BILL NUMBER: SB 218 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Solis
(Principal coauthor: Assembly Member Jackson)
JANUARY 21, 1999
An act to amend Section 6343 of the Family Code, to amend Sections
166, 273.5, 273.6, 1328, 1163.3, and 12028.5 of, to repeal Sections
273.55 and 273.56 of, and to add Section 11163.6 to, the Penal Code,
relating to domestic violence.
LEGISLATIVE COUNSEL'S DIGEST
SB 218, as introduced, Solis. Domestic violence.
(1) Existing law authorizes a court, after notice and a hearing,
to issue an order requiring a restrained person to participate in
batterer's treatment counseling.
This bill would require the court, after notice and a hearing, to
order a restrained person to participate in a batterer's treatment
program that has been approved by the probation department pursuant
to a specified provision of law.
(2) Existing law punishes as a contempt of court the willful
disobedience of any process or lawfully issued court order.
This bill would also punish as a contempt of court, the willful
disobedience of a court order or out-of-state court order, including
orders pending trial that are made at the request of a party alleging
domestic violence. By expanding the definition of a crime, this
bill would impose a state-mandated local program.
(3) Existing law requires that if probation is granted to any
person who is convicted of willfully inflicting a traumatic
condition, as defined, on a person with a specified domestic
relationship to that person, and the person has previously been
convicted of 2 or more violations of that offense within a specified
period of time, the court must impose as a condition of probation,
imprisonment in the county jail for not less than 30 days and
participation in a batterer's treatment program as specified.
This bill would eliminate from the above provisions, the
requirement of participation in a batterer's treatment program and
would require instead, that as a condition of probation, a defendant
who has previously been convicted of a violation of the above
offense, within a specified period of time, be imprisoned in a county
jail for not less than 15 days, or if the defendant has previously
been convicted of 2 or more offenses within 7 years of the current
violation, he or she be imprisoned in a county jail for not less than
60 days.
(4) Existing law requires that any person convicted of the offense
of willful infliction of corporal injury who has previously been
convicted of specified assaultive offenses within the last 7 years be
punished by imprisonment in a county jail for not more than one year
or by imprisonment in the state prison for 2, 4, or 5 years or by
both imprisonment and a fine up to $10,000.
Existing law also requires that if probation is granted to a
person sentenced under that provision, it must be a condition of
probation that he or she be imprisoned in a county jail for not less
than 15 days and participate in and successfully complete a batterer'
s treatment program. However, if probation is granted to a person
who has been convicted of that offense and has had 2 or more prior
convictions of that offense with 7 years, it must be a condition of
probation that he or she be imprisoned in a county jail for not less
than 60 days and that he or she participate in and successfully
complete a batterer's treatment program.
This bill would delete these 2 provisions of law.
(5) Existing law punishes as a crime any intentional and knowing
violation of a protective order or other order, as defined.
This bill would amend the above provision by expanding the list of
specified orders to include any order issued by an other state as
recognized under a specified provision of law relating to
out-of-state orders. By expanding the definition of a crime, this
bill imposes a state-mandated local program.
(6) Existing law requires that when service is made on a minor, it
must be made on the minor's parent, guardian, conservator, or
similar fiduciary, or other specified persons.
This bill would authorize the court having jurisdiction of the
case to appoint a guardian ad litem to receive service of a subpoena
of the child and to produce the child in court.
(7) Existing law authorizes a county to establish an interagency
domestic violence death review team to assist local agencies in
identifying and reviewing domestic violence deaths. However,
existing law prohibits the disclosure of confidential and privileged
information that is relevant to a domestic violence death review
team.
This bill would authorize disclosure by the domestic violence
review team of otherwise confidential or privileged information
regarding the victim or any other information deemed relevant, to
members of that team. The bill would make it a misdemeanor
punishable by fine and up to one year in a county jail, for any
member of the team, their agency or employee, who without prior
approval of all of the members of the team, discloses any information
obtained during the investigation. The bill would also authorize
the disclosure of specified types of information to a domestic
violence death review team, notwithstanding other provisions of law
including the lawyer-client privilege, the psychotherapist-client
privilege, the domestic violence victim-counselor privilege, and the
sexual assault victim-counselor privilege, if the information is
about a person who died as a result of, or whose death was likely the
result of, domestic violence, a minor child of that deceased person,
or a person who has been convicted of causing a death in connection
with an incidence of domestic violence. By creating a new crime,
this bill would impose a state-mandated local program.
The bill would also require the domestic violence review teams to
collect and summarize data regarding the statistical occurrence of
specified circumstances of deaths resulting from domestic violence.
(8) Existing law authorizes specified law enforcement officers who
are at the scene of a family violence incident involving a threat to
human life or physical assault, to take temporary custody of any
firearm or other deadly weapon in plain sight or discovered pursuant
to a consensual search. This provision also defines the terms
"abuse," "family violence," and "family or household member."
This bill instead would replace the term "family violence" with
the term "domestic violence," would delete the above-mentioned
definitions and would replace them with definitions of the terms
"abuse" and "domestic violence" that track the definitions of those
terms in the Family Code.
(9) Under existing federal law, known as the Violent Crime Control
and Law Enforcement Act of 1994, it is unlawful for any person who
is subject to a restraining order to possess or purchase a firearm or
ammunition.
This bill would declare the Legislature's intent to codify the
above-mentioned federal law.
(10) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6343 of the Family Code is amended to read:
6343. (a) After notice and a hearing, the court may issue an
order requiring any party to participate in counseling with a
licensed mental health professional, or through other community
programs and services that provide appropriate counseling, including,
but not limited to, mental health or substance abuse services, where
it is shown that the parties intend to continue to reside in the
same household or have continued to reside in the same household
after previous instances of domestic violence. The court may also
order a restrained party to participate in a batterer's
treatment counseling program approved by the
probation department as provided in Section 1203.097 of the Penal
Code .
(b) Where there has been a history of domestic violence between
the parties or where a protective order, as defined in Section 6218,
is in effect, at the request of the party alleging domestic violence
in a written declaration under penalty of perjury or who is protected
by the order, the parties shall participate in counseling separately
and at separate times. The court may also order a restrained party
to participate in a batterer's treatment
counseling program approved by the probation
department as provided in Section 1203.097 of the Penal Code ,
for up to one year, provided that the program selected has counseling
available for the designated period of time.
(c) Each party shall bear the cost of his or her own counseling
separately, unless good cause appears for a different apportionment.
SEC. 2. Section 166 of the Penal Code is amended to read:
166. (a) Except as provided in subdivisions (b) and (c), every
person guilty of any contempt of court, of any of the following
kinds, is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any court of justice, in immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior as specified in paragraph (1) committed in the
presence of any referee, while actually engaged in any trial or
hearing, pursuant to the order of any court, or in the presence of
any jury while actually sitting for the trial of a cause, or upon any
inquest or other proceedings authorized by law.
(3) Any breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of any court.
(4) Willful disobedience of any process or order lawfully issued
by any court.
(5) Willful disobedience of any court order or out-of-state
court order, lawfully issued by any court, including orders pending
trial, made at the request of a party alleging domestic violence.
(6) Resistance willfully offered by any person to the lawful
order or process of any court.
(6)
(7) The contumacious and unlawful refusal of any person to
be sworn as a witness; or, when so sworn, the like refusal to answer
any material question.
(7)
(8) The publication of a false or grossly inaccurate report
of the proceedings of any court.
(8)
(9) Presenting to any court having power to pass sentence
upon any prisoner under conviction, or to any member of the court,
any affidavit or testimony or representation of any kind, verbal or
written, in aggravation or mitigation of the punishment to be imposed
upon the prisoner, except as provided in this code.
(b) (1) Any person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
phone, mail, or directly and who has been previously convicted of a
violation of Section 646.9 shall be punished by imprisonment in a
county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), any
willful and knowing violation of any protective order or stay away
court order issued pursuant to Section 136.2, in a pending criminal
proceeding involving domestic violence, as defined in Section 13700,
or issued as a condition of probation after a conviction in a
criminal proceeding involving domestic violence, as defined in
Section 13700, which is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and the fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) shall apply to the following court
orders:
(A) Any order issued pursuant to Section 6320 of the Family Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of any order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivisions (c) and (d) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison for 16 months or two or three years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall require participation in a batterer'
s treatment program as a condition of probation, unless, considering
all of the facts and circumstances, the court finds participating in
a batterer's treatment program inappropriate for the defendant.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), the court shall make a determination
of the defendant's ability to pay. 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.
(4) Where 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
subdivision (c), the community property may not be used to discharge
the liability of the offending spouse for restitution to the injured
spouse, 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 and dependents, required by this subdivision,
until all separate property of the offending spouse is exhausted.
(5) Any person violating any order described in subdivision (c),
may be punished for any substantive offenses described under Section
136.1 or 646.9. No finding of contempt shall be a bar to prosecution
for a violation of Section 136.1 or 646.9. However, any person held
in contempt for a violation of subdivision (c) shall be entitled to
credit for any punishment imposed as a result of that violation
against any sentence imposed upon conviction of an offense described
in Section 136.1 or 646.9. Any conviction or acquittal for any
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 3. Section 273.5 of the Penal Code is amended to read:
273.5. (a) Any person who willfully inflicts upon his or her
spouse, or any person who willfully inflicts upon any person with
whom he or she is cohabiting, or any person who willfully inflicts
upon any person who is the mother or father of his or her child,
corporal injury resulting in a traumatic condition, is guilty of a
felony, and upon conviction thereof shall be punished by imprisonment
in the state prison for two, three, or four years, or in a county
jail for not more than one year, or by a fine of up to six thousand
dollars ($6,000) or by both.
(b) Holding oneself out to be the husband or wife of the person
with whom one is cohabiting is not necessary to constitute
cohabitation as the term is used in this section.
(c) As used in this section, "traumatic condition" means a
condition of the body, such as a wound or external or internal
injury, whether of a minor or serious nature, caused by a physical
force.
(d) For the purpose of this section, a person shall be considered
the father or mother of another person's child if the alleged male
parent is presumed the natural father under Sections 7611 and 7612 of
the Family Code.
(e) In any case in which a person is convicted of violating this
section and probation is granted, the court shall require
participation in a batterer's treatment program as a condition of
probation, as specified in Section 1203.097.
(f) If probation is granted, or the execution or imposition of a
sentence is suspended, for any person convicted under subdivision (a)
who previously has been convicted under subdivision (a) for an
offense that occurred within seven years of the offense of the second
conviction, it shall be a condition thereof that he or she be
imprisoned in a county jail for not less than 96 hours and that he or
she participate in, for no less than one year, and successfully
complete, a batterer's treatment program, as designated by the court
pursuant to Section 1203.097. However, the court, upon a showing of
good cause, may find that the mandatory minimum imprisonment, as
required by this subdivision, shall not be imposed and grant
probation or the suspension of the execution or imposition of a
sentence.
(g) If probation is granted, or the execution or imposition of a
sentence is suspended, for any person convicted under subdivision (a)
who previously has been convicted of two or more violations
a violation of subdivision (a) for
offenses an offense that occurred within seven
years of the most recent conviction, it shall be a condition
thereof that he or she be imprisoned in a county jail for not less
than 30 days and that he or she participate in for no less than one
year, and successfully complete, a batterer's treatment program as
designated by the court pursuant to Section 1203.097 ,
of probation, in addition to the provisions contained in Section
1203.097, that he or she be imprisoned in a county jail for not less
than 15 days. If the defendant has been previously convicted of two
or more offenses that occurred within seven years of a violation of
subdivision (a), it shall be a condition of probation, in addition to
the provisions contained in Section 1203.097, that he or she be
imprisoned in a county jail for not less than 60 days .
However, the court, upon a showing of good cause, may find that the
mandatory minimum imprisonment, as required by this subdivision,
shall not be imposed and grant probation or the suspension
of the execution or imposition of a sentence .
(h) If probation is granted upon conviction of a violation of
subdivision (a), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000), pursuant
to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
For any order to pay a fine, make payments to a battered women's
shelter, or pay restitution as a condition of probation under this
subdivision, the court shall make a determination of the defendant's
ability to pay. 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. Where 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 may not be used
to discharge the liability of the offending spouse for restitution
to the injured spouse, 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 and dependents, required by
this section, until all separate property of the offending spouse is
exhausted.
SEC. 4. Section 273.55 of the Penal Code is repealed.
273.55. Any person convicted of violating Section 273.5, for acts
occurring within seven years of a previous conviction under
subdivision (d) of Section 243, or under Section 243.4, 244, 244.5,
245, or 273.5, if the victim of the prior offense is a person
designated under subdivision (a) of Section 273.5, shall be punished
by imprisonment in a county jail for not more than one year, or by
imprisonment in the state prison for two, four, or five years, or by
both imprisonment and a fine of up to ten thousand dollars ($10,000).
If probation is granted or the execution or imposition of a sentence
is suspended for any person sentenced under this section, Section
273.56 shall apply.
SEC. 5. Section 273.56 of the Penal Code is repealed.
273.56. (a) If probation is granted, or the execution or
imposition of sentence is suspended, for any person convicted under
Section 273.5 and sentenced under Section 273.55, it shall be a
condition of probation that he or she be imprisoned in a county jail
for not less than 15 days and that he or she participate in for no
less than one year, and successfully complete, a batterer's treatment
program, as designated by the court. However, the court, upon a
showing of good cause, may find that the mandatory minimum
imprisonment, or the participation in a batterer's treatment program,
or both the mandatory minimum imprisonment and participation in a
batterer's treatment program, as required by this subdivision, shall
not be imposed and grant probation or the suspension of the execution
or imposition of the sentence. Conditions of probation may also
include conditions set forth in subdivision (h) of Section 273.5.
(b) If probation is granted, or the execution or imposition of a
sentence is suspended, for any person convicted under Section 273.5
and sentenced under Section 273.55 because he or she has been
convicted previously for two or more offenses that occurred within
seven years of an offense designated in subdivision (a) of Section
273.55, against the class of persons designated under subdivision (a)
of Section 273.5, it shall be a condition of probation that he or
she be imprisoned in a county jail for not less than 60 days and that
he or she participate in for no less than one year, and successfully
complete, a batterer's treatment program, as designated by the
court. However, the court upon a showing of good cause, may find
that the mandatory minimum imprisonment, or the participation in a
batterer's treatment program, or both the mandatory minimum
imprisonment and participation in a batterer's treatment program, as
required by this subdivision, shall not be imposed and grant
probation or the suspension of the execution or imposition of the
sentence. Conditions of probation may also include conditions set
forth in subdivision (h) of Section 273.5.
SEC. 6. Section 273.6 of the Penal Code is amended to read:
273.6. (a) Any intentional and knowing violation of a protective
order, as defined in Section 6218 of the Family Code, or of an order
issued pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure is a misdemeanor punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in a county jail for
not more than one year, or by both the fine and imprisonment.
(b) In the event of a violation of subdivision (a) which results
in physical injury, the person shall be punished by a fine of not
more than two thousand dollars ($2,000), or by imprisonment in a
county jail for not less than 30 days nor more than one year, or by
both the fine and imprisonment. However, if the person is imprisoned
in a county jail for at least 48 hours, the court may, in the
interests of justice and for reasons stated on the record, reduce or
eliminate the 30-day minimum imprisonment required by this
subdivision. In determining whether to reduce or eliminate the
minimum imprisonment pursuant to this subdivision, the court shall
consider the seriousness of the facts before the court, whether there
are additional allegations of a violation of the order during the
pendency of the case before the court, the probability of future
violations, the safety of the victim, and whether the defendant has
successfully completed or is making progress with counseling.
(c) Subdivisions (a) and (b) shall apply to the following court
orders:
(1) Any order issued pursuant to Section 6320 of the Family Code.
(2) An order excluding one party from the family dwelling or from
the dwelling of the other.
(3) An order enjoining a party from specified behavior which the
court determined was necessary to effectuate the order under
subdivision (a).
(4) Any order issued by another state that is recognized under
Section 6380.5 of the Family Code.
(d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving an act of violence or "a credible threat" of violence,
as defined in subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison.
(e) In the event of a subsequent conviction for a violation of an
order described in subdivision (a) for an act occurring within one
year of a prior conviction for a violation of an order described in
subdivision (a) that results in physical injury to the same victim,
the person shall be punished by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in a county jail for not less
than six months nor more than one year, by both that fine and
imprisonment, or by imprisonment in the state prison. However, if
the person is imprisoned in a county jail for at least 30 days, the
court may, in the interests of justice and for reasons stated in the
record, reduce or eliminate the six-month minimum imprisonment
required by this subdivision. In determining whether to reduce or
eliminate the minimum imprisonment pursuant to this subdivision, the
court shall consider the seriousness of the facts before the court,
whether there are additional allegations of a violation of the order
during the pendency of the case before the court, the probability of
future violations, the safety of the victim, and whether the
defendant has successfully completed or is making progress with
counseling.
(f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders issued pursuant to
subdivisions (a), (b), (d), and (e).
(g) The court may order a person convicted under this section to
undergo counseling, and, if appropriate, to complete a batterer's
treatment program.
(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), or (c), the conditions of probation may
include, in lieu of a fine, one or both of the following
requirements:
(1) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000), pursuant
to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
(i) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under
subdivision (e), the court shall make a determination of the
defendant's ability to pay. 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. Where 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 may not be used
to discharge the liability of the offending spouse for restitution
to the injured spouse, 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 and dependents, required by
this section, until all separate property of the offending spouse is
exhausted.
SEC. 7. Section 1328 of the Penal Code is amended to read:
1328. (a) A subpoena may be served by any person, except that the
defendant may not serve a subpoena in the criminal action to which
he or she is a party, but a peace officer shall serve in his or her
county any subpoena delivered to him or her for service, either on
the part of the people or of the defendant, and shall, without
delay, make a written return of the service, subscribed by him or
her, stating the time and place of service. The service is made by
delivering a copy of the subpoena to the witness personally.
(b) (1) When service is to be made on a minor, service
shall be made on the minor's parent, guardian, conservator, or
similar fiduciary, or if one of them cannot be located with
reasonable diligence, then service shall be made on any person having
the care or control of the minor or with whom the minor resides or
by whom the minor is employed, unless the parent, guardian,
conservator, or fiduciary or other specified person is the defendant,
and on the minor if the minor is 12 years of age or older. The
person so served shall have the obligation of producing the minor at
the time and place designated in the subpoena. A willful failure to
produce the minor is punishable as a contempt pursuant to Section
1218 of the Code of Civil Procedure. The person so served shall be
allowed the fees and expenses that are provided for subpoenaed
witnesses.
(2) The court having jurisdiction of the case shall have the power
to appoint a guardian ad litem to receive service of a subpoena of
the child and shall have the power to produce the child ordered to
court under this section.
(c) Whenever any peace officer designated in Section 830 is
required as a witness before any court or magistrate in any action or
proceeding in connection with a matter regarding an event or
transaction which he or she has perceived or investigated in the
course of his or her duties, a criminal subpoena issued pursuant to
this chapter requiring his or her attendance may be served either by
delivering a copy to the peace officer personally or by delivering
two copies to his or her immediate superior or agent designated by
his or her immediate superior to receive the service; or, in those
counties where the local agencies have consented with the marshal's
office or sheriff's office, where appropriate, to participate, by
sending a copy by electronic means, including electronic mail,
computer modem, facsimile, or other electronic means, to his or her
immediate superior or agent designated by the immediate superior to
receive the service. If the service is made by electronic means, the
immediate superior or agency designated by his or her immediate
superior shall acknowledge receipt of the subpoena by telephone or
electronic means to the sender of origin. If service is made upon
the immediate superior or agent designated by the immediate superior,
the immediate superior or the agent shall deliver a copy of the
subpoena to the peace officer as soon as possible and in no event
later than a time which will enable the peace officer to comply with
the subpoena.
(d) If the immediate superior or his or her designated agent upon
whom service is attempted to be made knows he or she will be unable
to deliver a copy of the subpoena to the peace officer within a time
which will allow the peace officer to comply with the subpoena, the
immediate superior or agent may refuse to accept service of process
and is excused from any duty, liability, or penalty arising in
connection with the service, upon notifying the server of that fact.
(e) If the immediate superior or his or her agent is tendered
service of a subpoena less than five working days prior to the date
of hearing, and he or she is not reasonably certain he or she can
complete the service, he or she may refuse acceptance.
(f) If the immediate superior or agent upon whom service has been
made, subsequently determines that he or she will be unable to
deliver a copy of the subpoena to the peace officer within a time
which will allow the peace officer to comply with the subpoena, the
immediate superior or agent shall notify the server or his or her
office or agent not less
than 48 hours prior to the hearing date indicated on the subpoena,
and is thereby excused from any duty, liability, or penalty arising
because of his or her failure to deliver a copy of the subpoena to
the peace officer. The server, so notified, is therewith responsible
for preparing the written return of service and for notifying the
originator of the subpoena if required.
(g) Notwithstanding subdivision (c), in the case of peace officers
employed by the California Highway Patrol, if service is made upon
the immediate superior or upon an agent designated by the immediate
superior of the peace officer, the immediate superior or the agent
shall deliver a copy of the subpoena to the peace officer on the
officer's first workday following acceptance of service of process.
In this case, failure of the immediate superior or the designated
agent to deliver the subpoena shall not constitute a defect in
service.
SEC. 8. Section 11163.3 of the Penal Code is amended to read:
11163.3. (a) A county may establish an interagency domestic
violence death review team to assist local agencies in identifying
and reviewing domestic violence deaths, including homicides and
suicides, and facilitating communication among the various agencies
involved in domestic violence cases. Interagency domestic violence
death review teams have been used successfully to ensure that
incidents of domestic violence and abuse are recognized and that
agency involvement is reviewed to develop recommendations for
policies and protocols for community prevention and intervention
initiatives to reduce and eradicate the incidence of domestic
violence.
(b) For purposes of this section, "abuse" has the meaning set
forth in Section 6203 of the Family Code and "domestic violence" has
the meaning set forth in Section 6211 of the Family Code.
(c) A county may develop a protocol that may be used as a
guideline to assist coroners and other persons who perform autopsies
on domestic violence victims in the identification of domestic
violence, in the determination of whether domestic violence
contributed to death or whether domestic violence had occurred prior
to death, but was not the actual cause of death, and in the proper
written reporting procedures for domestic violence, including the
designation of the cause and mode of death.
(d) County domestic violence death review teams shall be comprised
of, but not limited to, the following:
(1) Experts in the field of forensic pathology.
(2) Medical personnel with expertise in domestic violence abuse.
(3) Coroners and medical examiners.
(4) Criminologists.
(5) District attorneys and city attorneys.
(6) Domestic violence shelter service staff and battered women's
advocates.
(7) Law enforcement personnel.
(8) Representatives of local agencies that are involved with
domestic violence abuse reporting.
(9) County health department staff who deal with domestic violence
victims' health issues.
(10) Representatives of local child abuse agencies.
(11) Local professional associations of persons described in
paragraphs (1) to (10), inclusive.
(e) An oral or written communication or a document shared within
or produced by a domestic violence death review team related to a
domestic violence death review is confidential and not subject to
disclosure or discoverable by a third party. An oral or written
communication or a document provided by a third party to a domestic
violence death review team, or between a third party and a domestic
violence death review team, is confidential and not subject to
disclosure or discoverable by a third party. Notwithstanding the
foregoing, recommendations of a domestic violence death review team
upon the completion of a review may be disclosed at the discretion of
a majority of the members of the domestic violence death review
team.
(f) Each organization represented on a domestic violence death
review team may share with other members of the team information in
its possession concerning the victim who is the subject of the review
or any person who was in contact with the victim and any other
information deemed by the organization to be pertinent to the review.
Any information shared by an organization with other members of a
team is confidential. This provision shall permit the disclosure to
members of the team of any information deemed confidential,
privileged, or prohibited from disclosure by any other statute.
(g) Any member of the domestic violence death review team, their
agent or employee who, without the prior approval of all of the
members of the team, discloses or causes to be disclosed to anyone or
any agency not a member of the team, any information obtained during
investigations conducted under the authority of this statute, is
guilty of a misdemeanor, and punishable by a fine up to ten thousand
dollars ($10,000) and up to one year in county jail.
(h) Written and oral information may be disclosed to a domestic
violence death review team established pursuant to this section. The
team may make a request in writing for the information sought and
any person with information of the kind described in paragraph (2) of
this subdivision may rely on the request in determining whether
information may be disclosed to the team.
(1) No individual or agency that has information governed by this
subdivision shall be required to disclose information. The intent of
this subdivision is to allow the voluntary disclosure of information
by the individual or agency that has the information.
(2) The following information may be disclosed pursuant to this
subdivision:
(A) Notwithstanding Section 56.10 of the Civil Code, medical
information.
(B) Notwithstanding Section 5328 of the Welfare and Institutions
Code, mental health information.
(C) Notwithstanding Section 15633.5 of the Welfare and
Institutions Code, information from elder abuse reports and
investigations, except the identity of persons who have made reports,
which shall not be disclosed.
(D) Notwithstanding Section 11167.5 of the Penal Code, information
from child abuse reports and investigations, except the identity of
persons who have made reports, which shall not be disclosed.
(E) State summary criminal history information, criminal offender
record information, and local summary criminal history information,
as defined in Sections 11075, 11105, and 13300 of the Penal Code.
(F) Notwithstanding Section 11163.2 of the Penal Code, information
pertaining to reports by health practitioners of persons suffering
from physical injuries inflicted by means of a firearm or of persons
suffering physical injury where the injury is a result of assaultive
or abusive conduct, and information relating to whether a physician
referred the person to local domestic violence services as
recommended by Section 11161 of the Penal Code.
(G) Notwithstanding Section 827 of the Welfare and Institutions
Code, information in any juvenile court proceeding.
(H) Information maintained by the Family Court, including
information relating to the Family Conciliation Court Law pursuant to
Section 1818 of the Family Code, and Mediation of Custody and
Visitation Issues pursuant to Section 3177 of the Family Code.
(I) Information provided to probation officers in the course of
the performance of their duties, including, but not limited to, the
duty to prepare reports pursuant to Section 1203.10 of the Penal
Code, as well as the information on which these reports are based.
(J) Notwithstanding Section 10825 of the Welfare and Institutions
Code, records of in-home supportive services, unless disclosure is
prohibited by federal law.
(3) The disclosure of written and oral information authorized
under this subdivision shall apply notwithstanding Sections 2263,
2918, 4982, and 6068 of the Business and Professions Code, or the
lawyer-client privilege protected by Article 3 (commencing with
Section 950) of Chapter 4 of Division 8 of the Evidence Code, the
physician-patient privilege protected by Article 6 (commencing with
Section 990) of Chapter 4 of Division 8 of the Evidence Code, the
psychotherapist-patient privilege protected by Article 7 (commencing
with Section 1010) of Chapter 4 of Division 8 of the Evidence Code,
the sexual assault victim-counselor privilege protected by Article
8.5 (commencing with Section 1035) of Chapter 4 of Division 8 of the
Evidence Code, and the domestic violence victim-counselor privilege
protected by Article 8.7 (commencing with Section 1037) of Chapter 4
of Division 8 of the Evidence Code.
SEC. 9. Section 11163.6 is added to the Penal Code, to read:
11163.6. In order to ensure consistent and uniform results, data
shall be collected and summarized by the domestic violence death
review teams to show the statistical occurrence of all domestic
violence deaths in the team's county that occur under the following
circumstances:
(a) The deceased was a victim of a homicide committed by a current
or former spouse, fiance, or dating partner.
(b) The deceased was the victim of a suicide, was the current or
former spouse, fiance, or dating partner of the perpetrator and was
also the victim of previous acts of domestic violence.
(c) The deceased was the perpetrator of the homicide of a former
or current spouse, fiance, or dating partner and the perpetrator was
also the victim of a suicide.
(d) The deceased was the perpetrator of the homicide of a former
or current spouse, fiance, or dating partner and the perpetrator was
also the victim of a homicide related to the domestic homicide
incident.
(e) The deceased was a child of either the homicide victim or the
perpetrator, or both.
(f) The deceased was a current or former spouse, fiance, or dating
partner of the current or former spouse, fiance, or dating partner
of the perpetrator.
(g) The deceased was a law enforcement officer, emergency medical
personnel, or other agency responding to a domestic violence
incident.
(h) The deceased was a family member, other than identified above,
of the perpetrator.
(i) The deceased was the perpetrator of the homicide of a family
member, other than identified above.
(j) The deceased was a person not included in the above categories
and the homicide was related to domestic violence.
SEC. 10. Section 12028.5 of the Penal Code is amended to read:
12028.5. (a) As used in this section, the following definitions
shall apply:
(1) "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,
herself, or another.
(2) "Family violence" has the same meaning as domestic violence as
defined in subdivision (b) of Section 13700, and also includes any
abuse perpetrated against a family or household member.
(3) "Family or household member" means a spouse, former spouse,
parent, child, any person related by consanguinity or affinity within
the second degree, or any person who regularly resides or who
regularly resided in the household.
The presumption applies that the male parent is the father of any
child of the female pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code).
(4)
(1) "Abuse" means any of the following:
(A) Intentionally or recklessly to cause or attempt to cause
bodily injury.
(B) Sexual assault.
(C) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another.
(D) To engage in any behavior that has been or could be enjoined
pursuant to Section 6320 of the Family Code.
(2) "Domestic violence" means abuse perpetrated against any of the
following persons:
(A) A spouse or former spouse.
(B) A cohabitant or former cohabitant, as defined in Section 6209
of the Family Code.
(C) A person with whom the respondent is having or has had a
dating or engagement relationship.
(D) A person with whom the respondent has had a child, where the
presumption applies that the male parent is the father of the child
of the female parent under the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code).
(E) A child of a party or a child who is the subject of an action
under the Uniform Parentage Act, where the presumption applies that
the male parent is the father of the child to be protected.
(F) Any other person related by consanguinity or affinity within
the second degree.
(3) "Deadly weapon" means any weapon, the possession or
concealed carrying of which is prohibited by Section 12020.
(b) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1, a peace officer of the Department of the California
Highway Patrol, as defined in subdivision (a) of Section 830.2, a
member of the University of California Police Department, as defined
in subdivision (b) of Section 830.2, an officer listed in Section
830.6 while acting in the course and scope of his or her employment
as a peace officer, a member of a California State University Police
Department, as defined in subdivision (c) of Section 830.2, a peace
officer of the Department of Parks and Recreation, as defined in
subdivision (f) of Section 830.2, a peace officer, as defined in
subdivision (d) of Section 830.31, and a peace officer, as defined in
Section 830.5, who is at the scene of a family
domestic violence incident involving a threat to human
life or a physical assault, may shall
take temporary custody of any firearm or other deadly weapon in plain
sight or discovered pursuant to a consensual search as necessary for
the protection of the peace officer or other persons present. Upon
taking custody of a firearm or other deadly weapon, the officer shall
give the owner or person who possessed the firearm a receipt. The
receipt shall describe the firearm or other deadly weapon and list
any identification or serial number on the firearm. The receipt
shall indicate where the firearm or other deadly weapon can be
recovered and the date after which the owner or possessor can recover
the firearm or other deadly weapon. No firearm or other deadly
weapon shall be held less than 48 hours. Except as provided in
subdivision (e), if a firearm or other deadly weapon is not retained
for use as evidence related to criminal charges brought as a result
of the family violence incident or is not retained because it was
illegally possessed, the firearm or other deadly weapon shall be made
available to the owner or person who was in lawful possession 48
hours after the seizure or as soon thereafter as possible, but no
later than 72 hours after the seizure. In any civil action or
proceeding for the return of firearms or ammunition or other deadly
weapon seized by any state or local law enforcement agency and not
returned within 72 hours following the initial seizure, except as
provided in subdivision (c), the court shall allow reasonable
attorney's fees to the prevailing party.
(c) Any firearm or other deadly weapon which has been taken into
custody that has been stolen shall be restored to the lawful owner,
as soon as its use for evidence has been served, upon his or her
identification of the firearm or other deadly weapon and proof of
ownership.
(d) Any firearm or other deadly weapon taken into custody and held
by a police, university police, or sheriff's department or by a
marshal's office, by a peace officer of the Department of the
California Highway Patrol, as defined in subdivision (a) of Section
830.2, by a peace officer of the Department of Parks and Recreation,
as defined in subdivision (f) of Section 830.2, by a peace officer,
as defined in subdivision (d) of Section 830.31, or by a peace
officer, as defined in Section 830.5, for longer than 12 months and
not recovered by the owner or person who has lawful possession at the
time it was taken into custody, shall be considered a nuisance and
sold or destroyed as provided in subdivision (c) of Section 12028.
Firearms or other deadly weapons not recovered within 12 months due
to an extended hearing process as provided in subdivision (i), are
not subject to destruction until the court issues a decision, and
then only if the court does not order the return of the firearm or
other deadly weapon to the owner.
(e) In those cases where a law enforcement agency has reasonable
cause to believe that the return of a firearm or other deadly weapon
would be likely to result in endangering the victim or the person
reporting the assault or threat, the agency shall advise the owner of
the firearm or other deadly weapon, and within 10 days of the
seizure, initiate a petition in superior court to determine if the
firearm or other deadly weapon should be returned.
(f) The law enforcement agency shall inform the owner or person
who had lawful possession of the firearm or other deadly weapon, at
that person's last known address by registered mail, return receipt
requested, that he or she has 30 days from the date of receipt of the
notice to respond to the court clerk to confirm his or her desire
for a hearing, and that the failure to respond shall result in a
default order forfeiting the confiscated firearm or other deadly
weapon. For the purposes of this subdivision, the person's last
known address shall be presumed to be the address provided to the law
enforcement officer by that person at the time of the family
violence incident. In the event the person whose firearm or other
deadly weapon was seized does not reside at the last address provided
to the agency, the agency shall make a diligent, good faith effort
to learn the whereabouts of the person and to comply with these
notification requirements.
(g) If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request. The
court clerk shall notify the person, the law enforcement agency
involved, and the district attorney of the date, time, and place of
the hearing. Unless it is shown by clear and convincing evidence
that the return of the firearm or other deadly weapon would result in
endangering the victim or the person reporting the assault or
threat, the court shall order the return of the firearm or other
deadly weapon and shall award reasonable attorney's fees to the
prevailing party.
(h) If the person does not request a hearing or does not otherwise
respond within 30 days of the receipt of the notice, the law
enforcement agency may file a petition for an order of default and
may dispose of the firearm or other deadly weapon as provided in
Section 12028.
(i) If, at the hearing, the court does not order the return of the
firearm or other deadly weapon to the owner or person who had lawful
possession, that person may petition the court for a second hearing
within 12 months from the date of the initial hearing. If the owner
or person who had lawful possession does not petition the court
within this 12-month period for a second hearing or is unsuccessful
at the second hearing in gaining return of the firearm or other
deadly weapon, the firearm or other deadly weapon may be disposed of
as provided in Section 12028.
(j) The law enforcement agency, or the individual law enforcement
officer, shall not be liable for any act in the good faith exercise
of this section.
SEC. 11. It is the intent of the Legislature to codify the
provisions of the federal Violent Crime Control and Law Enforcement
Act of 1994, which makes it unlawful for any person subject to a
restraining order to possess or purchase a firearm or ammunition.
SEC. 12. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.