BILL NUMBER: AB 1850	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 17, 2014

INTRODUCED BY   Assembly Member Waldron
    (   Coauthor:   Assembly Member  
Gonzalez   ) 

                        FEBRUARY 19, 2014

   An act to amend Section 136.2 of the Penal Code, relating to
restraining orders.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1850, as amended, Waldron. Restraining orders.
   Existing law authorizes a court with jurisdiction over a criminal
matter to issue specified protective orders 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, including an order
protecting a victim of violent crime from all contact by the
defendant. The violation of a restraining order issued pursuant to
these provisions is a crime.
   This bill would additionally authorize a court with jurisdiction
over a criminal matter to issue an order protecting a witness of
violent crime from all contact by the defendant upon a good cause
belief that harm to, or intimidation or dissuasion of, that witness
has occurred or is reasonably likely to occur. The bill would also,
for the purposes of these provisions,  include within the
meaning of the term "harm" the harm to a minor resulting from his or
her physical presence at, proximity to, or location near, an act of
domestic violence.   provide that a minor who was not a
victim of, but who was physically present during or located near, an
act of domestic violence, is a witness and is deemed to have suffered
harm. 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.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 136.2 of the Penal Code, as amended by 
Chapter 291  Section 1.5  of  the Statutes
  Chapter 291  of  the Statutes of  2013,
is amended to read:
   136.2.  (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: 
   (1) 
    (A)  An order issued pursuant to Section 6320 of the
Family Code. 
   (2) 
   (B)  An order that a defendant shall not violate any
provision of Section 136.1. 
   (3) 
    (C)  An order that a person before the court other than
a defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1. 
   (4) 
    (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. 
   (5) 
    (E)  An order calling for a hearing to determine if an
order as described in  paragraphs (1) to (4),  
subparagraphs (A) to (D),  inclusive, should be issued. 

   (6) (A)  
    (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 victim's or witness' household, as determined by the
court. The order shall not be made without the consent of the law
enforcement agency except for limited and specified periods of time
and upon an express finding by the court of a clear and present
danger of harm to the victim or witness or immediate family members
of the victim or witness. 
   (B) 
    (ii)  For purposes of this paragraph, "immediate family
members" include the spouse, children, or parents of the victim or
witness. 
   (7) (A)  
    (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. 
   (B) (i)  
    (ii)     (I)    If a court
does not issue an order pursuant to  subparagraph (A)
  clause (i)  in a case in which the defendant is
charged with a crime of domestic violence as defined in Section
13700, 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: 
   (I) 
    (ia)  The defendant shall not own, possess, purchase,
receive, or attempt to purchase or receive, a firearm while the
protective order is in effect. 
   (II) 
    (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) 
    (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. 
   (C) 
    (iii)  An order issued, modified, extended, or
terminated by a court pursuant to this  paragraph 
 subparagraph  shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable. 
   (D) 
    (iv)  A protective order issued under this 
paragraph  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 during or located near, 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 
paragraphs (1) to (7),   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  subparagraph (A).   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
 subparagraph (A).   clause (i). 
   (B) An emergency protective order that meets the requirements of
 paragraph (1)   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, 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 where the defendant is charged with a crime
of domestic violence, as defined in Section 13700, the court shall
consider issuing the above-described orders on its own motion. All
interested parties shall receive a copy of those orders. In order to
facilitate this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court to this
issue.
   (2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, 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) In any case in which a complaint, information, or indictment
charging a crime of domestic violence, as defined in Section 13700,
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.
   (i) (1) In all cases in which a criminal defendant has been
convicted of a crime of domestic violence as defined in Section
13700, 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 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 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.
   (2) 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. 
   (k) For purposes of this section, the term "harm" includes the
harm to a minor resulting from his or her physical presence at,
proximity to, or location near, an act of domestic violence.

  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B 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 XIII B of the California
Constitution.