California Assembly Bill AB2467 Amended / Bill

 BILL NUMBER: AB 2467AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 25, 2012 INTRODUCED BY Assembly Member Hueso  (   Coauthor:   Assembly Member   Garrick   )  FEBRUARY 24, 2012 An act to  add Section 6342.5 to the Family Code, and to  amend  Sections   Section  136.2  , 273.5, 646.9, and 1269c  of the Penal Code, relating to domestic violence. LEGISLATIVE COUNSEL'S DIGEST AB 2467, as amended, Hueso.  Domestic violence and stalking:   Protective orders:  GPS monitoring.  Existing law authorizes a court with jurisdiction over a criminal matter, 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, to issue specified orders, including 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.   This bill would authorize a court, when issuing a protective order pursuant to the above provisions, to require GPS monitoring of the defendant if the defendant is able to pay the costs of that monitoring. The bill would further authorize the court to order GPS monitoring and require the local law enforcement agency with jurisdiction over the case to pay the GPS monitoring costs if the defendant cannot afford those monitoring costs. The bill would limit the duration of the GPS monitoring to one year, but would authorize a victim to apply for, and a court to approve upon showing of the continued need for GPS monitoring, an extension of the order for a time period not to exceed one year.   Existing law makes it a crime for a person to willfully inflict upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition. Existing law also makes it a crime for a person to willfully, maliciously, and repeatedly follow or willfully and maliciously harass another person and to make a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family. Under existing law, a court is required, at the time of sentencing a person who is convicted of a crime of domestic violence, to consider an order restraining the defendant from any contact with the victim for up to 10 years. Existing law also authorizes, after notice and hearing, a court to make an order restraining a person from contact with a spouse or children as a result of domestic violence.   This bill would authorize a court, as part of a domestic violence restraining order, to order a defendant placed on active GPS monitoring. The bill would also authorize a court to place a defendant who is convicted of domestic violence or stalking, as defined above, where probation is granted or the execution or imposition of a sentence is suspended, to be placed on active GPS monitoring, as specified.   Existing law authorizes the setting of bail or the release on his or her own recognizance of a person who has been arrested for, or charged with, an offense other than a capital offense. Under existing law, bail may be adjusted to a higher amount to ensure the protection of a victim, or family member of a victim, of domestic violence.   This bill would authorize a court, as a condition of bail or release on his or her own recognizance, to order a defendant who is charged with a crime of domestic violence or stalking placed on active GPS monitoring.  By increasing the duties of local agencies  who   that  monitor persons placed on active GPS monitoring, 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. 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 6342.5 is added to the Family Code, to read: 6342.5. (a) After notice and a hearing, the court may issue an order requiring the restrained party to be placed on active GPS monitoring. (b) It is the intent of the Legislature that, when making this decision, the court consider 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 before placing a party on active GPS monitoring. (c) For purposes of this section, "immediate family" means a spouse, parent, child, or a person related by consanguinity or affinity within the second degree or another person who regularly resides in the household or who, within the prior six months, regularly resided in the household.   SEC. 2.   SECTION 1.  Section 136.2 of the Penal Code is amended to read: 136.2. (a) Except as provided in subdivision (c), 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 under this paragraph may require the defendant to be placed on active GPS monitoring  if the court determines that the defendant has the ability to pay for the monitoring device. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order active GPS monitoring if the court orders the local law enforcement agency with jurisdiction over the case to pay for the costs associated with the GPS   monitoring of the defendant. The duration of GPS monitoring shall not exceed one year from the date the order is issued. A victim may apply to the court for an extension of an order issued pursuant to this subparagraph and the court may approve the extension for an additional period not to exceed o   ne year upon a showing of the continued need for the GPS monitoring of a defendant  . (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) (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, 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, 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: (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), 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, an appropriate criminal protective order. On or before July 1, 2006, 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 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) 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 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) 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.  The order may include provisions for GPS monitoring of the defendant.  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.  SEC. 3.   Section 273.5 of the Penal Code is amended to read: 273.5. (a) A person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment. (b) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section. (c) As used in this section, "traumatic condition" means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, "strangulation" and "suffocation" include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck. (d) For the purpose of this section, a person shall be considered the father or mother of another person's child if the alleged male parent is presumed the natural father under Sections 7611 and 7612 of the Family Code. (e) (1) A person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000). (2) A person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to ten thousand dollars ($10,000), or by both that imprisonment and fine. (f) If probation is granted to any person convicted under subdivision (a), the court shall impose probation consistent with the provisions of Section 1203.097. (g) If probation is granted, or the execution or imposition of a sentence is suspended, for any defendant convicted under subdivision (a) who has been convicted of any prior offense specified in subdivision (e), the court shall impose one of the following conditions of probation: (1) If the defendant has suffered one prior conviction within the previous seven years for a violation of an offense specified in subdivision (e), it shall be a condition thereof, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 15 days. (2) If the defendant has suffered two or more prior convictions within the previous seven years for a violation of an offense specified in subdivision (e), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 60 days. (3) The court, upon a showing of good cause, may find that the mandatory imprisonment required by this subdivision shall not be imposed and shall state on the record its reasons for finding good cause. (h) (1) If probation is granted upon conviction of a violation of subdivision (a), the conditions of probation may include, consistent with the terms of probation imposed pursuant to Section 1203.097, in lieu of a fine, one or both of the following requirements: (A) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097. (B) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. (2) For an order to pay a fine, make payments to a battered women' s shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall an order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted. (i) Upon conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of a restraining order 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. This protective order may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation. (j) (1) If probation is granted or the execution or imposition of a sentence is suspended for a defendant convicted under subdivision (a), the sentencing court may order the defendant to be placed on active GPS monitoring. It is the intent of the Legislature that, when making this decision, the court consider 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 before placing a defendant on active GPS monitoring. (2) For purposes of this section, "immediate family" means a spouse, parent, child, or a person related by consanguinity or affinity within the second degree or another person who regularly resides in the household or who, within the prior six months, regularly resided in the household.   SEC. 4.   Section 646.9 of the Penal Code is amended to read: 646.9. (a) A person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. (b) A person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years. (c) (1) Every person who, after having been convicted of a felony under Section 273.5, 273.6, or 422, commits a violation of subdivision (a) shall be punished by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or five years. (2) Every person who, after having been convicted of a felony under subdivision (a), commits a violation of this section shall be punished by imprisonment in the state prison for two, three, or five years. (d) In addition to the penalties provided in this section, the sentencing court may order a person convicted of a felony under this section to register as a sex offender pursuant to Section 290.006. (e) For the purposes of this section, the following definitions apply: (1) "Course of conduct" means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." (2) "Credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included within the meaning of "credible threat." (3) "Electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code. (4) "Harass" means to engage in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. (5) "Immediate family" means a spouse, parent, child, a person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household. (f) This section shall not apply to conduct that occurs during labor picketing. (g) If probation is granted, or the execution or imposition of a sentence is suspended, for a person convicted under this section, it shall be a condition of probation that the person participate in counseling, as designated by the court. However, the court, upon a showing of good cause, may find that the counseling requirement shall not be imposed. (h) (1) The sentencing court also shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order 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) This protective order may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation. (i) If probation is granted or the execution or imposition of a sentence is suspended for a defendant convicted under subdivision (a), the sentencing court may order the defendant placed on active GPS monitoring. It is the intent of the Legislature that the court, in making this decision, consider 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 before placing the defendant on active GPS monitoring. (j) The court shall consider whether the defendant would benefit from treatment pursuant to Section 2684. If it is determined to be appropriate, the court shall recommend that the Department of Corrections and Rehabilitation make a certification as provided in Section 2684. Upon the certification, the defendant shall be evaluated and transferred to the appropriate hospital for treatment pursuant to Section 2684.   SEC. 5.   Section 1269c of the Penal Code is amended to read: 1269c. (a) If a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule of bail for that offense is insufficient to ensure the defendant's appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence, the peace officer shall prepare a declaration under penalty of perjury setting forth the facts and circumstances in support of his or her belief and file it with a magistrate, as defined in Section 808, or his or her commissioner, in the county in which the offense is alleged to have been committed or having personal jurisdiction over the defendant, requesting an order setting a higher bail. (b) Except where the defendant is charged with an offense listed in subdivision (a) of Section 1270.1, the defendant, either personally or through his or her attorney, friend, or family member, also may make application to the magistrate for release on bail lower than that provided in the schedule of bail or on his or her own recognizance. (c) The magistrate or commissioner to whom the application is made is authorized to set bail in an amount that he or she deems sufficient to ensure the defendant's appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence, and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant's release on his or her own recognizance. (d) The magistrate or commissioner may, as a condition of bail or release on his or her own recognizance, order a defendant who is charged with a crime of domestic violence or stalking placed on active GPS monitoring. It is the intent of the Legislature that the court, in making this decision, consider 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 before placing the defendant on active GPS monitoring. (e) If, after the application is made, no order changing the amount of bail is issued within eight hours after booking, the defendant shall be entitled to be released on posting the amount of bail set forth in the applicable bail schedule.   SEC. 6.   SEC. 2.  If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.