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California Penal Code 273.6 – Violation Of A Restraining Order

273.6. (a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.

(b) In the event of a violation of subdivision (a) that results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interest of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

This section covers violations of protective orders or stay away orders issued by the court. This crime is a misdemeanor.

Punishment: A defendant can receive a sentence of up to one year in the county jail or a one thousand dollar fine, or both imprisonment and a fine. If the case involves injury to another person, a defendant will have to serve at least 30 days in county jail but may have to serve up to a year. The defendant can also receive a fine of two thousand dollars, or a combination of a fine and jail time.

To convict the defendant the prosecution must prove the following five elements:

(1) A lawfully issued court order existed which advised the defendant to refrain from a specific act,

(2) The order was a stay-away order or protective order pursuant to a specific penal code issued in a criminal proceeding concerning domestic violence (or elder/dependent adult abuse) and the order was a condition of defendant's probation.

(3) The defendant had knowledge of the order

(4) The defendant could have complied with the order, AND

(5) Willful conduct on part of the defendant in violating the order.

Explanation of the Law:

• The court order must be lawfully issued in order to hold the defendant accountable. Pen. Code, § 166(a)(4); People v. Gonzalez (1996) 12 Cal.4th 804.

• Willfully means that the defendant committed the act on purpose or a willingness to do the act which is proscribed.

• Penal Code 273.6 is a general intent crime. People v. Greenfield, 134 Cal. App. 3d Supp. 1 (1982). This means that the defendant only needs the intent to do the proscribed act, i.e. to go within 20 feet of the victim. It is not required that the defendant have the intent to achieve a further goal.

• The prosecution only has to show that the defendant knew of the order's existence. They do not have to prove the defendant actually read the order himself/herself. All that is required to be shown is that there was an opportunity for the defendant to read the order. People v. Poe (1965) 236 Cal.App.2d Supp. 928.

• The prosecution does not need to show a proof of service for the order. People v. Saffell (1946) 74 Cal.App.2d Supp. 967.

• Since this section is a general intent crime, the defendant cannot claim that a mental disability prevented him/her from complying with the order. People v. Greenfield (1982) 134 Cal.App.3d Supp. 1.

Defenses:

Anything that negates the elements of this offense will prevent the prosecution from obtaining a conviction. Examples include:

(1) An unlawfully issued order: i.e. the court issuing the order lacked the authority to do so.

(2) Lack of knowledge: if the defendant truly did not know about the order, he or she cannot be held accountable for violating it.

(3) Lack of intent: A defendant needs to perform a willful act which constitutes the violation. An accidental violation will not suffice. For example, if the defendant (under a no-contact order) sends out an e-mail to a list of recipients without knowing the victim's address is still included, he will not willfully violated the order prohibiting him from contacting the victim.

Resources:

People v. Greenfield, 134 Cal. App. 3d Supp. 1 (1982)

People v. Poe (1965) 236 Cal.App.2d Supp. 928

People v. Saffell (1946) 74 Cal.App.2d Supp. 967.

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