective order shall include all of the following: (1) A statement of the grounds asserted for the order. (2) The date and time the order expires. (3) The address of the superior court for the district or county in which the protected party resides. (4) The following statements, which shall be printed in English and Spanish: (A) "To the protected person: This order will last until the date and time noted above. If you wish to seek continuing protection, you will have to apply for an order from the court at the address noted above. You may seek the advice of an attorney as to any matter connected with your application for any future court orders. The attorney should be consulted promptly so that the attorney may assist you in making your application." (B) "To the restrained person: This order will last until the date and time noted above. The protected party may, however, obtain a more permanent restraining order from the court. You may seek the advice of an attorney as to any matter connected with the application. The attorney should be consulted promptly so that the attorney may assist you in responding to the application." (d) An emergency protective order may be issued under this section only if the judicial officer finds both of the following: (1) That reasonable grounds have been asserted to believe that an immediate and present danger of stalking, as defined in Section 646.9, exists. (2) That an emergency protective order is necessary to prevent the occurrence or reoccurrence of the stalking activity. (e) An emergency protective order may include either of the following specific orders as appropriate: (1) A harassment protective order as described in Section 527.6 of the Code of Civil Procedure. (2) A workplace violence protective order as described in Section 527.8 of the Code of Civil Procedure. (f) An emergency protective order shall be issued without prejudice to any person. (g) An emergency protective order expires at the earlier of the following times: (1) The close of judicial business on the fifth court day following the day of its issuance. (2) The seventh calendar day following the day of its issuance. (h) A peace officer who requests an emergency protective order shall do all of the following: (1) Serve the order on the restrained person, if the restrained person can reasonably be located. (2) Give a copy of the order to the protected person, or, if the protected person is a minor child, to a parent or guardian of the protected child if the parent or guardian can reasonably be located, or to a person having temporary custody of the child. (3) File a copy of the order with the court as soon as practicable after issuance. (i) A peace officer shall use every reasonable means to enforce an emergency protective order. (j) A peace officer who acts in good faith to enforce an emergency protective order is not civilly or criminally liable. (k) A peace officer who requests an emergency protective order under this section shall carry copies of the order while on duty. (l) A peace officer described in subdivision (a) or (b) of Section 830.32 who requests an emergency protective order pursuant to this section shall also notify the sheriff or police chief of the city in whose jurisdiction the peace officer's college or school is located after issuance of the order. (m) "Judicial officer," as used in this section, means a judge, commissioner, or referee. (n) Nothing in this section shall be construed to permit a court to issue an emergency protective order prohibiting speech or other activities that are constitutionally protected or protected by the laws of this state or by the United States or activities occurring during a labor dispute, as defined by Section 527.3 of the Code of Civil Procedure, including but not limited to, picketing and hand billing. (o) The Judicial Council shall develop forms, instructions, and rules for the scheduling of hearings and other procedures established pursuant to this section. (p) Any intentional disobedience of any emergency protective order granted under this section is punishable pursuant to Section 166. Nothing in this subdivision shall be construed to prevent punishment under Section 646.9, in lieu of punishment under this section, if a violation of Section 646.9 is also pled and proven. SEC. 3. Section 12028.5 of the Penal Code is amended to read: 12028.5. (a) As used in this section, the following definitions shall apply: (1) "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself, herself, or another. (2) "Family violence" has the same meaning as domestic violence as defined in subdivision (b) of Section 13700, and also includes any abuse perpetrated against a family or household member. (3) "Family or household member" means a spouse, former spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides or who regularly resided in the household. The presumption applies that the male parent is the father of any child of the female pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code). (4) "Deadly weapon" means any weapon, the possession or concealed carrying of which is prohibited by Section 12020. (b) A sheriff, undersheriff, deputy sheriff, marshal, deputy marshal, or police officer of a city, as defined in subdivision (a) of Section 830.1, a peace officer of the Department of the California Highway Patrol, as defined in subdivision (a) of Section 830.2, a member of the University of California Police Department, as defined in subdivision (b) of Section 830.2, an officer listed in Section 830.6 while acting in the course and scope of his or her employment as a peace officer, a member of a California State University Police Department, as defined in subdivision (c) of Section 830.2, a peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2, a peace officer, as defined in subdivision (d) of Section 830.31, a peace officer as defined in subdivisions (a) and (b) of Section 830.32, and a peace officer, as defined in Section 830.5, who is at the scene of a family violence incident involving a threat to human life or a physical assault, may take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual search as necessary for the protection of the peace officer or other persons present. Upon taking custody of a firearm or other deadly weapon, the officer shall give the owner or person who possessed the firearm a receipt. The receipt shall describe the firearm or other deadly weapon and list any identification or serial number on the firearm. The receipt shall indicate where the firearm or other deadly weapon can be recovered and the date after which the owner or possessor can recover the firearm or other deadly weapon. No firearm or other deadly weapon shall be held less than 48 hours. Except as provided in subdivision (e), if a firearm or other deadly weapon is not retained for use as evidence related to criminal charges brought as a result of the family violence incident or is not retained because it was illegally possessed, the firearm or other deadly weapon shall be made available to the owner or person who was in lawful possession 48 hours after the seizure or as soon thereafter as possible, but no later than 72 hours after the seizure. In any civil action or proceeding for the return of firearms or ammunition or other deadly weapon seized by any state or local law enforcement agency and not returned within 72 hours following the initial seizure, except as provided in subdivision (c), the court shall allow reasonable attorney's fees to the prevailing party. (c) Any peace officer, as defined in subdivisions (a) and (b) of Section 830.32, who takes custody of a firearm or deadly weapon pursuant to this section shall deliver the firearm within 24 hours to the city police department or county sheriff's office in the jurisdiction where the college or school is located. (d) Any firearm or other deadly weapon which has been taken into custody that has been stolen shall be restored to the lawful owner, as soon as its use for evidence has been served, upon his or her identification of the firearm or other deadly weapon and proof of ownership. (e) Any firearm or other deadly weapon taken into custody and held by a police, university police, or sheriff's department or by a marshal's office, by a peace officer of the Department of the California Highway Patrol, as defined in subdivision (a) of Section 830.2, by a peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2, by a peace officer, as defined in subdivision (d) of Section 830.31, or by a peace officer, as defined in Section 830.5, for longer than 12 months and not recovered by the owner or person who has lawful possession at the time it was taken into custody, shall be considered a nuisance and sold or destroyed as provided in subdivision (c) of Section 12028. Firearms or other deadly weapons not recovered within 12 months due to an extended hearing process as provided in subdivision (i), are not subject to destruction until the court issues a decision, and then only if the court does not order the return of the firearm or other deadly weapon to the owner. (f) In those cases where a law enforcement agency has reasonable cause to believe that the return of a firearm or other deadly weapon would be likely to result in endangering the victim or the person reporting the assault or threat, the agency shall advise the owner of the firearm or other deadly weapon, and within 10 days of the seizure, initiate a petition in superior court to determine if the firearm or other deadly weapon should be returned. (g) The law enforcement agency shall inform the owner or person who had lawful possession of the firearm or other deadly weapon, at that person's last known address by registered mail, return receipt requested, that he or she has 30 days from the date of receipt of the notice to respond to the court clerk to confirm his or her desire for a hearing, and that the failure to respond shall result in a default order forfeiting the confiscated firearm or other deadly weapon. For the purposes of this subdivision, the person's last known address shall be presumed to be the address provided to the law enforcement officer by that person at the time of the family violence incident. In the event the person whose firearm or other deadly weapon was seized does not reside at the last address provided to the agency, the agency shall make a diligent, good faith effort to learn the whereabouts of the person and to comply with these notification requirements. (h) If the person requests a hearing, the court clerk shall set a hearing no later than 30 days from receipt of that request. The court clerk shall notify the person, the law enforcement agency involved, and the district attorney of the date, time, and place of the hearing. Unless it is shown by clear and convincing evidence that the return of the firearm or other deadly weapon would result in endangering the victim or the person reporting the assault or threat, the court shall order the return of the firearm or other deadly weapon and shall award reasonable attorney's fees to the prevailing party. (i) If the person does not request a hearing or does not otherwise respond within 30 days of the receipt of the notice, the law enforcement agency may file a petition for an order of default and may dispose of the firearm or other deadly weapon as provided in Section 12028. (j) If, at the hearing, the court does not order the return of the firearm or other deadly weapon to the owner or person who had lawful possession, that person may petition the court for a second hearing within 12 months from the date of the initial hearing. If the owner or person who had lawful possession does not petition the court within this 12-month period for a second hearing or is unsuccessful at the second hearing in gaining return of the firearm or other deadly weapon, the firearm or other deadly weapon may be disposed of as provided in Section 12028. (k) The law enforcement agency, or the individual law enforcement officer, shall not be liable for any act in the good faith exercise of this section. SEC. 4. Section 13519 of the Penal Code is amended to read: 13519. (a) The commission shall implement by January 1, 1986, a course or courses of instruction for the training of law enforcement officers in California in the handling of domestic violence complaints and also shall develop guidelines for law enforcement response to domestic violence. The course or courses of instruction and the guidelines shall stress enforcement of criminal laws in domestic violence situations, availability of civil remedies and community resources, and protection of the victim. Where appropriate, the training presenters shall include domestic violence experts with expertise in the delivery of direct services to victims of domestic violence, including utilizing the staff of shelters for battered women in the presentation of training. (b) As used in this section, "law enforcement officer" means any officer or employee of a local police department or sheriff's office, any peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2, any peace officer of the University of California Police Department, as defined in subdivision (b) of Section 830.2, any peace officer of the California State University Police Departments, as defined in subdivision (c) of Section 830.2, a peace officer, as defined in subdivision (d) of Section 830.31, or a peace officer as defined in subdivisions (a) and (b) of Section 830.32. (c) The course of basic training for law enforcement officers shall, no later than January 1, 1986, include adequate instruction in the procedures and techniques described below: (1) The provisions set forth in Title 5 (commencing with Section 13700) relating to response, enforcement of court orders, and data collection. (2) The legal duties imposed on police officers to make arrests and offer protection and assistance including guidelines for making felony and misdemeanor arrests. (3) Techniques for handling incidents of domestic violence that minimize the likelihood of injury to the officer and that promote the safety of the victim. (4) The nature and extent of domestic violence. (5) The signs of domestic violence. (6) The legal rights of, and remedies available to, victims of domestic violence. (7) The use of an arrest by a private person in a domestic violence situation. (8) Documentation, report writing, and evidence collection. (9) Domestic violence diversion as provided in Chapter 2.6 (commencing with Section 1000.6) of Title 6 of Part 2. (10) Tenancy issues and domestic violence. (11) The impact on children of law enforcement intervention in domestic violence. (12) The services and facilities available to victims and batterers. (13) The use and applications of this code in domestic violence situations. (14) Verification and enforcement of temporary restraining orders when (A) the suspect is present and (B) the suspect has fled. (15) Verification and enforcement of stay-away orders. (16) Cite and release policies. (17) Emergency assistance to victims and how to assist victims in pursuing criminal justice options. (d) The guidelines developed by the commission shall also incorporate the foregoing factors. (e) (1) All law enforcement officers who have received their basic training before January 1, 1986, shall participate in supplementary training on domestic violence subjects, as prescribed and certified by the commission. (2) Except as provided in paragraph (3), the training specified in paragraph (1) shall be completed no later than January 1, 1989. (3) (A) The training for peace officers of the Department of Parks and Recreation, as defined in subdivision (g) of Section 830.2, shall be completed no later than January 1, 1992. (B) The training for peace officers of the University of California Police Department and the California State University Police Departments, as defined in Section 830.2, shall be completed no later than January 1, 1993. (C) The training for peace officers employed by a housing authority, as defined in subdivision (d) of Section 830.31, shall be completed no later than January 1, 1995. (4) Local law enforcement agencies are encouraged to include, as a part of their advanced officer training program, periodic updates and training on domestic violence. The commission shall assist where possible. (f) (1) The course of instruction, the learning and performance objectives, the standards for the training, and the guidelines shall be developed by the commission in consultation with appropriate groups and individuals having an interest and expertise in the field of domestic violence. The groups and individuals shall include, but shall not be limited to, the following: one representative each from the California Peace Officers' Association, the Peace Officers' Research Association of California, the State Bar of California, the California Women Lawyers' Association, and the State Commission on the Status of Women; two representatives from the commission; two representatives from the California Alliance Against Domestic Violence; two peace officers, recommended by the commission, who are experienced in the provision of domestic violence training; and two domestic violence experts, recommended by the California Alliance Against Domestic Violence, who are experienced in the provision of direct services to victims of domestic violence. At least one of the persons selected shall be a former victim of domestic violence. (2) The commission, in consultation with these groups and individuals, shall review existing training programs to determine in what ways domestic violence training might be included as a part of ongoing programs. (g) Each law enforcement officer below the rank of supervisor who is assigned to patrol duties and would normally respond to domestic violence calls or incidents of domestic violence shall complete, every two years, an updated course of instruction on domestic violence that is developed according to the standards and guidelines developed pursuant to subdivision (d). The instruction required pursuant to this subdivision shall be funded from existing resources available for the training required pursuant to this section. It is the intent of the Legislature not to increase the annual training costs of local government entities. SEC. 5. Section 13700 of the Penal Code is amended to read: 13700. As used in this title: (a) "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. (b) "Domestic violence" means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship. (c) "Officer" means any officer or employee of a local police department or sheriff's office, and any peace officer of the Department of the California Highway Patrol, the Department of Parks and Recreation, the University of California Police Department, or the California State University and College Police Departments, as defined in Section 830.2, a housing authority patrol officer, as defined in subdivision (d) of Section 830.31, or a peace officer as defined in subdivisions (a) and (b) of Section 830.32. (d) "Victim" means a person who is a victim of domestic violence. SEC. 6. Section 13710 of the Penal Code is amended to read: 13710. (a) (1) Law enforcement agencies shall maintain a complete and systematic record of all protection orders with respect to domestic violence incidents, including orders which have not yet been served, issued pursuant to Section 136.2, restraining orders, and proofs of service in effect. This shall be used to inform law enforcement officers responding to domestic violence calls of the existence, terms, and effective dates of protection orders in effect. (2) The police department of a community college or school district described in subdivision (a) or (b) of Section 830.32 shall notify the sheriff or police chief of the city in whose jurisdiction the department is located of any protection order served by the department pursuant to this section. (b) The terms and conditions of the protection order remain enforceable, notwithstanding the acts of the parties, and may be changed only by order of the court. (c) Upon request, law enforcement agencies shall serve the party to be restrained at the scene of a domestic violence incident or at any time the party is in custody. SEC. 7. Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains 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. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.