The Consequences of Violating a Misdemeanor Domestic Violence Restraining Order in California
How Do You Violate a Domestic Violence Restraining Order?
By doing anything that the order says you can’t do.
For instance, a restraining order can prohibit you from contacting a specific person,[i] from visiting certain places[ii] (including the family home[iii]), from owning a firearm,[iv] and even from taking the family pet out of the home.[v]
There are a variety of restraining orders and all of them can restrict or outright prohibit a range of activities. Ultimately, though, such orders are designed to protect alleged victims of domestic violence.
What Happens If You Violate a Domestic Violence Restraining Order?
When it comes to prosecuting a violation of a domestic violence restraining order, the authorities have two statues to choose from: (1) violation of a protective order under Penal Code section 273.6;[vi] and (2) disobeying a court order under Penal Code section 166.[vii]
A first-time violation of either statute constitutes a misdemeanor[viii], and the punishment under either statute is the same: up to 1 year in jail, a fine of up to $1,000, or both jail time and the fine.[ix]
Both statutes enhance the penalty — and, in some instances, make the crime punishable as a felony — if the conduct that constituted the violation:
- Resulted in physical injury to the alleged victim.[x]
- Resulted in physical injury to the alleged victim and the accused was previously convicted of violating a restraining order within the last year.[xi]
- Was possessing a firearm.[xii]
- Involved threats, violence, or stalking, and the accused was previously convicted of violating a restraining order.[xiii]
One Violation Can Result in Two Convictions
In some cases, the conduct that constitutes a violation of a restraining order is punishable as a crime in and of itself. For instance, if a restrained person follows and threatens a person protected by a restraining order, then the restrained person can be charged with both violating the order as well as the separate crime of stalking.[xiv]
Typically, an act that both violates a restraining order and, at the same time, constitutes a separate crime is punishable by whichever crime — violation of the order or the separate crime — has the harsher penalty.[xv] In other words, even if the restrained person is convicted of two separate crimes, he will be sentenced only for the crime with the harsher penalty.
Note, however, that a convicted felon who obtains a firearm and then later violates a restraining order may end up being punished for both the restraining order violation and the separate crime of being a felon in possession of a firearm,[xvi] not just the harsher of the two.[xvii]
Conclusion
It should go without saying that once a restraining order is issued, it should not be violated. Violating a restraining order will be punished as a misdemeanor and can, depending on the severity of the violation, lead to a harsher, felony penalty.
And even if a violation of a restraining orders results in probation, the restrained person will still be sentenced to domestic violence-specific terms[xviii] such as mandatory completion of a 52-week batterer’s treatment program[xix] and be subject to a criminal protective order that prohibits contact with the victim for 3 to up to 10 years.[xx]
[i] For example, see Family Code §6320. Note: Visiting an alleged victim when a restraining order is in effect — even if she invites you over — is still a violation. That’s because only the Court can modify a restraining order, not the alleged victim. See Penal Code §13710(b); People v. Gams (1997) 52 Cal. App. 4th 147, 153-154.
[ii] For example, see Family Code §6322.
[iii] For example, see Penal Code §1203.097(a)(2).
[iv] For example, see Penal Code §§136.2(a)(1)(G)(ii)(I)(ia); (d)(1).
[v] For example, see Penal Code §136.2(a)(1)(A), Family Code §6320(b).
[vi] Penal Code §273.6(a).
[vii] Penal Code §166(a)(4), which penalizes willful disobedience of a court order. In general, Penal Code §166 criminalizes specific conduct that is considered to be contempt of court such as disrupting courtroom proceedings or refusing to testify. See Penal Code §§166(a)(1), (3), (6). Such acts demonstrate disrespect for a judge’s authority are punishable as misdemeanors. In the context of domestic violence, prosecutors use Penal Code section 166 to punish any violation of a restraining order — regardless of whether the restraining order was issued by a family law court or a criminal court.
[viii] See Penal Code §§273.6(a), 166(a)(4).
[ix] See Penal Code §§273.6(a), (c); 166(c)(1).
[x] For violations that result in physical injury to the victim, the punishment becomes 30 days’ jail minimum up to 1 year, a fine of up to $2,000; or both under Penal Code §273.6(b); and an additional mandatory 2 day’s jail under Penal Code §166(c)(2).
[xi] If the violation results in physical injury and the accused was previously convicted within the last year of violating a restraining order, the crime becomes a wobbler and can be punished by 6 months’ jail minimum up to 1 year or up to 3 years in prison, a fine of up to $2,000; or both confinement and a fine. Penal Code §273.6(e). This scenario applies only to Penal Code section 273.6; there is no corresponding punishment under Penal Code 166.
[xii] For a violation due to possession of a firearm, the crime becomes a wobbler and can be punished by either up to 1 year in jail or up to 3 years in prison, a fine of up to $1,000, or both confinement and a fine. See Penal Code §§273.6(g), 166(d)(1), 29825(a).
[xiii] If the violation involves violence or a credible threat and the accused was previously convicted within the last 7 years of violating a restraining order, the crime becomes a wobbler and can be punished by up to 1 year in jail or up to 3 years in prison. See Penal Code §§ 273.6(d), 166(c)(4). Under Penal Code §166(b)(1), if the accused violates a restraining order in any way and has ever been convicted for stalking, then the punishment increases to up to 1 year in jail, a fine of up to $5,000, or both confinement and a fine.
[xiv] See Penal Code §§273.6(a), 166(e)(5), 646.9(b). Note: If a restraining order is in effect at the time a person commits the crime of stalking, then the crime is treated as a felony and is punishable by up to 4 years in prison. Penal Code §646.9(b).
[xv] See Penal Code §654(a).
[xvi] See Penal Code §29800(a)(1).
[xvii] See People v. Jones (2002) 127 Cal.Rptr.2d 319, 323-324 [Defendant could be punished for both shooting at an inhabited dwelling and being a felon in possession of a firearm where he first obtained a firearm and then, on a later date, used that firearm to commit a crime].
[xviii] See Penal Code §§273.6(h), 166(e)(1).
[xix] Penal Code §§ 1203.097(a)(6).
[xx] Penal Code §§1203.097(a)(2); 136.2(i)(1); Family Code §6203(a)(4).
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
