Penal Code 273.6 PC - Violating a Restraining Order
In domestic violence cases, California takes protecting alleged victims seriously. Thus, the crime of violating a protective order, restraining order, or stay-away order under Penal Code 273.6 PC carries harsh penalties and other types of criminal contempt. Simply put, PC 273.6 makes it a crime for anyone to violate the terms of a restraining order.
A criminal protective order (CPO) is a restraining order issued by a judge in a domestic violence prosecution. They are designed to restrain a defendant from harassment, abusing, stalking, or threatening the alleged victim.
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.“
Courts place protective orders against people in criminal court in Los Angeles. Usually, I see this most when someone is charged with domestic violence or spousal abuse cases when they first appear in court; the court will issue a protective order to stay at least 100 yards away from the alleged victim. Also, that order will include them not contacting that person in any way and not having any other third-party contact with that person in any way.
We can often get the court to modify the protective order in a criminal case by saying that the person can have peaceful contact with the alleged victim while the case is pending. Different parts of the protective order can be modified depending on the circumstances.
The courts take these very seriously. If somebody violates a protective order, they will be subject to up to one year in the county jail and further restrictions by the court, depending on the circumstances of the violation. To convict you of violating a protective order, prosecutors must prove the following:
- A lawful protective order was issued against you;
- You knew of the protective order, including having a chance to read it;
- You were capable of obeying the protective order; and
- You willfully violated it.
"Willfully" means that you violated the protective order on purpose or deliberately.
It doesn't matter if you did not mean to hurt someone by disobeying the orders. Rather, if you knew what you were doing was against the terms of the order, you could still be convicted of a crime. Protective orders normally 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.
Violating a protective order is normally a misdemeanor offense. If convicted, you could face up to one year in county jail and up to $1000 in fines. At the judge's discretion, they can reduce the sentence to summary probation—but the original protective order remains in effect.
Difference Between A Protective Order And Restraining Order
People who are not familiar with the criminal law in Los Angeles or are familiar with Penal Code Section 273.6 do not understand the difference between a criminal protective order and a restraining order.
Restraining orders are civil protective orders, meaning a judge issues them in civil court when a victim is seeking protection from an abuser. Restraining orders are common in domestic violence cases. They can be effective from a few days to up to five years. There are emergency protective, temporary, and permanent restraining orders.
Protective orders, on the other hand, are something that is issued by the criminal court – usually associated with a case where someone has inflicted some violence against another person, threatened violence against that person, or simply must be ordered to stay away from that person for the protection of the alleged victim.
Stay-away orders are criminal protective orders. They are similar to a restraining order in what it does, but a judge will initiate it in cases of alleged abuse. Stay-away orders are normally 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 prohibit contact with the alleged victim or coming within a certain distance of them. If you violate a protective order, the criminal court can punish you, and the prosecutors in the criminal court can also charge you with a new crime and try to get punishment for that new crime.
Regarding protective orders in domestic violence cases, the prosecutors are very harsh and will stop at nothing to get the protective order.
Their mindset is basically they feel they are trying to protect the alleged victim. Often, spouses in domestic disputes will use these protective orders to gain an advantage against another spouse – especially in a divorce involving kids.
It can be a horrible result for a defendant in a criminal case who is charged with spousal abuse or domestic violence to lose the ability to see their children because a blanket protective order is placed on them by a criminal court.
Avoiding a Full Protective Order
We can often get the person to start taking domestic violence courses right from the beginning, even before they appear in court. So, when we do show up to that arraignment, we've got an argument to the judge to say, look:
- My client is taking this case seriously;
- They are doing domestic violence courses;
- There haven't been any other issues;
- The couple is going to counseling.
Now, we start to put ourselves in a position to avoid a full protective order and get a level 1 protective order, where the parties are still permitted to see each other. But, still, they just can't commit any acts of violence against each other. So, this is one of the things we will discuss in the first meeting.
What Are the Related Domestic Violence Crimes?
- Penal Code 136.1 PC – dissuading a witness,
- Penal Code 243(e)(1) PC – domestic battery,
- Penal Code 273.5 PC – corporal injury to a spouse,
- Penal Code 273d PC – child abuse,
- Penal Code 422 PC – criminal threats,
- Penal Code 368 PC – elder abuse,
- Penal Code 653m PC – annoying phone calls,
- Penal Code 646.9 PC – stalking.
What are the Best Defenses?
One thing that people don't consider when they get arrested and are charged with a domestic violence case is that the prosecutors and judge will attempt to put a protective order on the person. This includes while the case is pending and once the case is over and the person gets convicted for any domestic violence-related charge.
A protective order always comes along with it, and it's tough for defense attorneys to avoid a protective order being placed on their client, especially when you make your initial appearance in the courthouse.
So, that's one strategy that we have to deal with, especially if you're married to the person, you have kids with the person, and you still want to see the person; we have to figure out the best way to deal with the protective order, and there are strategies.
Maybe 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 be convicted of violating it. Maybe you violated the order before being served.
Maybe we can argue that you did not willfully violate the order. Suppose you showed up at the same location as the person protected by the order and got too close. In that case, accidental or incidental contact does not qualify as a willful violation.
Maybe the order was not valid. If the order was not properly served on you, or you didn't have an opportunity to read it, your attorney can argue that the judge had no basis for issuing the order. Perhaps you may be able to claim successfully that the protective order was not legally valid.
Perhaps you are the victim of a false allegation. It's not uncommon for someone to be falsely accused of violating a protective order. Perhaps the alleged victim was motivated by anger or jealousy.
I've been doing this now for 30 years. I've got a lot of good results for my clients, and that comes from really understanding how the system works, working for the district attorney's office early in my career, and working for a superior court just early in my career.
If we try to fight that and get a situation where there is no protective order in the case, or there is a protective order, the parties can still have peaceful contact, which is the usual scenario. Then we must know precisely what to do and how to handle things.
Let's sit down in that first meeting and discuss the best strategy to put you in the best position. We offer a free case evaluation by phone or through the contact form. The Hedding Law Firm is located in Los Angeles, CA.