BILL NUMBER: AB 1288 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 21, 2005
AMENDED IN ASSEMBLY MAY 4, 2005
AMENDED IN ASSEMBLY APRIL 4, 2005
INTRODUCED BY Assembly Member Chu
( Principal coauthor: Senator
Alquist )
(Coauthors: Assembly Members Cohn, Goldberg, and Leno)
FEBRUARY 22, 2005
An act to amend Sections 136.2 and 11106 of the Penal Code,
relating to court orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 1288, as amended, Chu. Court orders.
(1) Existing law provides a mechanism whereby the court may issue
a protective order.
This bill would require a court, under specified circumstances,
to issue, or consider issuing, a protective order to a defendant
charged with domestic violence that would require, among other
things, the relinquishment of his or her firearms. A failure to
comply with the provisions of that protective order would result in a
misdemeanor.
By adding to the duties of local employees, this bill would impose
a state-mandated local program. By imposing a crime for a violation
of the above-described protective order, the bill would create a
state-mandated local program.
(2) Existing law requires the Attorney General to maintain a
registry of information reported to the Department of Justice
regarding firearms, including, among other things, copies of licenses
to carry firearms and applications for licenses to carry firearms.
Existing law provides generally that information contained in the
registry shall, upon proper application, be furnished to specified
peace officers. However, information relating to firearms that are
not handguns shall not generally be retained but shall instead be
destroyed, as specified; a violation of this provision is a
misdemeanor.
This bill would, as an exception to the above provisions,
authorize specified peace officers to disseminate the name of the
subject of the record, the number of firearms listed in the record,
and the description of any firearm, including the make, model, and
caliber from the record, relating to any firearm's sale, transfer,
registration, or license record, or any information reported to the
Department of Justice pursuant to specified provisions, if the
subject of the record has been arraigned for domestic violence and is
being prosecuted or is serving a sentence for the crime, or the
subject of the record is the subject of an emergency protective
order, a temporary restraining order, or an order after hearing,
which is in effect and has been issued by a family court under the
Domestic Violence Protect Act and the record or information is
disseminated only to the victim of the crime or to the person who has
obtained the emergency protective order, the temporary restraining
order, or the order after hearing issued by the family court. The
bill would further provide that law enforcement shall provide
the victim with a "Victims of Domestic Violence" card, as specified,
and that the victim or person to whom such
the information is disseminated may disclose it
that information as he or she deems necessary to
protect himself, herself, or another person from bodily harm by the
person who is the subject of the record. By imposing new duties
on local law enforcement officers, this bill would impose a
state-mandated l ocal program.
(3) 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.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 136.2 of the Penal Code is amended to read:
136.2.
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) Any order issued pursuant to Section 6320 of the Family Code.
(b) An order that a defendant shall not violate any provision of
Section 136.1.
(c) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1.
(d) An order that 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) An order calling for a hearing to determine if an order as
described in subdivisions (a) to (d), inclusive, should be issued.
(f) 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, "immediate family members"
include the spouse, children, or parents of the victim or witness.
(g) (1) 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.
(2) (A) If a court does not issue an order pursuant to paragraph
(1) 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.
(B) 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.
(3) 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.
(4) Any person violating any order made pursuant to subdivisions
(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) (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) (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).
(j) 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) 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. Section 11106 of the Penal Code is amended to read:
11106.
(a) (1) In order to assist
in the investigation of crime, the prosecution of civil actions by
city attorneys pursuant to paragraph (3) of subdivision (c), the
arrest and prosecution of criminals, and the recovery of lost,
stolen, or found property, the Attorney General shall keep and
properly file a complete record of all copies of fingerprints, copies
of licenses to carry firearms issued pursuant to Section 12050,
information reported to the Department of Justice pursuant to Section
12053, dealers' records of sales of firearms, reports provided
pursuant to Section 12072 or 12078, forms provided pursuant to
Section 12084, reports provided pursuant to Section 12071 that are
not dealers' records of sales of firearms, and reports of stolen,
lost, found, pledged, or pawned property in any city or county of
this state, and shall, upon proper application therefor, furnish this
information to the officers referred to in Section 11105.
(2) (A) Any officer referred to in paragraphs (1) to (6),
inclusive, of subdivision (b) of Section 11105 may disseminate the
name of the subject of the record, the number of the firearms listed
in the record, and the description of any firearm, including the
make, model, and caliber, from the record relating to any firearms
sale, transfer, registration, or license record, or any information
reported to the Department of Justice pursuant to Sections 12021.3,
12053, 12071, 12072, 12077, 12078, 12082, or 12285, if the following
conditions are met:
(i) The subject of the record has been arraigned for a crime in
which the victim is a person described in subdivisions (a) to (f),
inclusive, of Section 6211 of the Family Code and is being prosecuted
or is serving a sentence for the crime, or the subject of the record
is the subject of an emergency protective order, a temporary
restraining order, or an order after hearing, which is in effect and
has been issued by a family court under the Domestic Violence
Protection Act set forth in Division 10 (commencing with Section
6200) of the Family Code.
(ii) The information is disseminated only to the victim of the
crime or to the person who has obtained the emergency protective
order, the temporary restraining order, or the order after hearing
issued by the family court.
(B) The victim or person to whom such information is disseminated
may disclose it as he or she deems necessary to protect himself or
herself or another person from bodily harm by the person who is the
subject of the record.
(b) (1) Except as provided in paragraph (2) of
subdivision (a) subdivision (d) , the Attorney
General shall not retain or compile any information from reports
filed pursuant to subdivision (a) of Section 12078 for firearms that
are not handguns, from forms submitted pursuant to Section 12084 for
firearms that are not handguns, or from dealers' records of sales for
firearms that are not handguns. All copies of the forms submitted,
or any information received in electronic form, pursuant to Section
12084 for firearms that are not handguns, or of the dealers' records
of sales for firearms that are not handguns shall be destroyed within
five days of the clearance by the Attorney General, unless the
purchaser or transferor is ineligible to take possession of the
firearm. All copies of the reports filed, or any information received
in electronic form, pursuant to subdivision (a) of Section 12078 for
firearms that are not handguns shall be destroyed within five days
of the receipt by the Attorney General, unless retention is necessary
for use in a criminal prosecution.
(2) A peace officer, the Attorney General, a Department of Justice
employee designated by the Attorney General, or any authorized local
law enforcement employee shall not retain or compile any information
from a firearms transaction record, as defined in paragraph (5) of
subdivision (c) of Section 12071, for firearms that are not handguns
unless retention or compilation is necessary for use in a criminal
prosecution or in a proceeding to revoke a license issued pursuant to
Section 12071.
(3) A violation of this subdivision is a misdemeanor.
(c) (1) The Attorney General shall permanently keep and properly
file and maintain all information reported to the Department of
Justice pursuant to Sections 12071, 12072, 12078, 12082, and 12084 or
any other law, as to handguns and maintain a registry thereof.
(2) The registry shall consist of all of the following:
(A) The name, address, identification of, place of birth (state or
country), complete telephone number, occupation, sex, description,
and all legal names and aliases ever used by the owner or person
being loaned the particular handgun as listed on the information
provided to the department on the Dealers' Record of Sale, the Law
Enforcement Firearms Transfer (LEFT), as defined in Section 12084, or
reports made to the department pursuant to Section 12078 or any
other law.
(B) The name and address of, and other information about, any
person (whether a dealer or a private party) from whom the owner
acquired or the person being loaned the particular handgun and when
the firearm was acquired or loaned as listed on the information
provided to the department on the Dealers' Record of Sale, the LEFT,
or reports made to the department pursuant to Section 12078 or any
other law.
(C) Any waiting period exemption applicable to the transaction
which resulted in the owner of or the person being loaned the
particular handgun acquiring or being loaned that firearm.
(D) The manufacturer's name if stamped on the firearm, model name
or number if stamped on the firearm, and, if applicable, the serial
number, other number (if more than one serial number is stamped on
the firearm), caliber, type of firearm, if the firearm is new or
used, barrel length, and color of the firearm.
(3) Information in the registry referred to in this subdivision
shall, upon proper application therefor, be furnished to the officers
referred to in Section 11105, to a city attorney prosecuting a civil
action, solely for use in prosecuting that civil action and not for
any other purpose, or to the person listed in the registry as the
owner or person who is listed as being loaned the particular handgun.
(4) If any person is listed in the registry as the owner of a
firearm through a Dealers' Record of Sale prior to 1979, and the
person listed in the registry requests by letter that the Attorney
General store and keep the record electronically, as well as in the
record's existing photographic, photostatic, or nonerasable optically
stored form, the Attorney General shall do so within three working
days of receipt of the request. The Attorney General shall, in
writing, and as soon as practicable, notify the person requesting
electronic storage of the record that the request has been honored as
required by this paragraph.
(d) Any officer referred to in paragraphs (1) to (6), inclusive,
of subdivision (b) of Section 11105 may disseminate the name of the
subject of the record, the number of the firearms listed in the
record, and the description of any firearm, including the make,
model, and caliber, from the record relating to any firearms sale,
transfer, registration, or license record, or any information
reported to the Department of Justice pursuant to Sections 12021.3,
12053, 12071, 12072, 12077, 12078, 12082, or 12285, if the following
conditions are met:
(A) The subject of the record has been arraigned for a crime in
which the victim is a person described in subdivisions (a) to (f),
inclusive, of Section 6211 of the Family Code and is being prosecuted
or is serving a sentence for the crime, or the subject of the record
is the subject of an emergency protective order, a temporary
restraining order, or an order after hearing, which is in effect and
has been issued by a family court under the Domestic Violence
Protection Act set forth in Division 10 (commencing with Section
6200) of the Family Code.
(B) The information is disseminated only to the victim of the
crime or to the person who has obtained the emergency protective
order, the temporary restraining order, or the order after hearing
issued by the family court.
(C) Whenever a law enforcement officer disseminates the
information authorized by this subdivision, that officer or another
officer assigned to the case shall immediately provide the victim of
the crime with a "Victims of Domestic Violence" card, as specified in
subparagraph (G) of paragraph (9) of subdivision (c) of Section
13701.
(2) The victim or person to whom such information is disseminated
may disclose it as he or she deems necessary to protect himself or
herself or another person from bodily harm by the person who is the
subject of the record.
SEC. 3.
No reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution for certain costs that
may be incurred by a local agency or school district because, in that
regard, this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this
act contains other 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.