California law allows victims of domestic violence to obtain an emergency restraining order or protective order. A domestic violence restraining order may be obtained in either civil or criminal cases although victims are not required to have suffered physical harm to obtain a protective order. It is a criminal offense in California to violate a restraining order. If the victim is not hurt, it is usually charged as a misdemeanor.
California Penal Code § 273.6 PC is California’s statute making it a criminal offense for a person to violate the terms or conditions of a restraining order, protective order, or stay-away order. The offense is punishable by custody in a county jail for up to one year, and/or a maximum fine of $1,000. A judge may award misdemeanor (summary) probation instead of jail time. This offense is often charged in cases of domestic violence.
To prove a violation of this statute, the State of California must establish the following elements:
- That a court lawfully issued a written protective/stay away order stating that the defendant must stay away from a specific person or refrain from a certain act;
- The defendant knew the court order;
- The defendant could follow the court order; and
- the defendant willfully violated the court order.
Thus, a defendant may raise the following defenses:
- the protective/stay away order was not lawful.
- the defendant did not know of the protective/stay away order.
- The defendant’s violation of the protective/stay away order was not a willful act.
While this is typically charged as a misdemeanor, this offense becomes a wobbler if it is a defendant’s second conviction for violating a protective order, and the violation involved an act of violence. If charged as a felony, the offense is punishable by custody in state prison for up to three years, and/or a maximum fine of $10,000. A wobbler is a crime that may be charged as a misdemeanor or a felony.
If an individual breaks another crime while violating a restraining order, he or she may be guilty under both § 273.6 and the statute regulating the other criminal offense. Violating a restraining order will not impact a person’s immigration status in most cases. However, committing a crime such as an aggravated felony may cause deportation.
A person may generally obtain an expungement if convicted under § 273.6. This is true provided that the defendant completed probation or completed the applicable jail term (if either imposed). A conviction under § 273.6 will only negatively affect a person’s gun rights if it is a felony conviction.
Criminal law specialist John Patrick Dolan protects the rights of those charged with assault, domestic violence, or spousal abuse. Mr. Dolan has over forty years of experience working to help his clients obtain the best resolution possible when freedom and reputation are at stake. Call us today at (760) 775-3739 or find out more online here. We guarantee our efforts to fight for the best possible outcome in your domestic violence case.
