WHAT IS A PROTECTIVE ORDER
There are essentially two types of protective orders issued by courts in California: Criminal protective orders and civil protective orders.
Criminal Protective Orders
A criminal protective order is typically issued in criminal cases for the purpose of restraining a defendant from harassing, physically abusing, stalking, or threatening the alleged victim in a criminal case. A protective order is almost always issued in cases involving violence or credible threat of violence to the alleged victim. The exact conduct that a protective order serves to prohibit depends on the particulars of each specific case.
Types of Protective Orders—“Peaceful Contact” Protective Orders v. “No Contact” Protective Orders
There are two types of protective orders: a peaceful contact protective order and a no contact protective order. The latter—a peaceful contact protective order—allows peaceful contact so long as the restrained party does not annoy, harass, molest, threaten, or abuse the protected party. A peaceful contact protective order is generally issued when the court is satisfied that the parties—the restrained party and the protective party (i.e., the accused and alleged victim)—are able to peacefully interact with one another. Typically, the less serious the nature of the charges against the restrained party, the higher the likelihood that the court will issue only a peaceful contact protective order.
For example, Jason is charged with a violation of Penal Code section 273.5, a misdemeanor. The prosecution alleges that Jason slapped and pushed his wife, Jill. Jill has suffered no injuries. Jason and Jill have two children in common and they live in the same home. Jason has no criminal history or any history of domestic violence against Jill. Jason and Jill begin couple’s therapy and Jason, on his own accord, attends domestic violence and anger management classes. Jason’s attorney presents these facts at Jason’s second court hearing and argues for a peaceful contact protective order on the bases that that Jason has criminal record or history of domestic violence, Jason and Jill are raising their children together in the same home, and Jason has shown progress and initiative by attending anger management classes and couple’s therapy. Given that Jill suffered no physical injuries and the lack of a history of domestic violence between the couple, the judge issues a “peaceful contact” protective order against Jason.
A “no contact” protective order prohibits the restrained party from any and all contact with the protected party. “Contact” includes but is not limited to verbal communications, phone calls or text messages, emails, or interaction on social media. A court is likely to issue a “no contact” protective order when the alleged victim in a case has suffered significant injuries and/or when the defendant has a history of violence. In the example above, assume that Jason punched Jill and caused her to bleed. Also assume that Jason has suffered two prior misdemeanor convictions for domestic violence. A judge in this scenario is more inclined to issue a “no contact” protective order.
Civil Protective Orders
Civil protective orders are issued in family or civil courts when the conduct of the restrained party has not or has not yet resulted in the filing of criminal charges. There are two types of civil protective orders: domestic violence restraining orders and civil harassment restraining orders.
Domestic Violence Restraining Orders—Domestic Violence Restraining Orders v. Civil Harassment Restraining Orders
Domestic violence restraining orders are issued between two individuals who are currently dating, had been dating, currently married, had been married, or live in the same household—i.e., are in an “intimate” relationship. Domestic violence restraining orders serve to protect the protected party from abuse suffered at the hands of the protected party. Civil harassment restraining orders are issued between two people who are not “intimate” partners—that is, they do not live in the same household and have never been in a dating relationship—such as co-workers and neighbors.
LEVELS OF PROTECTIVE ORDERS
There are three levels of protective orders: emergency protective orders (EPO), temporary restraining/protective orders (TRO) or (TPO), and permanent restraining/protective orders (PRO) or (PPO)
- Emergency Protective Orders (EPO’s)
Emergency protective orders are typically requested by the police when they respond to a 911 call involving domestic violence. Typically, the police’s position in cases involving domestic violence is that the alleged victim is in danger and that an emergency protective order is necessary to avert that danger. Therefore, an EPO is issued for 7 days to protect the alleged victim until the matter proceeds to court and is further addressed there.
For example, Jason slaps Jill, his girlfriend. Jill calls 911. Two LAPD officers respond to the call. They examine Jill for injuries but find none. Nonetheless, they issue an EPO for 7 days against Jason. The EPO prohibits any and all contact with Jill. A week after the EPO is issued, Jason is taken to court. Then, convinced that a peaceful contact protective order is more appropriate against Jason, the judge removes the
EPO and issues a peaceful contact protective order instead.
- Temporary Restraining Orders (TRO’s)
Typically, temporary restraining orders are issued in civil court and last 2-3 weeks until a hearing is scheduled. A temporary restraining order is sought when an EPO expires or when the individual seeking the order requires immediate protection from harassment at the hands of an intimate partner, co-worker, neighbor, or any other individual. For purposes of a temporary restraining order, harassment includes unlawful violence or credible threat of violence, repetitive conduct that seeks to annoy, and other behavior that serves to cause emotional distress and that does cause emotional distress. After the TRO is issued, the court will conduct a hearing to determine whether the TRO should extend to a permanent restraining order (PRO).
- Permanent Restraining Orders (PRO)
At a hearing on a temporary restraining order, the court will consider whether or not the person applying for the temporary restraining order—i.e., the petitioner—needs extended protection. More specifically, the judge has to determine whether to issue the order, what type of prohibitions or restrictions to include in the order, and for how long to issue the order. Permanent restraining orders last from 2 to 5 years, and typically prohibit the restrained party from any contact with the protected party.
VIOLATING A PROTECTIVE ORDER UNDER PENAL CODE SECTION 273.6
When a protective order is issued against you—whether it’s civil or criminal in nature—you are required to abide by its every term and condition. If you knowingly violate any of its terms and conditions, you can be charged with violating a protective order under Penal Code section 273.6 PC.
In order to prove you guilty of violating a protective order under Pena Code section 273.6 PC, the prosecutor must prove the following beyond a reasonable doubt:
- A legal protective order was issued against you;
- You knew that a protective order was issued against you;
- You intentionally violated the term(s) of the protective order
Let’s examine the elements more closely
A legal protective order was issued against you
In order to prove you guilty of a violation of Penal Code section 273.6 PC, the prosecutor has to prove that the protective order against you was legally issued. If the order was issued in a jurisdiction that did not have the proper authority to issue the order or if there was no legal basis for the order, then the prosecutor cannot prove you guilty of a violation of Penal Code section 273.6 PC. To put it more simply, if the protective order itself is illegal, you are not bound by its terms and conditions.
The prosecutor must in addition prove beyond a reasonable doubt that you knew that a protective order was issued against you. California law requires that you be served with a protective order and be put on notice regarding the restrictions imposed on you by the protective order. You can be put on notice orally by a judge in court, via personal service by a police officer or any other individual other than the protected party, or via a phone call by a police officer if that officer determines that you have been unaware of the existence of the order.
Intentionally violated the terms of the protective order
Under Penal Code section 273.6 PC, the prosecutor must also prove that you intentionally violating the terms of the protective order—that is, you knew about its terms and conditions and chose to violate or ignore them.
DEFENSES TO VIOLATING A PROTECTIVE ORDER UNDER PENAL CODE SECTION 273.6 PC
- You did not know that a protective order was issued against you
If you had no knowledge or awareness that a protective order was issued against you, you are not guilty of violating a protective order under Penal Code section 273.6 PC. For example, Jill obtains a temporary restraining order against her boyfriend, Jason. Jill cannot find Jason to personally serve him with the TRO. She therefore pays a process server to lie on the proof of service that Jason has been personally served. Unaware of the TRO, Jason contacts Jill. In this scenario, if Jason can prove that the proof of service was fraudulent, he could beat a charge for violating Penal Code section 273.5 PC.
- You did not intentionally violate the terms of the protective order
Under Penal Code section 273.5 PC, the prosecutor must prove that you knew about the terms of the protective order and that you intentionally violated it. But if you accidentally violated a term, you cannot be found guilty of a violation of Penal Code section 273.6 PC. For example, Jason in the example above was ordered to stay 100 feet away from Jill. One day, Jason runs into Jill in aisle of a supermarket. This encounter was accidental and therefore not a basis for a violation of Penal Code section 273.6 PC.
- You were falsely accused
It is not unusual for a protected party to falsely accuse the restrained party of violating a protective order under Penal Code section 273.6 PC. The protected party could be a former wife who is using the lie to acquire strategic advantage against you in a later child custody proceeding, or a spiteful ex-girlfriend who is acting out of anger and jealousy.
PENALTIES FOR VIOLATING PENAL CODE SECTION 273.6
A violation of Penal Code section 273.6 is typically prosecuted as a misdemeanor. If you are convicted of a misdemeanor Penal Code section 273.6 PC, you face up to $1,000.00 in fines, up to one year in county jail, and between 1-3 years of summary probation. The judge who sentences you has discretion to order additional terms as conditions of you probation. These additional terms can include anger management counseling, domestic violence counseling, substance abuse counseling, and restitution to the victim for any expenses reasonably incurred as a result of the violation.
If you have suffered a second conviction for violating a protective order under Penal Code section 273.6 pc within a seven year period, and your second violation involves violence or a credible threat of violence or your second conviction is within one year and results in physical injury to the protected party, then you can be charged with a either a misdemeanor or felony Penal Code section 273.6 PC, depending on the particular circumstances of your offense. If you are convicted of a felony violation of Penal Code Section 273.6 PC, you face up to a year in county jail, 16 months, 2 years, or 3 years in state prison, and a fine up to $10,000.00. If your violation of the protective order results in physical injury to the protected person, you face a minimum of 30 days in county jail.
HOW THE LOS ANGELES CRIMINAL ATTORNEYS CAN HELP YOU
Success Case: In people v. A.A. (Los Angeles Superior Court Case No. 4IG03184), Mr. A was charged with a violation of Penal Code section 273.6 PC against his ex-wife. Mr. A’s ex-wife had accused him of vandalizing her property and showing up unannounced at her place of residence. Negin conducted a thorough an independent investigation of these allegations and discovered that most, if not all, were outright concocted. For example, Mr. A’s ex-wife claimed that he had damaged the side-mirror to her car. Negin discovered that this allegation was a mere speculation with no iota of evidence to support it. Ultimately, through relentless and conscientious lawyering, Negin convinced the prosecution to dismiss the Penal Code section 273.6 charge against Mr. A. He instead was sentenced on an infraction disturbing the peace, with a zero fine.
As with every case, Negin does not take the allegations of an alleged victim or alleged facts reported by a police officer at face value. She rigorously investigates the circumstances giving rise to those allegations and carefully considers he motives of the alleged victim in distorting or exaggerating what may have transpired or outright concocting a scenario. This manner of conscientious lawyering is what allowed Negin to obtain a dismissal of a serious charge against Mr. A. above.