BILL NUMBER: SB 720 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 14, 2005
AMENDED IN SENATE APRIL 12, 2005
AMENDED IN SENATE MARCH 29, 2005
INTRODUCED BY Senator Kuehl
( Coauthors: Senators
Figueroa, Kehoe, and Speier )
( Coauthors: Assembly Members
Benoit, Cohn, Jones, Koretz,
Lieber, Mullin, and Pavley
)
FEBRUARY 22, 2005
An act to amend Section 1218 of the Code of Civil Procedure, to
amend Section 6380 of the Family Code, and to amend Section 136.2 of
the Penal Code, relating to court orders.
LEGISLATIVE COUNSEL'S DIGEST
SB 720, as amended, Kuehl. Court orders.
(1) Existing law provides specified procedures to initiate and
pursue contempt orders.
This bill would authorize a district attorney or city attorney to
initiate and pursue a court action for contempt against a party for
failing to comply with a court order entered pursuant to the Domestic
Violence Protection Act. The bill would require any attorney's fees
and costs ordered against a party in contempt of the above provision
to be paid to the Office of Emergency Services for the purpose of
funding domestic violence shelter service providers.
(2) Existing law requires the court to transmit data to law
enforcement personnel related to certain protective orders.
This bill would further require the court to similarly transmit
data related to any protective order issued, modified, extended, or
terminated pursuant to specified provisions of the Family Code.
(3) Existing law provides a mechanism whereby the court may issue
a protective order.
This bill would make clarifying changes with regard to that
authority, specifically with respect to orders protecting victims of
violent crime from all contact by a defendant.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1218 of the Code of Civil Procedure is amended
to read:
1218.
(a) Upon the answer and evidence taken, the court or judge shall
determine whether the person proceeded against is guilty of the
contempt charged, and if it be adjudged that he or she is guilty of
the contempt, a fine may be imposed on him or her not exceeding one
thousand dollars ($1,000), or he or she may be imprisoned not
exceeding five days, or both. In addition, a person who is subject to
a court order as a party to the action, or any agent of this person,
who is adjudged guilty of contempt for violating that court order
may be ordered to pay to the party initiating the contempt proceeding
the reasonable attorney's fees and costs incurred by this party in
connection with the contempt proceeding.
(b) No party, who is in contempt of a court order or judgment in a
dissolution of marriage or legal separation action, shall be
permitted to enforce such an order or judgment, by way of execution
or otherwise, either in the same action or by way of a separate
action, against the other party. This restriction shall not affect
nor apply to the enforcement of child or spousal support orders.
(c) In any court action in which a party is found in contempt of
court for failure to comply with a court order pursuant to the Family
Code, the court shall order the following:
(1) Upon a first finding of contempt, the court shall order the
contemner to perform community service of up to 120 hours, or to be
imprisoned up to 120 hours, for each count of contempt.
(2) Upon the second finding of contempt, the court shall order the
contemner to perform community service of up to 120 hours, in
addition to ordering imprisonment of the contemner up to 120 hours,
for each count of contempt.
(3) Upon the third or any subsequent finding of contempt, the
court shall order both of the following:
(A) The court shall order the contemner to serve a term of
imprisonment of up to 240 hours, and to perform community service of
up to 240 hours, for each count of contempt.
(B) The court shall order the contemner to pay an administrative
fee, not to exceed the actual cost of the contemner's administration
and supervision, while assigned to a community service program
pursuant to this paragraph.
(4) The court shall take parties' employment schedules into
consideration when ordering either community service or imprisonment,
or both.
(d) Pursuant to Section 1211 and this section, a district attorney
or city attorney may initiate and pursue a court action for contempt
against a party for failing to comply with a court order entered
pursuant to the Domestic Violence Protection Act (Division 10
(commencing with Section 6200) of the Family Code). Any attorney's
fees and costs ordered by the court pursuant to subdivision (a)
against a party who is adjudged guilty of contempt under this
subdivision shall be paid to the Office of Emergency Services'
account established for the purpose of funding domestic violence
shelter service providers pursuant to subdivision (f) of Section
13823.15 of the Penal Code.
SEC. 2. Section 6380 of the Family Code is amended to read:
6380.
(a) Each county, with the approval of the Department of Justice,
shall, by July 1, 1996, develop a procedure, using existing systems,
for the electronic transmission of data, as described in subdivision
(b), to the Department of Justice. The data shall be electronically
transmitted through the California Law Enforcement Telecommunications
System (CLETS) of the Department of Justice by law enforcement
personnel, or with the approval of the Department of Justice, court
personnel, or another appropriate agency capable of maintaining and
preserving the integrity of both the CLETS and the Domestic Violence
Restraining Order System, as described in subdivision (e). Data entry
is required to be entered only once under the requirements of this
section, unless the order is served at a later time. A portion of all
fees payable to the Department of Justice under subdivision (a) of
Section 1203.097 of the Penal Code for the entry of the information
required under this section, based upon the proportion of the costs
incurred by the local agency and those incurred by the Department of
Justice, shall be transferred to the local agency actually providing
the data. All data with respect to criminal court protective orders
issued, modified, extended, or terminated under subdivision (g) of
Section 136.2 of the Penal Code, and all data filed with the court
on the required Judicial Council forms with respect to
protective orders, including their issuance, modification, extension,
or termination, to which this division applies pursuant to Section
6221, shall be transmitted by the court or its designee within one
business day to law enforcement personnel by either one of the
following methods:
(1) Transmitting a physical copy of the order to a local law
enforcement agency authorized by the Department of Justice to enter
orders into CLETS.
(2) With the approval of the Department of Justice, entering the
order into CLETS directly.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or the issuance of a protective order pursuant to
Section 15657.03 of the Welfare and Institutions Code, or upon
registration with the court clerk of a domestic violence protective
or restraining order issued by the tribunal of another state, as
defined in Section 6401, and including any of the foregoing orders
issued in connection with an order for modification of a custody or
visitation order issued pursuant to a dissolution, legal separation,
nullity, or paternity proceeding the Department of Justice shall be
immediately notified of the contents of the order and the following
information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership
or possession of firearms.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) (1) Within one business day of service, any law enforcement
officer who served a protective order shall submit the proof of
service directly into the Department of Justice Domestic Violence
Restraining Order System, including his or her name and law
enforcement agency, and shall transmit the original proof of service
form to the issuing court.
(2) Within one business day of receipt of proof of service by a
person other than a law enforcement officer, the clerk of the court
shall submit the proof of service of a protective order directly into
the Department of Justice Domestic Violation Restraining Order
System, including the name of the person who served the order. If the
court is unable to provide this notification to the Department of
Justice by electronic transmission, the court shall, within one
business day of receipt, transmit a copy of the proof of service to a
local law enforcement agency. The local law enforcement agency shall
submit the proof of service directly into the Department of Justice
Domestic Violence Restraining Order System within one business day of
receipt from the court.
(e) The Department of Justice shall maintain a Domestic Violence
Restraining Order System and shall make available to court clerks and
law enforcement personnel, through computer access, all information
regarding the protective and restraining orders and injunctions
described in subdivision (b), whether or not served upon the
respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, it shall be on forms adopted by the Judicial
Council of California and that have been approved by the Department
of Justice, and the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms. The informational packets shall include a
design, that local courts shall complete, that describes local court
procedures and maps to enable applicants to locate filing windows and
appropriate courts, and shall also include information on how to
return proofs of service, including mailing addresses and fax
numbers. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge. The informational packet shall also
contain a statement that the protective order is enforceable in any
state, as defined in Section 6401, and general information about
agencies in other jurisdictions that may be contacted regarding
enforcement of an order issued by a court of this state.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
(i) Only protective and restraining orders issued on forms adopted
by the Judicial Council of California and that have been approved by
the Department of Justice shall be transmitted to the Department of
Justice. However, this provision shall not apply to a valid
protective or restraining order related to domestic or family
violence issued by a tribunal of another state, as defined in Section
6401. Those orders shall, upon request, be registered pursuant to
Section 6404.
SEC. 3. Section 136.2 of the Penal Code is amended to read:
136.2.
Upon a good cause belief that harm to, or intimidation or
dissuasion of, a victim or witness has occurred or is reasonably
likely to occur, any court with jurisdiction over a criminal matter
may issue orders including, but not limited to, the following:
(a) Any order issued pursuant to Section 6320 of the Family Code.
(b) An order that a defendant shall not violate any provision of
Section 136.1.
(c) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1.
(d) An order that any person described in this section shall have
no communication whatsoever with any specified witness or any victim,
except through an attorney under any reasonable restrictions that
the court may impose.
(e) An order calling for a hearing to determine if an order as
described in subdivisions (a) to (d), inclusive, should be issued.
(f) An order that a particular law enforcement agency within the
jurisdiction of the court provide protection for a victim or a
witness, or both, or for immediate family members of a victim or a
witness who reside in the same household as the victim or witness or
within reasonable proximity of the victim's or witness' household, as
determined by the court. The order shall not be made without the
consent of the law enforcement agency except for limited and
specified periods of time and upon an express finding by the court of
a clear and present danger of harm to the victim or witness or
immediate family members of the victim or witness.
For purposes of this subdivision, "immediate family members"
include the spouse, children, or parents of the victim or witness.
(g) (1) Any order protecting victims of violent crime from all
contact by the defendant, or contact, with the intent to annoy,
harass, threaten, or commit acts of violence, by the defendant. The
court or its designee shall transmit orders made under this
subdivision to law enforcement personnel within one business day of
the issuance, modification, extension, or termination of the order,
pursuant to subdivision (a) of Section 6380 of the Family Code. It
is the responsibility of the court to transmit the modification,
extension, or termination orders made under this subdivision to the
same agency that entered the original protective order into the
Domestic Violence Restraining Order System.
(2) Any order issued, modified, extended, or terminated by a court
pursuant to this subdivision shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(3) Any person violating any order made pursuant to subdivisions
(a) to (g), inclusive, may be punished for any substantive offense
described in Section 136.1, or for a contempt of the court making the
order. A finding of contempt shall not be a bar to prosecution for a
violation of Section 136.1. However, any person so held in contempt
shall be entitled to credit for any punishment imposed therein
against any sentence imposed upon conviction of an offense described
in Section 136.1. Any conviction or acquittal for any substantive
offense under Section 136.1 shall be a bar to a subsequent punishment
for contempt arising out of the same act.
(h) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(i) (1) In all cases where the defendant is charged with a crime
of domestic violence, as defined in Section 13700, the court shall
consider issuing the above-described orders on its own motion. All
interested parties shall receive a copy of those orders. In order to
facilitate this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court to this
issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, a restraining order or protective
order against the defendant issued by the criminal court in that case
has precedence in enforcement over any civil court order against the
defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (i).
(j) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for assuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) Any order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(k) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.