BILL NUMBER: AB 1787 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 14, 2006
AMENDED IN ASSEMBLY MARCH 2, 2006
INTRODUCED BY Assembly Member Cohn
JANUARY 4, 2006
An act to amend Section 646.91 of the Penal
add Section 6250.3 to the Family Code, relating to
protective orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 1787, as amended, Cohn 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 provide that an emergency protective
order is valid only if it is issued by a judicial officer after
making specified findings and pursuant to a specific request by a law
enforcement officer .
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.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6250.3 is added to the
Family Code , to read:
6250.3. An emergency protective order is valid only if it is
issued by a judicial officer after making the findings required by
Section 6251 and pursuant to a specific request by a law enforcement
officer.
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 violate 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 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.
(k) A peace officer who acts in good faith to enforce an emergency
protective order is not civilly or criminally liable.
(l) A peace officer who requests an emergency protective order
under this section shall carry copies of the order while on duty.
(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.
(n) "Judicial officer," as used in this section, means a judge,
commissioner, or referee.
(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.
(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.
(q) The Judicial Council shall develop forms, instructions, and
rules for the scheduling of hearings and other procedures established
pursuant to this section.
(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.