A restraining order is a powerful tool used in California courts to enforce various types of behavior on a defendant. Domestic Violence Attorney has a team of counselors that are well versed in the entire protocol of restraining orders, both in civil and criminal cases. We serve a large clientele all over the greater Orange County area in California.
An alleged victim of abuse is considered a vulnerable population under California policy. As such, they are afforded special protections by both criminal and civil courts. These special protections are most frequently referred to as “restraining orders”.
California law defines a restraining order as a court-ordered directive that serves to protect someone from suffering physical, emotional, and/or sexual abuse as well as threats, stalking, and/or harassment. In other words, it is an order delivered by the judge that requires parties involved in either a civil or criminal matter to do or not do certain things. These instructions must be obeyed or the defendant can be charged with the specific crime of “violating a restraining or protective order” (California Penal Code 273.6 PC).
The state of California has four distinct types of civil restraining orders. They are as follows:
The victim for whom the restraining order is issued is called the “protected person” while the defendant for whom the restraining order is issued against is called the “restrained person”. Depending on the specifics of the restraining order in question, it may also include other protected persons like the family or cohabitants of the victim. The judge may also make a fairly comprehensive set of instructions that must be followed by the defendant. Again, failure to do so will cause the district attorney (DA) to bring charges under California Penal Code 273.6 PC.
Restraining orders are sometimes referred to as “protective orders”. The terms restraining order and protective order are used interchangeably in California law, even more so than in other states, making it potentially confusing for the defendant as to what exactly the judge is ordering them to do. For example, Penal Code 273.6 is the applicable law in these situations and in its language, it refers explicitly to both restrictive and protective orders. Therefore, it is crucial for the defendant to understand that there are two basic types of restraining orders: criminal and civil. Most of the time, the term “protective order” refers only to criminal restraining orders. Despite these differences in terminology, they are both types of restraining orders.
These two terms correspond to the two separate areas in American law: the criminal courts and the civil courts. Separate courts and protocols control these two distinct areas of the law. However, there is considerable overlap between the two. For example, in instances of domestic violence there may be both criminal and civil cases running concurrently against the defendant. The crucial difference is who takes the case to court; it can either be the state (criminal courts) or another private citizen (civil).
If the defendant stands accused of some form of domestic violence in civil court, then the alleged victim is petitioning the court to stop the alleged violence from occurring anymore by requesting a restraining order. They are not petitioning the court to send the defendant to jail or prison. The alleged victim is essentially suing the defendant to stop the alleged domestic violence. Furthermore, if the alleged victim wishes to drop the civil case then they may do so at any time.
However, the criminal court oversees all cases that are violations of criminal penal code. In these instances, the district attorney (DA) determines if the case continues. Even if alleged victim wishes to drop the case, the DA may continue to press forward and even subpoena the alleged victim against their will. These two distinct courts are why there are both civil restraining orders and criminal restraining orders.Therefore, a criminal restraining order is a court directive usually requested by the state and issued by the judge in domestic violence cases. Sometimes the judge will automatically issue a criminal restraining order if they determine that the alleged victim is in danger or being actively abused. In accordance with California Penal Code Section 136.2 PC, the judge usually issues the criminal restraining order against the defendant to specify what they can or cannot do.
Furthermore, the criminal restraining order supersedes any order issued by a civil judge. This means that if the civil order allows contact between various parties and the criminal one does not, then the criminal restraining order is the one that is obeyed. Violation of either civil or criminal restraining orders results in the same charge being file by the DA: violating a restraining or protective order (California Penal Code 273.6 PC).
On the other hand, civil restraining orders are requested by private citizens. This is also referred to as an ex parte request, wherein one party (alleged victim) petitions the court to issue instructions without informing the other party (defendant). If the request for the restraining order ex parte is approved, then the defendant is allowed a hearing to present their side of the story. This same protocol for hearings at a later date is generally followed for criminal restraining orders as well. This is why it is crucial for the defendant to retain ample legal representation; the intricacies of criminal and civil orders can be overwhelming.
California Penal Code 273.6 PC delineates that the defendant’s failure to obey a restraining or protective order a criminal offense. In instances where the judge issued a civil restraining order against the defendant, then the violation of Penal Code 273.6 effectively transforms what is a civil matter in to a criminal one. In other words, it is a crime to willfully and intentionally ignore a judge’s orders.
The prosecution of said crime can be either as a felony or misdemeanor (also referred to as a “wobbler” offense). The DA decides how to file the charges and the decision is based on the defendant’s criminal history as well as the facts of the case (for example, whether the defendant inflicted physical injury on the victim).
A Penal Code 273.6 conviction may result in a term of three (3) years in a state prison for a felony charge and one (1) year in a county jail for a misdemeanor. The defendant will also be subject to court fees and a fine, restitution paid to the victim, attending mandatory counseling, and the surrender of any firearms as well as an inability to purchase any new ones.
The presiding judge has a great deal of power in determining what types of behavior the defendant can or cannot do. Restraining orders are very disruptive to a defendant’s life. They can also separate a defendant from their family or children if the restraining order was issued family court due to a civil suit over child custody. Some of the provisions that a restraining order may have are the following:
No contact. This prohibits the defendant from contacting the alleged victim in any way, including via phone, email, and/or text as well as forbidding them to stalk, assault, observe, or disturb the alleged victim.
Peaceful contact. This provision allows for the defendant to interact with the alleged victim as long as said interaction is peaceful and civil. This provision is usually stated in the restraining order for very specific reasons, such as instances where there is joint custody of children and/or supervised visits with the defendant’s children.
To stay away. This directive requires the defendant to stay a minimum distance from the alleged victim as well as their residence, place of employment, school, and/or automobile. The minimum distance is determined by the judge based on the facts of the case and the defendant’s criminal history, but is usually three hundred (300) feet.
To move out. This requires the defendant to vacate a home or residence that they share with the alleged victim. This even occurs in cases where the house belongs to the defendant, such as in an acrimonious divorce.
To surrender guns. This provision forces the defendant to surrender their firearms and/or does not allow them to purchase any firearms.
To attend counseling. This orders the defendant to go to counseling sessions such as anger management.
Restraining orders may include these any and/or all provisions with the defendant’s own children, other family members, co-habitants, or intimate partner with the alleged victim. Even if the alleged abuse was directed towards the person who requested the restraining order, a judge may still require the defendant to stay away from all these various people. In some cases, the no-contact provisions are even applied towards pets as there have been cases of abusers hurting pets in order to exact revenge on their victim.
This depends entirely on the specific facts of the case and the type of restraining order. There are three basic timeframes for how long a restraining order can last. These timeframes apply to both civil and criminal restraining orders. The defendant does have an opportunity to contest the application of said restraining orders, though it can only happen at designated court hearings.
The quickest restraining order that can be issued is an Emergency Protective Order (EPO). This is a specific type of restraining order that law enforcement officials request from a judge. This usually happens when a police officer is called to the scene of a domestic violence incident. If they have probable cause to determine that the alleged victim is suffering physical harm and/or the threat of imminent future harm, then they request an EPO. The judges are available at any time, day and night, to issue these restraining orders. They are effective immediately upon approval from the judge and can last up to seven (7) days. They forbid the defendant from having any contact whatsoever with the alleged victim.
Once the EPO expires after a week, then the alleged victim can petition the court to issue a Temporary Restraining Order (TRO). The alleged victim must present information that they have a substantial reason to request a TRO, such as physical violence, reasonable fear that they are in imminent danger, and/or harassment. Harassment is legally defined as physical violence (or the threat thereof) and/or a repetitive (two or more instances) pattern of behavior with no legitimate purpose than to alarm or terrorize the alleged victim. TRO’s are usually granted for up to twenty-five (25) days.
Finally, the judge may issue a Permanent Restraining Order (PRO). After the TRO expires in 25 days, then there is a special court hearing held to determine if the TRO will become permanent. It is essentially a mini-trial (without a jury) as the judge will hear from both parties, as well as any witnesses for either party. This is the first opportunity that the defendant has to make their case against the restraining order. It is crucial to have good legal representation at these hearings as a skilled attorney can make the case that a PRO is unnecessary. PRO’s are not actually permanent; their length of time depends on what type of restraining order is being issued. A domestic violence restraining order is usually issued for five (5) years while a civil harassment restraining order is issued for three (3) years.
A criminal restraining order, also known as a Criminal Protective Order (CPO), is requested by the DA pursuant to California Penal Code Section 136.2. This section of the California penal code determines that these criminal restraining orders be issue by the judge due to a good-cause belief that the alleged victim is suffering from abuse, harassment, or the potential of either. Essentially, the courts issue these orders in a way that puts the defendant at a disadvantage when trying to make their case. It is crucial that the defense have strong legal representation in order to effectively fight the tactics of the prosecution.
The defense can successfully argue that the police officers never had probable cause to issue the Emergency Restraining Order in the first place. They can also argue that the judge did not legally issue a protective order. During the court hearing to determine whether a restraining order becomes permanent, both sides are afforded the opportunity to argue before a judge (but not a jury). At this point in time the defendant’s legal defense team can call into question the alleged victim’s testimony as well as whether they were justified in claiming that they felt reasonable fear for their safety or life.
The defense may also argue that because the restraining order was issued ex parte then the defendant did not know that the order even existed. Therefore, they would not be held criminally liable for violating a directive they were unaware of in the first place. Another defense is to argue that the order was not willfully or maliciously violated. It can be argued that it was carelessness or an honest mistake on the part of the defendant. Finally, the defense can also argue that the accusations are false and baseless.
The defendant is essentially at a disadvantage when it comes to fighting a restraining or protective order. For example, in the case of civil restraining orders, the defendant does not even get a chance to argue before the judge until they are afforded a court hearing right before the Temporary Restraining Order expires. This means that a defendant’s life can be entirely destroyed and upended based on false accusations made by an embittered spouse or ex-spouse.
Furthermore, both the alleged victim and the prosecution may petition the court to issue restraining orders, in the form of a civil and a criminal restraining order, respectively. This means that there are two entirely different sets of protocol (one for the criminal court and one for the civil court). It is important to have the best legal team available to navigate these complexities for you.