BILL NUMBER: AB 112 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 18, 2005
INTRODUCED BY Assembly Member Cohn
(Principal coauthor: Senator Alquist)
JANUARY 12, 2005
An act to add Section 6347 to the Family
amend Section 136.2 of the Penal Code, relating to protective
orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 112, as amended, Cohn. Protective orders:
modification. enforcement priority.
Existing law authorizes the court to issue certain protective
orders after notice and a hearing. These orders may have a
duration of not more than 3 years, in the discretion of the court,
subject to termination or modification by further order of the court
either on written stipulation filed with the court or on the motion
of a party .
This bill would require the court, prior to the modification of a
protective order, to confirm the identity of the party petitioning
for the modification.
This bill would provide that an emergency protective order issued
under specified provisions shall have precedence in enforcement over
any other restraining or protective order.
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 6347 is added to the Family Code, to read:
6347. Prior to the modification of any order issued under this
part, the court shall confirm the identity of the petitioner.
SECTION 1. Section 136.2 of the Penal Code
is amended to read:
136.2. Upon (a)
Except as provided in subdivision (b), 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, any court with
jurisdiction over a criminal matter may issue orders including, but
not limited to, the following:
(a)
(1) Any order issued pursuant to Section 6320 of the
Family Code.
(b)
(2) An order that a defendant shall not violate any
provision of Section 136.1.
(c)
(3) 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)
(4) An order that any person described in this section
shall have no communication whatsoever with any specified witness or
any victim, except through an attorney under any reasonable
restrictions that the court may impose.
(e)
(5) An order calling for a hearing to determine if an
order as described in subdivisions (a) to (d)
paragraphs (1) to (4) , inclusive, should be issued.
(f)
(6) 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.
For purposes of this subdivision paragraph
, "immediate family members" include the spouse, children, or
parents of the victim or witness.
(g)
(7) (A) Any order
protecting victims of violent crime from 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 subdivision 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
subdivision to the same agency that entered the original protective
order into the Domestic Violence Restraining Order System.
(B) Any order issued, modified, extended, or
terminated by a court pursuant to this subdivision 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.
Any
(b) Notwithstanding subdivision (a), 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 of the Penal Code shall have precedence in enforcement
over any other restraining or protective order.
(c) Any person violating any
order made pursuant to subdivisions (a) to (g)
paragraphs (1) to (7) , inclusive, 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, any person so held in contempt shall be
entitled to credit for any punishment imposed therein against any
sentence imposed upon conviction of an offense described in Section
136.1. Any conviction or acquittal for any substantive offense under
Section 136.1 shall be a bar to a subsequent punishment for contempt
arising out of the same act.
(h)
(d) (1) A person subject to a protective order issued
under this section shall not own, possess, purchase, 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) Every 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 subdivision (g) of Section
12021 of the Penal Code.
(i)
(e) (1) In all cases where the defendant is charged
with a crime of domestic violence, as defined in Section 13700, 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 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 of domestic violence, as defined in
Section 13700, has been issued, a restraining order or protective
order against the defendant issued by the criminal court in that case
has precedence in enforcement over any 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 this
subdivision (i) .
(j)
(c) 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 assuring 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) Any 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.
(k)
(g) On or before January 1, 2003, the Judicial Council
shall modify the criminal and civil court protective order forms
consistent with this section.