In the state of California, after anyone has been accused of being involved in domestic violence or other incidents, the prosecutor will typically ask the court to issue a Criminal Protective Order, commonly known as a “CPO.” It should be noted that although the prosecuting attorney normally petitions the court for a protective order, the judge has the discretion to grant or deny the order after they review the facts of the case.
The prosecuting attorney will petition the court to issue a CPO pursuant to California Penal Code 136.2 PC. A criminal protective order (CPO) could also be issued at the request of law enforcement in order to protect someone who could be at risk due to a criminal investigation or they are the victim of a crime.
A domestic violence restraining order (DVRO) is a can be requested in a family law issue if there is a victim of physical or mental abuse from a partner. Due to the advantages of the criminal protective orders for victims of domestic violence, most DA's routinely and automatically obtain criminal protective orders on all domestic violence, sexual assault and child abuse cases.
A criminal protective order is comprehensive. In fact, the order mandates that a defendant shall not harass, threaten, stalk or assault the protected person and have no personal, electronic, or written contact. If also states the defendant must not come within a certain distance of the victim.
If they own a firearm, they are required to surrender it to a local police station or sell it within 24 hours. Further, it allows the victim to record any prohibited contact
It's important for victims to understand their legal rights and tell any fears you may have to the District Attorney and to the judge so a criminal protective order can be ordered. Preparation is a key and wise method for handling filing for a protective order.
In some cases, our experienced California criminal defense lawyers might be able to avoid someone from having a CPO issued against them, or have it modified.
If successful in a CPO modification, the accused could be allowed to have peaceful contact with the protected person. When requesting a modified CPO, the court will take into consideration many different factors.
Issuing a Criminal Protective Order in California
A criminal protective can protect the victim of a crime from further harm or harassment by a suspect, who is normally a defendant in a criminal matter.
A victim of violence, witnesses and their family members, who could be subjected to intimidation, could also be eligible for a criminal protective order. The following types of cases will most often result in the court granting a criminal protective order:
The court that issues a criminal protective order will typically make the order at the defendant's first court appearance, which is the arraignment.
California law requires a domestic violence defendant to be present in court where they are served with a criminal protective order. The defendant's arraignment on domestic violence charges is an important stage in the process as it allows them to address a criminal protective order issuance with the assistance of their domestic violence lawyer.
During the arraignment process and with help from their attorney, the defendant might be able to show the alleged victim has no reasonable fear of bodily harm and that issuing a criminal protective order could cause a hardship and the impact of a CPO will separate family members which can cause emotional distress and financial hardship.
Factors Considered by the Court to Issue California Criminal Protective Order
There are a wide variety of factors that are reviews by the judge in order to determine whether to issue a criminal protective order against the defendant. These include:
- The type and serious nature of the alleged crime
- Defendant's relationship to the alleged victim
- Did the alleged victim sustain injuries?
- Is the alleged victim in fear of future harm?
- Are there any current restraining orders against defendant?
- Defendant's criminal history, including domestic violence allegations
If a criminal protective order is issued by the court, then the defendant will be ordered not to contact, harass, threaten, annoy, or commit any acts of violence against the protected person.
It will also prohibit the defendant from having any type of communication with the protected person through a third party, such as a family member or friend. Additionally, law enforcement will receive notification of the criminal protective order issued against the defendant by the next day.
Any defendant who violates the criminal protective order can receive punishment by the court for a separate crime. The sentence includes up to six months in the county jail and a $1,000 fine.
Length of a California Criminal Protective Order
The length of a California criminal protective order will be determined based on the reason why the order was issued in the first place.
For example, if the CPO was issued in order to protect a victim or witness from harm or intimidation to testify in a criminal case, the length of the CPO will be three years. It's important to note that after the defendant has been convicted and sentenced for the crime, the CPO will be automatically terminated.
If a defendant has been convicted of a sex offense or domestic violence, the judge could issue a criminal protective order that would prohibit the defendant from contacting the victim for 10 years. The CPO remains valid even in a situation where the defendant is in custody.
The protected person that is listed in a criminal protective order can request a modification. This is fairly common in a situation of married couples with children living in the same house. The modification could permit the restrained person to stay in the home.
Normally, the best way to modify the CPO is to just ask the judge for a peaceful contact or no negative contact order. This means it won't actually terminate the protective order, but it would allow the restrained person to contact and even be near the protected party, but it must be peaceful.
Need Help with a California Criminal Protective Order?
Due to the collateral consequences of a criminal protective order, you should consult with a skilled criminal defense lawyer in order to challenge the issuance of the order
Our law firm has decades of experience dealing with issues of California criminal protective orders. It should be noted a CPO hearing could occur during the pretrial phase of a domestic violence case.
For additional information or help with your CPO issue, call our Los Angeles criminal defense lawyers to review the details of your situation. Contact us at 424-372-3112.