BILL NUMBER: AB 176	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Campos

                        JANUARY 24, 2013

   An act to amend Sections 3100, 6383, and 6405 of the Family Code,
and to amend Section 136.2 of the Penal Code, relating to family law.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 176, as introduced, Campos. Family law: protective and
restraining orders.
   Existing law requires, if there is more than one civil protective
or restraining order regarding the same parties, a peace officer to
enforce the order issued last. If both criminal and civil protective
or restraining orders have been issued regarding the same parties,
existing law generally requires an officer to enforce the criminal
order issued last.
   This bill would instead provide that, when there are both civil
and criminal orders an officer must enforce the order that is more
restrictive in relation to the restrained person. This bill would
also make related, conforming changes.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


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

  SECTION 1.  Section 3100 of the Family Code is amended to read:
   3100.  (a) In making an order pursuant to Chapter 4 (commencing
with Section 3080), the court shall grant reasonable visitation
rights to a parent unless it is shown that the visitation would be
detrimental to the best interest of the child. In the discretion of
the court, reasonable visitation rights may be granted to any other
person having an interest in the welfare of the child.
   (b) If a protective order, as defined in Section 6218, has been
directed to a parent, the court shall consider whether the best
interest of the child requires that any visitation by that parent
shall be limited to situations in which a third person, specified by
the court, is present, or whether visitation shall be suspended or
denied. The court shall include in its deliberations a consideration
of the nature of the acts from which the parent was enjoined and the
period of time that has elapsed since that order. A parent may submit
to the court the name of a person that the parent deems suitable to
be present during visitation.
   (c)  If visitation is ordered in a case in which domestic violence
is alleged and an emergency protective order, protective order, or
other restraining order has been issued, the visitation order shall
specify the time, day, place, and manner of transfer of the child, so
as to limit the child's exposure to potential domestic conflict or
violence and to ensure the safety of all family members. If a
criminal protective order has been issued pursuant to Section 136.2
of the Penal Code, the visitation order shall make reference 
to, and acknowledge the precedence of enforcement of,  
to  any appropriate criminal protective order.
   (d)  If the court finds a party is staying in a place designated
as a shelter for victims of domestic violence or other confidential
location, the court's order for time, day, place, and manner of
transfer of the child for visitation shall be designed to prevent
disclosure of the location of the shelter or other confidential
location.
  SEC. 2.  Section 6383 of the Family Code is amended to read:
   6383.  (a) A temporary restraining order or emergency protective
order issued under this part shall, on request of the petitioner, be
served on the respondent, whether or not the respondent has been
taken into custody, by  any   a  law
enforcement officer who is present at the scene of reported domestic
violence involving the parties to the proceeding.
   (b) The petitioner shall provide the officer with an endorsed copy
of the order and a proof of service that the officer shall complete
and transmit to the issuing court.
   (c) It is a rebuttable presumption that the proof of service was
signed on the date of service.
   (d) Upon receiving information at the scene of a domestic violence
incident that a protective order has been issued under this part, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately inquire of
the Department of Justice Domestic Violence Restraining Order System
to verify the existence of the order.
   (e) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained and the officer shall, at that
time, also enforce the order. The law enforcement officer's verbal
notice of the terms of the order shall constitute service of the
order and is sufficient notice for the purposes of this section and
for the purposes of Sections 273.6 and 29825 of the Penal Code.
   (f) If a report is required under Section 13730 of the Penal Code,
or if no report is required, then in the daily incident log, the
officer shall provide the name and assignment of the officer
notifying the respondent pursuant to subdivision (e) and the case
number of the order.
   (g) Upon service of the order outside of the court, a law
enforcement officer shall advise the respondent to go to the local
court to obtain a copy of the order containing the full terms and
conditions of the order.
   (h) There shall be no civil liability on the part of, and no cause
of action for, false arrest or false imprisonment against 
any   a  peace officer who makes an arrest pursuant
to a protective or restraining order that is regular upon its face,
if the peace officer in making the arrest acts in good faith and has
reasonable cause to believe that the person against whom the order is
issued has notice of the order and has committed an act in violation
of the order. If there is more than one civil order regarding the
same parties, the peace officer shall enforce the order that was
issued last. If there are both civil and criminal orders regarding
the same parties, the peace officer shall enforce the 
criminal order issued last, subject to the provisions of subdivisions
(h) and (i) of Section 136.2 of the Penal Code   order
that is more restrictive in relation to the restrained person  .
Nothing in this section shall be deemed to exonerate a peace officer
from liability for the unreasonable use of force in the enforcement
of the order. The immunities afforded by this section shall not
affect the availability of any other immunity which may apply,
including, but not limited to, Sections 820.2 and 820.4 of the
Government Code.
  SEC. 3.  Section 6405 of the Family Code is amended to read:
   6405.  There shall be no civil liability on the part of, and no
cause of action for false arrest or false imprisonment against,
 any   a peace officer who makes an arrest
pursuant to a foreign protection order that is regular upon its face,
if the peace officer in making the arrest acts in good faith and has
reasonable cause to believe that the person against whom the order
is issued has notice of the order and has committed an act in
violation of the order. If there is more than one civil order
regarding the same parties, the peace officer shall enforce the order
that was issued last. If there are both civil and criminal orders
regarding the same parties, the peace officer shall enforce the
 criminal order issued last   order that is more
restrictive in relation to the restrained person  . Nothing in
this section shall be deemed to exonerate a peace officer from
liability for the unreasonable use of force in the enforcement of the
order. The immunities afforded by this section shall not affect the
availability of any other immunity that may apply, including, but not
limited to, Sections 820.2 and 820.4 of the Government Code.
  SEC. 4.  Section 136.2 of the Penal Code is amended to read:
   136.2.  (a)  Except as provided in subdivision (c), upon
  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) An order issued pursuant to Section 6320 of the Family Code.
   (2) An order that a defendant shall not violate any provision of
Section 136.1.
   (3) 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) 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) An order calling for a hearing to determine if an order as
described in paragraphs (1) to (4), inclusive, should be issued.
   (6) (A) 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) For purposes of this paragraph, "immediate family members"
include the spouse, children, or parents of the victim or witness.
   (7) (A) An order protecting victims 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) If a court does not issue an order pursuant to
subparagraph (A) 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) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
   (II) 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.
   (C) An order issued, modified, extended, or terminated by a court
pursuant to this paragraph 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) A protective order  issued  under this paragraph 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.
   (b) A person violating an order made pursuant to paragraphs (1) to
(7), inclusive, 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) Notwithstanding subdivisions (a) and (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 of the Penal Code shall have precedence in enforcement over
any other restraining or protective order, provided the emergency
protective order meets all of the following requirements: 

   (A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.  
   (B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).  
   (C) 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).  
   (2) An emergency protective order that meets the requirements of
paragraph (1) 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. 

   (d) 
    (c)    (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) 
    (d)    (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  , a   and there
is more than one  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, unless a court issues an emergency protective order
pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of
Division 10 of the Family Code or Section 646.91 of the Penal Code,
in which case the emergency protective order shall have precedence in
enforcement over any other restraining or protective order, provided
the emergency protective order meets the following requirements:
  regarding the same parties and issued against the same
defendant, the order that is more restrictive relative to the
defendant has precedence in enforcement.  
   (A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.  
   (B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).  
   (C) 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). 
   (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)   (e)  , 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 acknowledge the precedence of enforcement of,   to
 an appropriate criminal protective order. On or before July 1,
 2006,   2014,  the Judicial Council shall
modify the criminal and civil court forms consistent with this
subdivision. 
   (f) 
    (e)    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 assuring 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) 
    (f)    On or before January 1, 2003, the
Judicial Council shall modify the criminal and civil court protective
order forms consistent with this section. 
   (h) 
    (g)    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
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) 
    (h   )    (1) In all cases in which a
criminal defendant has been convicted of a crime of domestic violence
as defined in Section 13700, 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) 
    (i)   For purposes of this section, "local
government" means the county that has jurisdiction over the
protective order.