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AB-465 Firearm relinquishment: persons under protective orders.(2019-2020)



Current Version: 08/28/19 - Amended Senate         Compare Versions information image


AB465:v97#DOCUMENT

Amended  IN  Senate  August 28, 2019
Amended  IN  Senate  May 29, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 465


Introduced by Assembly Member Eggman
(Coauthor: Assembly Member Blanca Rubio)
(Coauthor: Senator Rubio)

February 11, 2019


An act to amend Sections 241.1 and 241.2 of the Welfare and Institutions Code, relating to juveniles. An act to amend Section 3044 of, and to add Section 6390 to, the Family Code, and to add Section 136.4 to the Penal Code, relating to firearms.


LEGISLATIVE COUNSEL'S DIGEST


AB 465, as amended, Eggman. Juveniles: dual status children. Firearm relinquishment: persons under protective orders.
(1) Existing law prohibits a person subject to a protective order, as defined, from owning, possessing, purchasing, or receiving a firearm or ammunition while the protective order is in effect. Existing law requires a court, upon issuing a protective order, to order the respondent to relinquish any firearm in the respondent’s immediate control and makes a violation of that order a crime. Existing law requires the respondent, upon request of any law enforcement officer, or within 24 hours of being served with the order, to surrender or sell the firearm, as specified, and file with the court a receipt showing the firearm was surrendered or sold.
This bill would require a court, when issuing a protective order, to determine whether the restrained person has possession or control of a firearm or ammunition in violation of the requirement to relinquish that firearm or ammunition. The bill would require the court, upon making this determination, to set a review hearing, as specified, to determine whether the person continues to possess or control a firearm or ammunition in violation of the provisions described above.
(2) Existing law requires a family court to determine the best interest of the child for the purpose of deciding child custody in specified proceedings, including proceedings under the Domestic Violence Prevention Act. In making that determination, existing law requires the court to consider specified factors, including whether the perpetrator of domestic violence is restrained by a protective order or restraining order and has complied with that order.
This bill would require the court to also consider whether the perpetrator of domestic violence is, or has been, in possession or control of a firearm or ammunition in violation of the law.
(3) Existing law authorizes a court with jurisdiction over specified criminal matters to issue a protective order and requires a person who is the subject of the protective order to relinquish any owned or possessed firearms. Existing law also authorizes a court to issue a protective order as a condition of probation for domestic violence offenses.
This bill would require a court, when it issues a protective order pursuant to these provisions against a defendant charged with, or convicted of, a crime of domestic violence, to consider all relevant evidence to determine if there is good cause to believe that the defendant has possession or control of a firearm. The bill would require the court, if it determines that there is good cause to believe that the defendant has possession or control of a firearm, to set a review hearing to determine whether the defendant has complied with the requirement to relinquish that possession or control, as specified. The bill would require the court, if the court finds that the defendant possesses or controls a firearm, to consider whether bail or release on own recognizance is appropriate and would authorize the court, if the defendant is not present, to issue a bench warrant, as specified.

Existing law establishes the jurisdiction of the juvenile court, which may adjudge a child to be a dependent of the court under certain circumstances, including when the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, or a parent or guardian fails to adequately supervise or protect the child, as specified. Existing law generally subjects any person under 18 years of age who commits a crime or engages in certain noncriminal behavior, including, among other things, persistent or habitual truancy, to the jurisdiction of the juvenile court, which may adjudge the minor to be a ward of the court.

Existing law requires the probation department and child welfare service department in each county to jointly develop a written protocol, as specified, to ensure appropriate local coordination in the assessment of a minor who appears to come within the description of both a dependent child and a ward of the juvenile court. Existing law authorizes the departments to create a jointly written protocol to allow the departments to jointly assess and produce a recommendation that the child be designated as a dual status child, allowing the child to be simultaneously a dependent child and a ward of the court. Existing law requires the State Department of Social Services to issue instructions to all counties on how to completely and consistently track the involvement of these youth in both the child welfare system and the juvenile justice system.

This bill would define various terms, including, among others, “dual status youth” and “child welfare reentry,” for purposes of tracking the involvement of youth in both the child welfare system and the juvenile justice system. The bill would also state the intent of the Legislature to replace the term “delinquency” with “juvenile justice” in all parts of code that address child welfare and juvenile justice, and would make that change in provisions relating to dual status youth.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 3044 of the Family Code is amended to read:

3044.
 (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, or against any person in subparagraph (C) of paragraph (1) of subdivision (b) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interests interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.
(b) To overcome rebut the presumption set forth in subdivision (a), the court shall find that paragraph (1) is satisfied and shall find that the factors in paragraph (2), on balance, support the legislative findings in Section 3020.
(1) The perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interests interest of the child pursuant to Sections 3011 and 3020. In determining the best interests interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.
(2) Additional factors:
(A) The perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
(B) The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.
(C) The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate.
(D) The perpetrator is on probation or parole, and he or she has or has not complied with the terms and conditions of probation or parole.
(E) The perpetrator is restrained by a protective order or restraining order, and he or she has or has not complied with its terms and conditions.
(F) The perpetrator of domestic violence has committed any further acts of domestic violence.
(G) The perpetrator is, or has been, in possession or control of a firearm or ammunition while subject to a protective order, in violation of Section 6389.
(c) For purposes of this section, a person has “perpetrated domestic violence” when he or she the person is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.
(d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of a crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained that constitutes domestic violence, as defined in Section 6211, or abuse, as defined in Section 6203, including, but not limited to, a crime described specified in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code.
(2)  The requirement of a finding by the court shall is also be satisfied if a court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years.
(e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.
(f) (1) It is the intent of the Legislature that this subdivision be interpreted consistently with the decision in Jaime G. v. H.L. (2018) ____ 25 Cal.App.5th ____, 794, which requires that the court, in determining that the presumption in subdivision (a) has been overcome, rebutted, make specific findings on each of the factors in subdivision (b).
(2) If the court determines that the presumption in subdivision (a) has been overcome, rebutted, the court shall state its reasons in writing or on the record as to why paragraph (1) of subdivision (b) is satisfied and why the factors in paragraph (2) of subdivision (b), on balance, support the legislative findings in Section 3020.
(g) In an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence, violence has been made, the court shall make a determination as to whether this section applies prior to issuing a custody order, unless the court finds that a continuance is necessary to determine whether this section applies, in which case the court may issue a temporary custody order for a reasonable period of time, provided the order complies with Section 3011, including, but not limited to, subdivision (e), and Section 3020.
(h) In a custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give provide them a copy of this section prior to any custody mediation in the case.

SEC. 2.

 Section 6390 is added to the Family Code, to read:

6390.
 (a) (1) When a court issues a protective order, including, but not limited to, a temporary protective order, pursuant to this part, the court shall determine, by a preponderance of the evidence, whether the person subject to the protective order has possession or control of a firearm or ammunition in violation of Section 6389. In making this determination, the court shall consider all information presented at a noticed hearing that the restrained person has possession or control of a firearm or ammunition. The court may consider whether the person filed proof of firearm relinquishment, storage, or sale or whether an exemption from the firearm prohibition was requested and granted pursuant to Section 6389.
(2) The court shall make the determination required by paragraph (1) at the first noticed hearing at which a protective order is issued, including, but not limited to, a temporary protective order issued on an ex parte basis, regardless of whether the noticed hearing is continued or rescheduled with respect to other procedural or factual issues before the court.
(3) (A) The court shall make written findings, on the record, of the determination required by paragraph (1).
(B) If the court determines that the restrained person has possession or control of a firearm or ammunition in violation of Section 6389, the court shall communicate that determination to the local law enforcement agency with jurisdiction over the restrained person and provide a copy of the written findings described in subparagraph (A) to any party present at the hearing and, upon request, to any party not present at the hearing.
(C) If the court determines that the restrained party does not have possession or control of a firearm or ammunition in violation of Section 6389, the court shall include in the written findings described in subparagraph (A) the specific basis for that determination, including, but not limited to, any evidence considered by the court to refute the protected party’s assertion that the restrained party has possession or control of a firearm or ammunition in violation of Section 6389.
(b) (1) If the court determines, pursuant to paragraph (1) of subdivision (a), that the restrained person has possession or control of a firearm or ammunition in violation of Section 6389, the court shall set a review hearing to determine whether the restrained party has complied with Section 6389.
(2) The review hearing shall take place within two court days after the noticed hearing at which the court made the determination required by paragraph (1) of subdivision (a). The court may extend the date of the review hearing by no more than five court days for good cause evidenced by written findings on the record. The court may remove the review hearing from the calendar only after making written findings, on the record, of the good cause for removing the review hearing and providing a copy of the written findings to the protected party.
(3) The court may order the restrained person to appear at the review hearing, but may conduct the review hearing in the person’s absence. The court may authorize any party to appear at the review hearing by telephone or other electronic means.
(4) If the restrained person, or a representative of the restrained person, is not present at the hearing when the review hearing is set, the protected person shall provide notice of the review hearing to the restrained person as soon as practically possible before the review hearing by personal service, mail to the restrained person’s last known address, or electronic service to the restrained person’s last known email address.

SEC. 3.

 Section 136.4 is added to the Penal Code, to read:

136.4.
 (a) (1) When a court issues a protective order pursuant to Section 136.2 during a criminal case or as a condition of probation pursuant to Section 1203.097 against a defendant charged with a crime of domestic violence, the court shall consider all relevant evidence, including evidence provided on the defendant’s behalf, to determine if there is good cause to believe that the defendant has possession or control of a firearm.
(2) If the court finds good cause to believe that the defendant has possession or control of a firearm, the court shall set a review hearing to ascertain whether the defendant has complied with the requirement to relinquish that possession or control, as required pursuant to Section 527.9 of the Code of Civil Procedure.
(3) If the defendant is not in custody at the time the order is issued, the review hearing shall occur within two court days after issuance of the protective order. The court may extend time for the review hearing to within five court days with good cause. If the defendant is in custody at the time the protective order is issued, the court shall set the review hearing within two court days of the defendant’s release from custody.
(4) The court shall give the defendant an opportunity to present information at the review hearing to refute the allegation that the defendant has possession or control of a firearm.
(5) If the review hearing is based on a criminal proceeding pursuant to Section 136.2, the court may order the defendant to personally appear. If the review hearing is based on a condition of probation pursuant to Section 1203.097, the court shall order the defendant to personally appear.
(b) (1) When the review hearing is based on a criminal proceeding pursuant to Section 136.2, if the court finds that the defendant has possession or control of a firearm, the court shall consider whether bail, as set, or release on own recognizance is appropriate.
(2) If the court determines that bail or release on own recognizance is not appropriate, in light of the evidence presented at the review hearing, and the defendant is not at the hearing, the court may issue a bench warrant.
(c) The burden of proof to show that the defendant has not complied with the requirement to relinquish a firearm is on the prosecution.