California Penal Code (PC) 273.6 makes it a crime to violate the conditions set forth in a restraining order (RO) and used sometimes interchangeably as a “protective order” (PO). This usually occurs when a judge issue a legal restraining order and you intentionally ignore the terms of the order.
Generally, a PO is a court order designed to protect a person(s) from harassment, physical abuse, stalking or threats by the named person in the order. The restrained party must stop all forms of contact—personal contact (telephone calls, texts, emails, social network sites or any type of surveillance).
There are 4 types of PO the court issues: (1) domestic violence restraining order (protect individuals from abuse suffered from a person whom he/she shares an intimate relationship with); (2) civil harassment restraining order (protect people not considered “intimate” such as neighbors, co-workers); (3) elder or dependent adult abuse protective order (protect those 65 and older and those who are between 18 and 64 who suffers from certain disabilities); (4) workplace violence restraining order (requested by an employer to protect an employee).
There are 3 levels of PO: (1) emergency protective order (issued in an emergency—usually when police responds to a domestic violence call and could lasts up to 7 days; (2) temporary restraining order (lasts for 2 to 3 weeks) and (3) permanent restraining order (usually before a temporary RO expires, the court will conduct a hearing. The judge will decide whether to make the order permanent, types of restrictions, and the length of the order. Permanent RO could last up to 3 years and may be extended, if necessary.
In order to violate a PO or a RO, the prosecution must prove beyond a reasonable doubt that (1) the judge issued a legal protective order; (2) knowledge of the order; and (3) intentional violation of the order.
If the judge orders a legal PO against you, the law requires you to follow it. However, if the PO was illegally issued, such as the court that issued it had no jurisdiction or there were no legal basis for the order, the defense should attack the validity of the underlying order. Before you are convicted of violating an order, the prosecutor must prove that you knew about the PO. This includes having had the opportunity to read the order (even if you did not actually do so).
California law is very specific about what is known as the “notice” requirements. The restricted person must be given notice that his/her liberties are being restricted. This can be accomplished by the judge orally advising the person who is present in court, in writing by a third party (police officer) who personally serves the person or an officer who verbally advises the person after being called to enforce the order of a pre-existing PO.
Intentional violation of the order means purposefully disobeying the PO. For example, if you are prohibited from contacting the mother of your child and you send her flowers, you have violated the order. No contact means absolutely no contact, whether you think you were being nice or loving.
If you did not know about the PO, you cannot be convicted of intentionally violating it. Examples would be not being present in court or it was mailed to a wrong address. If you accidentally are in the same place, the prosecution will have to show you intentionally were at the same location. Also beware that the order is a “one way street,” meaning you are the restrained person but the other person can contact you.
In cases where the other person contacts you, immediately cease contact and memorialize it in writing (date, time, content of conversation etc.) Only the judge can lift the PO, not the party requesting the PO. Be careful of being “set up” by the protected party. If this person can engage you in an act specifically enumerated in the PO and then calls to the police, you will be arrested for PC 273.6.
It is against the law to own, possess, purchase or otherwise acquire a gun or other firearms while you have a RO. If an order is issued, you must relinquish your weapons to the local law enforcement agency or sell it to a licensed gun dealer. If you knowingly own or possess a firearm during the time period of the RO, you could face a misdemeanor criminal charge, punishable by one-year county jail and mandatory fines.
A criminal protective order lasts until the end (expiration) date written on the Order. Civil restraining orders called Temporary Restraining Orders (TRO’s) last until the date of your court hearing written on the TRO. At the hearing, the judge will decide if the Restraining Order last up to five years. If there is no date written on the order, the order lasts for three years.
If you have more than one order, which one do I follow? Criminal orders take priority over civil orders, even if the criminal order is older. An exception is the Emergency Protective Order takes priority over other criminal or civil orders if it is more restrictive than the other orders.
Can I change or cancel the order? Only the court can change, modify, or cancel and order. You will not be allowed to make any changes to the order without the court’s permission, even if the protected person agrees. To get your case back in court, you need to file certain documents and hearing will be scheduled. Since both the criminal and civil orders are in effect for years and could impose criminal charges, if violated, defending against such orders is strongly recommended. If you have been wrongly accused of certain acts or behaviors in either the criminal, civil, or in both venues, contact my office immediately. (310) 880- 2904 or email me at cicastaneda@sbcglobal.net.
