Violation Of A Restraining Order

Misdemeanor Violation of a Protective/Stay-Away Order (No Injury)

At minimum, if you are alleged to have knowingly and intentionally violated this type of court order but the violation does not result in injury to the purported victim, then you will be charged with misdemeanor “criminal contempt” of court under California Penal Code section 166(c)(1), and, if convicted, can expect the following punishment:

1. a maximum thousand-dollar fine; or
2. a county jail sentence not to exceed twelve months; or
3. both a fine and jail.

This charge and commensurate punishment is so commonly accepted throughout the California legal system – including both in criminal and civil cases – that the California Penal Code (specifically, section 273.6(a)) explicitly applies this misdemeanor contempt crime to restraining orders issued pursuant to the California Family Code, the California Welfare and Institutions Code, and the California Code of Civil Procedure.

If you have previously been convicted of misdemeanor contempt for violating a restraining order, and then are subsequently convicted of the same crime by directly contacting the protected person in any way, then the punishment will increase slightly, though will still fall within the following range:

1. a fine up to five thousand dollars;
2. twelve months in the county jail; or
3. both.

Pen. Code § 166(b)(1). However, each contact will be charged as a separate charge under this criminal statute. Pen. Code § 166(b)(2). Also, you can be charged for this offense even if you called the protected person from jail or prison. Pen. Code § 166(b)(3).

Misdemeanor Violation of a Protective/Stay-Away Order (with Injury)

If you allegedly knowingly and intentionally violated these types of judicial orders and there is some physical injury to the victim (the “protected person”), then you will still be charged with a misdemeanor but the punishment will now be as follows:

1. a maximum two-thousand-dollar fine; or
2. a minimum of one month in the county jail; or
3. a maximum of one year in jail; or
4. a fine and jail.

Penal Code section 273.6(b) (see above).

Regardless of whether or not the protected person was allegedly injured as a result of the violation, if you receive probation as your sole punishment (or as part of your punishment – i.e., in addition to jail and/or a fine), then you will also have to make a maximum one-thousand-dollar donation to a battered women’s shelter and, if applicable, pay victim restitution (including for his or her counseling expenses). Pen. Code § 273.6(h). (The court will take into consideration your ability to pay.)

Felony Violation of a Protective/Stay-Away Order

If you were convicted within a seven-year period for criminal contempt prior to a current charge for the same, and the second charge allegedly involves either violence or a “credible threat” of violence to the protected person, then the District Attorney’s Office has the authority to charge you now with either a misdemeanor or a felony (and thus this is known as a “wobbler” crime). Pen. Code § 166(c)(4).

(For the legal definition of a “Wobbler” crime, see California Penal Code section 17(b).)

If you are charged with this felony and convicted of a felony, you face the following possible sentences:

1. one year in jail;
2. sixteen months in prison;
3. twenty-four months in prison; or
4. thirty-six months in prison.

Pen. Code § 166(c)(4). In addition, as with a misdemeanor conviction, if you are convicted of a felony but are not sent to prison (so even if you go to jail), you can still be placed on probation with the same terms as above.

Stalking Crimes

Punishments get much harsher if you are convicted of stalking the victim in violation of a TRO, which will always be charged as a felony under Penal Code section 646.9(b). If so, then you will face the following prison sentence:

1. twenty-four months;
2. thirty-six months; or
3. forty-eight months.

In addition, the court could extend the TRO’s duration for up to ten years. Pen. Code § 646.9(k)(1).

Gun Crimes

If you were prohibited from having anything to do with guns as a result of a TRO, and you allegedly knowingly and intentionally violated that order, then the Deputy D.A. prosecuting your case has the discretion to charge you with a misdemeanor punishable by up to one year in jail, or a felony punishable by up to one year in prison, and a possible one-thousand-dollar fine (again, this is a wobbler).

See Penal Code section 29825(b).

Please note that even if the firearm you allegedly owned, possessed, purchased, or received in violation of the TRO was inoperable, you can still be convicted for this offense. The same goes even if you allegedly had someone else holding the gun for you during the (typical twenty-one-day) term of the TRO.

See CALCRIM number 2512 (“Possession of Firearm by Person Prohibited by Court Order”).

Defenses to Restraining Order Violations

Regardless of whether or not you allegedly injured the protected person, if you are charged with misdemeanor contempt for violating a protection/stay-away order, you can assert the following defenses:

Substantive Defenses

• You did not actually disobey the order
• You did not intentionally violate the order
• Self defense

If you are being charged with a second offense for criminal contempt within seven years of a prior conviction, and you are now alleged to have attacked the protected person, then self-defense would be your best hope of avoiding a second conviction (assuming, of course, you have exculpatory evidence).

In other words, if the protected person actually assaulted you or someone near you to a degree where you reasonably believed you or the other person were in imminent danger of physical harm, thereby forcing you to fight off the protected person, then you would have a strong defense.

You were joking when you made the alleged threat, or it was otherwise not credible

Alternatively, under these “second charge” circumstances — though instead of using violence you are alleged to have threatened the protected person — but a jury believes that you never intended to place him or her in fear, then you would have a valid defense.

Or, even if you did intend to terrorize him or her with your threat, but a jury believes you had absolutely no way to actually carry it out (for example, you threatened to blast him or her into outer space with your Star Wars Death Star cannon), then you would also avoid conviction.

See CALCRIM number 1301 (“Stalking”).

Momentary possession of firearm

If you are being charged with violating a TRO involving guns, then one viable defense is that you were only temporarily in possession of the subject firearm for the purpose of abandoning, disposing of, or destroying it, and that you weren’t doing so to prevent the police from taking it from you. CALCRIM number 2512 (see above).

Momentary possession is an unusual defense in the sense that the burden of evidence shifts from the prosecutor to you – after he or she proves beyond a reasonable doubt that you actually possessed it as alleged.

Specifically, your burden is to affirmatively prove this defense by a “preponderance of evidence”. In other words, you must convince the jury that it was more likely than not (i.e., at least a fifty-one percent probability) that you were trying to toss or destroy the gun, and not to hide it from law enforcement. CALCRIM 2512.

Justifiable possession of firearm

An absolute defense to this charge is that you were legally justified in possessing the firearm, such as in a case of self-defense. The specific elements of this defense are as follow:

• You took the gun away from someone who was trying to use it on you (in an illegal manner – i.e., not in self-defense against you, for example);
• you held onto the gun only long enough to transport it to the police; and
• prior to or on the way to transporting it, you notified the police you were doing so.

CALCRIM 2512. Again, it’s your burden to prove each and every one of these elements by a preponderance of evidence.

Technical Defenses

The court failed to issue a lawful order

Even if you intentionally violated a restraining order, if the underlying order itself was, for example, unconstitutional or unlawful, then you cannot be convicted of a misdemeanor. Pen. Code § 166(a)(4) (see above).

For example, if you were subjected to a preliminary injunction to stay away from certain geographical locations in LA County because you are/were a(n alleged) gang member, and you were charged with violating that stay-away order by hanging out in one of those locales, then you would have a strong defense that the underlying order violated your Constitutional right to free assembly.

See California Supreme Court case People v. Gonzalez (1996) 12 Cal.4th 804, 816-817.

In other words, any underlying order that is unconstitutional is void and unenforceable as a matter of law.

You never received actual notice of the order

In order to convict you for a knowing and intentional violation of a restraining order, the prosecutor must prove beyond a reasonable doubt that you not only knew of the court order, but had the opportunity to read it (or at least were made aware of its terms). CALCRIM number 2701 (see above).

So, if you were never served with a copy of the underlying order, and the prosecutor can’t prove anyone ever told you about it, then you would have a viable defense. (Note, however, that he or she doesn’t need to prove that you actually read it.)

You lacked the ability to follow the terms of the order