Bill Text: CA AB2040 | 2021-2022 | Regular Session | Amended
Bill Title: Criminal procedure: restraining order violation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-05-19 - In committee: Held under submission. [AB2040 Detail]
Download: California-2021-AB2040-Amended.html
|
Amended
IN
Assembly
March 24, 2022 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Assembly Bill
No. 2040
| Introduced by Assembly Member Maienschein |
February 14, 2022 |
An act to amend Section 273.6 of the Penal Code, relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 2040, as amended, Maienschein.
Criminal procedure: restraining order violation.
Existing law prohibits the intentional and knowing violation of a protective order, as specified. A violation of this prohibition is a misdemeanor. Existing law requires a minimum term of imprisonment if the violation results in physical injury. Existing law also makes a subsequent violation of these provisions after a conviction, as specified, punishable as either a misdemeanor or a felony.
This bill would make a violation of this prohibition that involves a protective order between specified parties and that involves the restrained person forcibly entering or trespassing within the residential dwelling, as defined, of the protected party punishable as either a felony or
misdemeanor. by a fine not exceeding $2,000, or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment, except as specified.
By increasing punishment for an existing offense, 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.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 273.6 of the Penal Code is amended to read:273.6.
(a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.(b) In the event of a violation of subdivision (a) that results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor
more than one year, or by both that fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interest of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.
(c) A violation of subdivision (a) in which the protected person is related to the restrained person in any
manner described in subdivision (b) of Section 273.5 and in which the violation included the forcible entry into, or unlawful presence within, the protected person’s residential dwelling, is punishable by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not exceeding one year, or a fine not exceeding ten thousand dollars ($10,000), or by both such fine and imprisonment. a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interest of justice and for reasons stated on the record, reduce or eliminate
the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling. As used in this subdivision, “residential dwelling” includes the protected party’s primary residence, as well as any location where the protected person is temporarily residing, such as a battered women’s shelter, a hotel, or the home of a friend or family member, or any other structure or vehicle
member to which the protected party flees or relocates due in substantial part to fear of the restrained party.
(d) Subdivisions (a), (b), and (c) shall apply to the following court orders:
(1) Any order issued pursuant to Section 6320 or 6389 of the Family Code.
(2) An order excluding one party from the family dwelling or from the dwelling of the other.
(3) An order enjoining a party from specified behavior that the court determined was necessary to effectuate the order described in subdivision (a).
(4) Any order issued by another state that is recognized
under Part 5 (commencing with Section 6400) of Division 10 of the Family Code.
(e) A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or “a credible threat” of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or pursuant to subdivision (h) of Section 1170.
(f) In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) that results in physical injury to a victim, the person shall
be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than six months nor more than one year, by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interest of justice and for reasons stated in the record, reduce or eliminate the six-month minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed
or is making progress with counseling.
(g) The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders described in subdivisions (a), (b), (c), (e), and (f).
(h) (1) Every person who owns, possesses, purchases, or receives a firearm knowing they are prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, shall be punished under Section 29825.
(2) Every person subject to a protective order described in paragraph (1) shall not be prosecuted under this
section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (f) of Section 527.9 of the Code of Civil Procedure, or subdivision (h) of Section 6389 of the Family Code.
(i) If probation is granted upon conviction of a violation of subdivision (a), (b), (c), (d), (e), or (f), the court shall impose probation consistent with Section 1203.097, and the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women’s shelter or to a shelter for abused elder persons or dependent adults, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.
(j) For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under subdivision (f), the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of the person’s 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.
