Penal Code 136.2 - Criminal Protective Orders in California
California Penal Code 136.2 PC allows a court to issue a criminal protective order (CPO) in a criminal case. A CPO, called a stay-away order, is frequently issued in domestic violence cases to protect victims, witnesses, and family members from harm. They can also be issued in elder abuse cases.
A CPO, a restraining order issued by a judge in a criminal case against a defendant accused of domestic violence, is a powerful tool. It is designed to empower victims, providing a sense of security and protection from harm, intimidation, or dissuasion that has occurred or is reasonably likely to occur.
This stay-away order is usually issued after the defendant is charged with or found guilty of certain crimes against the victim.
Simply put, in California, if you are accused of domestic violence or another type of crime, the district attorney will often ask the judge to issue a criminal protective order (CPO). This request is made during the court proceedings, typically after the defendant has been charged with the alleged crime.
The prosecutor's role in the CPO process is crucial. They are responsible for presenting the case to the judge, providing evidence of the alleged crime, and arguing for the necessity of the protective order to protect the victim and ensure the defendant's compliance with the law. Their arguments and evidence significantly influence the judge's decision on whether to issue the CPO.
It's important to note that while the DA will petition the court to issue a CPO, the judge, as the ultimate authority, carefully considers the details of the case before granting or denying the protective order. This ensures a fair and just process, instilling confidence in the legal system.
PC 136.2 is the statute used by a prosecutor to make a petition for a protective order. A CPO can also be issued after a request by police to protect an alleged victim who may be at risk during a criminal investigation.
A domestic violence restraining order (DVRO) is often requested in family law matters if there is evidence of some physical or mental abuse. The process typically involves the victim filing a petition with the court, providing evidence of the abuse, and attending a hearing where the judge will decide whether to issue the order.
Criminal protective orders have several advantages for a victim. They are pretty routine and almost automatic in most domestic violence-related incidents, as well as cases of child abuse and sexual assault. This standard procedure can provide a sense of reassurance to victims that they are not alone in their struggle for safety.
What Does the Law Say?
California Penal Code 236.1 PC says, "(a)(1) Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to happen, a court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following:
(A) An order issued under Section 6320 of the Family Code.
(B) An order that a defendant shall not violate any provision of Section 136.1.
(C) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the court's courtroom, shall not violate any provision of Section 136.1.
(D) An order that a person described in this section shall have no communication whatsoever with a specified witness or a victim, except through an attorney, under reasonable restrictions that the court may impose.
(E) An order calling for a hearing to determine if an order described in subparagraphs (A) to (D), inclusive, should be issued.
(F)(i) An order that a particular law enforcement agency within the jurisdiction of the court provide protection for a victim, witness, or both, or for immediate family members of a victim or a witness who resides in the same household as the victim or witness or within reasonable proximity of the victim's or witness' household, as determined by the court.
The order shall not be made without the consent of the law enforcement agency except for limited and specified periods and upon an express finding by the court of a clear and present danger of harm to the victim or witness or immediate family members of the victim or witness."
What Factors are Considered by the Court?
For the court to decide whether they will issue a criminal protective order against a defendant, they will consider different factors, such as the following:
- If the victim suffered injuries.
- If the victim is afraid of future harm.
- Circumstances of the alleged crime.
- If a defendant has prior domestic violence accusations.
- If the defendant has a current restraining order
- Defendant's relationship to the alleged victim.
- Defendant's prior criminal history.
Suppose the court decides to issue a criminal protective order. In that case, the defendant will be ordered not to contact, harass, annoy, threaten, or commit acts of violence against the protected person.
They are also prohibited from contacting the victim through a third party. After a protective order is issued, law enforcement will receive a notification. Violations of a criminal protective order can result in being charged with a separate crime that carries up to six months in county jail and a fine of up to $1,000.
In some cases, repeated violations or more serious offenses can lead to longer jail sentences or additional fines.
What Type of Cases Will Result in a CPO?
Criminal protective orders are designed to protect an alleged victim of a crime from further harm or harassment, someone who is typically a defendant.
A victim of violence and their family members, witnesses, and anyone else who might be a victim of intimidation could also be eligible for a protective order.
In California, several types of criminal cases will generally result in the court granting a petition for a criminal protective order:
- Corporal Injury to a Spouse (PC 273.5).
- Domestic Battery (PC 243(e)(1)).
- Elder Abuse (PC 368).
- Child Abuse (PC 273d).
- Stalking (PC 646.9).
- Sexual Battery (PC 243.4).
The court will typically a CPO at the defendant's first court appearance, known as an "arraignment."
Any defendant accused of a domestic violence-related incident is required to appear in court, where they will be formally served with a criminal protective order.
The arraignment on domestic violence charges is an essential step in the court process because it allows a defendant to deal with issues related to a protective order with their defense lawyer.
During the arraignment, a defendant's attorney might be able to make an argument the alleged victim doesn't have a reasonable fear of bodily harm, and a criminal protective order will cause a substantial hardship by separating family members and causing emotional distress.
What Does a CPO Prohibit?
Criminal protective orders prohibit a defendant from harassing, threatening, stalking, or assaulting a protected person. They also prohibit personal, verbal, written, or electronic contact and require the defendant to remain a certain distance away from the victim.
If a defendant owns a firearm, they will usually be ordered to surrender it to the local police or sell it within one day. A CPO also permits a victim to record any contact that was prohibited.
Victims need to understand their rights and report their concerns to the prosecutor and judge to obtain a protective order.
A defense lawyer might be able to help a defendant avoid having a criminal protective order issued against them or assist in having the CPO modified, which could allow peaceful contact with the protected person.
How Long Does a CPO Last?
The length of a criminal protective order in California is based on why the court issued it. In a situation where the CPO was issued to 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 the CPO will be terminated once a defendant is convicted and sentenced. 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 for ten years. The CPO would still be valid if the defendant is in custody.
The protected person listed on a criminal protective order can request a modification. This is common for married couples with children living in the same home. If the court approves, the modification would allow the restrained person to remain in the same house.
The best way to modify the protective order is to request a peaceful contact or no adverse contact order. This will not terminate the protective order; instead, it will allow the restrained person to contact the protected person, but it has to be peaceful.
There are many collateral consequences associated with a criminal protective order. Thus, you must consult a Los Angeles domestic violence defense lawyer to review potential challenges to a court issuing a CPO. The Hedding Law Firm is based in Los Angeles, CA.
Related Content:
