Criminal Protective Orders in California – Penal Code Section 136.2
In California, if you are accused of domestic violence or other type of crimes, the prosecutor will often ask the judge to issue a criminal protective order (CPO). However, it’s important to note that while the prosecutor will petition the court to issue one, the judge has the final authority on whether to grant or deny the protective order based on the details of the case.
California Penal Code Section 136.2 is the statute used by a prosecutor in order to make a petition for a protective order. A CPO can also be issued at after a request by police in an effort to protect an alleged victim who may be at risk during a criminal investigation.
A domestic violence restraining order , commonly known as a "DVRO" (Form DV-100) is often requested in a family law matters if there is evidence of some type of physical or mental abuse. Criminal protective orders have several advantages for a victim. Thus, they have become fairly routine and almost automatic in most domestic violence related incidents, as well as cases of child abuse and sexual assault.
Criminal protective orders prohibit a defendant from harassing, threatening, stalking, or assaulting a protected person. They also prohibit having personal, verbal, written, or electronic contact, and they are required to remain a certain distance away from the victim.
Additionally, if a defendant owns a firearm, they will normally be ordered to surrender it to the local police, or sell it within one day. A CPO also permits a victim to record any type of contact that was prohibited. Victims need to make sure they understand their rights and report their concerns to the prosecutor and judge in an effort to have a protective order issued.
At Eisner Gorin LLP, our criminal defense lawyers may be able help a defendant avoid having a criminal protective order issued against them. We also may be able to assist in having the CPO modified, that could allow peaceful contact with the protected person.
To give readers a better understanding of protected orders, our California criminal defense attorneys are providing an overview below.
Issuing a California Criminal Protective Order
Criminal protective orders are designed to protect an alleged victim of a crime from further harm or harassment someone, who is typically a defendant in a criminal case. It should be noted that a victim of violence and their family members, witnesses, and anyone else who might be a victim of intimidation, can also be eligible for a protective order.
In California, there are several types of criminal cases that will normally result in the court granting a petition for a criminal protective order:
- Domestic Battery
- Corporal injury to Spouse
- Child Abuse
- Sexual Battery
- Assault and Battery
The court will usually issue a CPO at the defendant’s first court appearance, commonly known as the “arraignment.” Under California law, any defendant accused of a domestic violence related incident are required to appear in court where they will be formally served with a criminal protective order.
The arraignment on domestic violence charges is a crucial step in the court process because it gives a defendant an opportunity to deal with issues related to a protective order with their criminal defense attorney.
For example, during the arraignment process, a defendant’s lawyer might be able to make an argument the alleged victim doesn’t actually have a reasonable fear of bodily harm, and a criminal protective order will cause a substantial hardship by separating family members, causing emotional distress.
Factors Considered by Court to Issue a CPO
In order for the court to make a determination whether they will issue a criminal protective order against a defendant, they will consider a wide range of factors, including:
- Type and circumstances of the alleged crime
- Whether the victim suffered injuries
- Whether victim has any fear of future harm
- Defendant’s relationship to alleged victim
- Whether defendant has prior domestic violence accusations
- Whether defendant has a current restraining order
- Defendant’s prior criminal record
As stated above, if the court decides to issue a criminal protective order, the defendant will be ordered to not contact, harass, annoy, threaten, or commit acts of violence against the protected person. They will also be prohibited from making contact with victim through a third party. Once a protective order is issued, law enforcement will receive notification the following day.
If a defendant violates a criminal protective order, they could be charged with a separate crime and receive up to 6 months in a county jail, and fined up to $1,000.
How Long Does a Criminal Protective Order Last?
The length of a criminal protective order in California is based on the reasons why it was issued by the court. In a situation where the CPO was issued protect a victim or witness from harm or intimidation not to provide testimony in a criminal case, the CPO will last three years. It should be noted that once a defendant is convicted and sentenced, the CPO will be terminated.
In a situation where a defendant was convicted of a sexual related crime, or domestic violence, the court could issue a protective order prohibiting contact with the victim 10 years. The CPO would still be valid if the defendant is in custody.
It should also be noted that the protected person listed on a criminal protective order can request a modification. This is common for married couples who have children living in the same home. If approved by the court, the modification would allow the restrained person to remain in the same home.
Typically, the most effective method to modify the protective order is to request a peaceful contact or no negative contact order. In this manner, it won’t terminate the protective order, rather it allows the person who is restrained to make contact with the protected person, but it has to be peaceful.
Contact Us for Help with a Criminal Protective Order
As you can see above, there are many collateral consequences that are associated with a criminal protective order. Therefore, you need to have discuss the situation with an seasoned criminal defense attorney to review potential challenges to a court issuing a CPO.
We have extensive experience dealing with issues of California criminal protective orders. In domestic cases, a CPO hearing could occur during the pretrial phase.
Eisner Gorin LLP is a criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. We also have an office located at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact us for a consultation at (310) 328-3776.