If you violate a court-issued protective, restraining, or stay-away order in California, you could be charged with a misdemeanor under Penal Code § 273.6 PC.
This offense is punishable by
- up to one year in jail, and
- a fine of up to $1000.00.
But a second offense violation of a restraining order, or a violation that involves an act of violence, can be charged as a felony and punished by up to 3 years in jail or prison.
A restraining order – which can also be referred to as a “temporary restraining order“, a “TRO“, an “emergency protective order“, or a “protective order” – is a court order that is designed to protect a person from
- physical injury,
- dependent adult abuse, or
- making credible threats.
Examples of Violations
- a defendant in a domestic violence case making phone calls to threaten the protected person in violation of a domestic violence restraining order
- stalking a co-worker in violation of a workplace violence restraining order
- text messaging a person in violation of a civil harassment restraining order
Fighting The Case
You can raise a legal defense to contest a charge of violation of a restraining order. Common defenses include:
- no lawful order,
- no knowledge, and/or
- no willful act.
Violating a restraining order is usually a misdemeanor in California. Though the D.A. can choose to prosecute it as a felony if it is your second PC 273.6 violation and it involved an act of violence.
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Our California criminal defense attorneys will explain the following in this article:
- 1. What happens if I violate a restraining order in California?
- 2. Are there legal defenses to 273.6 PC?
- 3. How much jail time for violating a restraining order in California?
- 4. Are there immigration consequences?
- 5. Do restraining orders show up on background checks?
- 6. Can I get my conviction expunged?
- 7. Does a conviction affect gun rights?
- 8. Can a victim violate a restraining order?
- 9. Are there related offenses?
- Additional reading
1. What happens if I violate a restraining order in California?
A prosecutor must prove the following to convict you under PC 273.6:
- a court lawfully issued a protective order,1
- you knew of the court order,
- you had the ability to follow the court order, and
- you willfully violated the court order.2
As to knowledge, you must have known about the existence of a court order for guilt.3 This includes you having the opportunity to read the order (even if you did not do so).4
Note that you commit an act “willfully” when you do it:
- willingly, or
- on purpose.5
Also note that:
- if you break another crime while violating a restraining order,
- you can be guilty under both PC 273.6 and the statute governing the other crime.6
Example: Nia has a restraining order against Maurice. One day Maurice runs into Nia at a restaurant where he had no idea she would be. Here, Maurice is not guilty of violating the protective order because he accidentally saw Nia and did not act with any willfulness.
2. Are there legal defenses to 273.6 PC?
You can use a legal defense to contest a charge under this statute.
Three common defenses are:
- no lawful order,
- no knowledge, and/or
- no willful act.
2.1. No lawful order
You are only guilty under this statute if you violated a lawfully issued order. It is a defense, therefore, for you to say that a protective order was not legal. Perhaps, for example, there was no legal basis for a judge to issue an order.
2.2. No knowledge
Recall that you must know of a restraining order to be guilty under PC 273.6. This means it is always a defense for you to show that you had no knowledge of the order.
2.3. No willful act
You must willfully violate a protective order to violate these laws. It is a defense, then, for you to say:
- while you may have violated an order,
- you did not do so on purpose.
Perhaps, for example, you committed a violation by accident.
3. How much jail time for violating a restraining order in California?
A violation of California Penal Code Section 273.6 is a misdemeanor in most cases.
The crime is punishable by:
- imprisonment in the county jail for up to one year, and/or
- a maximum fine of $1,000.7
Note though that this offense becomes a wobbler if:
- it is your second conviction for violating a protective order, and
- the violation involved an act of violence.8
A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony.
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.
4. Are there immigration consequences?
Violating a restraining order will not impact your immigration status in most cases.
There are times when a criminal conviction results in you being:
Examples are when you are convicted of an aggravated felony.
A PC 273.6 conviction, however, is not generally such a crime.
5. Do restraining orders show up on background checks?
Restraining orders usually do not show up in criminal background checks since they are technically civil matters. Though if you violate a restraining order, that violation will appear in criminal background checks.
6. Can I get my conviction expunged?
You can usually get an expungement if convicted under this statute.
This is true provided that:
- you completed probation (if imposed), or
- you completed his jail term (if imposed).
7. Does a conviction affect gun rights?
A conviction under these laws will only hurt your gun rights if it is a felony conviction.
California law says that felons cannot:
- own a gun, or
- possess a gun.
This means you will be:
- stripped of his gun rights if,
- guilty of a felony violation of a protective order.
However, there will be no negative firearm consequences in misdemeanor cases.
8. Can a victim violate a restraining order?
Victims named as the “protected person” in a restraining will not get into legal trouble for contacting the “restrained person” against whom the order was taken out. Only the restrained person faces arrest and criminal charges for violating the restraining order.
That being said, it is not a good idea for victims to contact the restrained person. The restrained person could use it as evidence in future court proceedings that the victim does not fear the restrained person, and that the restraining order is no longer necessary.9
9. Are there related offenses?
There are six crimes related to violating a restraining order. These are:
- domestic violence,
- stalking – PC 646.9,
- criminal threats – PC 422,
- elder abuse – PC 368,
- vandalism – PC 594, and
- contempt of court – PC 166.
9.1. Domestic violence
California domestic violence laws make it a crime to:
- harm, or threaten to harm,
- an intimate partner.
Common charges include:
- Penal Code 243e1 PC, “domestic battery,” and
- Penal Code 273.5 PC, “inflicting corporal injury on an intimate partner.”
9.2. Stalking – PC 646.9
Penal Code 646.9 PC is the California statute that makes it a crime to:
- harass, and
another person to the point that the other person fears for their safety.
9.3. Criminal threats – PC 422
Penal Code 422 PC is the California statute that defines the crime of “criminal threats.”
A “criminal threat” is when you threaten to kill or physically harm someone and:
- that person is thereby put in a state of fear,
- the threat is specific and unequivocal, and
- you communicated the threat verbally, in writing, or via an electronically transmitted device.
9.4. Elder abuse – PC 368
Penal Code 368 PC is the California statute that defines the crime of “elder abuse.”
Elder abuse is a crime if the abuse is directed at anyone who is 65 years of age or older.
“Abuse” can include any of the following:
- physical abuse,
- emotional abuse,
- neglect and endangerment, and/or
- financial exploitation.
9.5 Vandalism – PC 594
Penal Code 594 PC is the California statute defining the crime of “vandalism.”
This offense takes place when you maliciously do any of the following:
- deface someone else’s property with graffiti or other written material,
- damage the property, or
- destroy that property.
9.6. Contempt of court – PC 166
Penal Code 166 PC is the California statute that makes it a crime to:
- engage in any behavior that is,
- disrespectful to the court process.
Examples of disrespectful behavior include:
- being loud or belligerent in court, or
- refusing to be sworn in as a witness during a California criminal trial.
For additional resources, refer to the following:
- California Courts Self-Help Center: Restraining Orders – The California Courts official site provides forms, FAQs and Step-by-Step guides on filing for restraining orders.
- California Attorney General: Gun violence Restraining Orders – Overview on obtaining gun violence restraining orders.
- WomensLaw.org: Restraining Orders in California – WomensLaw.org provides California-specific legal information and resources on getting a restraining order.
- National Domestic Violence Hotline – Resources for victims.
- California Partnership to End Domestic Violence – Coalition of advocates advancing public policy to end domestic violence.
- Penal Code 273.6 PC – Punishment for violation of protective order, temporary restraining order, or injunction; Possession of firearm by person prohibited from doing so by protective order.
(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.
- CALCRIM No. 2701 – Violation of Court Order, Protective Order, or Stay Away. Judicial Council of California Criminal Jury Instructions (2017 edition). People v. Gonzalez (1996) 12 Cal.4th 804; and, In re Berry (1968) 68 Cal.2d 137.
- People v. Saffell (1946) 74 Cal.App.2d Supp 967.
- CALCRIM No. 2701 – Violation of Court Order, Protective Order, or Stay Away.
- See same. See also People v. Lara (1996) 44 Cal.App.4th 102.
- People v. Smith (2006), 142 Cal.App.4th 923.
- California Penal Code 273.6 PC.
- See same.
- See also Patterson v. State, (2012) 979 N.E.2d 1066.