Violating a Restraining or Protective Order – California Penal Code 273.6
The crime of violating a restraining or protective order is described California Penal Code 273.6. This domestic violence related offense occurs when someone intentionally and knowingly violates a court order. These orders are either a protective order issued in a criminal court or civil restraining order, which is called a temporary restraining order (TRO).
Penal Code 273.6 is a misdemeanor crime that can result in harsh penalties depending on the circumstances. Restraining and protective orders are issued by the court protect a victim from harm or other conduct, such as physical abuse, harassment, threats, or stalking.
The individual who is “restrained” is prohibited from contacting the “protected person,” and includes making contact by phone, email, text message, email, social media, and personal face-to-face contact.
There are many ways for someone to violate a restraining or protective orders under Penal Code 273.6 PC. For instance, protective orders prohibit contact with an intimate partner, but “restrained” person continues to send them text messages.
Another example is a situation where a restraining order prohibited someone from using force or threats against their girlfriend, but they threaten them to terminate the restraining order.
There are some cases where stalking is the primary issue on a protective order. This usually involves conduct where someone repeatedly follows a victim or just hangs around their home or work.
If you have been charged with violating a restraining or protective order, you should not make any statements to police as you might incriminate yourself. Early intervention into your case by our experienced Los Angeles criminal defense lawyers can increase your chances at a favorable outcome.
To give readers a better understanding of violating a restraining or protective order, our Los Angeles criminal defense lawyers are providing an overview below.
Types of California Restraining Orders
There are many different types of restraining or protective orders that could be issued by a criminal court. Any violation of these order can result in penalties described under Penal Code 273.6.
A domestic violence restraining order is issued to protect someone from abuse from their intimate partner. A civil harassment restraining order is issued to protect someone from another person who is not their intimate partner, such as a neighbor.
An elder or dependent adult abuse restraining order is issued to protect elders, 65 years old or greater, and defendant adults between 18 and 64 with a disability, against any type physical, emotional or financial abuse.
A workplace violence restraining order is issued to protect employees against threats or violence at their place of employment.
Violating the terms of any of these court orders could result in contempt of court charges under California Penal Code 166 PC. Let's review how these orders are issued and the type of protection.
Emergency Protective Order (EPO)
When law enforcement officers respond to the scene of a domestic violence incident, they can call a judge and request an immediate emergency protective order, which prohibits an alleged abuser from making any form of contact with the alleged victim.
In a situation where the alleged abuser is still at the scene, the police officers will inform them that the EPO takes effect immediately, and will last for 7 days. After 7 days have passed, the alleged victim will have to appear in court to request a temporary restraining order (TRO).
Temporary Restraining Order (TRO)
Once an emergency protective order expires, or if someone is a victim of harassment, they can request a temporary restraining order from the court, which can remain in effect for up to 3 weeks.
In order to apply for a temporary restraining order, you must complete an application that states you are a victim of:
- Some type of harassment or credible threats of violence
- Annoying type of behavior for no legitimate purpose
- Behavior by somebody causing you to suffer substantial emotional distress
The term “harassment” is described as violence or some types of threats that are reasonably credible. Before your temporary restraining order expires, the court schedules a hearing to determine if a permanent restraining order should be issued.
Permanent Restraining Order (PRO)
In order to obtain a permanent restraining order, a defendant will need to appear in court for a hearing. The judge will listen to arguments from both sides in order to make a decision.
The judge will normally need some type of evidence that the defendant's behavior is causing some type of emotional or physical harm to the victim. If they decide to issue a permanent restraining order, then they will need to determine specific restrictions for the defendant and how long to keep the permanent restraining order in effect.
A PRO can remain in effect for up to 3 years and can be extended if necessary. Common restrictions that are placed on the defendant include the following:
- No form of contact with victim
- Remain a specific distance away from the victim
- Defendant must move out of the home
- Defendant must pay victim restitution or attorney fees
- Turn in any firearms to police and prohibited from purchasing more
Any victim seeking a protective order should consult with a lawyer for assistance in completing the required paperwork. Any defendant who seeks to challenge a protective order should also consult with an attorney with experience in making effective arguments against the allegations.
What Does a Prosecutor Have to Prove?
If a defendant fails to follow the restrictions in restraining or protective order, they could be charged California Penal Code 273.6 violating a protective order, which is a contempt of court. In order to be convicted, the prosecutor has to prove all the elements of the crime listed under CALCRIM 2701 Jury Instructions:
- A court issued a legal protective order against defendant
- Defendant had knowledge of the protective order
- Defendant willfully and intentionally violated the order
It should be noted not all protective or restraining orders are valid. For instance, perhaps the court didn't have the proper jurisdiction to issue the order. A restraining order can be served on the defendant from the judge by just informing them in court. Also, they can be served by police officers informing them of the terms of the order, but proof of service is not required.
Before a defendant can be convicted of violating a restraining order, it has to be shown they had knowledge of the order. A defendant has to be given “notice,” and an opportunity to read the order.
Finally, the prosecutor has to show the defendant intentionally violated the terms of the protective order, such as sending victim text messages while prohibited.
Penalties for Penal Code 273.6 Violating a Restraining Order
A PC 273.6 violating a restraining or protective order is normally a misdemeanor offense, but could be charged as a felony crime depending on the circumstances and defendant's prior record.
A misdemeanor conviction carries up to one year in county jail, mandatory 30 days in jail if victim was in injures, and a fine up to $1,000. It also includes mandatory counseling, domestic violence classes, payment to a battered women's shelter, and victim restitution.
If convicted for a second violation within 7 years, and the most recent conviction involved violence or threats, then it becomes a “wobbler” that can be charged as either a misdemeanor or felony case.
A PC 273.6 felony conviction for violating a restraining order carries 16 months, 2 or 3 years in a California state prison, a fine up to $10,000, and probation for up to one year. If defendant has a prior conviction within one year and victim suffers an injury, there is a minimum sentence of 30 days in jail. Aggravated trespassing is defined under Penal Code 601 PC.
If you have an active restraining or protective order against you, it's unlawful to own, possess, or purchase a firearm. You are also required to turn over any firearms to police or sell them. If you keep any firearms, you might be facing new criminal charges. If you purchase a firearm, or make an attempt, then it's a “wobbler” crime and you are facing up to three years in a prison for a felony conviction.
Related California Offenses for Penal Code 273.6
Penal Code 136.1 – Witness Intimidation
Penal Code 166 – Contempt of Court
Penal Code 243(e)(1) – Domestic Battery
Penal Code 273.5 – Corporal Injury to a Spouse
Penal Code 422 – Criminal Threats
Penal Code 368 – Elder Abuse
Penal Code 594 – Vandalism
Penal Code 646.9 – Stalking
Fighting PC 273.6 Violating a Restraining Order Charges
If you were accused of violating a restraining or protective order in violation of California Penal Code 273.6, our criminal defense lawyers can use a wide range of strategies to obtain the best possible outcome. We need to review the details of the alleged violation to determine an appropriate strategy, but the most common defenses include:
Lack of knowledge
We might be able to make an argument you had no knowledge of protective order. Perhaps you were never notified and didn't know it existed. Recall that the prosecutor has to prove you were properly served with the restraining or protective order and knew it existed.
Lack of intent
We might be able to argue you didn't intentionally violate the order. For instance, maybe you just ran across the victim in a grocery store while shopping, but there was no specific intent to violate the no contact terms. In other cases, perhaps it was the victim who in initiated contact in an attempt to reconcile the relationship.
We might be able to show you were falsely accused of violating the order from an ex-spouse seeking an advantage in a child custody battle. If you were accused of a Penal Code 273.6 violating a restraining or protective, call our Los Angeles criminal defense attorneys to review the details and options.
Cron, Israels & Stark is a criminal defense law firm located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office located at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. Call our firm for a free case evaluation at (424) 372-3112.