Bill Text: CA AB2632 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Gang injunctions: violations: contempt of court.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2010-09-30 - Chaptered by Secretary of State - Chapter 677, Statutes of 2010. [AB2632 Detail]
Download: California-2009-AB2632-Amended.html
Bill Title: Gang injunctions: violations: contempt of court.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2010-09-30 - Chaptered by Secretary of State - Chapter 677, Statutes of 2010. [AB2632 Detail]
Download: California-2009-AB2632-Amended.html
BILL NUMBER: AB 2632 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 5, 2010
AMENDED IN SENATE JUNE 23, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Davis
FEBRUARY 19, 2010
An act to amend Section 166 of the Penal Code, relating to
contempt of court.
LEGISLATIVE COUNSEL'S DIGEST
AB 2632, as amended, Davis. Gang injunctions: violations: contempt
of court.
Existing law provides for injunctive relief from the unlawful
activities of criminal street gangs. Existing law provides that
disobedience of the terms of any court order constitutes a contempt
of court, and is punishable as a misdemeanor.
This bill would specify that disobedience of the terms of an
injunction that restrains the activities of a criminal street gang or
any of its members constitutes contempt of court, and is punishable
as a misdemeanor.
Because this bill would create a new crime, it would impose a
state-mandated local program.
This bill would incorporate additional changes in Section 166 of
the Penal Code made by AB 2217 that would become operative if both
bills are enacted and this bill becomes effective after AB 2217.
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 166 of the Penal Code is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d),
every person guilty of any contempt of court, of any of the following
kinds, is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any court of justice, in the immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior as specified in paragraph (1) committed in the
presence of any referee, while actually engaged in any trial or
hearing, pursuant to the order of any court, or in the presence of
any jury while actually sitting for the trial of a cause, or upon any
inquest or other proceedings authorized by law.
(3) Any breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of any court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by any
court, including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of any court.
(6) The contumacious and unlawful refusal of any person to be
sworn as a witness or, when so sworn, the like refusal to answer any
material question.
(7) The publication of a false or grossly inaccurate report of the
proceedings of any court.
(8) Presenting to any court having power to pass sentence upon any
prisoner under conviction, or to any member of the court, any
affidavit or testimony or representation of any kind, verbal or
written, in aggravation or mitigation of the punishment to be imposed
upon the prisoner, except as provided in this code.
(9) Willful disobedience of the terms of any injunction that
restrains the activities of a criminal street gang or any of its
members, lawfully issued by any court, including an order pending
trial.
(b) (1) Any person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
telephone or mail, or directly, and who has been previously convicted
of a violation of Section 646.9 shall be punished by imprisonment in
a county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), any
willful and knowing violation of any protective order or stay-away
court order issued pursuant to Section 136.2, in a pending criminal
proceeding involving domestic violence, as defined in Section 13700,
or issued as a condition of probation after a conviction in a
criminal proceeding involving domestic violence, as defined in
Section 13700, or elder or dependent adult abuse, as defined in
Section 368, or that is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of any order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivisions (c) and (d) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison for 16 months or two or three years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is 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 or 527.8 of
the Code of Civil Procedure, shall be punished under the provisions
of subdivision (g) of Section 12021.
(2) A 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 (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097 of the Penal Code.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, 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 one thousand dollars ($1,000).
(B) That the defendant provide restitution to 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.
(3) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), 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.
(4) If 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
subdivision (c), 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 subdivision, until
all separate property of the offending spouse is exhausted.
(5) Any person violating any order described in subdivision (c)
may be punished for any substantive offenses described under Section
136.1 or 646.9. No finding of contempt shall be a bar to prosecution
for a violation of Section 136.1 or 646.9. However, any person held
in contempt for a violation of subdivision (c) shall be entitled to
credit for any punishment imposed as a result of that violation
against any sentence imposed upon conviction of an offense described
in Section 136.1 or 646.9. Any conviction or acquittal for any
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 1.5. Section 166 of the Penal Code
is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d),
every a person guilty of any
contempt of court, of any of the following kinds, of
the following contempts of court is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any a court of
justice, in the immediate view and presence of the court, and
directly tending to interrupt its proceedings or to impair the
respect due to its authority.
(2) Behavior as specified in paragraph (1)
that is committed in the presence of any
a referee, while actually engaged in
any a trial or hearing, pursuant to the order of
any a court, or in the presence of
any a jury while actually sitting for
the trial of a cause, or upon any an
inquest or other proceedings proceeding
authorized by law.
(3) Any A
breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of any
the court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by
any a court, including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of any a court.
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
(6)
(7) The contumacious and unlawful refusal of
any a person to be sworn as a witness or, when
so sworn, the like refusal to answer any a
material question.
(7)
(8) The publication of a false or grossly inaccurate
report of the proceedings of any a
court.
(8)
(9) Presenting to any a
court having power to pass sentence upon any
a prisoner under conviction, or to any
a member of the court, any an
affidavit or , testimony ,
or representation of any kind, verbal or written, in aggravation or
mitigation of the punishment to be imposed upon the prisoner, except
as provided in this code.
(10) Willful disobedience of the terms of any injunction that
restrains the activities of a criminal street gang or any of its
members, lawfully issued by any court, including an order pending
trial.
(b) (1) Any
A person who is guilty of contempt of court under paragraph (4)
of subdivision (a) by willfully contacting a victim by telephone or
mail, or directly, and who has been previously convicted of a
violation of Section 646.9 shall be punished by imprisonment in a
county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a),
any a willful and knowing violation of
any a protective order or stay-away court order
issued pursuant to Section 136.2, in a pending criminal proceeding
involving domestic violence, as defined in Section 13700, or issued
as a condition of probation after a conviction in a criminal
proceeding involving domestic violence, as defined in Section 13700,
or elder or dependent adult abuse, as defined in Section 368, or that
is an order described in paragraph (3), shall constitute contempt of
court, a misdemeanor, punishable by imprisonment in a county jail
for not more than one year, by a fine of not more than one thousand
dollars ($1,000), or by both that imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) Any A
order issued pursuant to Section 6320 or 6389 of the Family
Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of
any an order described in paragraph (1)
occurring within seven years of a prior conviction for a violation of
any of those orders and involving an act of violence or "a credible
threat" of violence, as provided in subdivisions (c) and (d) of
Section 139, is punishable by imprisonment in a county jail not to
exceed one year, or in the state prison for 16 months or two or three
years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is 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 or 527.8 of
the Code of Civil Procedure, shall be punished under the
provisions of subdivision (g) of Section 12021.
(2) A 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 (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097 of the Penal Code.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, 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 one thousand dollars ($1,000).
(B) That the defendant provide restitution to 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.
(3) For any 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 or subdivision (c), the
court shall make a determination of the defendant's ability to pay.
In no event shall any 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.
(4) If 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
subdivision (c), the community property may
shall 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 subdivision, until all separate property
of the offending spouse is exhausted.
(5) Any A
person violating any an order
described in subdivision (c) may be punished for any substantive
offenses described under Section 136.1 or 646.9. No
A finding of contempt shall not be a
bar to prosecution for a violation of Section 136.1 or 646.9.
However, any a person held in contempt
for a violation of subdivision (c) shall be entitled to credit for
any punishment imposed as a result of that violation against any
sentence imposed upon conviction of an offense described in Section
136.1 or 646.9. Any A conviction or
acquittal for any a substantive offense
under Section 136.1 or 646.9 shall be a bar to a subsequent
punishment for contempt arising out of the same act.
SEC. 2. Section 1.5 of this bill incorporates
amendments to Section 166 of the Penal Code proposed by both this
bill and AB 2217. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2011, (2)
each bill amends Section 166 of the Penal Code, and (3) this bill is
enacted after AB 2217, in which case Section 1 of this bill shall not
become operative.
SEC. 2. SEC. 3. 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.
