Restraining Orders in Domestic Violence & Non-Domestic Violence Cases

This article explains when a court may issue a restraining order in both domestic violence and non-domestic violence criminal defense cases.

Penal Code section 136.2 authorizes a court to issue pre-trial protective orders in non-domestic violence and domestic violence cases, and post-conviction in domestic violence cases. Pen. Code, § 136.2, subds. (a), (h), (i).

Penal Code section 136.2 permits a trial court to issue a protective order in any criminal case “upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur.” Pen. Code, § 136.2, subd. (a). A court may only issue a protective order once charges are filed as it does not have jurisdiction to issue criminal protective orders until such time. Barbaloa v. Superior Court (2011) 192 Cal.App.4th 948, 961.

A court may issue five different types of protective orders:

(1) An ex parte no contact or stay-away order;

(2) An order prohibiting the defendant from knowingly preventing or dissuading any witness or victim from attending or giving testimony at any trial in violation of Penal Code section 136.1;

(3) An order prohibiting the defendant from molesting, battering, harassing, telephoning, contacting by mail or otherwise, coming within a specified distance of the other party, or of other named family or household members;

(4) An order that any person before the court other than a defendant prohibiting that person from violating any provisions of Penal Code section 136.1; and

(5) An order that a particular law enforcement agency within the jurisdiction of the court provide protection to a victim or a witness, or both, or for immediate family members of a victim.

Pen. Code, § 136.2, subd. (a), subs. (1), subps. (A)-(G); see also Fam. Code, § 6320.

Good cause must be shown to issue a protective order in non-domestic violence cases. The quantum of good cause that must be shown in non-domestic violence cases is different than in domestic violence cases. Barbaloa, supra, at 963-64; see Pen. Code, § 13700, subd. (b) and Fam. Code, § 6211 for definition of domestic violence. The required good cause showing in a non-domestic violence case must be based upon a finding of good cause:

to believe an attempt to intimidate or dissuade a victim or witness has occurred or is reasonably likely to occur. That finding may be based on the underlying charges and the circumstances surrounding the commission of the charged offenses, but a mere finding of past harm to the victim or a witness is not sufficient.

Barbaloa, supra, at 965.

For example, in an assault case, evidence of past harm is insufficient to grant a protective order. People v. Stone (2004) 123 Cal.App.4th 153. Evidence of an assault “before there were any criminal proceedings, without any intent to interfere with such proceedings, was insufficient” to justify a criminal protective order. Ibid.

A defendant is entitled to notice to a request for a protective order so he may prepare for the hearing. Barbaloa, supra, at 965. Protective orders issued pursuant to Penal Code section 136.2 are intended to protect victims and witnesses during the pendency of criminal proceedings and may not extend beyond that period. Stone, supra, at 159; People v. Ponce (2009) 173 Cal.App.4th 378, 381-383.

In domestic violence cases a court may issue one of the same five types of pre-trial protective orders listed above. Pen. Code, subd. (a), subs. (1), subps. (A)-(G); see also Fam. Code, § 6320. A court is instructed to consider issuing protective orders in domestic violence cases on its own motion. Pen. Code, § 136.2, subd. (e). Pre-trial domestic violence protective orders only last during the pendency of the criminal proceedings. People v. Selga (2008) 162 Cal.App.4th 113, 118-119.

The most substantive difference between protective orders in non-domestic violence and domestic violence cases is the requisite good cause showing. In domestic violence cases a court may consider, in determining whether good cause exists to issue a pre-trial protective order, “the underlying nature of the offense charged, the defendant’s relationship status to the victim, the likelihood of continuing harm to the victim, any current restraining order or protective order issued by any civil or criminal court involving the defendant, and the defendant’s criminal history, including, but not limited to, prior convictions for a violation of Section 261, 261.5, or 262, a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, any other forms of violence, or any weapons offense.” Pen. Code, § 136.2, subd. (h), subs. (2).

In addition, the court may consider the “underlying nature of the offense charged, and the information provided to the court pursuant to Section 273.75.” Pen. Code, § 136.2, subd. (h), subs. (1). “[I]n domestic violence cases past harm, as evidenced by the underlying charges or other information concerning the defendant’s criminal history, or threat of future harm to the victim may provide good cause for issuance of a criminal protective order.” Barbaloa, supra, at 963-64.

Following a conviction for a crime of domestic violence the court, at the time of sentencing, must consider issuing an order restraining the defendant from any contact with the victim. Pen. Code, § 136, subd. (i), subs. (1). A victim is the person the crime was perpetrated against. Ibid. A court may issue a post-conviction domestic violence order against a victim. Id.; see People v. Delarosarauda (2014) 227 Cal.App.4th 205, 211.

A post-conviction order can last for up to 10 years, as determined by the court. Pen. Code, § 136.2, subd. (i), subs. (1). In considering the length of the order, the court may consider the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and the victim’s immediate family. Pen. Code, § 646.9, subd. (k), subs. (1). A person restrained by a protective order under Penal Code section 136.2 is prohibited from owning, possessing, purchasing, receiving or attempting to purchase firearms while the protective order is in effect. Pen. Code, § 136.2, subd. (d), subs. (1). Upon the issuance of a protective order, the court must order the restrained person to relinquish all firearms he or she owns or possesses. Code of Civ. Proc., § 527.9. Violating a criminal protective order is a crime. See Pen. Code, §§ 166, 273.6.

A family or juvenile court may order custody and visitation to a defendant restrained by a criminal protective order under Penal Code section 136.2, subdivision (f). If custody and visitation is ordered after a criminal protective order has been issued, the custody and visitation order must make reference to and acknowledge the appropriate criminal protective order. Pen. Code, § 136.2, subd. (e), subs. (3). A criminal protective order that permits contact between the defendant and his or her children shall provide for the safe exchange of the children and shall not contain language that violates a “no-contact” order issued by a criminal court, and the order should specify the time, day, place, and manner of transfer of the child or children. Pen. Code, § 136.2, subd. (f), subs. (1), (2).

Emergency protective orders (EPOs) issued under Family Code section 6250 take precedence over protective orders issued under Penal Code section 136.2 if: (1) the EPO protects one or more individuals who are already protected persons under another restraining or protective order; (2) the EPO restrains the individual in the other restraining order; and (3) the provisions of the EPO are more restrictive than the other restraining order.

If you have questions about a domestic violence restraining order, feel free to reach out to our experienced domestic violence criminal defense attorneys in Temecula and Riverside.

Posted by Mike Donaldson.