Violating a Restraining or Protective Order in California - Penal Code 273.6 PC
In cases of domestic violence and similar crimes, the state of California takes the protection of alleged victims very seriously. For that reason, the crime of violating a protective order, restraining order, or stay away order under Penal Code 273.6 PC comes with steeper penalties than other types of criminal contempt.
In other words, PC 273.6 makes it a crime for anyone to violate the terms of a court-ordered protective order, restraining order, or stay-away order.
Criminal protective orders, called “CPOs,” are restraining orders issued by a judge in a domestic violence prosecution. They are typically issued in criminal cases to restrain a defendant from harassment, abuse, stalking, or threatening the alleged victim.
A judge routinely issues a protective order in criminal cases involving violence or when there are credible threats of violence. As noted, protective and restraining orders usually are directly connected with California domestic violence cases.
Penal Code 273.6 says: “Any intentional and knowing violation of a protective order is a misdemeanor crime punishable by up to one year in county jail, and fine of up to $1,000, or both jail and a fine. “
The type of behavior a protective order will attempt to prohibit always depends on the case's details. Still, they will generally outline and dictate the kind of behavior that's not permitted or acceptable by the defendant.
If you're convicted under PC 273.6, you could face up to a year in jail and fines up to $1000. Our California criminal defense lawyers will look at this law below.
Penal Code 273.6 PC Explained
Under Penal Code 273.6, violating any of the terms of a valid protective order in California is a crime. This means that if you are served with any restraining or stay away order, you must comply with its every provision or risk being charged with a crime. To convict you of violating a protective order, prosecutors must prove the following:
- A lawful protective order was issued against you;
- You knew about the protective order, including having an opportunity to read it;
- You were capable of obeying the protective order; and
- You willfully violated it.
"Willfully" in this context means that you violated the protective order on purpose or deliberately. It does not matter if you did not mean to hurt anyone by disobeying the orders; if you knew what you were doing was against the terms of the order, you could still be convicted of a crime.
Criminal protective orders typically remain in effect until the domestic violence case is resolved in court but could be extended up to ten years after the case part of the defendant's sentence.
What Are the Types of Protective Orders in California?
The state of California implements numerous protective orders to cover various types of victimization, including domestic violence, workplace violence, elder abuse, etc. For purposes of understanding PC 273.6, we'll look at these under two basic categories: restraining and stay-away orders.
Restraining orders are civil protective orders, meaning a judge issues them in civil court at the request of a victim seeking protection from an abuser. Restraining orders are most commonly given in domestic violence cases. They can be effective from a few days (Emergency Protective Order, Temporary Restraining Order) to up to 5 years (Permanent Restraining Order).
Stay-away orders are criminal protective orders. It's similar to a restraining order in what it does, but a judge initiates it in criminal court rather than the alleged victim of abuse. Stay-away orders are typically issued when a defendant faces charges for domestic violence crimes, lasting between 3-10 years or until the case is resolved.
Both restraining and stay-away orders accomplish the same thing: they forbid you from having contact with the alleged victim or coming within a certain distance of them.
Protective orders may also have specific instructions related to the case. Violating the terms of any court-issued protective order in the slightest degree is a crime under PC 273.6.
The most restrictive form of a CPO is a full stay-away order that orders no contact prohibiting the defendant from contacting or near the alleged victim. Less restrictive protective orders (peaceful contact) are issued for numerous reasons. Perhaps a less than full-stay-away order is issued by the judge when the couple shares minor children.
A full stay-away could interfere with the couple's ability to exchange the children and co-parent. The judge will usually defer to custody and visitation orders issued by a family law court as they are more familiar with issues.
Peaceful contact protective orders allow a defendant to continue living with the victim or have contact by phone or other electronic devices if the connection does not involve violence, threats, stalking, or intimidation and remains peaceful.
An essential factor for remaining in your home in domestic violence cases is injury. If the victim has no injuries, you are in a solid position to make a reasonable argument for staying in your home while the case is pending.
What Are the Related Domestic Violence Offenses?
- Penal Code 243(e)(1) PC – domestic battery,
- Penal Code 273.5 PC – corporal injury to spouse,
- Penal Code 273d PC – child abuse,
- Penal Code 273a PC – child endangerment,
- Penal Code 368 PC – elder abuse,
- Penal Code 422 PC – criminal threats,
- Penal Code 136.1 PC – witness intimidation,
- Penal Code 653m PC – annoying phone calls,
- Penal Code 646.9 PC – stalking,
- Penal Code 29825 PC - firearm possession,
- Penal Code 594 PC – vandalism.
What Are the Penalties for a Violation?
In most cases, violating a protective order is a misdemeanor offense. If you're convicted, you could face up to one year in county jail and up to $1000 in fines.
At the judge's discretion, based on the case facts, they may reduce the sentence to summary probation, but the original protective order remains in effect.
However, for a second or subsequent violation and if violence was involved in the breach, this crime becomes a "wobbler" offense, meaning the prosecution can charge you with either a misdemeanor or a felony.
If you're charged and convicted of a felony violation, the fine can be increased to $10,000, and you could face up to 3 years in prison.
What Are the Best Legal Defenses?
Violating a protective order is a severe offense, but fortunately, there are several defenses your attorney can raise on your behalf if you've been accused of violating one. These are discussed below.
Perhaps we can argue that you did not know about the protective order. If you were unaware that a restraining order had been issued against you, you could not be convicted of violating it. For example, perhaps you violated the order before authorities had the opportunity to serve you with it, or the server could not locate you to hand you the order.
Perhaps we can argue that you did not willfully violate the order. For example, you showed up at the same location with the person protected by the order and got too close. Accidental or incidental contact does not qualify as a willful violation.
Perhaps the order was not valid. If the order was not properly served on you; if you didn't have an opportunity to read it; if it expired and was not renewed; or if your attorney can argue that the judge had no basis for issuing the order; you may be able to claim successfully that the protective order was not legally valid.
Maybe you are the victim of a false allegation. It's not uncommon for somebody to be falsely accused of violating a protective order. Perhaps the alleged victim had other motives after the relationship ended badly and made the accusations out of anger or jealousy.
If you or a family member was arrested and charged with a protective order or domestic violence offense, contact our experienced defense team to review the details and discuss legal options.
Eisner Gorin LLP has two office locations in Los Angeles, California. You can reach us for a case review by phone or fill out the contact form.