Amended in Assembly May 29, 2014

Amended in Senate March 24, 2014

Senate Bill No. 1154

Introduced by Senator Hancock

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(Coauthor: Senator Anderson)

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February 20, 2014

An act to amend Sections 646.91, 13700, and 18250 of the Penal Code, and to amend Sections 99171 and 99172 of the Public Utilities Code, relating to peace officers.

LEGISLATIVE COUNSEL’S DIGEST

SB 1154, as amended, Hancock. Peace officers: San Francisco Bay Area Rapid Transit District Police Department.

(1) Under existing law, a member of the San Francisco Bay Area Rapid Transit District Police Department is a peace officer if the primary duty of the peace officer is the enforcement of the law in or about the properties of the district.

Existing law requires every law enforcement agency in the state to develop, adopt, and implement written policies and standards for officers’ responses to domestic violence calls that encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. Existing law defines “officer” for these purposes.

This bill would include a member of the San Francisco Bay Area Rapid Transit District Police Department in the definition of “officer” for the purposes of these provisions. By increasing the duties of a local agency, this bill would impose a state-mandated local program.

(2) Under existing law, a person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, is guilty of the crime of stalking. Existing law allows a judicial officer to issue an ex parte emergency protective order if a peace officer, as defined, asserts reasonable grounds to believe that a person is in immediate and present danger of stalking, as provided.

This bill would include a member of the San Francisco Bay Area Rapid Transit District Police Department in the definition of peace officer for the purposes of these provisions.

(3) Existing law requires certain specified peace officers to take temporary custody of any firearm or other deadly weapon discovered at the scene of a domestic violence incident involving a threat to human life or physical assault or if the peace officer is serving a protective order.

This bill would include a member of the San Francisco Bay Area Rapid Transit District Police Department among the peace officers to whom these provisions apply. By increasing the duties of local peace officers, this bill would impose a state-mandated local program.

(4) Existing law authorizes the Sacramento Regional Transit District, the Fresno Area Express, and, until January 1, 2015, the San Francisco Bay Area Rapid Transit District, to issue a prohibition order to a person who has been cited on at least 3 separate occasions, within a period of 90 days, for specified infractions committed in or on a vehicle, bus stop, or train or light rail station of the transit district.

This bill would authorize the San Francisco Bay Area Rapid Transit District to issue a prohibition order pursuant to the above provisions until January 1, 2018.

(5) 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 646.91 of the Penal Code is amended to
read:

646.91.  

(a) Notwithstanding any other law, a judicial officer
may issue an ex parte emergency protective order if a peace officer,
as defined in Section 830.1, 830.2, 830.32, or subdivision (a) of
Section 830.33, asserts reasonable grounds to believe that a person
is in immediate and present danger of stalking based upon the
person’s allegation that he or she has been willfully, maliciously,
and repeatedly followed or harassed by another person who has
made a credible threat with the intent of placing the person who
is the target of the threat in reasonable fear for his or her safety,
or the safety of his or her immediate family, within the meaning
of Section 646.9.

(b) A peace officer who requests an emergency protective order
shall reduce the order to writing and sign it.

(c) An emergency protective order shall include all of the
following:

(1) A statement of the grounds asserted for the order.

(2) The date and time the order expires.

(3) The address of the superior court for the district or county
in which the protected party resides.

(4) The following statements, which shall be printed in English
and Spanish:

(A) “To the protected person: This order will last until the date
and time noted above. If you wish to seek continuing protection,
you will have to apply for an order from the court at the address
noted above. You may seek the advice of an attorney as to any
matter connected with your application for any future court orders.
The attorney should be consulted promptly so that the attorney
may assist you in making your application.”

(B) “To the restrained person: This order will last until the date
and time noted above. The protected party may, however, obtain
a more permanent restraining order from the court. You may seek
the advice of an attorney as to any matter connected with the
application. The attorney should be consulted promptly so that the
attorney may assist you in responding to the application. You may
not own, possess, purchase, or receive, or attempt to purchase or
receive, a firearm while this order is in effect.”

(d) An emergency protective order may be issued under this
section only if the judicial officer finds both of the following:

(1) That reasonable grounds have been asserted to believe that
an immediate and present danger of stalking, as defined in Section
646.9, exists.

(2) That an emergency protective order is necessary to prevent
the occurrence or reoccurrence of the stalking activity.

(e) An emergency protective order may include either of the
following specific orders as appropriate:

(1) A harassment protective order as described in Section 527.6
of the Code of Civil Procedure.

(2) A workplace violence protective order as described in
Section 527.8 of the Code of Civil Procedure.

(f) An emergency protective order shall be issued without
prejudice to any person.

(g) An emergency protective order expires at the earlier of the
following times:

(1) The close of judicial business on the fifth court day following
the day of its issuance.

(2) The seventh calendar day following the day of its issuance.

(h) A peace officer who requests an emergency protective order
shall do all of the following:

(1) Serve the order on the restrained person, if the restrained
person can reasonably be located.

(2) Give a copy of the order to the protected person, or, if the
protected person is a minor child, to a parent or guardian of the
protected child if the parent or guardian can reasonably be located,
or to a person having temporary custody of the child.

(3) File a copy of the order with the court as soon as practicable
after issuance.

(4) Have the order entered into the computer database system
for protective and restraining orders maintained by the Department
of Justice.

(i) A peace officer shall use every reasonable means to enforce
an emergency protective order.

(j) A peace officer who acts in good faith to enforce an
emergency protective order is not civilly or criminally liable.

(k) A peace officer described in subdivision (a) or (b) of Section
830.32 who requests an emergency protective order pursuant to
this section shall also notify the sheriff or police chief of the city
in whose jurisdiction the peace officer’s college or school is located
after issuance of the order.

(l) “Judicial officer,” as used in this section, means a judge,
commissioner, or referee.

(m) A person subject to an emergency protective order under
this section shall not own, possess, purchase, or receive a firearm
while the order is in effect.

(n) Nothing in this section shall be construed to permit a court
to issue an emergency protective order prohibiting speech or other
activities that are constitutionally protected or protected by the
laws of this state or by the United States or activities occurring
during a labor dispute, as defined by Section 527.3 of the Code of
Civil Procedure, including, but not limited to, picketing and hand
billing.

(o) The Judicial Council shall develop forms, instructions, and
rules for the scheduling of hearings and other procedures
established pursuant to this section.

(p) Any intentional disobedience of any emergency protective
order granted under this section is punishable pursuant to Section
166. Nothing in this subdivision shall be construed to prevent
punishment under Section 646.9, in lieu of punishment under this
section, if a violation of Section 646.9 is also pled and proven.

SEC. 2.  

Section 13700 of the Penal Code is amended to read:

13700.  

As used in this title:

(a) “Abuse” means intentionally or recklessly causing or
attempting to cause bodily injury, or placing another person in
reasonable apprehension of imminent serious bodily injury to
himself or herself, or another.

(b) “Domestic violence” means abuse committed against an
adult or a minor who is a spouse, former spouse, cohabitant, former
cohabitant, or person with whom the suspect has had a child or is
having or has had a dating or engagement relationship. For
purposes of this subdivision, “cohabitant” means two unrelated
adult persons living together for a substantial period of time,
resulting in some permanency of relationship. Factors that may
determine whether persons are cohabiting include, but are not
limited to, (1) sexual relations between the parties while sharing
the same living quarters, (2) sharing of income or expenses, (3)
joint use or ownership of property, (4) whether the parties hold
themselves out as husband and wife, (5) the continuity of the
relationship, and (6) the length of the relationship.

(c) “Officer” means any officer or employee of a local police
department or sheriff’s office, and any peace officer of the
Department of the California Highway Patrol, the Department of
Parks and Recreation, the University of California Police
Department, or the California State University and College Police
Departments, as defined in Section 830.2, a peace officer of the
Department of General Services of the City of Los Angeles, as
defined in subdivision (c) of Section 830.31, a housing authority
patrol officer, as defined in subdivision (d) of Section 830.31, a
peace officer as defined in subdivisions (a) and (b) of Section
830.32, or a peace officer as defined in subdivision (a) of Section
830.33.

(d) “Victim” means a person who is a victim of domestic
violence.

SEC. 3.  

Section 18250 of the Penal Code is amended to read:

18250.  

If any of the following persons is at the scene of a
domestic violence incident involving a threat to human life or a
physical assault, or is serving a protective order as defined in
Section 6218 of the Family Code, that person shall take temporary
custody of any firearm or other deadly weapon in plain sight or
discovered pursuant to a consensual or other lawful search as
necessary for the protection of the peace officer or other persons
present:

(a) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1.

(b) A peace officer of the Department of the California Highway
Patrol, as defined in subdivision (a) of Section 830.2.

(c) A member of the University of California Police Department,
as defined in subdivision (b) of Section 830.2.

(d) An officer listed in Section 830.6, while acting in the course
and scope of the officer’s employment as a peace officer.

(e) A member of a California State University Police
Department, as defined in subdivision (c) of Section 830.2.

(f) A peace officer of the Department of Parks and Recreation,
as defined in subdivision (f) of Section 830.2.

(g) A peace officer, as defined in subdivision (d) of Section
830.31.

(h) A peace officer, as defined in subdivisions (a) and (b) of
Section 830.32.

(i) A member of the San Francisco Bay Area Rapid Transit
District Police Department, as defined in subdivision (a) of Section
830.33.

(j) A peace officer, as defined in Section 830.5.

SEC. 4.  

Section 99171 of the Public Utilities Code is amended
to read:

99171.  

(a) (1) A transit district may issue a prohibition order
to any person to whom either of the following applies:

(A) On at least three separate occasions within a period of 90
consecutive days, the person is cited for an infraction committed
in or on a vehicle, bus stop, or train or light rail station of the transit
district for any act that is a violation of paragraph (2) or (5) of
subdivision (a) of Section 99170 of this code or paragraph (1), (2),
(3), or (4) of subdivision (d) of Section 640 or Section 640.5 of
the Penal Code.

(B) The person is arrested or convicted for a misdemeanor or
felony committed in or on a vehicle, bus stop, or light rail station
of the transit district for acts involving violence, threats of violence,
lewd or lascivious behavior, or possession for sale or sale of a
controlled substance.

(C) The person is convicted of a violation of Section 11532 of
the Health and Safety Code or Section 653.22 of the Penal Code.

(2) A person subject to a prohibition order may not enter the
property, facilities, or vehicles of the transit district for a period
of time deemed appropriate by the transit district, provided that
the duration of a prohibition order shall not exceed the following,
as applicable:

(A) Thirty days if issued pursuant to subparagraph (A) of
paragraph (1), provided that a second prohibition order within one
year may not exceed 90 days, and a third or subsequent prohibition
order within one year may not exceed 180 days.

(B) Thirty days if issued pursuant to an arrest pursuant to
subparagraph (B) of paragraph (1). Upon conviction of a
misdemeanor offense, the duration of the prohibition order for the
conviction, when added to the duration of the prohibition order
for the initial arrest, if any, may not exceed 180 days. Upon
conviction of a felony offense, the duration of the prohibition order
for the conviction, when added to the duration of the prohibition
order for the initial arrest, if any, may not exceed one year.

(3) No prohibition order issued under this subdivision shall be
effective unless the transit district first affords the person an
opportunity to contest the transit district’s proposed action in
accordance with procedures adopted by the transit district for this
purpose. A transit district’s procedures shall provide, at a minimum,
for the notice and other protections set forth in subdivisions (b)
and (c), and the transit district shall provide reasonable notification
to the public of the availability of those procedures.

(b) (1) A notice of a prohibition order issued under subdivision
(a) shall set forth a description of the conduct underlying the
violation or violations giving rise to the prohibition order, including
reference to the applicable statutory provision, ordinance, or transit
district rule violated, the date of the violation, the approximate
time of the violation, the location where the violation occurred,
the period of the proposed prohibition, and the scope of the
prohibition. The notice shall include a clear and conspicuous
statement indicating the procedure for contesting the prohibition
order. The notice of prohibition order shall be personally served
upon the violator. The notice of prohibition order, or a copy, shall
be considered a record kept in the ordinary course of business of
the transit district and shall be prima facie evidence of the facts
contained in the notice establishing a rebuttable presumption
affecting the burden of producing evidence. For purposes of this
paragraph, “clear and conspicuous” means in larger type than the
surrounding text, or in contrasting type, font, or color to the
surrounding text of the same size, or set off from the surrounding
text of the same size by symbols or other marks that call attention
to the language.

(2) For purposes of this section, “personal service” means any
of the following:

(A) In-person delivery.

(B) Delivery by any form of mail providing for delivery
confirmation, postage prepaid, to at least one address provided by
the person being served, including, but not limited to, the address
set forth in any citation or in court records.

(C) Any alternate method approved in writing by the transit
district and the person being served.

(3) If a person served with a notice of prohibition order is not
able, or refuses, to provide a mailing address, the notice of
prohibition order shall set forth the procedure for obtaining any
letters, notices, or orders related to the prohibition order from the
administrative offices of the transit district. For purposes of this
section, delivery shall be deemed to have been made on the
following date, as applicable:

(A) On the date of delivery, if delivered in person.

(B) On the date of confirmed delivery, for any delivery by mail.

(C) For any alternate method of service, as provided in the
writing specifying the alternate method.

(4) Proof of service of the notice shall be filed with the transit
district.

(5) If a person contests a notice of prohibition order, the transit
district shall proceed in accordance with subdivision (c). If the
notice of prohibition order is not contested within 10 calendar days
after delivery by personal service, the prohibition order shall be
deemed final and shall go into effect, without further action by the
transit district, for the period of time set forth in the order.

(6) All prohibition orders shall be subject to an automatic stay
and shall not take effect until the latest of the following:

(A) Eleven calendar days after delivery of the prohibition order
by personal service.

(B) If an initial review is timely requested under paragraph (1)
of subdivision (c), 11 calendar days after delivery by personal
service of the results of the review.

(C) If an administrative hearing is timely requested under
paragraph (3) of subdivision (c), the date the hearing officer’s
decision is delivered by personal service.

(c) (1) For a period of 10 calendar days from the delivery of
the prohibition order by personal service, the person may request
an initial review of the prohibition order by the transit district. The
request may be made by telephone, in writing, or in person. There
shall be no charge for this review. In conducting its review and
reaching a determination, the transit district shall determine
whether the prohibition order meets the requirements of subdivision
(a) and, unless the person has been convicted of the offense or
offenses, whether the offense or offenses for which the person was
cited or arrested are proven by a preponderance of the evidence.
If, following the initial review, based on these findings, the transit
district determines that the prohibition order is not adequately
supported or that extenuating circumstances make dismissal of the
prohibition order appropriate in the interest of justice, the transit
district shall cancel the notice. If, following the initial review,
based on these findings, the transit district determines that the
prohibition order should be upheld in whole or in part, the transit
district shall issue a written statement to that effect, including any
modification to the period or scope of the prohibition order. The
transit district shall serve the results of the initial review to the
person contesting the notice by personal service.

(2) The transit district may modify or cancel a prohibition order
in the interest of justice. The transit district shall cancel a
prohibition order if it determines that the person did not understand
the nature and extent of his or her actions or did not have the ability
to control his or her actions. If the person is dependent upon the
transit system for trips of necessity, including, but not limited to,
travel to or from medical or legal appointments, school or training
classes, places of employment, or obtaining food, clothing, and
necessary household items, the transit district shall modify a
prohibition order to allow for those trips. A person requesting a
cancellation or modification in the interest of justice shall have
the burden of establishing the qualifying circumstances by a
preponderance of the evidence.

(3) If the person is dissatisfied with the results of the initial
review, the person may request an administrative hearing of the
prohibition order no later than 10 calendar days after the results
of the initial review are delivered by personal service. The request
may be made by telephone, in writing, or in person. An
administrative hearing shall be held within 30 calendar days after
the receipt of a request for an administrative hearing. The person
requesting the hearing may request one continuance, not to exceed
seven calendar days.

(4) The administrative hearing process shall include all of the
following:

(A) The person requesting the hearing shall have the choice of
a hearing by mail or in person. An in-person hearing shall be
conducted within the jurisdiction of the transit district.

(B) The administrative hearing shall be conducted in accordance
with written procedures established by the transit district and
approved by the governing body or chief executive officer of the
transit district. The hearing shall provide an independent, objective,
fair, and impartial review of the prohibition order.

(C) The administrative review shall be conducted before a
hearing officer designated to conduct the review by the transit
district’s governing body or chief executive officer. In addition to
any other requirements, a hearing officer shall demonstrate the
qualifications, training, and objectivity prescribed by the transit
agency’s governing body or chief executive officer as are necessary
to fulfill and that are consistent with the duties and responsibilities
set forth in this subdivision. The hearing officer’s continued
service, performance evaluation, compensation, and benefits, as
applicable, shall not be directly or indirectly linked to the number
of prohibition orders upheld by the hearing officer.

(D) The person who issued the notice of prohibition order shall
not be required to participate in an administrative hearing, unless
participation is requested by the person requesting the hearing.
The request for participation must be made at least five calendar
days prior to the date of the hearing and may be made by telephone,
in writing, or in person. The notice of prohibition order, in proper
form, shall be prima facie evidence of the violation or violations
pursuant to subdivision (a) establishing a rebuttable presumption
affecting the burden of producing evidence.

(E) In issuing a decision, the hearing officer shall determine
whether the prohibition order meets the requirements of subdivision
(a) and, unless the person has been convicted of the offense or
offenses, whether the offense or offenses for which the person was
cited or arrested are proven by a preponderance of the evidence.
Based upon these findings, the hearing officer may uphold the
prohibition order in whole, determine that the prohibition order is
not adequately supported, or cancel or modify the prohibition order
in the interest of justice. The hearing officer shall cancel a
prohibition order if he or she determines that the person did not
understand the nature and extent of his or her actions or did not
have the ability to control his or her actions. If the person is
dependent upon the transit system for trips of necessity, including,
but not limited to, travel to or from medical or legal appointments,
school or training classes, places of employment, or obtaining
food, clothing, and necessary household items, the transit district
shall modify a prohibition order to allow for those trips. A person
requesting a cancellation or modification in the interest of justice
shall have the burden of establishing the qualifying circumstances
by a preponderance of the evidence.

(F) The hearing officer’s decision following the administrative
hearing shall be delivered by personal service.

(G) A person aggrieved by the final decision of the hearing
officer may seek judicial review of the decision within 90 days of
the date of delivery of the decision by personal service, as provided
by Section 1094.6 of the Code of Civil Procedure.

(d) A person issued a prohibition order under subdivision (a)
may, within 10 calendar days of the date the order goes into effect
under paragraph (6) of subdivision (b), request a refund for any
prepaid fare media rendered unusable in whole or in part by the
prohibition order, including, but not limited to, monthly passes. If
the fare media remain usable for one or more days outside the
period of the prohibition order, the refund shall be prorated based
on the number of days the fare media will be unusable. The
issuance of a refund may be made contingent on surrender of the
fare media.

(e) For purposes of this begin delete section end delete begin insert section, end insert “transit district” means
the Sacramento Regional Transit District or the Fresno Area
Express. Until January 1, 2018, for purposes of this section, “transit
district” also means the San Francisco Bay Area Rapid Transit
District.

SEC. 5.  

Section 99172 of the Public Utilities Code is amended
to read:

99172.  

(a) Prior to exercising the authority given in subdivision
(a) of Section 99171 to issue prohibition orders, a transit district
shall do all of the following:

(1) Establish an advisory committee for the purpose of
evaluating the procedures for and issuance of prohibition orders
and recommending a course of training for personnel charged with
issuance and enforcement of prohibition orders.

(2) Ensure that personnel to be charged with issuance and
enforcement of prohibition orders have received training as
recommended by the advisory committee.

(3) Provide reasonable notification to transit district riders that
persons who engage in disorderly conduct may be subject to a
prohibition order barring the person from the transit district’s
property, facilities, or vehicles for a period of up to one year.
“Reasonable notification” may include, but is not limited to,
information on the transit district’s Internet Web site, in written
materials, at transit stations, and on citations issued by the transit
district of the types of conduct that may result in issuance of a
prohibition order.

(b) The advisory committee shall be composed of at least five
members appointed by the legislative body of the transit district.
At least one of the members of the advisory committee shall have
experience working with individuals with psychiatric,
developmental, or other disabilities, at least one member shall be
a youth advocate, and at least one member shall have law
enforcement experience.

(c) The advisory committee shall be tasked, at a minimum, with
all of the following:

(1) Providing recommendations, in consultation with the county
mental health director within the service area of the transit district,
regarding the type and extent of training that should be undertaken
by individuals with responsibility for issuance and enforcement
of prohibition orders, with particular emphasis on training designed
to assist those individuals in identifying and interacting with
persons who are homeless or who have psychiatric, developmental,
or other disabilities.

(2) Identifying, in consultation with the county mental health
director within the service area of the transit district, services and
programs to which persons who are homeless or who have
psychiatric, developmental, or other disabilities may be referred
by transit district enforcement personnel prior to or in conjunction
with issuance of a prohibition order.

(3) Monitoring the issuance of prohibition orders to assist the
transit district in ensuring compliance with Section 51 of the Civil
Code.

(4) Providing the governing board of the transit district and the
Legislature with an annual report summarizing the number of
prohibition orders that were issued by the transit district during
the preceding year, including, but not limited to, the types and
numbers of citations by category, and the number of exclusion
orders appealed, the appeals granted, the reasons granted, and other
relevant information directly related to those orders.

(d) The transit district may use an existing advisory committee
to fulfill the requirements of this section, provided that the
composition and purpose of the existing advisory committee meet
or are modified to meet the requirements of this section.

(e) For purposes of this begin delete section end delete begin insert section, end insert “transit district” means
the Sacramento Regional Transit District or the Fresno Area
Express. Until January 1, 2018, for purposes of this section, “transit
district” also means the San Francisco Bay Area Rapid Transit
District.

SEC. 6.  

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.