BILL NUMBER: SB 218 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 20, 1999
AMENDED IN SENATE APRIL 12, 1999
AMENDED IN SENATE MARCH 22, 1999
INTRODUCED BY Senator Solis
(Principal coauthors: Assembly Members Jackson and Kuehl)
JANUARY 21, 1999
An act to amend Section 185 of the Code of Civil Procedure, to
amend Sections 6343 and 6389 of the Family Code, to amend Section
124250 of the Health and Safety Code, to amend Sections 166, 273d,
273.5, 273.6, 836, 1328, 11163.3, 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 amended, Solis. Domestic violence.
(1) Existing law requires every written proceeding in a judicial
court to be in the English language.
This bill would declare that nothing in this section prohibits a
court from issuing an unofficial translation of a court order or
document in a language other than English. It would also require the
Judicial Council, by July 1, 2001, to make available in other
languages, specified court orders and forms relating to domestic
violence.
(2) 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 as meeting
the standards stated in a specified provision of law.
(3) Existing law prohibits a person subject to a specified
protective order from owning or possessing a firearm while that order
is in effect and if prohibited by that order. The court is
authorized to order a person subject to a protective order to
relinquish any firearm in that person's immediate possession or
control as specified upon a determination by a preponderance of the
evidence that the restrained person is likely to use or display or
threaten to use a firearm in any further act of violence.
This bill would eliminate the need for the court to make the
above-mentioned factual determination by a preponderance of the
evidence, and would instead require the court to order the restrained
person to relinquish any firearm in that person's immediate
possession or control, as specified.
(4) Existing law requires the Maternal and Child Health Branch of
the State Department of Health Services to administer a comprehensive
shelter-based services grant program to battered women's shelters
and to consult with an advisory council that is to remain in
existence until January 1, 1998.
This bill would eliminate the January 1, 1998, sunset clause
relating to the existence of the advisory council.
(5) 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.
(6) Existing law makes it a felony for any person to willfully
inflict upon a child any injury resulting in a traumatic condition.
This bill would make technical changes.
(7) 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. By increasing the punishment for a crime, this bill would
impose a state-mandated local program.
(8) Existing law makes it a felony for any person convicted of
willfully inflicting upon his or her spouse or other specified
domestic partner, a corporal injury resulting in a traumatic
condition. If a person was convicted of that offense within 7 years
prior to the current offense, the court is required to impose, as a
condition of probation, imprisonment in a county jail for not less
than 96 hours and participation in and successful completion of a
batterer's treatment program.
Existing law also requires that if probation is granted to a
person convicted under that same provision, as a condition of
probation, he or she must 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 who 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 relating to the
granting of probation.
(9) 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 another state as
recognized under a specified provision of law relating to
out-of-state orders and orders requiring the relinquishment of a
firearm. By expanding the definition of a crime, this bill imposes a
state-mandated local program.
(10) Existing law gives discretion to a peace officer who is
responding to a call alleging a violation of a domestic violence
protective or restraining order as specified and who has probable
cause to believe that the person subject to the order has notice of
the order and has committed an act in violation of that order, to
arrest that person without a warrant and take him or her into custody
whether or not the violation took place in the presence of the
arresting officer.
This bill would instead require that the peace officer must,
consistent with a specified provision relating to law enforcement
response to domestic violence, make a lawful arrest under the above
circumstances. By increasing the duties of local officials, this
bill would impose a state-mandated local program.
(11) 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.
(12) 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 to members of that 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 a 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.
(13) 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.
(14) Under existing federal law, known as the Violent
Crime Control and Law Enforcement Act of 1994, it is unlawful for any
person to possess or purchase a firearm or ammunition who is subject
to a restraining order that prohibits that person from harassing,
stalking, or threatening an intimate partner of that person or a
child of that person or that partner.
This bill would enact that same prohibition with a limited
exemption for peace officers and military officers who are on duty.
By defining a new crime, this bill would impose a state-mandated
local program.
(15) 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, including the creation of a State Mandates
Claims Fund to pay the costs of mandates that do not exceed
$1,000,000 statewide and other procedures for claims whose statewide
costs exceed $1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
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 185 of the Code of Civil Procedure is amended
to read:
185. (a) Every written proceeding in a court of justice in this
state shall be in the English language, and judicial proceedings
shall be conducted, preserved, and published in no other. Nothing in
this section shall prohibit a court from issuing an unofficial
translation of a court order or document issued pursuant to Part 1
(commencing with Section 6200) of Division 10 of the Family Code or
Section 136.2 of the Penal Code in a language other than English.
(b) The Judicial Council shall, by July 1, 2001, make the court
orders and forms specified in this subdivision available in languages
other than English, as Judicial Council deems appropriate, to all
courts. The Judicial Council shall make available orders and forms
pertaining to protective orders issued pursuant to Sections 527.6 and
527.8 of the Code of Civil Procedure, Part 1 (commencing with
Section 6200) of Division 10 of the Family Code, and Section 136.2 of
the Penal Code.
SEC. 2. 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
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 program approved by the
probation department as meeting the standards stated in subdivision
(c) of Section 1203.097 of the Penal Code.
(c) Each party shall bear the cost of his or her own counseling
separately, unless good cause appears for a different apportionment.
SEC. 3. Section 6389 of the Family Code is amended to read:
6389. (a) A person subject to a protective order, as defined in
Section 6218, may not own or possess a firearm while that protective
order is in effect.
(b) The Judicial Council shall provide a notice on all forms
requesting a protective order that, at the hearing for a protective
order, the respondent shall be ordered to relinquish possession or
control of any firearms for a period not to exceed the duration of
the restraining order.
(c) If the respondent is present in court at a duly noticed
hearing, the court shall order the respondent to relinquish any
firearm in that person's immediate possession or control, or subject
to that person's immediate possession or control, within 24 hours of
the order, by either surrendering the firearm to the control of local
law enforcement officials, or by selling the firearm to a licensed
gun dealer, as specified in Section 12071 of the Penal Code. If the
respondent is not present at the hearing, the respondent shall
relinquish the firearm within 48 hours after being served with the
order. A person ordered to relinquish any firearm pursuant to this
subdivision shall file with the court a receipt showing the firearm
was surrendered to the local law enforcement agency or sold to a
licensed gun dealer within 72 hours after receiving the order. In
the event that it is necessary to continue the date of any hearing
due to a request for a relinquishment order pursuant to this section,
the court shall ensure that all applicable protective orders
described in Section 6218 remain in effect or bifurcate the issues
and grant the permanent restraining order pending the date of the
hearing.
(d) If the respondent declines to relinquish possession of any
firearm based upon the assertion of the right against
self-incrimination, as provided by the Fifth Amendment to the United
States Constitution and Section 15 of Article I of the California
Constitution, the court may grant use immunity for the act of
relinquishing the firearm.
(e) A local law enforcement agency may charge the respondent a fee
for the storage of any firearm pursuant to this section. This fee
shall not exceed the actual cost incurred by the local law
enforcement agency for the storage of the firearm. For purposes of
this subdivision, "actual cost" means expenses directly related to
taking possession of a firearm, storing the firearm, and surrendering
possession of the firearm to a licensed dealer as defined in Section
12071 of the Penal Code or to the respondent.
(f) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (c) shall state on its face that the
firearm shall be relinquished to the local law enforcement agency for
that jurisdiction or sold to a licensed gun dealer, and that proof
of surrender or sale shall be filed with the court within a specified
period of receipt of the order. The order shall also state on its
face the expiration date for relinquishment. Nothing in this section
shall limit a respondent's right under existing law to petition the
court at a later date for modification of the order.
(g) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (c) shall prohibit the person from
possessing or controlling any firearm for the duration of the order.
At the expiration of the order, the local law enforcement agency
shall return possession of any surrendered firearm to the respondent,
within five days after the expiration of the relinquishment order,
unless the local law enforcement agency determines that (1) the
firearm has been stolen, (2) the respondent is prohibited from
possessing a firearm because the respondent is in any prohibited
class for the possession of firearms, as defined in Sections 12021
and 12021.1 of the Penal Code and Sections 8100 and 8103 of the
Welfare and Institutions Code, or (3) another successive restraining
order is used against the respondent under this section. If the
local law enforcement agency determines that the respondent is the
legal owner of any firearm deposited with the local law enforcement
agency and is prohibited from possessing any firearm, the respondent
shall be entitled to sell or transfer the firearm to a licensed
dealer as defined in Section 12071 of the Penal Code. If the firearm
has been stolen, the firearm shall be restored to the lawful owner
upon his or her identification of the firearm and proof of ownership.
(h) The court may, as part of the relinquishment order, grant an
exemption from the relinquishment requirements of this section for a
particular firearm if the respondent can show that a particular
firearm is necessary as a condition of continued employment and that
the current employer is unable to reassign the respondent to another
position where a firearm is unnecessary. If an exemption is granted
pursuant to this subdivision, the order shall provide that the
firearm shall be in the physical possession of the respondent only
during scheduled work hours and during travel to and from his or her
place of employment.
(i) During the period of the relinquishment order, a respondent is
entitled to make one sale of all firearms that are in the possession
of a local law enforcement agency pursuant to this section. A
licensed gun dealer, who presents a local law enforcement agency with
a bill of sale indicating that all firearms owned by the respondent
that are in the possession of the local law enforcement agency have
been sold by the respondent to the licensed gun dealer, shall be
given possession of those firearms, at the location where a
respondent's firearms are stored, within five days of presenting the
local law enforcement agency with a bill of sale.
(j) The disposition of any unclaimed property under this section
shall be made pursuant to Section 1413 of the Penal Code.
(k) The return of a firearm to any person pursuant to subdivision
(g) shall not be subject to the requirements of subdivision (d) of
Section 12072 of the Penal Code.
(l) If the respondent notifies the court that he or she owns a
firearm that is not in his or her immediate possession, the court may
limit the order to exclude that firearm if the judge is satisfied
the respondent is unable to gain access to that firearm while the
protective order is in effect.
(m) Any respondent to a protective order who violates any order
issued pursuant to this section is guilty of a misdemeanor, which
shall be punishable by imprisonment in a county jail not exceeding
one year, by a fine not exceeding one thousand dollars ($1,000), or
by both that imprisonment and fine.
SEC. 4. Section 124250 of the Health and Safety Code is amended to
read:
124250. (a) The following definitions shall apply for purposes of
this section:
(1) "Domestic violence" means the infliction or threat of physical
harm against past or present adult or adolescent female intimate
partners, and shall include physical, sexual, and psychological abuse
against the woman, and is a part of a pattern of assaultive,
coercive, and controlling behaviors directed at achieving compliance
from or control over, that woman.
(2) "Shelter based" means an established system of services where
battered women and their children may be provided safe or
confidential emergency housing on a 24-hour basis, including, but not
limited to, hotel or motel arrangements, haven, and safe houses.
(3) "Emergency shelter" means a confidential or safe location that
provides emergency housing on a 24-hour basis for battered women and
their children.
(b) The Maternal and Child Health Branch of the State Department
of Health Services shall administer a comprehensive shelter-based
services grant program to battered women's shelters pursuant to this
section.
(c) The Maternal and Child Health Branch shall administer grants,
awarded as the result of a request for application process, to
battered women's shelters that propose to maintain shelters or
services previously granted funding pursuant to this section, to
expand existing services or create new services, and to establish new
battered women's shelters to provide services, in any of the
following four areas:
(1) Emergency shelter to women and their children escaping violent
family situations.
(2) Transitional housing programs to help women and their children
find housing and jobs so that they are not forced to choose between
returning to a violent relationship or becoming homeless. The
programs may offer up to 18 months of housing, case management, job
training and placement, counseling, support groups, and classes in
parenting and family budgeting.
(3) Legal and other types of advocacy and representation to help
women and their children pursue the appropriate legal options.
(4) Other support services for battered women and their children.
(d) In implementing the grant program pursuant to this section,
the State Department of Health Services shall consult with an
advisory council. The council shall be composed of not to exceed 13
voting members and two nonvoting members appointed as follows:
(1) Seven members appointed by the Governor.
(2) Three members appointed by the Speaker of the Assembly.
(3) Three members appointed by the Senate Committee on Rules.
(4) Two nonvoting ex officio members who shall be Members of the
Legislature, one appointed by the Speaker of the Assembly and one
appointed by the Senate Committee on Rules. Any Member of the
Legislature appointed to the council shall meet with, and participate
in the activities of, the council to the extent that participation
is not incompatible with his or her position as a Member of the
Legislature.
The membership of the council shall consist of domestic violence
advocates, battered women service providers, and representatives of
women's organizations, law enforcement, and other groups involved
with domestic violence. At least one-half of the council membership
shall consist of domestic violence advocates or battered women
service providers from organizations such as the California Alliance
Against Domestic Violence.
It is the intent of the Legislature that the council membership
reflect the ethnic, racial, cultural, and geographic diversity of the
state.
(e) The department shall collaborate closely with the council in
the development of funding priorities, the framing of the Request for
Proposals, and the solicitation of proposals.
(f) (1) The Maternal and Child Health Branch of the State
Department of Health Services shall administer grants, awarded as the
result of a request for application process, to agencies to conduct
demonstration projects to serve battered women, including, but not
limited to, creative and innovative service approaches, such as
community response teams and pilot projects to develop new
interventions emphasizing prevention and education, and other support
projects identified by the advisory council.
(2) For purposes of this subdivision, "agency" means a state
agency, a local government, a community-based organization, or a
nonprofit organization.
(g) It is the intent of the Legislature that services funded by
this program include services in underserved and ethnic and racial
communities. Therefore, the Maternal and Child Health Branch of the
State Department of Health Services shall do all of the following:
(1) Fund shelters pursuant to this section that reflect the
ethnic, racial, economic, cultural, and geographic diversity of the
state.
(2) Target geographic areas and ethnic and racial communities of
the state whereby, based on a needs assessment, it is determined that
no shelter-based services exist or that additional resources are
necessary.
(h) The director may award additional grants to shelter-based
agencies when it is determined that there exists a critical need for
shelter or shelter-based services.
(i) As a condition of receiving funding pursuant to this section,
battered women's shelters shall do all of the following:
(1) Provide matching funds or in-kind contributions equivalent to
not less than 20 percent of the grant they would receive. The
matching funds or in-kind contributions may come from other
governmental or private sources.
(2) Ensure that appropriate staff and volunteers having client
contact meet the definition of "domestic violence counselor" as
specified in subdivision (a) of Section 1037.1 of the Evidence Code.
The minimum training specified in paragraph (2) of subdivision (a)
of Section 1037.1 of the Evidence Code shall be provided to those
staff and volunteers who do not meet the requirements of paragraph
(1) of subdivision (a) of Section 1037.1 of the Evidence Code.
SEC. 5. 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.
(6) Resistance willfully offered by any person to the lawful order
or process of any court.
(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.
(8) The publication of a false or grossly inaccurate report of the
proceedings of any court.
(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 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 or 6389 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. 6. Section 273d of the Penal Code is amended to read:
273d. (a) Any person who willfully inflicts upon a child any
cruel or inhuman corporal punishment or an injury resulting in a
traumatic condition is guilty of a felony and shall be punished by
imprisonment in the state prison for two, four, or six years, or in a
county jail for not more than one year, by a fine of up to six
thousand dollars ($6,000), or by both that imprisonment and fine.
(b) Any person who is found guilty of violating subdivision (a)
shall receive a four-year enhancement for a prior conviction of that
offense provided that no additional term shall be imposed under this
subdivision for any prison term served prior to a period of 10 years
in which the defendant remained free of both prison custody and the
commission of an offense that results in a felony conviction.
(c) If a person is convicted of violating this section and
probation is granted, the court shall require the following minimum
conditions of probation:
(1) A mandatory minimum period of probation of 36 months.
(2) A criminal court protective order protecting the victim from
further acts of violence or threats, and, if appropriate, residence
exclusion or stay-away conditions.
(3) (A) Successful completion of no less than one year of a child
abuser's treatment counseling program approved by the probation
department. The defendant shall be ordered to begin participation in
the program immediately upon the grant of probation. The counseling
program shall meet the criteria specified in Section 273.1. The
defendant shall produce documentation of program enrollment to the
court within 30 days of enrollment, along with quarterly progress
reports.
(B) The terms of probation for offenders shall not be lifted until
all reasonable fees due to the counseling program have been paid in
full, but in no case shall probation be extended beyond the term
provided in subdivision (a) of Section 1203.1. If the court finds
that the defendant does not have the ability to pay the fees based on
the defendant's changed circumstances, the court may reduce or waive
the fees.
(4) If the offense was committed while the defendant was under the
influence of drugs or alcohol, the defendant shall abstain from the
use of drugs or alcohol during the period of probation and shall be
subject to random drug testing by his or her probation officer.
(5) The court may waive any of the above minimum conditions of
probation upon a finding that the condition would not be in the best
interests of justice. The court shall state on the record its
reasons for any waiver.
SEC. 7. 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 that fine and imprisonment.
(b) (1) Any person who is subject to a court order that meets all
of the criteria specified in subparagraphs (A) to (C), inclusive, who
possesses any firearm or ammunition or who receives any firearm or
ammunition is guilty of a felony.
(A) The court order was issued after a hearing where the person
subject to the order received actual notice of the hearing and an
opportunity to participate in the hearing.
(B) The court order restrains the person from harassing, stalking,
or threatening an intimate partner of that person or a child of that
person or of an intimate partner of that person, or from engaging in
other conduct that would place an intimate partner in reasonable
fear of bodily injury to that intimate partner or child of that
person or of that intimate partner.
(C) The court order includes a finding that the person represents
a credible threat to the physical safety of the intimate partner or
child of either the person or the inmate partner, or by its terms
explicitly prohibits the use, attempted use, or threatened use of
physical force against the intimate partner or child of either the
person or the intimate
partner that would reasonably be expected to cause bodily injury.
(2) An "intimate partner" under this subdivision means the spouse
or former spouse of the person, an individual who is a parent of a
child of the person, or an individual who cohabitates or has
cohabited, or is having or has had a dating or engagement
relationship, with the person.
(3) This subdivision does not apply to any on-duty state or
federal law enforcement officer or military officer while on duty and
acting within the scope and course of his or her equipment.
(c)
(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.
(d)
(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.
(e)
(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.
(f)
(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.
(g)
(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 of a violation of
subdivision (a) for an offense that occurred within seven years of
the most recent conviction, 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 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. 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, 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). 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 good cause
shall be stated on the record.
(h)
(g) If probation is granted upon conviction of a violation
of subdivision (a), the conditions of probation may include,
consistent with the terms of probation imposed pursuant to Section
1203.97, 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. 8. Section 273.55 of the Penal Code is repealed.
SEC. 9. Section 273.56 of the Penal Code is repealed.
SEC. 10. 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 that 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 that 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 or 6389 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. 11. Section 836 of the Penal Code is amended to read:
836. (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in
the officer's presence.
(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.
(b) Any time a peace officer is called out on a domestic call, it
shall be mandatory that the officer make a good faith effort to
inform the victim of his or her right to make a citizen's arrest.
This information shall include advising the victim how to safely
execute the arrest.
(c) (1) When a peace officer is responding to a call alleging a
violation of a domestic violence protective or restraining order
issued under the Family Code, Section 527.6 of the Code of Civil
Procedure, Section 213.5 of the Welfare and Institutions Code,
Section 136.2 of this code, or paragraph (2) of subdivision (a) of
Section 1203.097 of this code, or of a domestic violence protective
or restraining order issued by the court of another state, tribe, or
territory and the peace officer has probable cause to believe that
the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer
shall, consistent with subdivision (b) of Section 13701, make a
lawful arrest of the person without a warrant and take that person
into custody whether or not the violation occurred in the presence of
the arresting officer. The officer shall, as soon as possible after
the arrest, confirm with the appropriate authorities or the Domestic
Violence Protection Order Registry maintained pursuant to Section
6380 of the Family Code that a true copy of the protective order has
been registered, unless the victim provides the officer with a copy
of the protective order.
(2) The person against whom a protective order has been issued
shall be deemed to have notice of the order if the victim presents to
the officer proof of service of the order, the officer confirms with
the appropriate authorities that a true copy of the proof of service
is on file, or the person against whom the protective order was
issued was present at the protective order hearing or was informed by
a peace officer of the contents of the protective order.
(3) In situations where mutual protective orders have been issued
under Division 10 (commencing with Section 6200) of the Family Code,
liability for arrest under this subdivision applies only to those
persons who are reasonably believed to have been the primary
aggressor. In those situations, prior to making an arrest under this
subdivision, the peace officer shall make reasonable efforts to
identify, and may arrest, the primary aggressor involved in the
incident. The primary aggressor is the person determined to be the
most significant, rather than the first, aggressor. In identifying
the primary aggressor, an officer shall consider (A) the intent of
the law to protect victims of domestic violence from continuing
abuse, (B) the threats creating fear of physical injury, (C) the
history of domestic violence between the persons involved, and (D)
whether either person involved acted in self-defense.
(d) Notwithstanding paragraph (1) of subdivision (a), if a suspect
commits an assault or battery upon a current or former spouse,
fiance, fiancee, a current or former cohabitant as defined in Section
6209 of the Family Code, a person with whom the suspect currently is
having or has previously had an engagement relationship, a person
with whom the suspect has parented a child, or is presumed to have
parented a child pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code), a
child of the suspect, a child whose parentage by the suspect is the
subject of an action under the Uniform Parentage Act, a child of a
person in one of the above categories, or any other person related to
the suspect by consanguinity or affinity within the second degree, a
peace officer may arrest the suspect without a warrant where both of
the following circumstances apply:
(1) The peace officer has probable cause to believe that the
person to be arrested has committed the assault or battery, whether
or not it has in fact been committed.
(2) The peace officer makes the arrest as soon as probable cause
arises to believe that the person to be arrested has committed the
assault or battery, whether or not it has in fact been committed.
(e) In addition to the authority to make an arrest without a
warrant pursuant to paragraphs (1) and (3) of subdivision (a), a
peace officer may, without a warrant, arrest a person for a violation
of Section 12025 when all of the following apply:
(1) The officer has reasonable cause to believe that the person to
be arrested has committed the violation of Section 12025.
(2) The violation of Section 12025 occurred within an airport, as
defined in Section 21013 of the Public Utilities Code, in an area to
which access is controlled by the inspection of persons and property.
(3) The peace officer makes the arrest as soon as reasonable cause
arises to believe that the person to be arrested has committed the
violation of Section 12025.
SEC. 12. 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. 13. 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 of up to ten
thousand dollars ($10,000) and up to one year in a 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. 14. 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. 15. 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 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.
(D) To molest, attack, strike, stalk, destroy personal property,
or violate the terms of a domestic violence protective order issued
pursuant to Part 4 (commencing with Section 6300) of Division 10 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 domestic violence incident
involving a threat to human life or a physical assault, 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. 16. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard 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.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other 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. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.