BILL NUMBER: AB 2695 CHAPTERED
BILL TEXT
CHAPTER 476
FILED WITH SECRETARY OF STATE SEPTEMBER 26, 2006
APPROVED BY GOVERNOR SEPTEMBER 26, 2006
PASSED THE ASSEMBLY AUGUST 21, 2006
PASSED THE SENATE AUGUST 17, 2006
AMENDED IN SENATE AUGUST 14, 2006
AMENDED IN SENATE MAY 22, 2006
AMENDED IN ASSEMBLY MARCH 27, 2006
INTRODUCED BY Assembly Member Goldberg
(Coauthors: Assembly Members Chan, Cohn, Hancock, Koretz, Leno,
Liu, Oropeza, Pavley, Spitzer, and Villines)
(Coauthors: Senators Bowen, Kuehl, Migden, and Romero)
FEBRUARY 24, 2006
An act to amend Sections 527.6 and 527.8 of the Code of Civil
Procedure, to amend Section 6222 of the Family Code, to amend Section
6103.2 of the Government Code, and to amend and repeal Section
1203.097 of the Penal Code, relating to domestic violence.
LEGISLATIVE COUNSEL'S DIGEST
AB 2695, Goldberg Domestic violence: probation conditions.
(1) Existing law, until January 1, 2007, provides that there is no
fee for the service of process of certain protective orders,
restraining orders, or injunctions or for a subpoena filed in
connection with a petition alleging that a person has inflicted or
threatened violence or stalked the petitioner. The Judicial Council
is required to prepare and develop application forms for applicants
who wish to avail themselves of the service of process.
This bill would make that provision operative indefinitely, expand
the provision providing that there is no fee for the service of
process of certain orders and injunctions to include additional
protective orders, restraining orders, and injunctions, as specified,
and require the Judicial Council to prepare and develop application
forms for applicants who wish to avail themselves of the service of
process.
(2) Existing law, in effect until January 1, 2007, provides that
there is no fee for a subpoena filed in connection with an
application, responsive pleading, or order to show cause that seeks
to obtain, modify, or enforce a protective order or other, related
order.
This bill would make that provision effective indefinitely.
(3) Existing law, effective January 1, 2007, excepts orders and
injunctions relating to harassment and workplace violence from a
provision authorizing a sheriff or marshal to require the prepayment
of fees prior to the performance of any official act.
This bill would make that provision effective indefinitely and
expand the exception to include orders and injunctions relating to
domestic violence and elder abuse.
(4) Existing law provides that any employer whose employee has
suffered unlawful violence or a credible threat of violence, that can
reasonably be construed to be carried out or to have been carried
out at the workplace, may seek a temporary restraining order and an
injunction on behalf of the employee, as specified.
This bill would allow an employer to seek a restraining order or
an injunction on behalf of any of his or her employees. This bill
would also provide that a temporary restraining order or an
injunction issued under these provisions may include persons employed
at any of the plaintiff's workplaces, at the discretion of the
court. The bill would also provide that no fee shall be paid for a
subpoena filed in connection with a petition alleging the acts
described above.
(5) Existing law provides, beginning January 1, 2007, that upon
application of the petitioner, there is no fee for the service of
process of a protective order, restraining order, or injunction if
that order or injunction is based upon specified acts or threats.
Existing law provides for specified conditions to be required of
persons granted probation on a domestic violence case, including a
minimum payment of $200 for specified purposes, which can be waived
by a court for inability to pay.
This bill would increase that minimum payment from $200 to $400,
until January 1, 2010, subject to the same court waiver provisions.
(6) Existing law provides that 1/3 of this money shall be retained
by the county for specified purposes and that the remainder shall be
transferred to the Controller for deposit into specified accounts.
This bill would provide instead that, until January 1, 2010, 2/3
of the money should be retained by the county for those purposes and
the reduced remainder be transferred to the Controller in an amount
not less than $133 for each defendant. However, if the court orders
the defendant to pay less than $200 because of his or her inability
to pay, the state would receive 2/3 of the payment.
Because this bill would require county treasurers to account for
the allocation of this money to specific purposes, it would impose a
state-mandated local program.
(7)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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 527.6 of the Code of Civil Procedure is amended
to read:
527.6. (a) A person who has suffered harassment as defined in
subdivision (b) may seek a temporary restraining order and an
injunction prohibiting harassment as provided in this section.
(b) For the purposes of this section, "harassment" is unlawful
violence, a credible threat of violence, or a knowing and willful
course of conduct directed at a specific person that seriously
alarms, annoys, or harasses the person, and that serves no legitimate
purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the plaintiff.
As used in this subdivision:
(1) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual,
making harassing telephone calls to an individual, or sending
harassing correspondence to an individual by any means, including,
but not limited to, the use of public or private mails, interoffice
mail, fax, or computer e-mail. Constitutionally protected activity is
not included within the meaning of "course of conduct."
(c) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with Section 527, except to the extent this section provides a rule
that is inconsistent. A temporary restraining order may be issued
with or without notice upon an affidavit that, to the satisfaction of
the court, shows reasonable proof of harassment of the plaintiff by
the defendant, and that great or irreparable harm would result to the
plaintiff. In the discretion of the court, and on a showing of good
cause, a temporary restraining order or injunction, issued under this
section may include other named family or household members who
reside with the plaintiff. A temporary restraining order issued under
this section shall remain in effect, at the court's discretion, for
a period not to exceed 15 days, or, if the court extends the time for
hearing under subdivision (d), not to exceed 22 days, unless
otherwise modified or terminated by the court.
(d) Within 15 days, or, if good cause appears to the court, 22
days from the date the temporary restraining order is issued, a
hearing shall be held on the petition for the injunction. The
defendant may file a response that explains, excuses, justifies, or
denies the alleged harassment or may file a cross-complaint under
this section. At the hearing, the judge shall receive any testimony
that is relevant, and may make an independent inquiry. If the judge
finds by clear and convincing evidence that unlawful harassment
exists, an injunction shall issue prohibiting the harassment. An
injunction issued pursuant to this section shall have a duration of
not more than three years. At any time within the three months before
the expiration of the injunction, the plaintiff may apply for a
renewal of the injunction by filing a new petition for an injunction
under this section.
(e) This section does not preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(f) In a proceeding under this section if there are allegations or
threats of domestic violence, a support person may accompany a party
in court and, if the party is not represented by an attorney, may
sit with the party at the table that is generally reserved for the
party and the party's attorney. The support person is present to
provide moral and emotional support for a person who alleges he or
she is a victim of domestic violence. The support person is not
present as a legal adviser and may not provide legal advice. The
support person may assist the person who alleges he or she is a
victim of domestic violence in feeling more confident that he or she
will not be injured or threatened by the other party during the
proceedings if the person who alleges he or she is a victim of
domestic violence and the other party are required to be present in
close proximity. This subdivision does not preclude the court from
exercising its discretion to remove the support person from the
courtroom if the court believes the support person is prompting,
swaying, or influencing the party assisted by the support person.
(g) Upon the filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may for good cause, on motion of the plaintiff or
on its own motion, shorten the time for service on the defendant.
(h) The court shall order the plaintiff or the attorney for the
plaintiff to deliver a copy of each temporary restraining order or
injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was
granted, to the law enforcement agencies within the court's
discretion as are requested by the plaintiff. Each appropriate law
enforcement agency shall make available information as to the
existence and current status of these orders to law enforcement
officers responding to the scene of reported harassment.
An order issued under this section shall, on request of the
plaintiff, be served on the defendant, whether or not the defendant
has been taken into custody, by any law enforcement officer who is
present at the scene of reported harassment involving the parties to
the proceeding. The plaintiff shall provide the officer with an
endorsed copy of the order and a proof of service that the officer
shall complete and send to the issuing court.
Upon receiving information at the scene of an incident of
harassment that a protective order has been issued under this
section, or that a person who has been taken into custody is the
subject of an order, if the protected person cannot produce a
certified copy of the order, a law enforcement officer shall
immediately attempt to verify the existence of the order.
If the law enforcement officer determines that a protective order
has been issued, but not served, the officer shall immediately notify
the defendant of the terms of the order and shall at that time also
enforce the order. Verbal notice of the terms of the order shall
constitute service of the order and is sufficient notice for the
purposes of this section and for the purposes of Section 273.6 and
subdivision (g) of Section 12021 of the Penal Code.
(i) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(j) Any willful disobedience of any temporary restraining order or
injunction granted under this section is punishable pursuant to
Section 273.6 of the Penal Code.
(k) (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.
(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.
(l) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of the Civil
Code or by Division 10 (commencing with Section 6200) of the Family
Code. This section does not preclude a plaintiff from using other
existing civil remedies.
(m) The Judicial Council shall promulgate forms and instructions
therefor, and rules for service of process, scheduling of hearings,
and any other matters required by this section. The petition and
response forms shall be simple and concise, and their use by parties
in actions brought pursuant to this section shall be mandatory.
(n) A temporary restraining order or injunction relating to
harassment or domestic violence issued by a court pursuant to this
section 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.
(o) Information on any temporary restraining order or injunction
relating to harassment or domestic violence issued by a court
pursuant to this section shall be transmitted to the Department of
Justice in accordance with subdivision (b) of Section 6380 of the
Family Code.
(p) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against the petitioner,
or stalked the petitioner, or acted or spoken in any other manner
that has placed the petitioner in reasonable fear of violence, and
that seeks a protective or restraining order or injunction
restraining stalking or future violence or threats of violence, in
any action brought pursuant to this section. No fee shall be paid for
a subpoena filed in connection with a petition alleging these acts.
No fee shall be paid for filing a response to a petition alleging
these acts.
(q) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process of a protective order, restraining order, or injunction to
be issued, if any of the following conditions apply:
(A) The protective order, restraining order, or injunction issued
pursuant to this section is based upon stalking, as prohibited by
Section 646.9 of the Penal Code.
(B) The protective order, restraining order, or injunction issued
pursuant to this section is based upon a credible threat of violence.
(C) The protective order, restraining order, or injunction is
issued pursuant to Section 6222 of the Family Code.
(2) The Judicial Council shall prepare and develop application
forms for applicants who wish to avail themselves of the services
described in this subdivision.
SEC. 2. Section 527.8 of the Code of Civil Procedure is amended to
read:
527.8. (a) Any employer, whose employee has suffered unlawful
violence or a credible threat of violence from any individual, that
can reasonably be construed to be carried out or to have been carried
out at the workplace, may seek a temporary restraining order and an
injunction on behalf of the employee and, at the discretion of the
court, any number of other employees at the workplace, and, if
appropriate, other employees at other workplaces of the employer.
(b) For the purposes of this section:
(1) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an employee to
or from the place of work; entering the workplace; following an
employee during hours of employment; making telephone calls to an
employee; or sending correspondence to an employee by any means,
including, but not limited to, the use of the public or private
mails, interoffice mail, fax, or computer e-mail.
(c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
(d) For purposes of this section, the terms "employer" and
"employee" mean persons defined in Section 350 of the Labor Code.
"Employer" also includes a federal agency, the state, a state agency,
a city, county, or district, and a private, public, or quasi-public
corporation, or any public agency thereof or therein. "Employee" also
includes the members of boards of directors of private, public, and
quasi-public corporations and elected and appointed public officers.
For purposes of this section only, "employee" also includes a
volunteer or independent contractor who performs services for the
employer at the employer's worksite.
(e) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the plaintiff also files an
affidavit that, to the satisfaction of the court, shows reasonable
proof that an employee has suffered unlawful violence or a credible
threat of violence by the defendant, and that great or irreparable
harm would result to an employee. In the discretion of the court, and
on a showing of good cause, a temporary restraining order or
injunction issued under this section may include other named family
or household members who reside with the employee, or other persons
employed at his or her workplace or workplaces.
A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 15 days, unless otherwise modified or terminated by the court.
(f) Within 15 days of the filing of the petition, a hearing shall
be held on the petition for the injunction. The defendant may file a
response that explains, excuses, justifies, or denies the alleged
unlawful violence or credible threats of violence or may file a
cross-complaint under this section. At the hearing, the judge shall
receive any testimony that is relevant and may make an independent
inquiry. Moreover, if the defendant is a current employee of the
entity requesting the injunction, the judge shall receive evidence
concerning the employer's decision to retain, terminate, or otherwise
discipline the defendant. If the judge finds by clear and convincing
evidence that the defendant engaged in unlawful violence or made a
credible threat of violence, an injunction shall issue prohibiting
further unlawful violence or threats of violence. An injunction
issued pursuant to this section shall have a duration of not more
than three years. At any time within the three months before the
expiration of the injunction, the plaintiff may apply for a renewal
of the injunction by filing a new petition for an injunction under
this section.
(g) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(h) Upon filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the plaintiff or
on its own motion, shorten the time for service on the defendant.
(i) (1) The court shall order the plaintiff or the attorney for
the plaintiff to deliver a copy of each temporary restraining order
or injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was
granted, to the law enforcement agencies within the court's
discretion as are requested by the plaintiff. Each appropriate law
enforcement agency shall make available information as to the
existence and current status of these orders to law enforcement
officers responding to the scene of reported unlawful violence or a
credible threat of violence.
(2) At the request of the plaintiff, an order issued under this
section shall be served on the defendant, regardless of whether the
defendant has been taken into custody, by any law enforcement officer
who is present at the scene of reported unlawful violence or a
credible threat of violence involving the parties to the proceedings.
The plaintiff shall provide the officer with an endorsed copy of the
order and proof of service that the officer shall complete and send
to the issuing court.
(3) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective
order has been issued under this section, or that a person who has
been taken into custody is the subject of an order, if the plaintiff
or the protected person cannot produce an endorsed copy of the order,
a law enforcement officer shall immediately attempt to verify the
existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the defendant of the terms of the order and obtain the
defendant's address. The law enforcement officer shall at that time
also enforce the order, but may not arrest or take the defendant into
custody for acts in violation of the order that were committed prior
to the verbal notice of the terms and conditions of the order. The
law enforcement officer's verbal notice of the terms of the order
shall constitute service of the order and constitutes sufficient
notice for the purposes of this section and for the purposes of
Section 273.6 and subdivision (g) of Section 12021 of the Penal Code.
The plaintiff shall mail an endorsed copy of the order to the
defendant's mailing address provided to the law enforcement officer
within one business day of the reported incident of unlawful violence
or a credible threat of violence at which a verbal notice of the
terms of the order was provided by a law enforcement officer.
(j) (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.
(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.
(k) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
(l) Nothing in this section may be construed as expanding,
diminishing, altering, or modifying the duty, if any, of an employer
to provide a safe workplace for employees and other persons.
(m) The Judicial Council shall develop forms, instructions, and
rules for scheduling of hearings and other procedures established
pursuant to this section. The forms for the petition and response
shall be simple and concise, and their use by parties in actions
brought pursuant to this section shall be mandatory.
(n) A temporary restraining order or injunction relating to
harassment or domestic violence issued by a court pursuant to this
section 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.
(o) Information on any temporary restraining order or injunction
relating to harassment or domestic violence issued by a court
pursuant to this section shall be transmitted to the Department of
Justice in accordance with subdivision (b) of Section 6380 of the
Family Code.
(p) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against an employee of
the petitioner, or stalked the employee, or acted or spoken in any
other manner that has placed the employee in reasonable fear of
violence, and that seeks a protective or restraining order or
injunction restraining stalking or future violence or threats of
violence, in any action brought pursuant to this section. No fee
shall be paid for a subpoena filed in connection with a petition
alleging these acts. No fee shall be paid for filing a response to a
petition alleging these acts.
(q) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process of a temporary restraining order or injunction to be
issued pursuant to this section if either of the following conditions
apply:
(A) The temporary restraining order or injunction issued pursuant
to this section is based upon stalking, as prohibited by Section
646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued pursuant
to this section is based upon a credible threat of violence.
(2) The Judicial Council shall prepare and develop application
forms for applicants who wish to avail themselves of the services
described in this subdivision.
SEC. 3. Section 6222 of the Family Code is amended to read:
6222. There is no filing fee for an application, a responsive
pleading, or an order to show cause that seeks to obtain, modify, or
enforce a protective order or other order authorized by this division
when the request for the other order is necessary to obtain or give
effect to a protective order. There is no fee for a subpoena filed in
connection with that application, responsive pleading, or order to
show cause.
SEC. 4. Section 6103.2 of the Government Code is amended to read:
6103.2. (a) Section 6103 does not apply to any fee or charge or
expense for official services rendered by a sheriff or marshal in
connection with the levy of writs of attachment, execution,
possession, or sale. The fee, charge, or expense may be advanced to
the sheriff or marshal, as otherwise required by law.
(b) (1) Notwithstanding Section 6103, the sheriff or marshal, in
connection with the service of process or notices, may require that
all fees which a public agency, or any person or entity, is required
to pay under provisions of law other than this section, be prepaid by
a public agency named in Section 6103, or by any person or entity,
prior to the performance of any official act. This authority to
require prepayment shall include fees governed by Section 6103.5.
(2) This subdivision does not apply to the service of process or
notices in any action by the district attorney's office for the
establishment or enforcement of a child support obligation.
(3) This subdivision does not apply to a particular jurisdiction
unless the sheriff or marshal, as the case may be, imposes the
requirement of prepayment upon public agencies and upon all persons
or entities within the private sector.
(4) The requirement for prepayment of a fee deposit does not apply
to orders or injunctions described in paragraph (1) of subdivision
(q) of Section 527.6 and Section 527.8 of the Code of Civil
Procedure, Division 10 (commencing with Section 6200) of the Family
Code (Prevention of Domestic Violence), and Chapter 11 (commencing
with Section 15600) of Part 3 of Division 9 of the Welfare and
Institutions Code (Elder Abuse and Dependent Adult Civil Protection
Act).
However, a sheriff, marshal, or constable may submit a billing to
the superior court for payment of fees in the manner prescribed by
the Judicial Council irrespective of the in forma pauperis status of
any party under Rule 985 of the Rules of Court. The fees for service,
cancellation of service, and making a not found return may not
exceed the amounts provided in Sections 26721, 26736, and 26738,
respectively, and are subject to the provisions of Section 26731.
SEC. 5. Section 1203.097 of the Penal Code, as amended by Section
1 of Chapter 431 of the Statutes of 2003, is amended to read:
1203.097. (a) If a person is granted probation for a crime in
which the victim is a person defined in Section 6211 of the Family
Code, the terms of probation shall include all of the following:
(1) A minimum period of probation of 36 months, which may include
a period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim from
further acts of violence, threats, stalking, sexual abuse, and
harassment, and, if appropriate, containing residence exclusion or
stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if the
defendant has not already been booked.
(5) A minimum payment by the defendant of four hundred dollars
($400) to be disbursed as specified in this paragraph. If, after a
hearing in court on the record, the court finds that the defendant
does not have the ability to pay, the court may reduce or waive this
fee.
Two-thirds of the moneys deposited with the county treasurer
pursuant to this section shall be retained by counties and deposited
in the domestic violence programs special fund created pursuant to
Section 18305 of the Welfare and Institutions Code, to be expended
for the purposes of Chapter 5 (commencing with Section 18290) of Part
6 of Division 9 of the Welfare and Institutions Code. The remainder
shall be transferred, once a month, to the Controller for deposit in
equal amounts in the Domestic Violence Restraining Order
Reimbursement Fund and in the Domestic Violence Training and
Education Fund, which are hereby created, in an amount equal to
one-third of funds collected during the preceding month. In no event
may the funds transferred to the Controller be less than one hundred
thirty-three dollars ($133) for each defendant. However, if the court
orders the defendant to pay less than two hundred dollars ($200)
because of his or her inability to pay, the state
shall receive two-thirds of the payment.
Moneys deposited into these funds pursuant to this section shall be
available upon appropriation by the Legislature and shall be
distributed each fiscal year as follows:
(A) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law enforcement or
other criminal justice agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(b) of Section 6380 of the Family Code, based on the annual
notification from the Department of Justice of the number of
restraining orders issued and registered in the state domestic
violence restraining order registry maintained by the Department of
Justice, for the development and maintenance of the domestic violence
restraining order databank system.
(B) Funds from the Domestic Violence Training and Education Fund
shall support a statewide training and education program to increase
public awareness of domestic violence and to improve the scope and
quality of services provided to the victims of domestic violence.
Grants to support this program shall be awarded on a competitive
basis and be administered by the State Department of Health Services,
in consultation with the statewide domestic violence coalition,
which is eligible to receive funding under this section.
(6) Successful completion of a batterer's program, as defined in
subdivision (c), or if none is available, another appropriate
counseling program designated by the court, for a period not less
than one year with periodic progress reports by the program to the
court every three months or less and weekly sessions of a minimum of
two hours class time duration. The defendant shall attend consecutive
weekly sessions, unless granted an excused absence for good cause by
the program for no more than three individual sessions during the
entire program, and shall complete the program within 18 months,
unless, after a hearing, the court finds good cause to modify the
requirements of consecutive attendance or completion within 18
months.
(7) (A) (i) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon the ability to pay.
(ii) The terms of probation for offenders shall not be lifted
until all reasonable fees due to the counseling program have been
paid in full, but in no case shall probation be extended beyond the
term provided in subdivision (a) of Section 1203.1. If the court
finds that the defendant does not have the ability to pay the fees
based on the defendant's changed circumstances, the court may reduce
or waive the fees.
(B) Upon request by the batterer's program, the court shall
provide the defendant's arrest report, prior incidents of violence,
and treatment history to the program.
(8) The court also shall order the defendant to perform a
specified amount of appropriate community service, as designated by
the court. The defendant shall present the court with proof of
completion of community service and the court shall determine if the
community service has been satisfactorily completed. If sufficient
staff and resources are available, the community service shall be
performed under the jurisdiction of the local agency overseeing a
community service program.
(9) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate alternative
batterer's program.
(10) (A) Upon recommendation of the program, a court shall require
a defendant to participate in additional sessions throughout the
probationary period, unless it finds that it is not in the interests
of justice to do so, states its reasons on the record, and enters
them into the minutes. In deciding whether the defendant would
benefit from more sessions, the court shall consider whether any of
the following conditions exist:
(i) The defendant has been violence free for a minimum of six
months.
(ii) The defendant has cooperated and participated in the batterer'
s program.
(iii) The defendant demonstrates an understanding of and practices
positive conflict resolution skills.
(iv) The defendant blames, degrades, or has committed acts that
dehumanize the victim or puts at risk the victim's safety, including,
but not limited to, molesting, stalking, striking, attacking,
threatening, sexually assaulting, or battering the victim.
(v) The defendant demonstrates an understanding that the use of
coercion or violent behavior to maintain dominance is unacceptable in
an intimate relationship.
(vi) The defendant has made threats to harm anyone in any manner.
(vii) The defendant has complied with applicable requirements
under paragraph (6) of subdivision (c) or subparagraph (C) to receive
alcohol counseling, drug counseling, or both.
(viii) The defendant demonstrates acceptance of responsibility for
the abusive behavior perpetrated against the victim.
(B) The program shall immediately report any violation of the
terms of the protective order, including any new acts of violence or
failure to comply with the program requirements, to the court, the
prosecutor, and, if formal probation has been ordered, to the
probation department. The probationer shall file proof of enrollment
in a batterer's program with the court within 30 days of conviction.
(C) Concurrent with other requirements under this section, in
addition to, and not in lieu of, the batterer's program, and unless
prohibited by the referring court, the probation department or the
court may make provisions for a defendant to use his or her resources
to enroll in a chemical dependency program or to enter voluntarily a
licensed chemical dependency recovery hospital or residential
treatment program that has a valid license issued by the state to
provide alcohol or drug services to receive program participation
credit, as determined by the court. The probation department shall
document evidence of this hospital or residential treatment
participation in the defendant's program file.
(11) The conditions of probation may include, in lieu of a fine,
but not in lieu of the fund payment required under paragraph (5), one
or more of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the defendant'
s offense.
For any order to pay a fine, to make payments to a battered women'
s shelter, or to pay restitution as a condition of probation under
this subdivision, the court shall make a determination of the
defendant's ability to pay. Determination of a defendant's ability to
pay may include his or her future earning capacity. A defendant
shall bear the burden of demonstrating lack of his or her ability to
pay. Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. In no event shall any order
to make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support. When the injury to a married
person is caused, in whole or in part, by the criminal acts of his or
her spouse in violation of this section, the community property
shall not be used to discharge the liability of the offending spouse
for restitution to the injured spouse, as required by Section
1203.04, as operative on or before August 2, 1995, or Section 1202.4,
or to a shelter for costs with regard to the injured spouse, until
all separate property of the offending spouse is exhausted.
(12) If it appears to the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
counseling, or has engaged in criminal conduct, upon request of the
probation officer, the prosecuting attorney, or on its own motion,
the court, as a priority calendar item, shall hold a hearing to
determine whether further sentencing should proceed. The court may
consider factors, including, but not limited to, any violence by the
defendant against the former or a new victim while on probation and
noncompliance with any other specific condition of probation. If the
court finds that the defendant is not performing satisfactorily in
the assigned program, is not benefiting from the program, has not
complied with a condition of probation, or has engaged in criminal
conduct, the court shall terminate the defendant's participation in
the program and shall proceed with further sentencing.
(b) If a person is granted formal probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code, in
addition to the terms specified in subdivision (a), all of the
following shall apply:
(1) The probation department shall make an investigation and take
into consideration the defendant's age, medical history, employment
and service records, educational background, community and family
ties, prior incidents of violence, police report, treatment history,
if any, demonstrable motivation, and other mitigating factors in
determining which batterer's program would be appropriate for the
defendant. This information shall be provided to the batterer's
program if it is requested. The probation department shall also
determine which community programs the defendant would benefit from
and which of those programs would accept the defendant. The probation
department shall report its findings and recommendations to the
court.
(2) The court shall advise the defendant that the failure to
report to the probation department for the initial investigation, as
directed by the court, or the failure to enroll in a specified
program, as directed by the court or the probation department, shall
result in possible further incarceration. The court, in the interests
of justice, may relieve the defendant from the prohibition set forth
in this subdivision based upon the defendant's mistake or excusable
neglect. Application for this relief shall be filed within 20 court
days of the missed deadline. This time limitation may not be
extended. A copy of any application for relief shall be served on the
office of the prosecuting attorney.
(3) After the court orders the defendant to a batterer's program,
the probation department shall conduct an initial assessment of the
defendant, including, but not limited to, all of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Substance abuse history.
(G) Consultation with the probation officer.
(H) Verbal consultation with the victim, only if the victim
desires to participate.
(I) Assessment of the future probability of the defendant
committing murder.
(4) The probation department shall attempt to notify the victim
regarding the requirements for the defendant's participation in the
batterer's program, as well as regarding available victim resources.
The victim also shall be informed that attendance in any program does
not guarantee that an abuser will not be violent.
(c) The court or the probation department shall refer defendants
only to batterer's programs that follow standards outlined in
paragraph (1), which may include, but are not limited to, lectures,
classes, group discussions, and counseling. The probation department
shall design and implement an approval and renewal process for
batterer's programs and shall solicit input from criminal justice
agencies and domestic violence victim advocacy programs.
(1) The goal of a batterer's program under this section shall be
to stop domestic violence. A batterer's program shall consist of the
following components:
(A) Strategies to hold the defendant accountable for the violence
in a relationship, including, but not limited to, providing the
defendant with a written statement that the defendant shall be held
accountable for acts or threats of domestic violence.
(B) A requirement that the defendant participate in ongoing
same-gender group sessions.
(C) An initial intake that provides written definitions to the
defendant of physical, emotional, sexual, economic, and verbal abuse,
and the techniques for stopping these types of abuse.
(D) Procedures to inform the victim regarding the requirements for
the defendant's participation in the intervention program as well as
regarding available victim resources. The victim also shall be
informed that attendance in any program does not guarantee that an
abuser will not be violent.
(E) A requirement that the defendant attend group sessions free of
chemical influence.
(F) Educational programming that examines, at a minimum, gender
roles, socialization, the nature of violence, the dynamics of power
and control, and the effects of abuse on children and others.
(G) A requirement that excludes any couple counseling or family
counseling, or both.
(H) Procedures that give the program the right to assess whether
or not the defendant would benefit from the program and to refuse to
enroll the defendant if it is determined that the defendant would not
benefit from the program, so long as the refusal is not because of
the defendant's inability to pay. If possible, the program shall
suggest an appropriate alternative program.
(I) Program staff who, to the extent possible, have specific
knowledge regarding, but not limited to, spousal abuse, child abuse,
sexual abuse, substance abuse, the dynamics of violence and abuse,
the law, and procedures of the legal system.
(J) Program staff who are encouraged to utilize the expertise,
training, and assistance of local domestic violence centers.
(K) A requirement that the defendant enter into a written
agreement with the program, which shall include an outline of the
contents of the program, the attendance requirements, the requirement
to attend group sessions free of chemical influence, and a statement
that the defendant may be removed from the program if it is
determined that the defendant is not benefiting from the program or
is disruptive to the program.
(L) A requirement that the defendant sign a confidentiality
statement prohibiting disclosure of any information obtained through
participating in the program or during group sessions regarding other
participants in the program.
(M) Program content that provides cultural and ethnic sensitivity.
(N) A requirement of a written referral from the court or
probation department prior to permitting the defendant to enroll in
the program. The written referral shall state the number of minimum
sessions required by the court.
(O) Procedures for submitting to the probation department all of
the following uniform written responses:
(i) Proof of enrollment, to be submitted to the court and the
probation department and to include the fee determined to be charged
to the defendant, based upon the ability to pay, for each session.
(ii) Periodic progress reports that include attendance, fee
payment history, and program compliance.
(iii) Final evaluation that includes the program's evaluation of
the defendant's progress, using the criteria set forth in paragraph
(4) of subdivision (a) and recommendation for either successful or
unsuccessful termination or continuation in the program.
(P) A sliding fee schedule based on the defendant's ability to
pay. The batterer's program shall develop and utilize a sliding fee
scale that recognizes both the defendant's ability to pay and the
necessity of programs to meet overhead expenses. An indigent
defendant may negotiate a deferred payment schedule, but shall pay a
nominal fee, if the defendant has the ability to pay the nominal fee.
Upon a hearing and a finding by the court that the defendant does
not have the financial ability to pay the nominal fee, the court
shall waive this fee. The payment of the fee shall be made a
condition of probation if the court determines the defendant has the
present ability to pay the fee. The fee shall be paid during the term
of probation unless the program sets other conditions. The
acceptance policies shall be in accordance with the scaled fee
system.
(2) The court shall refer persons only to batterer's programs that
have been approved by the probation department pursuant to paragraph
(5). The probation department shall do both of the following:
(A) Provide for the issuance of a provisional approval, provided
that the applicant is in substantial compliance with applicable laws
and regulations and an urgent need for approval exists. A provisional
approval shall be considered an authorization to provide services
and shall not be considered a vested right.
(B) If the probation department determines that a program is not
in compliance with standards set by the department, the department
shall provide written notice of the noncompliant areas to the
program. The program shall submit a written plan of corrections
within 14 days from the date of the written notice on noncompliance.
A plan of correction shall include, but not be limited to, a
description of each corrective action and timeframe for
implementation. The department shall review and approve all or any
part of the plan of correction and notify the program of approval or
disapproval in writing. If the program fails to submit a plan of
correction or fails to implement the approved plan of correction, the
department shall consider whether to revoke or suspend approval and,
upon revoking or suspending approval, shall have the option to cease
referrals of defendants under this section.
(3) No program, regardless of its source of funding, shall be
approved unless it meets all of the following standards:
(A) The establishment of guidelines and criteria for education
services, including standards of services that may include lectures,
classes, and group discussions.
(B) Supervision of the defendant for the purpose of evaluating the
person's progress in the program.
(C) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
(D) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(4) In making referrals of indigent defendants to approved
batterer's programs, the probation department shall apportion these
referrals evenly among the approved programs.
(5) The probation department shall have the sole authority to
approve a batterer's program for probation. The program shall be
required to obtain only one approval but shall renew that approval
annually.
(A) The procedure for the approval of a new or existing program
shall include all of the following:
(i) The completion of a written application containing necessary
and pertinent information describing the applicant program.
(ii) The demonstration by the program that it possesses adequate
administrative and operational capability to operate a batterer's
treatment program. The program shall provide documentation to prove
that the program has conducted batterer's programs for at least one
year prior to application. This requirement may be waived under
subparagraph (A) of paragraph (2) if there is no existing batterer's
program in the city, county, or city and county.
(iii) The onsite review of the program, including monitoring of a
session to determine that the program adheres to applicable statutes
and regulations.
(iv) The payment of the approval fee.
(B) The probation department shall fix a fee for approval not to
exceed two hundred fifty dollars ($250) and for approval renewal not
to exceed two hundred fifty dollars ($250) every year in an amount
sufficient to cover its costs in administering the approval process
under this section. No fee shall be charged for the approval of local
governmental entities.
(C) The probation department has the sole authority to approve the
issuance, denial, suspension, or revocation of approval and to cease
new enrollments or referrals to a batterer's program under this
section. The probation department shall review information relative
to a program's performance or failure to adhere to standards, or
both. The probation department may suspend or revoke any approval
issued under this subdivision or deny an application to renew an
approval or to modify the terms and conditions of approval, based on
grounds established by probation, including, but not limited to,
either of the following:
(i) Violation of this section by any person holding approval or by
a program employee in a program under this section.
(ii) Misrepresentation of any material fact in obtaining the
approval.
(6) For defendants who are chronic users or serious abusers of
drugs or alcohol, standard components in the program shall include
concurrent counseling for substance abuse and violent behavior, and
in appropriate cases, detoxification and abstinence from the abused
substance.
(7) The program shall conduct an exit conference that assesses the
defendant's progress during his or her participation in the batterer'
s program.
(d) This section shall remain in effect only until January 1,
2010, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2010, deletes or extends
that date.
SEC. 6. Section 1203.097 of the Penal Code, as added by Section 2
of Chapter 431 of the Statutes of 2003, is amended to read:
1203.097. (a) If a person is granted probation for a crime in
which the victim is a person defined in Section 6211 of the Family
Code, the terms of probation shall include all of the following:
(1) A minimum period of probation of 36 months, which may include
a period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim from
further acts of violence, threats, stalking, sexual abuse, and
harassment, and, if appropriate, containing residence exclusion or
stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if the
defendant has not already been booked.
(5) A minimum payment by the defendant of two hundred dollars
($200) to be disbursed as specified in this paragraph. If, after a
hearing in court on the record, the court finds that the defendant
does not have the ability to pay, the court may reduce or waive this
fee.
One-third of the moneys deposited with the county treasurer
pursuant to this section shall be retained by counties and deposited
in the domestic violence programs special fund created pursuant to
Section 18305 of the Welfare and Institutions Code, to be expended
for the purposes of Chapter 5 (commencing with Section 18290) of Part
6 of Division 9 of the Welfare and Institutions Code. The remainder
shall be transferred, once a month, to the Controller for deposit in
equal amounts in the Domestic Violence Restraining Order
Reimbursement Fund and in the Domestic Violence Training and
Education Fund, which are hereby created, in an amount equal to
two-thirds of funds collected during the preceding month. Moneys
deposited into these funds pursuant to this section shall be
available upon appropriation by the Legislature and shall be
distributed each fiscal year as follows:
(A) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law enforcement or
other criminal justice agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(b) of Section 6380 of the Family Code, based on the annual
notification from the Department of Justice of the number of
restraining orders issued and registered in the state domestic
violence restraining order registry maintained by the Department of
Justice, for the development and maintenance of the domestic violence
restraining order databank system.
(B) Funds from the Domestic Violence Training and Education Fund
shall support a statewide training and education program to increase
public awareness of domestic violence and to improve the scope and
quality of services provided to the victims of domestic violence.
Grants to support this program shall be awarded on a competitive
basis and be administered by the State Department of Health Services,
in consultation with the statewide domestic violence coalition,
which is eligible to receive funding under this section.
(6) Successful completion of a batterer's program, as defined in
subdivision (c), or if none is available, another appropriate
counseling program designated by the court, for a period not less
than one year with periodic progress reports by the program to the
court every three months or less and weekly sessions of a minimum of
two hours class time duration. The defendant shall attend consecutive
weekly sessions, unless granted an excused absence for good cause by
the program for no more than three individual sessions during the
entire program, and shall complete the program within 18 months,
unless, after a hearing, the court finds good cause to modify the
requirements of consecutive attendance or completion within 18
months.
(7) (A) (i) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon the ability to pay.
(ii) The terms of probation for offenders shall not be lifted
until all reasonable fees due to the counseling program have been
paid in full, but in no case shall probation be extended beyond the
term provided in subdivision (a) of Section 1203.1. If the court
finds that the defendant does not have the ability to pay the fees
based on the defendant's changed circumstances, the court may reduce
or waive the fees.
(B) Upon request by
the batterer's program, the court shall provide the defendant's
arrest report, prior incidents of violence, and treatment history to
the program.
(8) The court also shall order the defendant to perform a
specified amount of appropriate community service, as designated by
the court. The defendant shall present the court with proof of
completion of community service and the court shall determine if the
community service has been satisfactorily completed. If sufficient
staff and resources are available, the community service shall be
performed under the jurisdiction of the local agency overseeing a
community service program.
(9) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate alternative
batterer's program.
(10) (A) Upon recommendation of the program, a court shall require
a defendant to participate in additional sessions throughout the
probationary period, unless it finds that it is not in the interests
of justice to do so, states its reasons on the record, and enters
them into the minutes. In deciding whether the defendant would
benefit from more sessions, the court shall consider whether any of
the following conditions exist:
(i) The defendant has been violence free for a minimum of six
months.
(ii) The defendant has cooperated and participated in the batterer'
s program.
(iii) The defendant demonstrates an understanding of and practices
positive conflict resolution skills.
(iv) The defendant blames, degrades, or has committed acts that
dehumanize the victim or puts at risk the victim's safety, including,
but not limited to, molesting, stalking, striking, attacking,
threatening, sexually assaulting, or battering the victim.
(v) The defendant demonstrates an understanding that the use of
coercion or violent behavior to maintain dominance is unacceptable in
an intimate relationship.
(vi) The defendant has made threats to harm anyone in any manner.
(vii) The defendant has complied with applicable requirements
under paragraph (6) of subdivision (c) or subparagraph (C) to receive
alcohol counseling, drug counseling, or both.
(viii) The defendant demonstrates acceptance of responsibility for
the abusive behavior perpetrated against the victim.
(B) The program shall immediately report any violation of the
terms of the protective order, including any new acts of violence or
failure to comply with the program requirements, to the court, the
prosecutor, and, if formal probation has been ordered, to the
probation department. The probationer shall file proof of enrollment
in a batterer's program with the court within 30 days of conviction.
(C) Concurrent with other requirements under this section, in
addition to, and not in lieu of, the batterer's program, and unless
prohibited by the referring court, the probation department or the
court may make provisions for a defendant to use his or her resources
to enroll in a chemical dependency program or to enter voluntarily a
licensed chemical dependency recovery hospital or residential
treatment program that has a valid license issued by the state to
provide alcohol or drug services to receive program participation
credit, as determined by the court. The probation department shall
document evidence of this hospital or residential treatment
participation in the defendant's program file.
(11) The conditions of probation may include, in lieu of a fine,
but not in lieu of the fund payment required under paragraph (5), one
or more of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the defendant'
s offense.
For any order to pay a fine, to make payments to a battered women'
s shelter, or to pay restitution as a condition of probation under
this subdivision, the court shall make a determination of the
defendant's ability to pay. Determination of a defendant's ability to
pay may include his or her future earning capacity. A defendant
shall bear the burden of demonstrating lack of his or her ability to
pay. Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. In no event shall any order
to make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support. When the injury to a married
person is caused, in whole or in part, by the criminal acts of his or
her spouse in violation of this section, the community property
shall not be used to discharge the liability of the offending spouse
for restitution to the injured spouse, as required by Section
1203.04, as operative on or before August 2, 1995, or Section 1202.4,
or to a shelter for costs with regard to the injured spouse, until
all separate property of the offending spouse is exhausted.
(12) If it appears to the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
counseling, or has engaged in criminal conduct, upon request of the
probation officer, the prosecuting attorney, or on its own motion,
the court, as a priority calendar item, shall hold a hearing to
determine whether further sentencing should proceed. The court may
consider factors, including, but not limited to, any violence by the
defendant against the former or a new victim while on probation and
noncompliance with any other specific condition of probation. If the
court finds that the defendant is not performing satisfactorily in
the assigned program, is not benefiting from the program, has not
complied with a condition of probation, or has engaged in criminal
conduct, the court shall terminate the defendant's participation in
the program and shall proceed with further sentencing.
(b) If a person is granted formal probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code, in
addition to the terms specified in subdivision (a), all of the
following shall apply:
(1) The probation department shall make an investigation and take
into consideration the defendant's age, medical history, employment
and service records, educational background, community and family
ties, prior incidents of violence, police report, treatment history,
if any, demonstrable motivation, and other mitigating factors in
determining which batterer's program would be appropriate for the
defendant. This information shall be provided to the batterer's
program if it is requested. The probation department shall also
determine which community programs the defendant would benefit from
and which of those programs would accept the defendant. The probation
department shall report its findings and recommendations to the
court.
(2) The court shall advise the defendant that the failure to
report to the probation department for the initial investigation, as
directed by the court, or the failure to enroll in a specified
program, as directed by the court or the probation department, shall
result in possible further incarceration. The court, in the interests
of justice, may relieve the defendant from the prohibition set forth
in this subdivision based upon the defendant's mistake or excusable
neglect. Application for this relief shall be filed within 20 court
days of the missed deadline. This time limitation may not be
extended. A copy of any application for relief shall be served on the
office of the prosecuting attorney.
(3) After the court orders the defendant to a batterer's program,
the probation department shall conduct an initial assessment of the
defendant, including, but not limited to, all of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Substance abuse history.
(G) Consultation with the probation officer.
(H) Verbal consultation with the victim, only if the victim
desires to participate.
(I) Assessment of the future probability of the defendant
committing murder.
(4) The probation department shall attempt to notify the victim
regarding the requirements for the defendant's participation in the
batterer's program, as well as regarding available victim resources.
The victim also shall be informed that attendance in any program does
not guarantee that an abuser will not be violent.
(c) The court or the probation department shall refer defendants
only to batterer's programs that follow standards outlined in
paragraph (1), which may include, but are not limited to, lectures,
classes, group discussions, and counseling. The probation department
shall design and implement an approval and renewal process for
batterer's programs and shall solicit input from criminal justice
agencies and domestic violence victim advocacy programs.
(1) The goal of a batterer's program under this section shall be
to stop domestic violence. A batterer's program shall consist of the
following components:
(A) Strategies to hold the defendant accountable for the violence
in a relationship, including, but not limited to, providing the
defendant with a written statement that the defendant shall be held
accountable for acts or threats of domestic violence.
(B) A requirement that the defendant participate in ongoing
same-gender group sessions.
(C) An initial intake that provides written definitions to the
defendant of physical, emotional, sexual, economic, and verbal abuse,
and the techniques for stopping these types of abuse.
(D) Procedures to inform the victim regarding the requirements for
the defendant's participation in the intervention program as well as
regarding available victim resources. The victim also shall be
informed that attendance in any program does not guarantee that an
abuser will not be violent.
(E) A requirement that the defendant attend group sessions free of
chemical influence.
(F) Educational programming that examines, at a minimum, gender
roles, socialization, the nature of violence, the dynamics of power
and control, and the effects of abuse on children and others.
(G) A requirement that excludes any couple counseling or family
counseling, or both.
(H) Procedures that give the program the right to assess whether
or not the defendant would benefit from the program and to refuse to
enroll the defendant if it is determined that the defendant would not
benefit from the program, so long as the refusal is not because of
the defendant's inability to pay. If possible, the program shall
suggest an appropriate alternative program.
(I) Program staff who, to the extent possible, have specific
knowledge regarding, but not limited to, spousal abuse, child abuse,
sexual abuse, substance abuse, the dynamics of violence and abuse,
the law, and procedures of the legal system.
(J) Program staff who are encouraged to utilize the expertise,
training, and assistance of local domestic violence centers.
(K) A requirement that the defendant enter into a written
agreement with the program, which shall include an outline of the
contents of the program, the attendance requirements, the requirement
to attend group sessions free of chemical influence, and a statement
that the defendant may be removed from the program if it is
determined that the defendant is not benefiting from the program or
is disruptive to the program.
(L) A requirement that the defendant sign a confidentiality
statement prohibiting disclosure of any information obtained through
participating in the program or during group sessions regarding other
participants in the program.
(M) Program content that provides cultural and ethnic sensitivity.
(N) A requirement of a written referral from the court or
probation department prior to permitting the defendant to enroll in
the program. The written referral shall state the number of minimum
sessions required by the court.
(O) Procedures for submitting to the probation department all of
the following uniform written responses:
(i) Proof of enrollment, to be submitted to the court and the
probation department and to include the fee determined to be charged
to the defendant, based upon the ability to pay, for each session.
(ii) Periodic progress reports that include attendance, fee
payment history, and program compliance.
(iii) Final evaluation that includes the program's evaluation of
the defendant's progress, using the criteria set forth in paragraph
(4) of subdivision (a) and recommendation for either successful or
unsuccessful termination or continuation in the program.
(P) A sliding fee schedule based on the defendant's ability to
pay. The batterer's program shall develop and utilize a sliding fee
scale that recognizes both the defendant's ability to pay and the
necessity of programs to meet overhead expenses. An indigent
defendant may negotiate a deferred payment schedule, but shall pay a
nominal fee, if the defendant has the ability to pay the nominal fee.
Upon a hearing and a finding by the court that the defendant does
not have the financial ability to pay the nominal fee, the court
shall waive this fee. The payment of the fee shall be made a
condition of probation if the court determines the defendant has the
present ability to pay the fee. The fee shall be paid during the term
of probation unless the program sets other conditions. The
acceptance policies shall be in accordance with the scaled fee
system.
(2) The court shall refer persons only to batterer's programs that
have been approved by the probation department pursuant to paragraph
(5). The probation department shall do both of the following:
(A) Provide for the issuance of a provisional approval, provided
that the applicant is in substantial compliance with applicable laws
and regulations and an urgent need for approval exists. A provisional
approval shall be considered an authorization to provide services
and shall not be considered a vested right.
(B) If the probation department determines that a program is not
in compliance with standards set by the department, the department
shall provide written notice of the noncompliant areas to the
program. The program shall submit a written plan of corrections
within 14 days from the date of the written notice on noncompliance.
A plan of correction shall include, but not be limited to, a
description of each corrective action and timeframe for
implementation. The department shall review and approve all or any
part of the plan of correction and notify the program of approval or
disapproval in writing. If the program fails to submit a plan of
correction or fails to implement the approved plan of correction, the
department shall consider whether to revoke or suspend approval and,
upon revoking or suspending approval, shall have the option to cease
referrals of defendants under this section.
(3) No program, regardless of its source of funding, shall be
approved unless it meets all of the following standards:
(A) The establishment of guidelines and criteria for education
services, including standards of services that may include lectures,
classes, and group discussions.
(B) Supervision of the defendant for the purpose of evaluating the
person's progress in the program.
(C) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
(D) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(4) In making referrals of indigent defendants to approved
batterer's programs, the probation department shall apportion these
referrals evenly among the approved programs.
(5) The probation department shall have the sole authority to
approve a batterer's program for probation. The program shall be
required to obtain only one approval but shall renew that approval
annually.
(A) The procedure for the approval of a new or existing program
shall include all of the following:
(i) The completion of a written application containing necessary
and pertinent information describing the applicant program.
(ii) The demonstration by the program that it possesses adequate
administrative and operational capability to operate a batterer's
treatment program. The program shall provide documentation to prove
that the program has conducted batterer's programs for at least one
year prior to application. This requirement may be waived under
subparagraph (A) of paragraph (2) if there is no existing batterer's
program in the city, county, or city and county.
(iii) The onsite review of the program, including monitoring of a
session to determine that the program adheres to applicable statutes
and regulations.
(iv) The payment of the approval fee.
(B) The probation department shall fix a fee for approval not to
exceed two hundred fifty dollars ($250) and for approval renewal not
to exceed two hundred fifty dollars ($250) every year in an amount
sufficient to cover its costs in administering the approval process
under this section. No fee shall be charged for the approval of local
governmental entities.
(C) The probation department has the sole authority to approve the
issuance, denial, suspension, or revocation of approval and to cease
new enrollments or referrals to a batterer's program under this
section. The probation department shall review information relative
to a program's performance or failure to adhere to standards, or
both. The probation department may suspend or revoke any approval
issued under this subdivision or deny an application to renew an
approval or to modify the terms and conditions of approval, based on
grounds established by probation, including, but not limited to,
either of the following:
(i) Violation of this section by any person holding approval or by
a program employee in a program under this section.
(ii) Misrepresentation of any material fact in obtaining the
approval.
(6) For defendants who are chronic users or serious abusers of
drugs or alcohol, standard components in the program shall include
concurrent counseling for substance abuse and violent behavior, and
in appropriate cases, detoxification and abstinence from the abused
substance.
(7) The program shall conduct an exit conference that assesses the
defendant's progress during his or her participation in the batterer'
s program.
(d) This section shall become operative on January 1, 2010.
SEC. 7. If the Commission on State Mandates determines that this
act contains 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.