CALIFORNIA PENAL CODE 136.2 PC – CRIMINAL PROTECTIVE ORDERS

In California, Penal Code Section 136.2 PC allows prosecutors to petition for a protective order. A Criminal Protective Order (CPO) can also be issued by the police upon request, aiming to safeguard an alleged victim who may be in danger during a criminal investigation.

Once a defendant has been arrested for a domestic violence offense in California, they may be served with various protective orders aimed at preventing contact with the alleged victim and prohibiting any future acts of violence, threats, or harassment. There are three types of protective orders that may be issued:

• Emergency Protective Order
• Criminal Protective Order
• Domestic Violence Protective Order

The prosecutor may request the judge to issue a Criminal Protective Order (CPO). However, it is important to understand that while the prosecutor can petition the court for a CPO, the judge ultimately has the discretion to either grant or deny the protective order based on the specific details of the case and various factors such as evidence presented, the nature of the alleged crime, potential threats to the safety of the alleged victim, and any other relevant circumstances.

A Domestic Violence Restraining Order (DVRO), also referred to as a DVRO Form DV-100, is frequently sought in family law cases when there is evidence of physical or psychological abuse.

Criminal protective orders prohibit defendants from engaging in harassing, threatening, stalking, or assaulting behavior towards a protected individual. These orders also forbid personal, verbal, written, or electronic contact, along with mandating a specific distance be maintained from the victim.

Moreover, defendants who own firearms are typically instructed to surrender them to local law enforcement or sell them within a specified timeframe, often one day.

A Criminal Protective Order also gives victims the authority to document any prohibited contact. It is imperative for victims to fully understand their rights and convey their concerns to the prosecutor and judge in order to initiate the issuance of a protective order.

HOW CALIFORNIA CRIMINAL PROTECTIVE ORDERS ARE ISSUED?

In criminal cases, a Criminal Protective Order (CPO) aims to protect an alleged victim from further harm or harassment, typically when the defendant is involved in the criminal proceedings. Not only the victim of a violent crime, but also their family members, witnesses, and potential victims of intimidation, may be eligible for a protective order.

In California, several types of criminal cases commonly result in the court granting a petition for a CPO, including:

• Domestic battery
• Corporal injury to a spouse
• Stalking
• Child abuse
• Sexual battery
• Sexual Assault and battery
• And vandalism

Typically, the court will issue a CPO at the defendant’s initial court appearance, known as the “arraignment.” California law requires defendants accused of domestic violence incidents to appear in court, where they will be officially served with a criminal protective order.

The arraignment serves as a critical step in the court process for defendants facing domestic violence charges, as it allows them the opportunity to address matters concerning the protective order with a criminal defense attorney.

FACTORS CONSIDERED BY COURT TO ISSUE A CRIMINAL PROTECTIVE ORDER

When determining whether to issue a criminal protective order, the court considers various factors, including:

• Type and circumstances of the alleged crime
• Existence of victim injuries
• Fear of future harm expressed by the victim
• Defendant’s relationship to the alleged victim
• Prior accusations of domestic violence by the defendant
• Current restraining orders against the defendant
• Defendant’s previous criminal record

If the court decides to issue a criminal protective order, the defendant will be prohibited from contacting, harassing, threatening, or committing acts of violence against the protected person. Contact through a third party is also forbidden. Law enforcement will be notified of the protective order the day after it is issued.

PENALTIES, PUNISHMENT, AND SENTENCING FOR VIOLATING CPO

Violation of a criminal protective order may result in separate criminal charges, carrying a maximum penalty of 6 months in a county jail and a fine of up to $1,000.

DURATION OF A CRIMINAL PROTECTIVE ORDER

The length of a criminal protective order in California depends on the reason it was issued by the court.

If the protective order was issued to protect a victim or witness from harm or intimidation related to a criminal case, it will generally last for three years. However, it is important to note that once a defendant is convicted and sentenced, the protective order will be terminated.

In cases where the defendant has been convicted of a sexual offense or domestic violence, the court may issue a protective order prohibiting contact with the victim for a period of 10 years. This order can still be valid even if the defendant is in custody.

The protected person listed on a criminal protective order has the right to request a modification. This is particularly common in situations where married couples have children living in the same home. If approved by the court, a modification may allow the restrained person to remain in the same home.

To modify a protective order, the most effective method is often to request a peaceful contact or no negative contact order. This modification, if granted, would allow the restrained person to make contact with the protected person, but only if it is peaceful and non-threatening.

RELATED CRIMES

• Penal Code § 273.5 PC – Corporal Injury on a Spouse or Cohabitant
• Penal Code § 243(e)(1) PC – Domestic Battery
• Penal Code § 273.6 PC – Violation of a Domestic Violence Restraining Order
• Penal Code § 646.9 PC – Stalking
• Penal Code § 422 PC – Criminal Threats
• Penal Code § 261 PC – Rape
• Penal Code § 262 PC – Spousal Rape
• Penal Code § 273d PC – Child Abuse
• Penal Code § 368 PC – Elder Abuse
• Penal Code § 1203.097 PC – Mandatory Conditions of Probation for Domestic Violence Offenders
• Penal Code Section 242 – Battery

SPEAK WITH CRIMINAL DEFENSE LAWYER FROM TABIBNIA LAW FIRM

If you or someone you know has been arrested for domestic violence or has been served with a domestic violence protective order, it is important to speak with a domestic violence defense attorney. A protective order can have serious consequences, so it’s best to discuss the situation with a seasoned lawyer who can review any challenges to the order.

Cyrus Tabibnia is a criminal defense lawyer Los Angeles with 19 years of experience who understands the implications of protective orders. He works hard to provide comprehensive defense for his clients. To learn more about domestic violence protective orders and criminal protective orders, and to schedule a free consultation, contact Cyrus Tabibnia at Tabibnia Law Firm at 866-713-2159.

Sources:

California Code, Penal Code – PEN § 136.2
Section 136.2
California Penal Code Chapter 2. Restraining Orders
AB 467
PROTECTIVE ORDERS