AB 270: Restraining orders: witness.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2017-07-03
Existing law requires, in all cases in which a criminal defendant has been convicted of a crime involving domestic violence, as defined, or one of specified sex offenses, the court to consider issuing an order, valid for up to 10 years, restraining the defendant from any contact with the victim. Existing law states the intent of the Legislature in enacting that provision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.
Under existing law, a willful and knowing violation of a protective order or stay-away court order, issued under specified conditions, including the above-described provision, constitutes contempt of court, a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or by both the imprisonment and the fine, except as specified.
This bill would require the court to consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence. The bill would provide that the minor, under those circumstances, is a witness. The bill would make conforming changes relating to the stated intent of the Legislature. The bill would authorize a no-contact order issued for purposes of a minor witness to include, either at the time of sentencing or on subsequent application upon a showing of good cause at a noticed hearing, as specified, an order authorizing a family or juvenile court to make a subsequent order for safe and appropriate visitation with the defendants child who is a minor witness. By expanding the scope of a crime, this bill would impose a state-mandated local program.
This bill would require an order restraining the defendant from any contact with the victim or a minor witness under the above-described provisions to have precedence in enforcement over a civil court order against the defendant. defendant, except for an emergency protective order, as specified.
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.
Existing law requires, in all cases in which a criminal defendant has been convicted of a crime involving domestic violence, as defined, or one of specified sex offenses, the court to consider issuing an order, valid for up to 10 years, restraining the defendant from any contact with the victim. Existing law states the intent of the Legislature in enacting that provision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.
Under existing law, a willful and knowing violation of a protective order or stay-away court order, issued under specified conditions, including the above-described provision, constitutes contempt of court, a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or by both the imprisonment and the fine, except as specified.
This bill would require an order restraining the defendant from any contact with the victim, as described above, to have precedence in enforcement over a civil court order against the defendant. The bill would additionally require the court to consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence. The bill would provide that the minor, under those circumstances, is a witness. The bill would make conforming changes relating to the stated intent of the Legislature. The bill would authorize a no-contact order issued for purposes of a minor witness to include, either at the time of sentencing or on subsequent application upon a showing of good cause at a noticed hearing, as specified, an order authorizing a family or juvenile court to make a subsequent order for safe and appropriate visitation with the defendants child who is a minor witness. By expanding the scope of a crime, this bill would impose a state-mandated local program.
This bill would require an order restraining the defendant from any contact with the victim or a minor witness under the above-described provisions to have precedence in enforcement over a civil court order against the defendant.
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.
Existing law requires, in all cases in which a criminal defendant has been convicted of a crime involving domestic violence, as defined, or one of specified sex offenses, the court to consider issuing an order, valid for up to 10 years, restraining the defendant from any contact with the victim. Existing law states the intent of the Legislature in enacting that provision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.
Under existing law, a willful and knowing violation of a protective order or stay-away court order, issued under specified conditions, including the above-described provision, constitutes contempt of court, a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or by both the imprisonment and the fine, except as specified.
This bill would require an order restraining the defendant from any contact with the victim, as described above, to have precedence in enforcement over a civil court order against the defendant. The bill would additionally require the court to consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence or one of specified sex offenses from any contact with witnesses, including a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, and the immediate family members of the victim or witnesses. violence. The bill would provide that the minor, under those circumstances, is a witness. The bill would make conforming changes relating to the stated intent of the Legislature. The bill would also require an order under this provision to have precedence in enforcement over a civil court order against the defendant. By expanding the scope of a crime, this bill would impose a state-mandated local program.
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.
Existing law requires, in all cases in which a criminal defendant has been convicted of specified crimes, including a crime involving domestic violence, as defined, or one of specified sex offenses, the court to consider issuing an order, valid for up to 10 years, restraining the defendant from any contact with the victim. Existing law states the intent of the Legislature in enacting that provision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.
Under existing law, a willful and knowing violation of a protective order or stay-away court order, issued under specified conditions, including the above-described provision, constitutes contempt of court, a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or by both the imprisonment and the fine, except as specified.
This bill would additionally require the court to consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence or one of specified sex offenses from any contact with witnesses, including a minor who was not a victim of, but who was physically present at the time of, the crime. The bill would provide that the minor, under those circumstances, is a witness. an act of domestic violence, and the immediate family members of the victim or witnesses. The bill would make conforming changes relating to the stated intent of the Legislature. The bill would also provide that an order under this provision is subject to modifications by any subsequent orders in juvenile court regarding contact or visitation. require an order under this provision to have precedence in enforcement over a civil court order against the defendant. By expanding the scope of a crime, this bill would impose a state-mandated local program.
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.
Existing law requires, in all cases in which a criminal defendant has been convicted of specified crimes, including a crime involving domestic violence, as defined, the court to consider issuing an order, valid for up to 10 years, restraining the defendant from any contact with the victim. Existing law states the intent of the Legislature in enacting that provision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.
Under existing law, a willful and knowing violation of a protective order or stay-away court order, issued under specified conditions, including the above-described provision, constitutes contempt of court, a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or by both the imprisonment and the fine, except as specified.
This bill would additionally require the court to consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a minor who was not a victim of, but who was physically present at the time of, the crime. The bill would provide that the minor, under those circumstances, is a witness. The bill would make conforming changes relating to the stated intent of the Legislature. The bill would also provide that an order under this provision is subject to modifications by any subsequent orders in juvenile court regarding contact or visitation. By expanding the scope of a crime, this bill would impose a state-mandated local program.
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.
(a)(1)Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following:
(A)An order issued pursuant to Section 6320 of the Family Code.
(B)An order that a defendant shall not violate any provision of Section 136.1.
(C)An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, shall not violate any provision of Section 136.1.
(D)An order that a person described in this section shall have no communication whatsoever with a specified witness or a victim, except through an attorney under reasonable restrictions that the court may impose.
(E)An order calling for a hearing to determine if an order as described in subparagraphs (A) to (D), inclusive, should be issued.
(F)(i)An order that a particular law enforcement agency within the jurisdiction of the court provide protection for a victim or a witness, or both, or for immediate family members of a victim or a witness who reside in the same household as the victim or witness or within reasonable proximity of the victims or witness household, as determined by the court. The order shall not be made without the consent of the law enforcement agency except for limited and specified periods of time and upon an express finding by the court of a clear and present danger of harm to the victim or witness or immediate family members of the victim or witness.
(ii)For purposes of this paragraph, immediate family members include the spouse, children, or parents of the victim or witness.
(G)(i)An order protecting a victim or witness of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. The court or its designee shall transmit orders made under this paragraph to law enforcement personnel within one business day of the issuance, modification, extension, or termination of the order, pursuant to subdivision (a) of Section 6380 of the Family Code. It is the responsibility of the court to transmit the modification, extension, or termination orders made under this paragraph to the same agency that entered the original protective order into the Domestic Violence Restraining Order System.
(ii)(I)If a court does not issue an order pursuant to clause (i) in a case in which the defendant is charged with a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, the court on its own motion shall consider issuing a protective order upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, that provides as follows:
(ia)The defendant shall not own, possess, purchase, receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(ib)The defendant shall relinquish any firearms that he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(II)Every person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while this protective order is in effect is punishable pursuant to Section 29825.
(iii)An order issued, modified, extended, or terminated by a court pursuant to this subparagraph shall be issued on forms adopted by the Judicial Council of California that have been approved by the Department of Justice pursuant to subdivision (i) of Section 6380 of the Family Code. However, the fact that an order issued by a court pursuant to this section was not issued on forms adopted by the Judicial Council and approved by the Department of Justice shall not, in and of itself, make the order unenforceable.
(iv)A protective order issued under this subparagraph may require the defendant to be placed on electronic monitoring if the local government, with the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy to authorize electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order electronic monitoring to be paid for by the local government that adopted the policy to authorize electronic monitoring. The duration of electronic monitoring shall not exceed one year from the date the order is issued. At no time shall the electronic monitoring be in place if the protective order is not in place.
(2)For purposes of this subdivision, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, is a witness and is deemed to have suffered harm within the meaning of paragraph (1).
(b)A person violating an order made pursuant to subparagraphs (A) to (G), inclusive, of paragraph (1) of subdivision (a) may be punished for any substantive offense described in Section 136.1, or for a contempt of the court making the order. A finding of contempt shall not be a bar to prosecution for a violation of Section 136.1. However, a person so held in contempt shall be entitled to credit for punishment imposed therein against a sentence imposed upon conviction of an offense described in Section 136.1. A conviction or acquittal for a substantive offense under Section 136.1 shall be a bar to a subsequent punishment for contempt arising out of the same act.
(c)(1)(A)Notwithstanding subdivision (e), an emergency protective order issued pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of Division 10 of the Family Code or Section 646.91 shall have precedence in enforcement over any other restraining or protective order, provided the emergency protective order meets all of the following requirements:
(i)The emergency protective order is issued to protect one or more individuals who are already protected persons under another restraining or protective order.
(ii)The emergency protective order restrains the individual who is the restrained person in the other restraining or protective order specified in clause (i).
(iii)The provisions of the emergency protective order are more restrictive in relation to the restrained person than are the provisions of the other restraining or protective order specified in clause (i).
(B)An emergency protective order that meets the requirements of subparagraph (A) shall have precedence in enforcement over the provisions of any other restraining or protective order only with respect to those provisions of the emergency protective order that are more restrictive in relation to the restrained person.
(2)Except as described in paragraph (1), a no-contact order, as described in Section 6320 of the Family Code, shall have precedence in enforcement over any other restraining or protective order.
(d)(1)A person subject to a protective order issued under this section shall not own, possess, purchase, or receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(2)The court shall order a person subject to a protective order issued under this section to relinquish any firearms he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(3)A person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while the protective order is in effect is punishable pursuant to Section 29825.
(e)(1)In all cases in which the defendant is charged with a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court shall consider issuing the above-described orders on its own motion. All interested parties shall receive a copy of those orders. In order to facilitate this, the courts records of all criminal cases involving domestic violence or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, shall be marked to clearly alert the court to this issue.
(2)In those cases in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been issued, except as described in subdivision (c), a restraining order or protective order against the defendant issued by the criminal court in that case has precedence in enforcement over a civil court order against the defendant.
(3)Custody and visitation with respect to the defendant and his or her minor children may be ordered by a family or juvenile court consistent with the protocol established pursuant to subdivision (f), but if ordered after a criminal protective order has been issued pursuant to this section, the custody and visitation order shall make reference to, and, if there is not an emergency protective order that has precedence in enforcement pursuant to paragraph (1) of subdivision (c), or a no-contact order, as described in Section 6320 of the Family Code, acknowledge the precedence of enforcement of, an appropriate criminal protective order. On or before July 1, 2014, the Judicial Council shall modify the criminal and civil court forms consistent with this subdivision.
(f)On or before January 1, 2003, the Judicial Council shall promulgate a protocol, for adoption by each local court in substantially similar terms, to provide for the timely coordination of all orders against the same defendant and in favor of the same named victim or victims. The protocol shall include, but shall not be limited to, mechanisms for ensuring appropriate communication and information sharing between criminal, family, and juvenile courts concerning orders and cases that involve the same parties, and shall permit a family or juvenile court order to coexist with a criminal court protective order subject to the following conditions:
(1)An order that permits contact between the restrained person and his or her children shall provide for the safe exchange of the children and shall not contain language either printed or handwritten that violates a no-contact order issued by a criminal court.
(2)Safety of all parties shall be the courts paramount concern. The family or juvenile court shall specify the time, day, place, and manner of transfer of the child, as provided in Section 3100 of the Family Code.
(g)On or before January 1, 2003, the Judicial Council shall modify the criminal and civil court protective order forms consistent with this section.
(h)(1)In any case in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, has been filed, the court may consider, in determining whether good cause exists to issue an order under subparagraph (A) of paragraph (1) of subdivision (a), the underlying nature of the offense charged, and the information provided to the court pursuant to Section 273.75.
(2)In any case in which a complaint, information, or indictment charging a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been filed, the court may consider, in determining whether good cause exists to issue an order under paragraph (1) of subdivision (a), the underlying nature of the offense charged, the defendants relationship to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by any civil or criminal court involving the defendant, and the defendants criminal history, including, but not limited to, prior convictions for a violation of Section 261, 261.5, or 262, a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, any other forms of violence, or any weapons offense.
(i)(1)In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim.
(2)(A)The court, at the time of sentencing, shall consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, from any contact with a minor who is a witness as defined in paragraph (2) of subdivision (a).
(B)A no-contact order issued pursuant to this paragraph may include, either at the time of sentencing or on subsequent application upon a showing of good cause at a noticed hearing, an order authorizing a family or juvenile court to make a subsequent order for safe and appropriate visitation with the defendants minor child who is a witness pursuant to this paragraph, subject to the standards and protocol set forth in paragraph (3) of subdivision (e) and subdivision (f). Any hearing of the criminal court to consider an exception for visitation as described in this paragraph shall require notice of the hearing to the protected minor and to the office of the prosecuting attorney in the case. Notice to the protected minor shall be provided to the person with primary legal custody of that minor other than the criminal defendant.
(3)An order under this subdivision may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim, his or her immediate family, and a minor who is a witness as defined in paragraph (2) of subdivision (a).
(4)An order under this subdivision may include provisions for electronic monitoring if the local government, upon receiving the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy authorizing electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order the electronic monitoring to be paid for by the local government that adopted the policy authorizing electronic monitoring. The duration of the electronic monitoring shall not exceed one year from the date the order is issued.
(5)An Except as provided in subdivision (c), an order under this subdivision shall have precedence in enforcement over a civil court order against the defendant.
(j)For purposes of this section, local government means the county that has jurisdiction over the protective order.
SEC. 2.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.
(a)(1)Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following:
(A)An order issued pursuant to Section 6320 of the Family Code.
(B)An order that a defendant shall not violate any provision of Section 136.1.
(C)An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, shall not violate any provision of Section 136.1.
(D)An order that a person described in this section shall have no communication whatsoever with a specified witness or a victim, except through an attorney under reasonable restrictions that the court may impose.
(E)An order calling for a hearing to determine if an order as described in subparagraphs (A) to (D), inclusive, should be issued.
(F)(i)An order that a particular law enforcement agency within the jurisdiction of the court provide protection for a victim or a witness, or both, or for immediate family members of a victim or a witness who reside in the same household as the victim or witness or within reasonable proximity of the victims or witness household, as determined by the court. The order shall not be made without the consent of the law enforcement agency except for limited and specified periods of time and upon an express finding by the court of a clear and present danger of harm to the victim or witness or immediate family members of the victim or witness.
(ii)For purposes of this paragraph, immediate family members include the spouse, children, or parents of the victim or witness.
(G)(i)An order protecting a victim or witness of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. The court or its designee shall transmit orders made under this paragraph to law enforcement personnel within one business day of the issuance, modification, extension, or termination of the order, pursuant to subdivision (a) of Section 6380 of the Family Code. It is the responsibility of the court to transmit the modification, extension, or termination orders made under this paragraph to the same agency that entered the original protective order into the Domestic Violence Restraining Order System.
(ii)(I)If a court does not issue an order pursuant to clause (i) in a case in which the defendant is charged with a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, the court on its own motion shall consider issuing a protective order upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, that provides as follows:
(ia)The defendant shall not own, possess, purchase, receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(ib)The defendant shall relinquish any firearms that he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(II)Every person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while this protective order is in effect is punishable pursuant to Section 29825.
(iii)An order issued, modified, extended, or terminated by a court pursuant to this subparagraph shall be issued on forms adopted by the Judicial Council of California that have been approved by the Department of Justice pursuant to subdivision (i) of Section 6380 of the Family Code. However, the fact that an order issued by a court pursuant to this section was not issued on forms adopted by the Judicial Council and approved by the Department of Justice shall not, in and of itself, make the order unenforceable.
(iv)A protective order issued under this subparagraph may require the defendant to be placed on electronic monitoring if the local government, with the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy to authorize electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order electronic monitoring to be paid for by the local government that adopted the policy to authorize electronic monitoring. The duration of electronic monitoring shall not exceed one year from the date the order is issued. At no time shall the electronic monitoring be in place if the protective order is not in place.
(2)For purposes of this subdivision, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, is a witness and is deemed to have suffered harm within the meaning of paragraph (1).
(b)A person violating an order made pursuant to subparagraphs (A) to (G), inclusive, of paragraph (1) of subdivision (a) may be punished for any substantive offense described in Section 136.1, or for a contempt of the court making the order. A finding of contempt shall not be a bar to prosecution for a violation of Section 136.1. However, a person so held in contempt shall be entitled to credit for punishment imposed therein against a sentence imposed upon conviction of an offense described in Section 136.1. A conviction or acquittal for a substantive offense under Section 136.1 shall be a bar to a subsequent punishment for contempt arising out of the same act.
(c)(1)(A)Notwithstanding subdivision (e), an emergency protective order issued pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of Division 10 of the Family Code or Section 646.91 shall have precedence in enforcement over any other restraining or protective order, provided the emergency protective order meets all of the following requirements:
(i)The emergency protective order is issued to protect one or more individuals who are already protected persons under another restraining or protective order.
(ii)The emergency protective order restrains the individual who is the restrained person in the other restraining or protective order specified in clause (i).
(iii)The provisions of the emergency protective order are more restrictive in relation to the restrained person than are the provisions of the other restraining or protective order specified in clause (i).
(B)An emergency protective order that meets the requirements of subparagraph (A) shall have precedence in enforcement over the provisions of any other restraining or protective order only with respect to those provisions of the emergency protective order that are more restrictive in relation to the restrained person.
(2)Except as described in paragraph (1), a no-contact order, as described in Section 6320 of the Family Code, shall have precedence in enforcement over any other restraining or protective order.
(d)(1)A person subject to a protective order issued under this section shall not own, possess, purchase, or receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(2)The court shall order a person subject to a protective order issued under this section to relinquish any firearms he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(3)A person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while the protective order is in effect is punishable pursuant to Section 29825.
(e)(1)In all cases in which the defendant is charged with a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court shall consider issuing the above-described orders on its own motion. All interested parties shall receive a copy of those orders. In order to facilitate this, the courts records of all criminal cases involving domestic violence or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, shall be marked to clearly alert the court to this issue.
(2)In those cases in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been issued, except as described in subdivision (c), a restraining order or protective order against the defendant issued by the criminal court in that case has precedence in enforcement over a civil court order against the defendant.
(3)Custody and visitation with respect to the defendant and his or her minor children may be ordered by a family or juvenile court consistent with the protocol established pursuant to subdivision (f), but if ordered after a criminal protective order has been issued pursuant to this section, the custody and visitation order shall make reference to, and, if there is not an emergency protective order that has precedence in enforcement pursuant to paragraph (1) of subdivision (c), or a no-contact order, as described in Section 6320 of the Family Code, acknowledge the precedence of enforcement of, an appropriate criminal protective order. On or before July 1, 2014, the Judicial Council shall modify the criminal and civil court forms consistent with this subdivision.
(f)On or before January 1, 2003, the Judicial Council shall promulgate a protocol, for adoption by each local court in substantially similar terms, to provide for the timely coordination of all orders against the same defendant and in favor of the same named victim or victims. The protocol shall include, but shall not be limited to, mechanisms for ensuring appropriate communication and information sharing between criminal, family, and juvenile courts concerning orders and cases that involve the same parties, and shall permit a family or juvenile court order to coexist with a criminal court protective order subject to the following conditions:
(1)An order that permits contact between the restrained person and his or her children shall provide for the safe exchange of the children and shall not contain language either printed or handwritten that violates a no-contact order issued by a criminal court.
(2)Safety of all parties shall be the courts paramount concern. The family or juvenile court shall specify the time, day, place, and manner of transfer of the child, as provided in Section 3100 of the Family Code.
(g)On or before January 1, 2003, the Judicial Council shall modify the criminal and civil court protective order forms consistent with this section.
(h)(1)In any case in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, has been filed, the court may consider, in determining whether good cause exists to issue an order under subparagraph (A) of paragraph (1) of subdivision (a), the underlying nature of the offense charged, and the information provided to the court pursuant to Section 273.75.
(2)In any case in which a complaint, information, or indictment charging a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been filed, the court may consider, in determining whether good cause exists to issue an order under paragraph (1) of subdivision (a), the underlying nature of the offense charged, the defendants relationship to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by any civil or criminal court involving the defendant, and the defendants criminal history, including, but not limited to, prior convictions for a violation of Section 261, 261.5, or 262, a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, any other forms of violence, or any weapons offense.
(i)(1)In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. An order under this paragraph shall have precedence in enforcement over a civil court order against the defendant.
(2)(A)The court, at the time of sentencing, shall consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, from any contact with a minor who is a witness as defined in paragraph (2) of subdivision (a).
(B)A no-contact order issued pursuant to this paragraph may include, either at the time of sentencing or on subsequent application upon a showing of good cause at a noticed hearing, an order authorizing a family or juvenile court to make a subsequent order for safe and appropriate visitation with the defendants minor child who is a witness pursuant to this paragraph, subject to the standards and protocol set forth in paragraph (3) of subdivision (e) and subdivision (f). Any hearing of the criminal court to consider an exception for visitation as described in this paragraph shall require notice of the hearing to the protected minor and to the office of the prosecuting attorney in the case. Notice to the protected minor shall be provided to the person with primary legal custody of that minor other than the criminal defendant.
(3)An order under this subdivision may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim, his or her immediate family, and a minor who is a witness as defined in paragraph (2) of subdivision (a).
(4)An order under this subdivision may include provisions for electronic monitoring if the local government, upon receiving the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy authorizing electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order the electronic monitoring to be paid for by the local government that adopted the policy authorizing electronic monitoring. The duration of the electronic monitoring shall not exceed one year from the date the order is issued.
(5)An order under this subdivision shall have precedence in enforcement over a civil court order against the defendant.
(j)For purposes of this section, local government means the county that has jurisdiction over the protective order.
SEC. 2.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.
(a)(1)Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following:
(A)An order issued pursuant to Section 6320 of the Family Code.
(B)An order that a defendant shall not violate any provision of Section 136.1.
(C)An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, shall not violate any provision of Section 136.1.
(D)An order that a person described in this section shall have no communication whatsoever with a specified witness or a victim, except through an attorney under reasonable restrictions that the court may impose.
(E)An order calling for a hearing to determine if an order as described in subparagraphs (A) to (D), inclusive, should be issued.
(F)(i)An order that a particular law enforcement agency within the jurisdiction of the court provide protection for a victim or a witness, or both, or for immediate family members of a victim or a witness who reside in the same household as the victim or witness or within reasonable proximity of the victims or witness household, as determined by the court. The order shall not be made without the consent of the law enforcement agency except for limited and specified periods of time and upon an express finding by the court of a clear and present danger of harm to the victim or witness or immediate family members of the victim or witness.
(ii)For purposes of this paragraph, immediate family members include the spouse, children, or parents of the victim or witness.
(G)(i)An order protecting a victim or witness of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. The court or its designee shall transmit orders made under this paragraph to law enforcement personnel within one business day of the issuance, modification, extension, or termination of the order, pursuant to subdivision (a) of Section 6380 of the Family Code. It is the responsibility of the court to transmit the modification, extension, or termination orders made under this paragraph to the same agency that entered the original protective order into the Domestic Violence Restraining Order System.
(ii)(I)If a court does not issue an order pursuant to clause (i) in a case in which the defendant is charged with a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, the court on its own motion shall consider issuing a protective order upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, that provides as follows:
(ia)The defendant shall not own, possess, purchase, receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(ib)The defendant shall relinquish any firearms that he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(II)Every person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while this protective order is in effect is punishable pursuant to Section 29825.
(iii)An order issued, modified, extended, or terminated by a court pursuant to this subparagraph shall be issued on forms adopted by the Judicial Council of California that have been approved by the Department of Justice pursuant to subdivision (i) of Section 6380 of the Family Code. However, the fact that an order issued by a court pursuant to this section was not issued on forms adopted by the Judicial Council and approved by the Department of Justice shall not, in and of itself, make the order unenforceable.
(iv)A protective order issued under this subparagraph may require the defendant to be placed on electronic monitoring if the local government, with the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy to authorize electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order electronic monitoring to be paid for by the local government that adopted the policy to authorize electronic monitoring. The duration of electronic monitoring shall not exceed one year from the date the order is issued. At no time shall the electronic monitoring be in place if the protective order is not in place.
(2)For purposes of this subdivision, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, is a witness and is deemed to have suffered harm within the meaning of paragraph (1).
(b)A person violating an order made pursuant to subparagraphs (A) to (G), inclusive, of paragraph (1) of subdivision (a) may be punished for any substantive offense described in Section 136.1, or for a contempt of the court making the order. A finding of contempt shall not be a bar to prosecution for a violation of Section 136.1. However, a person so held in contempt shall be entitled to credit for punishment imposed therein against a sentence imposed upon conviction of an offense described in Section 136.1. A conviction or acquittal for a substantive offense under Section 136.1 shall be a bar to a subsequent punishment for contempt arising out of the same act.
(c)(1)(A)Notwithstanding subdivision (e), an emergency protective order issued pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of Division 10 of the Family Code or Section 646.91 shall have precedence in enforcement over any other restraining or protective order, provided the emergency protective order meets all of the following requirements:
(i)The emergency protective order is issued to protect one or more individuals who are already protected persons under another restraining or protective order.
(ii)The emergency protective order restrains the individual who is the restrained person in the other restraining or protective order specified in clause (i).
(iii)The provisions of the emergency protective order are more restrictive in relation to the restrained person than are the provisions of the other restraining or protective order specified in clause (i).
(B)An emergency protective order that meets the requirements of subparagraph (A) shall have precedence in enforcement over the provisions of any other restraining or protective order only with respect to those provisions of the emergency protective order that are more restrictive in relation to the restrained person.
(2)Except as described in paragraph (1), a no-contact order, as described in Section 6320 of the Family Code, shall have precedence in enforcement over any other restraining or protective order.
(d)(1)A person subject to a protective order issued under this section shall not own, possess, purchase, or receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(2)The court shall order a person subject to a protective order issued under this section to relinquish any firearms he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(3)A person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while the protective order is in effect is punishable pursuant to Section 29825.
(e)(1)In all cases in which the defendant is charged with a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court shall consider issuing the above-described orders on its own motion. All interested parties shall receive a copy of those orders. In order to facilitate this, the courts records of all criminal cases involving domestic violence or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, shall be marked to clearly alert the court to this issue.
(2)In those cases in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been issued, except as described in subdivision (c), a restraining order or protective order against the defendant issued by the criminal court in that case has precedence in enforcement over a civil court order against the defendant.
(3)Custody and visitation with respect to the defendant and his or her minor children may be ordered by a family or juvenile court consistent with the protocol established pursuant to subdivision (f), but if ordered after a criminal protective order has been issued pursuant to this section, the custody and visitation order shall make reference to, and, if there is not an emergency protective order that has precedence in enforcement pursuant to paragraph (1) of subdivision (c), or a no-contact order, as described in Section 6320 of the Family Code, acknowledge the precedence of enforcement of, an appropriate criminal protective order. On or before July 1, 2014, the Judicial Council shall modify the criminal and civil court forms consistent with this subdivision.
(f)On or before January 1, 2003, the Judicial Council shall promulgate a protocol, for adoption by each local court in substantially similar terms, to provide for the timely coordination of all orders against the same defendant and in favor of the same named victim or victims. The protocol shall include, but shall not be limited to, mechanisms for ensuring appropriate communication and information sharing between criminal, family, and juvenile courts concerning orders and cases that involve the same parties, and shall permit a family or juvenile court order to coexist with a criminal court protective order subject to the following conditions:
(1)An order that permits contact between the restrained person and his or her children shall provide for the safe exchange of the children and shall not contain language either printed or handwritten that violates a no-contact order issued by a criminal court.
(2)Safety of all parties shall be the courts paramount concern. The family or juvenile court shall specify the time, day, place, and manner of transfer of the child, as provided in Section 3100 of the Family Code.
(g)On or before January 1, 2003, the Judicial Council shall modify the criminal and civil court protective order forms consistent with this section.
(h)(1)In any case in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, has been filed, the court may consider, in determining whether good cause exists to issue an order under subparagraph (A) of paragraph (1) of subdivision (a), the underlying nature of the offense charged, and the information provided to the court pursuant to Section 273.75.
(2)In any case in which a complaint, information, or indictment charging a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been filed, the court may consider, in determining whether good cause exists to issue an order under paragraph (1) of subdivision (a), the underlying nature of the offense charged, the defendants relationship to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by any civil or criminal court involving the defendant, and the defendants criminal history, including, but not limited to, prior convictions for a violation of Section 261, 261.5, or 262, a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, any other forms of violence, or any weapons offense.
(i)(1)In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim, witnesses, including a witness as defined in paragraph (2) of subdivision (a), and their immediate family members, as defined in clause (ii) of subparagraph (F) of paragraph (1) of subdivision (a). victim. An order under this subdivision paragraph shall have precedence in enforcement over a civil court order against the defendant.
(2)The court, at the time of sentencing, shall consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, from any contact with a minor who is a witness as defined in paragraph (2) of subdivision (a).
(2)(3)An order under this subdivision may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim, witnesses, including a witness as defined in paragraph (2) of subdivision (a), and their immediate family members, as defined in clause (ii) of subparagraph (F) of paragraph (1) of subdivision (a). his or her immediate family, and a minor who is a witness as defined in paragraph (2) of subdivision (a).
(3)(4)An order under this subdivision may include provisions for electronic monitoring if the local government, upon receiving the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy authorizing electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order the electronic monitoring to be paid for by the local government that adopted the policy authorizing electronic monitoring. The duration of the electronic monitoring shall not exceed one year from the date the order is issued.
(j)For purposes of this section, local government means the county that has jurisdiction over the protective order.
SEC. 2.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.
(a)(1)Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following:
(A)An order issued pursuant to Section 6320 of the Family Code.
(B)An order that a defendant shall not violate any provision of Section 136.1.
(C)An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, shall not violate any provision of Section 136.1.
(D)An order that a person described in this section shall have no communication whatsoever with a specified witness or a victim, except through an attorney under reasonable restrictions that the court may impose.
(E)An order calling for a hearing to determine if an order as described in subparagraphs (A) to (D), inclusive, should be issued.
(F)(i)An order that a particular law enforcement agency within the jurisdiction of the court provide protection for a victim or a witness, or both, or for immediate family members of a victim or a witness who reside in the same household as the victim or witness or within reasonable proximity of the victims or witness household, as determined by the court. The order shall not be made without the consent of the law enforcement agency except for limited and specified periods of time and upon an express finding by the court of a clear and present danger of harm to the victim or witness or immediate family members of the victim or witness.
(ii)For purposes of this paragraph, immediate family members include the spouse, children, or parents of the victim or witness.
(G)(i)An order protecting a victim or witness of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. The court or its designee shall transmit orders made under this paragraph to law enforcement personnel within one business day of the issuance, modification, extension, or termination of the order, pursuant to subdivision (a) of Section 6380 of the Family Code. It is the responsibility of the court to transmit the modification, extension, or termination orders made under this paragraph to the same agency that entered the original protective order into the Domestic Violence Restraining Order System.
(ii)(I)If a court does not issue an order pursuant to clause (i) in a case in which the defendant is charged with a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, the court on its own motion shall consider issuing a protective order upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, that provides as follows:
(ia)The defendant shall not own, possess, purchase, receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(ib)The defendant shall relinquish any firearms that he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(II)Every person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while this protective order is in effect is punishable pursuant to Section 29825.
(iii)An order issued, modified, extended, or terminated by a court pursuant to this subparagraph shall be issued on forms adopted by the Judicial Council of California that have been approved by the Department of Justice pursuant to subdivision (i) of Section 6380 of the Family Code. However, the fact that an order issued by a court pursuant to this section was not issued on forms adopted by the Judicial Council and approved by the Department of Justice shall not, in and of itself, make the order unenforceable.
(iv)A protective order issued under this subparagraph may require the defendant to be placed on electronic monitoring if the local government, with the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy to authorize electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order electronic monitoring to be paid for by the local government that adopted the policy to authorize electronic monitoring. The duration of electronic monitoring shall not exceed one year from the date the order is issued. At no time shall the electronic monitoring be in place if the protective order is not in place.
(2)For purposes of this subdivision, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, is a witness and is deemed to have suffered harm within the meaning of paragraph (1).
(b)A person violating an order made pursuant to subparagraphs (A) to (G), inclusive, of paragraph (1) of subdivision (a) may be punished for any substantive offense described in Section 136.1, or for a contempt of the court making the order. A finding of contempt shall not be a bar to prosecution for a violation of Section 136.1. However, a person so held in contempt shall be entitled to credit for punishment imposed therein against a sentence imposed upon conviction of an offense described in Section 136.1. A conviction or acquittal for a substantive offense under Section 136.1 shall be a bar to a subsequent punishment for contempt arising out of the same act.
(c)(1)(A)Notwithstanding subdivision (e), an emergency protective order issued pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of Division 10 of the Family Code or Section 646.91 shall have precedence in enforcement over any other restraining or protective order, provided the emergency protective order meets all of the following requirements:
(i)The emergency protective order is issued to protect one or more individuals who are already protected persons under another restraining or protective order.
(ii)The emergency protective order restrains the individual who is the restrained person in the other restraining or protective order specified in clause (i).
(iii)The provisions of the emergency protective order are more restrictive in relation to the restrained person than are the provisions of the other restraining or protective order specified in clause (i).
(B)An emergency protective order that meets the requirements of subparagraph (A) shall have precedence in enforcement over the provisions of any other restraining or protective order only with respect to those provisions of the emergency protective order that are more restrictive in relation to the restrained person.
(2)Except as described in paragraph (1), a no-contact order, as described in Section 6320 of the Family Code, shall have precedence in enforcement over any other restraining or protective order.
(d)(1)A person subject to a protective order issued under this section shall not own, possess, purchase, or receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(2)The court shall order a person subject to a protective order issued under this section to relinquish any firearms he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(3)A person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while the protective order is in effect is punishable pursuant to Section 29825.
(e)(1)In all cases in which the defendant is charged with a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court shall consider issuing the above-described orders on its own motion. All interested parties shall receive a copy of those orders. In order to facilitate this, the courts records of all criminal cases involving domestic violence or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, shall be marked to clearly alert the court to this issue.
(2)In those cases in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been issued, except as described in subdivision (c), a restraining order or protective order against the defendant issued by the criminal court in that case has precedence in enforcement over a civil court order against the defendant.
(3)Custody and visitation with respect to the defendant and his or her minor children may be ordered by a family or juvenile court consistent with the protocol established pursuant to subdivision (f), but if ordered after a criminal protective order has been issued pursuant to this section, the custody and visitation order shall make reference to, and, if there is not an emergency protective order that has precedence in enforcement pursuant to paragraph (1) of subdivision (c), or a no-contact order, as described in Section 6320 of the Family Code, acknowledge the precedence of enforcement of, an appropriate criminal protective order. On or before July 1, 2014, the Judicial Council shall modify the criminal and civil court forms consistent with this subdivision.
(f)On or before January 1, 2003, the Judicial Council shall promulgate a protocol, for adoption by each local court in substantially similar terms, to provide for the timely coordination of all orders against the same defendant and in favor of the same named victim or victims. The protocol shall include, but shall not be limited to, mechanisms for ensuring appropriate communication and information sharing between criminal, family, and juvenile courts concerning orders and cases that involve the same parties, and shall permit a family or juvenile court order to coexist with a criminal court protective order subject to the following conditions:
(1)An order that permits contact between the restrained person and his or her children shall provide for the safe exchange of the children and shall not contain language either printed or handwritten that violates a no-contact order issued by a criminal court.
(2)Safety of all parties shall be the courts paramount concern. The family or juvenile court shall specify the time, day, place, and manner of transfer of the child, as provided in Section 3100 of the Family Code.
(g)On or before January 1, 2003, the Judicial Council shall modify the criminal and civil court protective order forms consistent with this section.
(h)(1)In any case in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, has been filed, the court may consider, in determining whether good cause exists to issue an order under subparagraph (A) of paragraph (1) of subdivision (a), the underlying nature of the offense charged, and the information provided to the court pursuant to Section 273.75.
(2)In any case in which a complaint, information, or indictment charging a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been filed, the court may consider, in determining whether good cause exists to issue an order under paragraph (1) of subdivision (a), the underlying nature of the offense charged, the defendants relationship to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by any civil or criminal court involving the defendant, and the defendants criminal history, including, but not limited to, prior convictions for a violation of Section 261, 261.5, or 262, a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, any other forms of violence, or any weapons offense.
(i)(1)In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. victim, witnesses, including a witness as defined in paragraph (2) of subdivision (a), and their immediate family members, as defined in clause (ii) of subparagraph (F) of paragraph (1) of subdivision (a). An order under this subdivision shall have precedence in enforcement over a civil court order against the defendant.
(2)(A)For purposes of this paragraph, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, is a witness.(B)The court, at the time of sentencing, shall consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, from any contact with a minor who is a witness pursuant to subparagraph (A). An order under this paragraph is subject to modifications by any subsequent orders in juvenile court regarding contact or visitation.(3)(2)An order under this subdivision may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family in the case of paragraph (1), and, in the case of paragraph (2), the safety of the witness. victim, witnesses, including a witness as defined in paragraph (2) of subdivision (a), and their immediate family members, as defined in clause (ii) of subparagraph (F) of paragraph (1) of subdivision (a).
(4)(3)An order under this subdivision may include provisions for electronic monitoring if the local government, upon receiving the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy authorizing electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order the electronic monitoring to be paid for by the local government that adopted the policy authorizing electronic monitoring. The duration of the electronic monitoring shall not exceed one year from the date the order is issued.
(j)For purposes of this section, local government means the county that has jurisdiction over the protective order.
SEC. 2.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.
(a)(1)Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following:
(A)An order issued pursuant to Section 6320 of the Family Code.
(B)An order that a defendant shall not violate any provision of Section 136.1.
(C)An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, shall not violate any provision of Section 136.1.
(D)An order that a person described in this section shall have no communication whatsoever with a specified witness or a victim, except through an attorney under reasonable restrictions that the court may impose.
(E)An order calling for a hearing to determine if an order as described in subparagraphs (A) to (D), inclusive, should be issued.
(F)(i)An order that a particular law enforcement agency within the jurisdiction of the court provide protection for a victim or a witness, or both, or for immediate family members of a victim or a witness who reside in the same household as the victim or witness or within reasonable proximity of the victims or witness household, as determined by the court. The order shall not be made without the consent of the law enforcement agency except for limited and specified periods of time and upon an express finding by the court of a clear and present danger of harm to the victim or witness or immediate family members of the victim or witness.
(ii)For purposes of this paragraph, immediate family members include the spouse, children, or parents of the victim or witness.
(G)(i)An order protecting a victim or witness of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. The court or its designee shall transmit orders made under this paragraph to law enforcement personnel within one business day of the issuance, modification, extension, or termination of the order, pursuant to subdivision (a) of Section 6380 of the Family Code. It is the responsibility of the court to transmit the modification, extension, or termination orders made under this paragraph to the same agency that entered the original protective order into the Domestic Violence Restraining Order System.
(ii)(I)If a court does not issue an order pursuant to clause (i) in a case in which the defendant is charged with a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, the court on its own motion shall consider issuing a protective order upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, that provides as follows:
(ia)The defendant shall not own, possess, purchase, receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(ib)The defendant shall relinquish any firearms that he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(II)Every person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while this protective order is in effect is punishable pursuant to Section 29825.
(iii)An order issued, modified, extended, or terminated by a court pursuant to this subparagraph shall be issued on forms adopted by the Judicial Council of California that have been approved by the Department of Justice pursuant to subdivision (i) of Section 6380 of the Family Code. However, the fact that an order issued by a court pursuant to this section was not issued on forms adopted by the Judicial Council and approved by the Department of Justice shall not, in and of itself, make the order unenforceable.
(iv)A protective order issued under this subparagraph may require the defendant to be placed on electronic monitoring if the local government, with the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy to authorize electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order electronic monitoring to be paid for by the local government that adopted the policy to authorize electronic monitoring. The duration of electronic monitoring shall not exceed one year from the date the order is issued. At no time shall the electronic monitoring be in place if the protective order is not in place.
(2)For purposes of this subdivision, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, is a witness and is deemed to have suffered harm within the meaning of paragraph (1).
(b)A person violating an order made pursuant to subparagraphs (A) to (G), inclusive, of paragraph (1) of subdivision (a) may be punished for any substantive offense described in Section 136.1, or for a contempt of the court making the order. A finding of contempt shall not be a bar to prosecution for a violation of Section 136.1. However, a person so held in contempt shall be entitled to credit for punishment imposed therein against a sentence imposed upon conviction of an offense described in Section 136.1. A conviction or acquittal for a substantive offense under Section 136.1 shall be a bar to a subsequent punishment for contempt arising out of the same act.
(c)(1)(A)Notwithstanding subdivision (e), an emergency protective order issued pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of Division 10 of the Family Code or Section 646.91 shall have precedence in enforcement over any other restraining or protective order, provided the emergency protective order meets all of the following requirements:
(i)The emergency protective order is issued to protect one or more individuals who are already protected persons under another restraining or protective order.
(ii)The emergency protective order restrains the individual who is the restrained person in the other restraining or protective order specified in clause (i).
(iii)The provisions of the emergency protective order are more restrictive in relation to the restrained person than are the provisions of the other restraining or protective order specified in clause (i).
(B)An emergency protective order that meets the requirements of subparagraph (A) shall have precedence in enforcement over the provisions of any other restraining or protective order only with respect to those provisions of the emergency protective order that are more restrictive in relation to the restrained person.
(2)Except as described in paragraph (1), a no-contact order, as described in Section 6320 of the Family Code, shall have precedence in enforcement over any other restraining or protective order.
(d)(1)A person subject to a protective order issued under this section shall not own, possess, purchase, or receive, or attempt to purchase or receive, a firearm while the protective order is in effect.
(2)The court shall order a person subject to a protective order issued under this section to relinquish any firearms he or she owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(3)A person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while the protective order is in effect is punishable pursuant to Section 29825.
(e)(1)In all cases in which the defendant is charged with a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court shall consider issuing the above-described orders on its own motion. All interested parties shall receive a copy of those orders. In order to facilitate this, the courts records of all criminal cases involving domestic violence or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, shall be marked to clearly alert the court to this issue.
(2)In those cases in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, or a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been issued, except as described in subdivision (c), a restraining order or protective order against the defendant issued by the criminal court in that case has precedence in enforcement over a civil court order against the defendant.
(3)Custody and visitation with respect to the defendant and his or her minor children may be ordered by a family or juvenile court consistent with the protocol established pursuant to subdivision (f), but if ordered after a criminal protective order has been issued pursuant to this section, the custody and visitation order shall make reference to, and, if there is not an emergency protective order that has precedence in enforcement pursuant to paragraph (1) of subdivision (c), or a no-contact order, as described in Section 6320 of the Family Code, acknowledge the precedence of enforcement of, an appropriate criminal protective order. On or before July 1, 2014, the Judicial Council shall modify the criminal and civil court forms consistent with this subdivision.
(f)On or before January 1, 2003, the Judicial Council shall promulgate a protocol, for adoption by each local court in substantially similar terms, to provide for the timely coordination of all orders against the same defendant and in favor of the same named victim or victims. The protocol shall include, but shall not be limited to, mechanisms for ensuring appropriate communication and information sharing between criminal, family, and juvenile courts concerning orders and cases that involve the same parties, and shall permit a family or juvenile court order to coexist with a criminal court protective order subject to the following conditions:
(1)An order that permits contact between the restrained person and his or her children shall provide for the safe exchange of the children and shall not contain language either printed or handwritten that violates a no-contact order issued by a criminal court.
(2)Safety of all parties shall be the courts paramount concern. The family or juvenile court shall specify the time, day, place, and manner of transfer of the child, as provided in Section 3100 of the Family Code.
(g)On or before January 1, 2003, the Judicial Council shall modify the criminal and civil court protective order forms consistent with this section.
(h)(1)In any case in which a complaint, information, or indictment charging a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, has been filed, the court may consider, in determining whether good cause exists to issue an order under subparagraph (A) of paragraph (1) of subdivision (a), the underlying nature of the offense charged, and the information provided to the court pursuant to Section 273.75.
(2)In any case in which a complaint, information, or indictment charging a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, has been filed, the court may consider, in determining whether good cause exists to issue an order under paragraph (1) of subdivision (a), the underlying nature of the offense charged, the defendants relationship to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by any civil or criminal court involving the defendant, and the defendants criminal history, including, but not limited to, prior convictions for a violation of Section 261, 261.5, or 262, a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, any other forms of violence, or any weapons offense.
(i)(1)In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may
(2)(A)For purposes of this paragraph, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, is a witness.
(B)The court, at the time of sentencing, shall consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence, as defined in Section 13700 or in Section 6211 of the Family Code, from any contact with a minor who is a witness pursuant to subparagraph (A). An order under this paragraph is subject to modifications by any subsequent orders in juvenile court regarding contact or visitation.
(3)An order under this subdivision may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. family in the case of paragraph (1), and, in the case of paragraph (2), the safety of the witness.
(2)(4)An order under this subdivision may include provisions for electronic monitoring if the local government, upon receiving the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy authorizing electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order the electronic monitoring to be paid for by the local government that adopted the policy authorizing electronic monitoring. The duration of the electronic monitoring shall not exceed one year from the date the order is issued.
(j)For purposes of this section, local government means the county that has jurisdiction over the protective order.
SEC. 2.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.
|
Date
|
Status
|
|---|---|
| Sep 1, 2017 | In committee: Held under submission. |
| Jul 10, 2017 | In committee: Referred to APPR. suspense file. |
| Jul 3, 2017 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR. |
| Jun 21, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Jun 20, 2017 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (June 20). |
| Jun 6, 2017 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| May 10, 2017 | Referred to Com. on PUB. S. |
| Apr 20, 2017 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Apr 20, 2017 | Read third time. Passed. Ordered to the Senate. (Ayes 74. Noes 0. Page 1143.) |
| Apr 6, 2017 | Read second time. Ordered to Consent Calendar. |
| Apr 5, 2017 | From committee: Do pass. To Consent Calendar. (Ayes 17. Noes 0.) (April 5). |
| Mar 23, 2017 | Re-referred to Com. on APPR. |
| Mar 22, 2017 | Read second time and amended. |
| Mar 21, 2017 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (March 14). |
| Mar 2, 2017 | Re-referred to Com. on PUB. S. |
| Mar 1, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Feb 13, 2017 | Referred to Com. on PUB. S. |
| Feb 2, 2017 | From printer. May be heard in committee March 4. |
| Feb 1, 2017 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Jul 10, 2017 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jun 20, 2017 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| Apr 20, 2017 | Favorable (Public Integrity & Ethics Committee) | Assembly Floor |
Passed |
|
| Apr 5, 2017 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Mar 14, 2017 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Assembly Floor Vote: 74 - 0 | ** Against | Jun 19, 2017 |
| California Police Chiefs Association; 1 Individual | ** Support | Jun 19, 2017 |
| California Public Defenders Association | ** Against | Jun 19, 2017 |
| Conference of California Bar Associations | ** Support | Mar 13, 2017 |
| One private individual | ** Support | Mar 13, 2017 |
| PURPOSE | ** Against | Jun 19, 2017 |
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
AB 270 (Gallagher) - Restraining orders: witness
Version: July 3, 2017 | Policy Vote: PUB. S. 7 - 0 |
Urgency: No | Mandate: Yes |
Hearing Date: July 10, 2017 | Consultant: Shaun Naidu |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 270 would require the court to consider issuing a post-conviction protective order restraining a defendant convicted of a crime involving domestic violence from contact with a child witness, except as specified.
Fiscal Impact:
- Court: Unknown, potentially-significant cost pressures (General Fund*) to the court to adjudicate criminal contempt charges brought against defendants who violate a protective order that was issued by the expansion made by this measure.
Unknown, likely minor costs (General Fund*) to the court to consider whether to grant a restraining order for the child witness of a domestic violence crime. If the court is issuing a restraining order in a case already (for example, to a victim of the crime), requiring it to consider whether to issue a restraining order for a child witness would take little additional court time and resources.
- Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs (local funds) to prosecute and incarcerate those charged with and found guilty of criminal contempt for violating a protective order that was issued by the expansion made by this bill. Costs would be offset, to a degree, by fee and assessment revenue.
*Trial Court Trust Fund
Background:
Under existing law, the court is required to consider, at the time of sentencing, issuing a protective order, which may be valid for up to ten years, in a case in which a defendant has been convicted of a crime of domestic violence or of specified sex offenses, restraining the defendant from any contact with the victim.
Disobedience of a court order may be prosecuted as misdemeanor criminal contempt of court, punishable by imprisonment in the county jail for up to six months, a fine of up to $1,000, or both the imprisonment and fine. Consequently, criminal contempt proceedings are conducted like any other misdemeanor offense, meaning that any action to punish a violation is brought by the prosecution and the defendant is “entitled to the full panoply of substantive and due process rights” (People v. Kalnoki (1992) 7 Cal.App.4thSupp. 8, 11.), including the right to a jury trial.
Proposed Law:
This bill would:
- Require the court to consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence. It would provide that the minor, under those circumstances, is a witness.
- Authorize a no-contact order issued for purposes of a minor witness to include, either at the time of sentencing or on subsequent application upon a showing of good cause at a noticed hearing, as specified, an order authorizing a family or juvenile court to make a subsequent order for safe and appropriate visitation with the defendant’s child who is a minor witness.
- Require an order restraining the defendant from any contact with the victim or a minor witness under the above-described provisions to have precedence in enforcement over a civil court order against the defendant, except as specified.
Related Legislation:
AB 264 (Low, 2017) would, in part, require the court to consider issuing a protective order restraining the defendant from any contact with a percipient witness to a crime involving domestic violence, a violation of specified sex offenses, or a specified crime relating to street gangs, if it is shown by clear and convincing evidence that the witness has been harassed, as specified. AB 264 is pending in this Committee.
Staff Comments:
The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, how many restraining orders the court issues, how many of those orders are alleged to have been violated, prosecutorial discretion, and the factors unique to each case. As criminal contempt is punishable as a misdemeanor with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation). Consequently, to the extent that the court adjudicates, on average, a dozen or more criminal contempt charges that otherwise would not have been filed or resulted in a criminal action but for an alleged violation of a restraining order allowed by this measure, costs of this bill would surpass the Suspense File threshold.
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Nancy Skinner, Chair
2017 - 2018 Regular
Bill No: AB 270 Hearing Date: June 20, 2017
Author: | Gallagher | ||
Version: | March 22, 2017 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | SJ | ||
Subject: Restraining Orders: Witness
HISTORY
Source: Conference of California Bar Associations
Prior Legislation: AB 1850 (Waldron) Ch. 673, Stats. of 2014
SB 352 (Block) Ch. 279, Stats. of 2015
AB 307 (Campos) Ch. 291, Stats. of 2013
SB 723 (Pavley) Ch. 155, Stats. of 2011
SB 834 (Florez) Ch. 627, Stats. of 2010
AB 289 (Spitzer) Ch. 582, Stats. of 2007
Support: California Police Chiefs Association; 1 individual
Opposition: California Public Defenders Association
Assembly Floor Vote: 74 - 0
PURPOSE
The purpose of this bill it to expand the court’s authority to issue a post-conviction restraining order in domestic violence cases to cover a child witness who was not a victim of, but was physically present at the time of, an act of domestic violence.
Existing law authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. (Pen. Code, § 136.2, subd. (a)(1).)
Existing law provides that for purposes of issuing a protective order during a criminal proceeding, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, is a witness and is deemed to have suffered harm. (Pen. Code, § 136.2, subd. (a)(2).)
Existing law provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Pen. Code, § 136.2, subd. (b).)
Existing law requires a court, in all cases where the defendant is charged with a crime involving domestic violence, specified sex crimes, or any crime requiring the defendant to register as a sex offender, to consider issuing a protective order on its own motion. All interested parties shall receive a copy of those orders. (Pen. Code, § 136.2, subd. (e)(1).)
Existing law provides that in cases in which a complaint, information, or indictment charging a crime involving domestic violence, specified sex offenses, or any crime that requires the defendant to register as a sex offender, has been issued, except as specified, a restraining order or protective order against the defendant issued by the criminal court in that case has precedence in enforcement over a civil court order against the defendant. (Pen. Code, § 136.2, subd. (e)(2).)
Existing law provides that custody and visitation with respect to the defendant and his or her minor children may be ordered by a family or juvenile court, as specified, but if ordered after a criminal protective order has been issued, the custody and visitation order shall make reference to, and, if there is not an emergency protective order that has precedence in enforcement, or a no-contact order as described in the Family Code, acknowledge the precedence of enforcement of, an appropriate criminal protective order. (Pen. Code, § 136.2, subd. (e)(3).)
Existing law requires the Judicial Council to promulgate a protocol on or before January 1, 2003, for adoption by each local court in substantially similar terms, to provide for the timely coordination of all orders against the same defendant and in favor of the same named victim or victims. The protocol is required to include, but is not be limited to, mechanisms for ensuring appropriate communication and information sharing between criminal, family, and juvenile courts concerning orders and cases that involve the same parties, and is required to permit a family or juvenile court order to coexist with a criminal court protective order subject to the following conditions:
- An order that permits contact between the restrained person and his or her children is required to provide for the safe exchange of the children and is prohibited from containing language either printed or handwritten that violates a “no-contact order” issued by a criminal court.
- Safety of all parties is the courts’ paramount concern. The family or juvenile court is required to specify the time, day, place, and manner of transfer of the child, as provided in Section 3100 of the Family Code. (Pen. Code, § 136.2, subd. (f).)
Existing law requires the court, at the time of sentencing, to consider issuing an order restraining the defendant from any contact with the victim in all cases in which a criminal defendant has been convicted of a crime of domestic violence, as defined in relevant sections of the Penal Code and Family Code, or any crime that requires the defendant to register as a sex offender. The order may be valid for up to 10 years, as determined by the court. (Pen. Code, § 136.2, subd. (i)(1).)
Existing law authorizes, under the Domestic Violence Prevention Act (DVPA), a court to issue and enforce a domestic violence restraining order, including an emergency protective order, a temporary restraining order and a permanent restraining order. (Fam. Code, §§ 6300 et seq.)
Existing law provides that certain orders made after a hearing under the DVPA may have a duration of no more than five years, subject to termination or modification. An order may be renewed, upon request of either party, for either five years or permanently, without a showing of any further abuse since issuance of the original order. (Fam. Code, § 6345, subd. (a).)
Existing law provides that a court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, impersonating, as specified, harassing, telephoning, including, but not limited to, making annoying telephone calls as described, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members. (Fam. Code, § 6320.)
Existing law allows the court to issue civil harassment protective orders for up to five years upon a showing of clear and convincing evidence. (Civ. Pro. Code, §§ 527.6.)
Existing law allows the court to issue workplace violence protective orders for up to three years upon a showing of clear and convincing evidence. (Civ. Pro. Code, § 527.8.)
This bill requires the court, at the time of sentencing, to consider issuing an order restraining a criminal defendant who has been convicted of a domestic violence-related offense, from any contact with a minor who was not a victim of, but who was physically present at the time of, an a act of domestic violence.
This bill requires that a post-conviction criminal protective order involving specified crimes have precedence in enforcement over a civil court order against the defendant.
COMMENTS
1. Need for This Bill
According to the author:
Under current law, if a defendant is convicted of a crime involving domestic violence, the court can only issue a post-conviction restraining order restraining the convicted defendant from any contact with the “victim.” This does not include witnesses, who are in most cases minors, and who may not have been the actual physical recipient of domestic violence; but were still physically present at the time of the act(s) of domestic violence; witnessed the act(s) of domestic violence; and suffered actual harm as a result of witnessing the act(s) of domestic violence against his or her parent.
Currently, a minor who is present during the act(s) of domestic violence cannot be included in a post-conviction protective order unless the minor was also physically abused or is likely to be abused, or if there is good cause to believe that the convicted defendant will attempt to punish the child for testifying. However, if the convicted defendant has not physically abused the minor in the past, or if the minor did not testify against the defendant, the minor who witnessed these acts is still in imminent physical danger, and the Court is powerless to issue a post-conviction protective order covering this individual.
A minor who is physically present during an act(s) of domestic violence still suffers harm. Numerous studies show that child witnesses of domestic violence typically do worse in school, suffer more frequent health complaints, are more prone to anxiety, depression, and PTSD, and are more frequently victims of rape and/or sexual misconduct. These symptoms do not appear immediately, nor in all child witnesses. But they are very real, and militate strongly in favor of changing the law to permit the inclusion of these children in post-conviction protective orders.
This bill would include witnesses within the coverage of post-conviction domestic violence restraining orders; and would state that a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, is a witness and is deemed to have suffered harm.
2. Protective Orders Generally
As a general matter, a court can issue a protective order in any criminal proceeding pursuant to Penal Code section 136.2 where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)
When criminal proceedings have concluded, the court has the authority to issue protective orders as a condition of probation in cases where probation was granted. In some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic violence-related offense, rape, spousal rape, statutory rape, or any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).) The same is true of stalking cases. (Pen. Code, §646.9, subd. (k)). Similarly, in cases involving a criminal conviction or juvenile adjudication for a sex offense in which the victim was a minor, the court may issue an order “that would prohibit … harassing, intimidating, or threatening the victim or the victim’s family members or spouse.” (Pen. Code, § 1201.3, subd. (a).) Lastly, the court has authority to issue no-contact orders lasting up to 10 years in cases involving the abuse of an elder or dependent adult. (Pen. Code, § 368, subd. (l).)
3. Criminal Contempt
Disobedience of a court order may be punished as criminal contempt. The crime of contempt is a general intent crime. It is proven by showing that the defendant intended to commit the prohibited act, without any additional showing that he or she intended “to do some further act or achieve some additional consequence.” (People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.) Nevertheless, a violation must also be willful, which in the case of a court order encompasses both intent to disobey the order, and disregard of the duty to obey the order. (In re Karpf (1970) 10 Cal.App.3d 355, 372.)
Criminal contempt under Penal Code section 166 is a misdemeanor, and so proceedings under the statute are conducted like any other misdemeanor offense. (In re McKinney (1968) 70 Cal.2d 8, 10; In re Kreitman (1995) 40 Cal.App.4th 750, 755.) Therefore, the criminal contempt power is vested in the prosecution; the trial court has no power to institute criminal contempt proceedings under the Penal Code. (In re McKinney, supra, 70 Cal.2d at p. 13.) A defendant charged with the crime of contempt “is entitled to the full panoply of substantive and due process rights.” (People v. Kalnoki (1992) 7 Cal.App.4t Supp. 8, 11.) Therefore, the defendant has the right to a jury trial, regardless of the sentence imposed. (People v. Earley (2004) 122 Cal.App.4th 542, 550.)
5. Proposed Amendments
The bill as currently drafted does not allow a court to modify a no-contact order or to authorize a family or juvenile court to issue an order regarding visitation where good cause has been shown.
The author intends to amend the bill to allow a criminal trial court judge to include in a post-conviction order, at the time of sentencing or subsequently upon a showing of good cause, an order authorizing a family or juvenile court to make an order establishing visitation with a defendant’s minor child who is a witness to an act of domestic violence. The amendment requires that notice of the hearing in the criminal court be provided to the protected party, the prosecuting attorney, and the protected minor via his or her primary legal custodian other than the defendant-parent. The amendment cross-references subdivisions of Penal Code section 136.2 that address custody and visitation standards and protocols.
The author also intends to move the provision pertaining to the precedence in enforcement of a post-conviction restraining order over a civil court order against the defendant to its own paragraph.
6. Argument in Support
The California Police Chiefs Association supports this bill stating:
AB 270 protects minor witnesses of domestic violence by including them within the coverage of post-conviction domestic violence restraining orders.
Currently, a minor who is present during the act(s) of domestic violence cannot be included in a post-conviction protective order unless the minor was also physically abused, or is likely to be abused.
AB 270 is a good sense measure that will ensure that vulnerable witnesses receive the protection that they need.
7. Argument in Opposition
The California Public Defenders Association opposes this bill stating:
Although the law will give the court discretion in deciding whether to impose such an order, the law has the potential to become routine “on demand.” Such an order also has the potential for further disruption to parent-child relationships in an already stressful situation. These pro forma orders could also be misused by parties seeking to “jockey” for an advantage in custody matters and as retaliation. Moreover, this new provision simply is not necessary because existing law already provides the court with discretion to issue a restraining order in the event a parent or guardian seeks a restraining order on behalf of a child that has been victimized or in the case of any threatened violence. This bill is redundant, overreaching and unnecessary.
-- END --
Date of Hearing: April 5, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
ABPCA Bill Id:AB 270
Author:(Gallagher) – As Amended Ver:March 22, 2017
Policy Committee: | Public Safety | Vote: | 7 - 0 |
Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill expands the court’s authority to issue a post-conviction restraining order in domestic violence cases to cover a child witness who was present at the time of the offense, but not a victim of the abuse.
FISCAL EFFECT:
Moderate nonreimbursable local costs for incarceration, offset to a degree by fine revenue. A violation of a protective order is punishable by up to one year in county jail and/or a $1,000 fine.
COMMENTS:
- Background and Purpose. As a general matter, the court can issue a protective order in any criminal proceeding where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings.
When criminal proceedings have concluded, the court has authority to issue protective orders as a condition of probation. For example, when domestic violence criminal proceedings have concluded, the court can issue a "no-contact order" as a condition of probation.
In some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of specific crimes, including willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic-violence-related offense, rape, spousal rape, statutory rape, or any crime requiring sex offender registration.
AB 1850 (Waldron), Chapter 673, Statutes of 2014, defined a minor who is physically present at the time of an act of domestic violence, but is not a victim, as a witness deemed to have suffered harm for the purposes of issuing a protective order in a pending criminal case.
According to the author, "Currently, a minor who is present during the act(s) of domestic violence cannot be included in a post-conviction protective order unless the minor was also physically abused or is likely to be abused, or if there is good cause to believe that the convicted defendant will attempt to punish the child for testifying. However, if the convicted defendant has not physically abused the minor in the past, or if the minor did not testify against the defendant, the minor who witnessed these acts is still in imminent physical danger, and the Court is powerless to issue a post-conviction protective order covering this individual.”
AB 270 extends the protection to child witnesses established by AB 1850 (Waldron) of 2014 to post-conviction domestic violence protective orders.
- Support: According to the Conference of California Bar Associations, the sponsor of this bill, “The problem is that DV [domestic violence] victims, witnesses, and their immediate family members often need greater protection post-conviction than pre-conviction. Pre-conviction many DV defendants have been in custody awaiting trial, and thus have not been free and able to harm the protected individuals. Once these defendants have been convicted, however, most are released from custody either immediately or shortly thereafter. At that point, these defendants can be very angry and interested in retaliating against the victim and witnesses who showed up in court, thereby ‘forcing’ them to plead guilty, or who actually testified against them in court and contributed directly to their criminal conviction.”
- Opposition. According to the California Public Defenders Association, “… this new provision simply is not necessary because existing law already provides the court with discretion to issue a restraining order in the event a parent or guardian seeks a restraining order on behalf of a child that has been victimized or in the case of any threatened violence. This bill is redundant, overreaching, and unnecessary.”
- Related Legislation: AB 264 (Low) requires the court to consider issuing a restraining order for up to 10 years in gang cases, and expands the authority to issue all post-conviction restraining order to cover witnesses to the qualifying crimes. AB 264 is pending hearing in this committee today.
- Prior Legislation:
SB 352 (Block), Chapter 279, Statutes of 2015, requires the court to consider issuing a restraining order for up to 10 years when a defendant is convicted for an offense involving abuse of an elder or a dependent adult, regardless of the sentence imposed.
AB 307 (Campos), Chapter 291, Statutes of 2013, allows a court to issue a protective order for up to 10 years when a defendant is convicted of specified sex crimes, regardless of the sentence imposed.
SB 723 (Pavley), Chapter 155, Statutes of 2011, allows a court to issue a protective order for up to 10 years when a defendant is convicted for an offense involving domestic violence, regardless of the sentence imposed.
SB 834 (Florez), Chapter 627, Statutes of 2010, allows a court to issue a protective order for up to 10 years in sex cases involving a minor victim.
Analysis Prepared by: Pedro Reyes / APPR. / 916 319-2081
Date of Hearing: March 14, 2017
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:
Author:() – As Ver:
As Proposed to be Amended in Committee
SUMMARY:
Expands the court’s authority to issue a post-conviction restraining order in domestic violence cases to cover a child witness who is physically present at the time of an act of domestic violence but who is not a victim. Specifically, this bill:
- Requires the court, at the time of sentencing a defendant for a domestic-violence-related offense to consider issuing an order restraining the defendant from any contact with a child witness who is physically present at the time of an act of domestic violence, but who was not a victim of abuse.
- Provides that a post-conviction criminal protective order shall have precedence in enforcement over a civil court order against the defendant.
EXISTING LAW:
- Authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of a victim or witness has occurred or is reasonably likely to occur. (Pen. Code, § 136.2, subd. (a).)
- Provides that for purposes of issuing a protective order during a criminal proceeding, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence is a witness and is deemed to have suffered harm. (Pen. Code, 136, subd. (a)(2).)
- Provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Pen. Code, § 136.2, subd. (b).)
- Requires a court, in all cases where the defendant is charged with a crime involving domestic violence or a crime requiring the defendant to register as a sex offender, to consider issuing a protective order on its own motion. All interested parties shall receive a copy of those orders. (Pen. Code, § 136.2, subd. (e)(1).)
- Provides in all cases in which a criminal defendant has been convicted of a crime of domestic violence, as defined in relevant sections of the Family Code, or any crime that requires the defendant to register as a sex offender, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may be valid for up to 10 years, as determined by the court. (Pen. Code, § 136.2, subd. (i)(1).)
- Authorizes, under the Domestic Violence Prevention Act (DVPA), a court to issue and enforce a domestic violence restraining order, including an emergency protective order, a temporary restraining order and a permanent restraining order. (Fam. Code, §§ 6300 et seq.)
- Provides that a permanent order made after hearing under the DVPA may have a duration of no more than five years, subject to termination or modification. An order may be renewed, upon request of either party, for either five years or permanently, without a showing of any further abuse since issuance of the original order. (Fam. Code, § 6345, subd. (a).)
- Provides that a court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members. (Fam. Code, § 6320.)
- Allows the court to issue civil harassment protective orders and workplace violence protective orders for up to three years upon a showing of clear and convincing evidence. (Civ. Pro. Code, §§ 527.6 and 527.8.)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, "Under current law, if a defendant is convicted of a crime involving domestic violence, the court can only issue a post-conviction restraining order restraining the convicted defendant from any contact with the ‘victim’. This does not include witnesses, who are in most cases minors, and who may not have been the actual physical recipient of domestic violence; but were still physically present at the time of the act(s) of domestic violence; witnessed the act(s) of domestic violence; and suffered actual harm as a result of witnessing the act(s) of domestic violence against his or her parent.
“Currently, a minor who is present during the act(s) of domestic violence can not be included in a post-conviction protective order unless the minor was also physically abused or is likely to be abused, or if there is good cause to believe that the convicted defendant will attempt to punish the child for testifying. However, if the convicted defendant has not physically abused the minor in the past, or if the minor did not testify against the defendant, the minor who witnessed these acts is still in imminent physical danger, and the Court is powerless to issue a post-conviction protective order covering this individual.
“A minor who is physically present during an act(s) of domestic violence still suffers harm. Numerous studies show that child witnesses of domestic violence typically do worse in school, suffer more frequent health complaints, are more prone to anxiety, depression, and PTSD, are more frequently victims of rape and/or sexual misconduct. These symptoms do not appear immediately, nor in all child witnesses. But they are very real, and militate strongly in favor of changing the law to permit the inclusion of these children in post-conviction protective orders.
“This bill would include witnesses within the coverage of post-conviction domestic violence restraining orders; and would state that a minor who was not a victim of, but who was physically present at the time of, and act of domestic violence, is a witness and is deemed to have suffered harm.” - Protective Orders: As a general matter, the court can issue a protective order in any criminal proceeding pursuant to Penal Code Section 136.2 where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)
When criminal proceedings have concluded, the court has authority to issue protective orders as a condition of probation. For example, when domestic violence criminal proceedings have concluded, the court can issue a "no-contact order" as a condition of probation. (Pen. Code, § 1203.097.)
Finally, in some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic-violence-related offense, rape, spousal rape, statutory rape, or any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).) The same is true of stalking cases (Pen. Code, §646.9, subd. (k)). Similarly, in cases involving a criminal conviction or juvenile adjudication for a sex offense in which the victim was a minor, the court may issue an order "that would prohibit … harassing, intimidating, or threatening the victim or the victim's family members or spouse." (Pen. Code, § 1201.3, subd. (a).) Finally, the court has authority to issue no-contact orders lasting up to 10 years in cases involving the abuse of an elder or dependent adult. (Pen. Code, § 368, subd. (l).)
AB 1850 (Waldron), Chapter 673, Statutes of 2014, defined a minor who is physically present at the time of an act of domestic violence, but is not a victim, as a witness deemed to have suffered harm for the purposes of issuing a protective order in a pending criminal case. This bill extends the protection to child witnesses established by AB 1850 (Waldron) of 2014 to post-conviction domestic violence protective orders.
- Criminal Contempt: Disobedience of a court order may be punished as criminal contempt. The crime of contempt is a general intent crime. It is proven by showing that the defendant intended to commit the prohibited act, without any additional showing that he or she intended "to do some further act or achieve some additional consequence." (People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.) Nevertheless, a violation must also be willful, which in the case of a court order encompasses both intent to disobey the order, and disregard of the duty to obey the order." (In re Karpf (1970) 10 Cal.App.3d 355, 372.)
Criminal contempt under Penal Code Section 166 is a misdemeanor, and so proceedings under the statute are conducted like any other misdemeanor offense. (In re McKinney (1968) 70 Cal.2d 8, 10; In re Kreitman (1995) 40 Cal.App.4th 750, 755.) Therefore, the criminal contempt power is vested in the prosecution; the trial court has no power to institute criminal contempt proceedings under the Penal Code. (In re McKinney, supra, 70 Cal.2d at p. 13.) A defendant charged with the crime of contempt "is entitled to the full panoply of substantive and due process rights." (People v. Kalnoki (1992) 7 Cal.App.4t Supp. 8, 11.) Therefore, the defendant has the right to a jury trial, regardless of the sentence imposed. (People v. Earley (2004) 122 Cal.App.4th 542, 550.)
- Argument in Support: According to the Conference of California Bar Associations, the sponsor of this bill, “Under current law, if a defendant is charged with a crime involving domestic violence, the court can issue a pre-conviction restraining order prohibiting the convicted (sic) defendant from any contact with the ‘victim’ of the crime, as well as any witnesses and immediate family members of the victim. ‘Witnesses’ are defined to include minors who may not have been victims of domestic violence or abuse themselves, but were physically present at the time of the act(s) of domestic violence and are deemed to have suffered harm thereby. However, once the defendant has been convicted of a crime involving domestic violence, much of this protection evaporates. Not only does the pre-conviction protective order expire, but any post-conviction order issued can only extend to the victim, not to witnesses or the victim’s immediate family members.
“The problem is that DV victims, witnesses, and their immediate family members often need greater protection post-conviction than pre-conviction. Pre-conviction many DV defendants have been in custody awaiting trial, and thus have not been free and able to harm the protected individuals. Once these defendants have been convicted, however, most are released from custody either immediately or shortly thereafter. At that point, these defendants can be very angry and interested in retaliating against the victim and witnesses who showed up in court, thereby ‘forcing’ them to plead guilty, or who actually testified against them in court and contributed directly to their criminal conviction. If these defendants cannot find the actual victims or witnesses who testified against them, they can turn their anger to family members of these victims or witnesses in an effort to extract some form of retribution.
“AB 270 will remedy this problem by expanding the permissible scope of post-conviction protective orders to the same level as pre-conviction protective orders, permitting them to protect witnesses – including minors who may not have been victims of domestic violence or abuse themselves, but were physically present at the time of the act(s) of domestic violence – and immediate family members of the victim.” - Argument in Opposition: According to the California Public Defenders Association, “Although the law will give the court discretion in deciding whether to impose such an order, the law has the potential to become routine ‘on demand.’ Such an order has the potential for further disruption to parent-child relationships in an already stressful situation. These pro forma orders could also be misused by parties seeking to ‘jockey’ for an advantage in custody matters and as retaliation. Moreover, this new provision simply is not necessary because existing law already provides the court with discretion to issue a restraining order in the event a parent or guardian seeks a restraining order on behalf of a child that has been victimized or in the case of any threatened violence. This bill is redundant, overreaching, and unnecessary.”
- Related Legislation: AB 264 (Low) requires the court to consider issuing a restraining order for up to 10 years in gang cases, and expands the authority to issue all post-conviction restraining order to cover witnesses to the qualifying crimes. AB 264 is pending hearing in this committee today.
- Prior Legislation:
- AB 1850 (Waldron), Chapter 673, Statutes of 2014, provides that a minor who is physically present at the time of an act of domestic violence but is not a victim, is a witness deemed to have suffered harm for the purposes of issuing a protective order in a pending criminal case.
- SB 352 (Block), Chapter 279, Statutes of 2015, requires the court to consider issuing a restraining order for up to 10 years when a defendant is convicted for an offense involving abuse of an elder or a dependent adult, regardless of the sentence imposed.
- AB 307 (Campos), Chapter 291, Statutes of 2013, allows a court to issue a protective order for up to 10 years when a defendant is convicted of specified sex crimes, regardless of the sentence imposed.
- SB 723 (Pavley), Chapter 155, Statutes of 2011, allows a court to issue a protective order for up to 10 years when a defendant is convicted for an offense involving domestic violence, regardless of the sentence imposed.
- SB 834 (Florez), Chapter 627, Statutes of 2010, allows a court to issue a protective order for up to 10 years in sex cases involving a minor victim.
- AB 289 (Spitzer), Chapter 582, Statutes of 2007, allows a court to issue a protective order for 10 years upon a defendant's conviction for stalking.
- AB 1850 (Waldron), Chapter 673, Statutes of 2014, provides that a minor who is physically present at the time of an act of domestic violence but is not a victim, is a witness deemed to have suffered harm for the purposes of issuing a protective order in a pending criminal case.
REGISTERED SUPPORT / OPPOSITION:
Support
Conference of California Bar Associations (Sponsor)
California Police Chiefs Association
One Private Individual
Opposition
California Public Defenders Association
Analysis Prepared by:
Discussed in Hearing
5MIN
Senate Standing Committee on Public Safety
4MIN
Assembly Standing Committee on Public Safety
Bill Author
