Restraining Order Violation in California – Penal Code 273.6 PC
What is a Restraining Order in California? – Overview
Restraining or criminal protective orders are court-issued mandates, which are used to protect victims from being physically abused, intimidated, stalked or harassed. The restraining orders forbid individuals from making any type of contact with the alleged victim, including phone calls, text messages and emails. Restraining orders also prevent indirect communication such as sending a message through a third party. However, the no-contact order does permit a person’s lawyer to retain the services of an investigator and contact the protected individual for interviewing him or her as part of the defense.
How Can You Be Found Guilty of Violation of a Restraining or Protective Order?
A person who is facing a court issued restraining order or a protective order may be charged with a violation of that order under California Penal Code Section 273.6 PC, if he or she fails to comply with the terms and conditions of that order. To obtain a conviction, the prosecutor must prove several elements:
- A judge issued the restraining order against the defendant.
- The defendant had knowledge that such an order was issued and knew about the terms and conditions contained in the order. However, the prosecution does not need to prove that the defendant actually read the court order to show that he or she became familiar with its contents. The defendant can obtain knowledge of the court order through an alternate source that conveys the essence of the order’s terms.
- The defendant had the “present ability” to follow the order. This means that the court order must be tailored in a reasonable fashion that avoids placing unjust or prejudicial restrictions on a defendant’s liberty. If the terms of the restraining order make it impossible or impractical for him or her to comply, then that person cannot be convicted for a violation of these unreasonable terms.
- The defendant intentionally violated the restraining order or protective order. This means that he or she knew of the order’s terms and chose to violate them anyway. However, an accidental or inadvertent violation is not enough to convict the person of violating a restraining order under California Penal Code Section 273.6 PC.
Types of Restraining Orders in California
Protective orders issued by California courts fall under four categories:
Domestic violence restraining orders: These types of restraining orders protect individuals from abuse or threats of abuse from someone with whom they have a close relationship. These types of restraining orders may be filed by married or registered domestic partners, spouses, former partners or spouses, boyfriends or girlfriends and co-habitants. They may also be filed on behalf of a child. A child who is 12 or older can file a restraining order on his or her own.
- Civil harassment restraining order: These restraining orders may be filed against neighbors, roommates, co-workers or extended family members. They may be filed in cases where there is unlawful violence such as assault and battery or stalking or where there is a credible threat of violence.
- Elder or dependent adult restraining order: These types of restraining orders may be filed by individuals who are 65 or older or by those between the ages of 18 and 64 who have mental and physical disabilities that prevent them from living a normal life. Elderly or dependent individuals who are victims of abuse, neglect, hurtful treatment and deprivation can file these types of restraining orders.
- Workplace violence restraining orders: These are filed by employers who wish to protect employees from violence or threatened violence in the workplace.
Levels of Protection
Anyone who has obtained one of these four types of restraining orders can seek different levels of protection depending on the specifics of their case, their particular circumstances and the level of danger they face or believe they face. There are three levels of protection offered to applicants who file for restraining orders:
- Emergency Protective Order (EPO): The purpose of an emergency restraining order (EPO) is to provide short-term or interim protection to the victim while he or she is in the process of applying for a permanent restraining order. Typically, a police officer responding to the scene will request an EPO. These types of protective orders are commonly issued in domestic violence cases. An EPO lasts for seven days and can be replaced by a more permanent court order after its conclusion.
- Temporary Restraining Order (TRO): A temporary restraining order can be requested by the prosecution and if granted, stays in effect until the conclusion of the case. The purpose of a TRO is to provide temporary protection to the victim until a hearing on the merits of a permanent restraining order can be held or until the conclusion of the criminal case.
- Permanent Restraining Order (PRO): A permanent restraining order restricts you from making any contact with the victim and can last for up to five years. Since a PRO significantly restricts your liberty, the court must conduct a hearing and allow the prosecution as well as the defense to present their cases. The judge will weigh the evidence for and against issuing the restraining order and make a determination based on the facts.
Serving a Restraining Order in California
Once a court grants a temporary restraining order and a hearing date, the order papers must be delivered, or “served” to the respondent, putting them on notice that a petition has been filed against them. The order papers will typically contain the date and time of the hearing, a statement of the action requested, and any document the petitioner may have filed with the court in support of his/her position. The respondent will generally have between 10 to 20 days before the hearing date in which to respond to the petitioner’s statements.
Without proper service to the respondent, the court cannot issue a permanent restraining order. Service can be performed by a law enforcement officer or a process server, but it cannot be mailed.
Penalties for Violating a Restraining Order – California PC 273.6(a)
Violating a California restraining order or protective order under California Penal Code Section 273.6 is viewed as a “wobbler,” which means that it can be charged either as a misdemeanor or felony offense depending on the facts and circumstances of the case and the criminal history of the defendant. The prosecution will also consider several factors such as whether the victim sustained injuries or if the defendant was previously convicted or violating a restraining order. Here are the potential charges and penalties faced by an individual who has been accused of violating a restraining order in California:
Violating a restraining order (misdemeanor):
If you are convicted of violating a protective order, a misdemeanor, you will face up to a $1,000 fine and up to one year in county jail.
Violation resulting in physical injury:
You will serve a minimum of 30 days in county jail and pay a maximum fine of $2,000. In making this determination, the court will consider the seriousness of the violation, the probability of future violations, the safety of the victim, and whether you have successfully completed or have made substantial progress with court ordered counseling sessions.
Second violation of a restraining order within one year:
This can be charged as a misdemeanor or a felony. A misdemeanor conviction can result in six months to a year in county jail. A felony conviction can result in probation and up to one year in county jail or 16 months or two or three years in county jail.
Second violation of a restraining order within seven years:
A second misdemeanor violation can result in up to one year in county jail and up to $1,000 in fines. A felony conviction can result in up to three years in county jail and a maximum of $10,000 in fines.
Probation may be available if you are convicted of violating a restraining order:
Individuals could also be placed on supervised probation. Those who are under probation may not violate any law (other than traffic infractions). They will be required to visit their probation officer under the probation terms; perform community service; reimburse victims for expenses resulting from the violation. A judge may also order individuals on probation to undergo mandatory counseling, make payments to a battered women’s shelter or pay restitution to the victim for medical expenses that were incurred as a result of the offense. Violating your probation could result in the court sentencing you to the maximum time allowed under the law.
Firearms restrictions that result from violating a restraining or protective order:
If you have a restraining order in effect against you, it is illegal for you to own, possess, buy or otherwise obtain a firearm. You will be required to either surrender your weapons to a local law enforcement agency or sell them to a licensed gun dealer. If you knowingly possess a firearm with effective restraining order, you could be charged with a misdemeanor that is punishable by up to a $1,000 fine and a maximum one-year county jail sentence. If charged with a felony, you could face up to $1,000 in fines and a maximum three-year state prison sentence.
Building a Strong Defense Against Charges for Violation of a Restraining Order
In order to convict an individual of violating a protective order, the prosecution must prove that the restraining order was lawfully issued. If a restraining order is invalid or not legally issued by a court of law, you are not bound by its terms and you cannot be convicted for a violation of such an order.
If the court lacked jurisdiction to issue the restraining order or issued the order based on false or misleading information, then, such a restraining order is invalid and you cannot be convicted for failing to follow it. To obtain a conviction, the prosecution must also prove that you had knowledge about the existence of the order; you understood the terms and conditions of the order; you had the ability to follow the order; and that you intentionally violated the order.
Possible Defenses to a Charge of Restraining or Protective Order Violation
A variety of legal defenses may be used in connection with California Penal Code Section 273.6, the law dealing with the violation of a restraining order. A knowledgeable criminal defense lawyer will be able to apply these defenses to the advantage of an individual facing the charge of violating a restraining order:
Lack of knowledge:If the defendant did not know that a restraining order or protective order was issued, he or she cannot be convicted of intentionally violating it.
This defense works in cases where the defendant was not present when the order was issued. Defendants can also prove lack of knowledge by showing that they did not receive notice that the restraining order was issued against them.
For example, if the order was erroneously served to someone else, the defendant cannot and should not be penalized for violating the order.
Lack of intent:
A person can claim this defense if he or she had violated the terms of the order accidentally or inadvertently. For example, if the defendant had run into the protected individual on the street, at a social event, a movie theater or restaurant unexpectedly, he or she should not be held responsible for violating the order.
Inability to follow the court order:
In order to be convicted of the offense, a defendant must also have the present ability to follow the California court order. If a restraining order requires a person to act in a certain manner that he or she is incapable of complying with, then that individual’s defense attorney can argue for the charges to be dismissed and the terms of the restraining order to be revised. For example: A court restraining order requires the defendant to avoid a certain road that passes through the alleged victim’s neighborhood.
However, this is the only road out of the defendant’s neighborhood and he or she cannot gain access to the highway except through its use. Because it is unreasonable and unfair to require the defendant to avoid the only access route, the court will likely rule that he or she was unable to comply with the court order.
The restraining order was not lawfully issued:
If a restraining order was improperly or illegally issued, a defendant is not bound by its terms and cannot be convicted of a violation of that order. The defense attorney can argue that the restraining order was invalid because the court lacked jurisdiction to issue such an order or that the facts on which it was based are clearly false or misleading.
If a defendant is involved in a contentious divorce, child custody issue or other dispute, the protected party may falsely claim that he or she violated the order. In such situations, the defendant may face allegations of stalking the protected individual. In our experience, we have seen this tactic used often by parties to get back at the defendants. When you have been wrongfully accused of violating a restraining order, it is important to fight them and clear your name, not to mention avoid facing serious penalties for a crime you did not commit.
Restraining Order Violation in California – FAQs
I have been served with a restraining order. What happens if the victim contacts me?
If the terms of your restraining order forbid contact with the victim, you should try and avoid any contact with the alleged victim at any cost even if he or she contacts you first. The restraining order is aimed at restricting your conduct, not the victim’s, and only you can be convicted of violating its terms under California Penal Code section 273.6. If the victim wishes to remove the restraining order, he or she must contact the court and request that the order be lifted. Until that time, do not speak or communicate with the alleged victim in any way until you have verification that the restraining order has been officially lifted by the court.
How to serve a restraining order in California?
Once a restraining order has been granted by the court, the order papers must delivered or “served” to you in a way that gives you notice of its terms. Personal service can be performed by a law enforcement office or a process server who is registered with the court. In addition, you can be orally “served” with the terms of the restraining order by a judge who reads them aloud to you in court and ensures that you understand them.
If I think that a restraining order is invalid should I just ignore it?
No. Any order issued by the court must be obeyed or you could face criminal penalties for non-compliance. If you believe that a restraining order is invalid, based on false information or improperly served, you should contact an attorney can advise you on how to proceed without being in violation of the restraining order.
How will a restraining order affect my gun ownership?
A restraining order will typically prohibit you from owning or possessing any firearms while the order is in effect. Under California Penal Code section 12021, it is a misdemeanor offense to possess or purchase a firearm if the restraining order restricts your access to this type of weapon. If you own a firearm at the time the restraining order is issued, the court may require you to turn it over to the police or sell it to a local arms dealer.
Is violating a restraining order charged as a misdemeanor or felony in California?
Typically, violating a restraining order is charged as misdemeanor if it is your first violation. However, if you have previously been convicted of violating a restraining order within the past year and the victim has sustained physical injury as a result of the current offense, your violation can be charged as a felony offense. The offense can also be charged as a felony if it is your second violation within seven years and involves violence or threats of violence.
Can an employer discover the existence of a restraining order on my record?
Restraining orders are accessible by the public because they are public record, which means that an employer can find such information if he or she knows where to look. Normal background checks conducted on potential employees vary in terms of their thoroughness and the type of information the individual employer is attempting to access. Luckily, a restraining order is not considered a criminal conviction and therefore will not appear on a background checked aimed solely at discovering your criminal conviction history. In addition, civilly issued restraining orders are unlikely to appear during a background check as most employers do not attempt to access your family law or civil records. However, there is no law that prevents employers from accessing this information if they so desire.
Speak to an Experienced Restraining Order Attorney at Wallin & Klarich Today
If you have been charged with restraining or protective order violation, you can speak to one of our attorneys experienced in restraining orders who can better inform you of your options. For over 30 years, our attorneys at Wallin & Klarich have helped clients who have faced situations similar to yours. We will work hard to ensure that your rights and interests are protected.
With offices in Orange County, Los Angeles, San Diego, San Bernardino, Riverside, Ventura, and Victorville, our defense lawyers have successfully represented Southern California residents through their entire restraining order process.
We are available 24/7 to answer any questions you may have and are committed to building the best possible defense in your case. Please contact our skilled and professional defense attorneys today at (877) 4-NO-JAIL or (877) 466-5245. We always offer free consultations and comprehensive case assessments.