BILL NUMBER: AB 118 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 1, 2005
AMENDED IN SENATE JUNE 13, 2005
AMENDED IN SENATE MAY 25, 2005
AMENDED IN ASSEMBLY MARCH 29, 2005
AMENDED IN ASSEMBLY MARCH 9, 2005
INTRODUCED BY Assembly Member Cohn
(Principal coauthor: Senator Alquist)
(Coauthor: Assembly Member Spitzer)
JANUARY 13, 2005
An act to amend Section 3100 of the Family Code, and to amend
Section 136.2 of the Penal Code, relating to protective orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 118, as amended, Cohn Protective orders: minor children.
Existing law authorizes the court to grant reasonable visitation
rights to a parent unless it is shown that the visitation would be
detrimental to the best interest of the child.
Existing law also authorizes any court with jurisdiction over a
criminal matter to issue protective orders.
This bill would require that if a criminal protective order has
been issued, as specified, a visitation order or a specified custody
and visitation order shall make reference to, and acknowledge the
precedence of enforcement of, any appropriate criminal protective
order. The bill would require the Judicial Council to modify criminal
and civil court forms consistent with this provision, on or before
July 1, 2006.
This bill would incorporate additional changes in Section 136.2 of
the Penal Code proposed by AB 112, AB 1288, and SB 720, to become
operative only if any or all of those bills and this bill are
chaptered and become effective January 1, 2006, and this bill is
chaptered last.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3100 of the Family Code is amended to read:
3100. (a) In making an order pursuant to Chapter 4 (commencing
with Section 3080), the court shall grant reasonable visitation
rights to a parent unless it is shown that the visitation would be
detrimental to the best interest of the child. In the discretion of
the court, reasonable visitation rights may be granted to any other
person having an interest in the welfare of the child.
(b) If a protective order, as defined in Section 6218, has been
directed to a parent, the court shall consider whether the best
interest of the child requires that any visitation by that parent
shall be limited to situations in which a third person, specified by
the court, is present, or whether visitation shall be suspended or
denied. The court shall include in its deliberations a consideration
of the nature of the acts from which the parent was enjoined and the
period of time that has elapsed since that order. A parent may submit
to the court the name of a person that the parent deems suitable to
be present during visitation.
(c) If visitation is ordered in a case in which domestic violence
is alleged and an emergency protective order, protective order, or
other restraining order has been issued, the visitation order shall
specify the time, day, place, and manner of transfer of the child, so
as to limit the child's exposure to potential domestic conflict or
violence and to ensure the safety of all family members. If a
criminal protective order has been issued pursuant to Section 136.2
of the Penal Code, the visitation order shall make reference to, and
acknowledge the precedence of enforcement of, any appropriate
criminal protective order.
(d) If the court finds a party is staying in a place designated
as a shelter for victims of domestic violence or other confidential
location, the court's order for time, day, place, and manner of
transfer of the child for visitation shall be designed to prevent
disclosure of the location of the shelter or other confidential
location.
SEC. 2 Section 136.2 of the Penal Code is amended to read:
136.2. (a) 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:
(1) Any order issued pursuant to Section 6320 of the Family Code.
(2) An order that a defendant shall not violate any provision of
Section 136.1.
(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.
(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.
(5) An order calling for a hearing to determine if an order as
described in paragraphs (1) to (4), inclusive, should be issued.
(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 paragraph, "immediate family members" include
the spouse, children, or parents of the victim or witness.
(7) 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 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.
Any order issued, modified, extended, or terminated by a court
pursuant to this paragraph 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.
(b) Any person violating any order made pursuant to 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.
(c) (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.
(d) (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 subdivision (e),
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 acknowledge the precedence of enforcement of, any
appropriate criminal protective order. On or before July 1, 2006, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(e) 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.
(f) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
SEC. 2.1. Section 136.2 of the Penal
Code is amended to read:
136.2. Upon (a)
Except as provided in subdivision (c), 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 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 subdivision paragraph
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 paragraph 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.
(b) 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)
(c) (1) Notwithstanding subdivisions (a) and (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 of the Penal Code shall have precedence in enforcement over
any other restraining or protective order, provided the emergency
protective order meets all of the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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
subparagraph (A).
(2) An emergency protective order that meets the requirements of
paragraph (1) 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.
(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 , unless a court issues an emergency protective order
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,
in which case the emergency protective order shall have precedence in
enforcement over any other restraining or protective order, provided
the emergency protective order meets the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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 subparagraph (A) .
(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
(i) (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
acknowledge the precedence of enforcement of, any appropriate
criminal protective order. On or before July 1, 2006, the Judicial
Council shall modify the criminal and civil court forms consistent
with this subdivision .
(j)
(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 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.
SEC. 2.2. Section 136.2 of the Penal
Code is amended to read:
136.2. (a) 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 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 subdivision paragraph
to the same agency that entered the original protective order into
the Domestic Violence Restraining Order System.
(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, 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:
(I) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(II) 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 subdivision (g) of
Section 12021.
(C) Any order issued, modified, extended, or
terminated by a court pursuant to this subdivision
paragraph 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.
(b) Any person violating any order made
pursuant to subdivisions (a) to (g), inclusive
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)
(c) (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)
(d) (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 subdivision
(i) (e), 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 acknowledge
the precedence of enforcement of, any appropriate criminal
protective order. On or before July 1, 2006, the Judicial Council
shall modify the criminal and civil court forms consistent with this
subdivision .
(j)
(e) 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)
(f) On or before January 1, 2003, the Judicial Council
shall modify the criminal and civil court protective order forms
consistent with this section.
SEC. 2.3. Section 136.2 of the Penal
Code is amended to read:
136.2. (a) 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)
paragraphs (1) to (d)
(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 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
subdivision 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 subdivision paragraph
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
paragraph 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.
(b) Any person violating any order made
pursuant to subdivisions subdivision
(a) to (g), inclusive, 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)
(c) (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)
(d) (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 subdivision
(i) (e), 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
acknowledge the precedence of enforcement of, any appropriate
criminal protective order. On or before July 1, 2006, the Judicial
Council shall modify the criminal and civil court forms consistent
with this subdivision .
(j)
(e) 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)
(f) On or before January 1, 2003, the
Judicial Council shall modify the criminal and civil court protective
order forms consistent with this section.
SEC. 2.4. Section 136.2 of the Penal
Code is amended to read:
136.2. Upon (a)
Except as provided in subdivision (c), 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 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 subdivision paragraph
to the same agency that entered the original protective order into
the Domestic Violence Restraining Order System.
(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, 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:
(I) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(II) 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 subdivision (g) of
Section 12021.
(C) Any order issued, modified, extended, or
terminated by a court pursuant to this subdivision
paragraph 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.
(b) 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)
(c) (1) Notwithstanding subdivisions (a) and (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 of the Penal Code shall have precedence in enforcement over
any other restraining or protective order, provided the emergency
protective order meets all of the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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
subparagraph (A).
(2) An emergency protective order that meets the requirements of
paragraph (1) 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.
(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 , unless a court issues an emergency protective order
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,
in which case the emergency protective order shall have precedence in
enforcement over any other restraining or protective order, provided
the emergency protective order meets the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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 subparagraph (A) .
(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
(i) (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 acknowledge
the precedence of enforcement of, any appropriate criminal
protective order. On or before July 1, 2006, the Judicial Council
shall modify the criminal and civil court forms consistent with this
subdivision .
(j)
(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 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.
SEC. 2.5. 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)
paragraphs (1) to (d)
(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 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
subdivision 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 subdivision paragraph
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
paragraph 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.
(b) (1) Notwithstanding subdivisions (a) and (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 of the Penal Code shall have precedence in enforcement over
any other restraining or protective order, provided the emergency
protective order meets all of the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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
subparagraph (A).
(2) An emergency protective order that meets the requirements of
paragraph (1) 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.
(c) Any person violating any order made
pursuant to subdivisions (a) paragraphs (1)
to (g) (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 . , unless a court issues an
emergency protective order 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, in which case the emergency
protective order shall have precedence in enforcement over any other
restraining or protective order, provided the emergency protective
order meets the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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
subparagraph (A).
(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
(i) (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
acknowledge the precedence of enforcement of, any appropriate
criminal protective order. On or before July 1, 2006, the Judicial
Council shall modify the criminal and civil court forms consistent
with this subdivision .
(j)
(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 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.
SEC. 2.6. Section 136.2 of the Penal
Code is amended to read:
136.2. (a) 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 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 subdivision
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
subdivision paragraph to the same
agency that entered the original protective order into the Domestic
Violence Restraining Order System.
(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, 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:
(I) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(II) 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 subdivision (g) of
Section 12021.
(C) Any order issued, modified, extended, or
terminated by a court pursuant to this subdivision
paragraph 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.
(b) Any person violating any order made
pursuant to subdivisions (a) to (g), inclusive
subdiv ision (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)
(c) (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)
(d) (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 subdivision
(i) (e), 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 acknowledge
the precedence of enforcement of, any appropriate criminal
protective order. On or before July 1, 2006, the Judicial Council
shall modify the criminal and civil court forms consistent with this
subdivision .
(j)
(e) 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)
(f) On or before January 1, 2003, the Judicial Council
shall modify the criminal and civil court protective order forms
consistent with this section.
SEC. 2.7. Section 136.2 of the Penal
Code is amended to read:
136.2. Upon (a)
Except as provided in subdivision (c), 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 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 subdivision
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
subdivision paragraph to the same
agency that entered the original protective order into the Domestic
Violence Restraining Order System.
(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, 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:
(I) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(II) 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 subdivision (g) of
Section 12021.
(C) Any order issued, modified, extended, or
terminated by a court pursuant to this subdivision
paragraph 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.
(b) 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)
(c) (1) Notwithstanding subdivisions (a) and (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 of the Penal Code shall have precedence in enforcement over
any other restraining or protective order, provided the emergency
protective order meets all of the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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
subparagraph (A).
(2) An emergency protective order that meets the requirements of
paragraph (1) 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.
(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 , unless a court issues an emergency protective order
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,
in which case the emergency protective order shall have precedence in
enforcement over any other restraining or protective order, provided
the emergency protective order meets the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) 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 subparagraph (A) .
(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
(i) (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 acknowledge
the precedence of enforcement of, any appropriate criminal
protective order. On or before July 1, 2006, the Judicial Council
shall modify the criminal and civil court forms consistent with this
subdivision .
(j)
(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 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.
SEC. 3. (a) Section 2.1 of this bill incorporates
amendments to Section 136.2 of the Penal Code proposed by both this
bill and AB 112. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2006, (2) each
bill amends Section 136.2 of the Penal Code, (3) AB 1288 and SB 720
are not enacted or as enacted do not amend that section, and (4) this
bill is enacted after AB 112, in which case Sections 2, 2.2, 2.3,
2.4, 2.5, 2.6, and 2.7 of this bill shall not become operative.
(b) Section 2.2 of this bill incorporates amendments to Section
136.2 of the Penal Code proposed by both this bill and AB 1288. It
shall only become operative if (1) both bills are enacted and become
effective on or before January 1, 2006, (2) each bill amends Section
136.2 of the Penal Code, (3) AB 112 and SB 720 are not enacted or as
enacted do not amend that section, and (4) this bill is enacted after
AB 1288, in which case Sections 2, 2.1, 2.3, 2.4, 2.5, 2.6, and 2.7
of this bill shall not become operative.
(c) Section 2.3 of this bill incorporates amendments to Section
136.2 of the Penal Code proposed by both this bill and SB 720. It
shall only become operative if (1) both bills are enacted and become
effective on or before January 1, 2006, (2) each bill amends Section
136.2 of the Penal Code, (3) AB 112 and AB 1288 are not enacted or as
enacted do not amend that section, and (4) this bill is enacted
after SB 720, in which case Sections 2, 2.1, 2.2, 2.4, 2.5, 2.6, and
2.7 of this bill shall not become operative.
(d) Section 2.4 of this bill incorporates amendments to Section
136.2 of the Penal Code proposed by this bill, AB 112, and AB 1288.
It shall only become operative if (1) all three bills are enacted and
become effective on or before January 1, 2006, (2) each bill amends
Section 136.2 of the Penal Code, (3) SB 720 is not enacted or as
enacted does not amend that section, and (4) this bill is enacted
after AB 112 and AB 1288, in which case Sections 2, 2.1, 2.2, 2.3,
2.5, 2.6, and 2.7 of this bill shall not become operative.
(e) Section 2.5 of this bill incorporates amendments to Section
136.2 of the Penal Code proposed by this bill, AB 112, and SB 720. It
shall only become operative if (1) all three bills are enacted and
become effective on or before January 1, 2006, (2) each bill amends
Section 136.2 of the Penal Code, (3) AB 1288 is not enacted or as
enacted does not amend that section, and (4) this bill is enacted
after AB 112 and SB 720, in which case Sections 2., 2.1, 2.2, 2.3,
2.4, 2.6, and 2.7 of this bill shall not become operative.
(f) Section 2.6 of this bill incorporates amendments to Section
136.2 of the Penal Code proposed by this bill, AB 1288 and SB 720. It
shall only become operative if (1) all three bills are enacted and
become effective on or before January 1, 2006, (2) each bill amends
Section 136.2 of the Penal Code, (3) AB 112 is not enacted or as
enacted does not amend that section, and (4) this bill is enacted
after AB 1288 and SB 720, in which case Sections 2, 2.1, 2.2, 2.3,
2.4, 2.5, and 2.7 of this bill shall not become operative.
(g) Section 2.7 of this bill incorporates amendments to Section
136.2 of the Penal Code proposed by this bill, AB 112, AB 1288, and
SB 720. It shall only become operative if (1) all four bills are
enacted and become effective on or before January 1, 2006, (2) all
four bills amend Section 136.2 of the Penal Code, and (3) this bill
is enacted after AB 112, AB 1288, and SB 720, in which case Sections
2, 2.1, 2.2, 2.3, 2.4, 2.5, and 2.6 of this bill shall not become
operative.