BILL NUMBER: AB 1787 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 2, 2006
INTRODUCED BY Assembly Member Cohn
JANUARY 4, 2006
An act to amend Section 6273 of, and to add Section
6250.3 to, the Family 646.91 of the Penal Code,
relating to protective orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 1787, as amended, Cohn Emergency protective orders.
Protective orders: stalking: service.
Existing law authorizes the courts to issue emergency orders
protecting victims from stalkers. Existing law provides the procedure
for the issuance and service of the protective order.
This bill would permit a court to extend the applicability of an
ex parte protective order that has expired if grounds arise to
support the issuance of a new protective order and the restrained
person cannot be located for service of the new protective order.
Because this bill would expand the applicability of certain
crimes, it would impose a state-mandated local program.
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 no reimbursement is required by this
act for a specified reason.
Existing law authorizes a judicial officer to issue an emergency
protective order if a law enforcement officer has reasonable grounds
to believe any one of specified circumstances, including the danger
of domestic violence, abuse, or abduction, exist. Existing law
requires a law enforcement officer who requests an emergency
protective order to carry copies of the order while on duty.
This bill would prohibit a judicial officer from authorizing the
issuance of an emergency protective order pursuant to a standing
order. The bill would also clarify that a law enforcement officer
must make a separate request of a judicial officer to obtain an
emergency protective order for each specific case in which the law
enforcement officer asserts reasonable grounds for the issuance of
the order
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 646.91 of the Penal
Code is amended to read:
646.91. (a) Notwithstanding any other law, a judicial officer may
issue an ex parte emergency protective order where a peace officer,
as defined in Section 830.1, 830.2, or 830.32, asserts reasonable
grounds to believe that a person is in immediate and present danger
of stalking based upon the person's allegation that he or she has
been willfully, maliciously, and repeatedly followed or harassed by
another person who has made a credible threat with the intent of
placing the person who is the target of the threat in reasonable fear
for his or her safety, or the safety of his or her immediate family,
within the meaning of Section 646.9.
(b) A peace officer who requests an emergency protective order
shall reduce the order to writing and sign it.
(c) An emergency protective order shall include all of the
following:
(1) A statement of the grounds asserted for the order.
(2) The date and time the order expires.
(3) The address of the superior court for the district or county
in which the protected party resides.
(4) The following statements, which shall be printed in English
and Spanish:
(A) "To the protected person: This order will last until the date
and time noted above. If you wish to seek continuing protection, you
will have to apply for an order from the court at the address noted
above. You may seek the advice of an attorney as to any matter
connected with your application for any future court orders. The
attorney should be consulted promptly so that the attorney may assist
you in making your application."
(B) "To the restrained person: This order will last until the date
and time noted above. However, if during the effective time of
the order you viola te the terms of the order and are not
able to be located for service of a new order, this order will last
for another five court days past the date and time noted above.
The protected party may , however, also
obtain a more permanent restraining order from the court. You
may seek the advice of an attorney as to any matter connected with
the application. The attorney should be consulted promptly so that
the attorney may assist you in responding to the application. You may
not own, possess, purchase or receive, or attempt to purchase or
receive a firearm while this order is in effect."
(d) An emergency protective order may be issued under this section
only if the judicial officer finds both of the following:
(1) That reasonable grounds have been asserted to believe that an
immediate and present danger of stalking, as defined in Section
646.9, exists.
(2) That an emergency protective order is necessary to prevent the
occurrence or reoccurrence of the stalking activity.
(e) An emergency protective order may include either of the
following specific orders as appropriate:
(1) A harassment protective order as described in Section 527.6 of
the Code of Civil Procedure.
(2) A workplace violence protective order as described in Section
527.8 of the Code of Civil Procedure.
(f) An emergency protective order shall be issued without
prejudice to any person.
(g) An emergency protective order expires at the earlier of the
following times:
(1) The close of judicial business on the fifth court day
following the day of its issuance.
(2) The seventh calendar day following the day of its issuance.
(h) A peace officer who requests an emergency protective order
shall do all of the following:
(1) Serve the order on the restrained person, if the restrained
person can reasonably be located.
(2) Give a copy of the order to the protected person, or, if the
protected person is a minor child, to a parent or guardian of the
protected child if the parent or guardian can reasonably be located,
or to a person having temporary custody of the child.
(3) File a copy of the order with the court as soon as practicable
after issuance.
(i) Notwithstanding subdivisions (g) and (h), if the person
to be protected has a protective order issued pursuant to subdivision
(a), during that time grounds arise for the issuance of a
new protective order pursuant to subdivision (a), and the restrained
person cannot be located for service of a new protective order, then
the court may upon motion extend the original protective order for
an additional five court days.
(j) A peace officer shall use every reasonable means to
enforce an emergency protective order.
(j)
(k) A peace officer who acts in good faith to enforce
an emergency protective order is not civilly or criminally liable.
(k)
(l) A peace officer who requests an emergency
protective order under this section shall carry copies of the order
while on duty.
(l)
(m) A peace officer described in subdivision (a) or (b)
of Section 830.32 who requests an emergency protective order
pursuant to this section shall also notify the sheriff or police
chief of the city in whose jurisdiction the peace officer's college
or school is located after issuance of the order.
(m)
(n) "Judicial officer," as used in this section, means
a judge, commissioner, or referee.
(n)
(o) A person subject to an emergency protective order
under this section shall not own, possess, purchase, or receive a
firearm while the order is in effect.
(o)
(p) Nothing in this section shall be construed to
permit a court to issue an emergency protective order prohibiting
speech or other activities that are constitutionally protected or
protected by the laws of this state or by the United States or
activities occurring during a labor dispute, as defined by Section
527.3 of the Code of Civil Procedure, including, but not limited to,
picketing and hand billing.
(p)
(q) The Judicial Council shall develop forms,
instructions, and rules for the scheduling of hearings and other
procedures established pursuant to this section.
(q)
(r) Any intentional disobedience of any emergency
protective order granted under this section is punishable pursuant to
Section 166. Nothing in this subdivision shall be construed to
prevent punishment under Section 646.9, in lieu of punishment under
this section, if a violation of Section 646.9 is also pled and
proven.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because 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.
SECTION 1. Section 6250.3 is added to the
Family Code, to read:
6250.3. A judicial officer may not authorize the issuance of an
emergency protective order pursuant to a standing order.
SEC. 2. Section 6273 of the Family Code is
amended to read:
6273. (a) A law enforcement officer who requests an emergency
protective order shall carry copies of the order while on duty.
(b) A law enforcement officer shall make a separate request of a
judicial officer to obtain an emergency protective order for each
specific case in which the law enforcement officer asserts reasonable
grounds for the issuance of the order, as set forth in Section 6250.
Each emergency protective order shall be issued by a judicial
officer consistent with the requirements of this part. A law
enforcement officer may not serve an emergency protective order
pursuant to a standing order.