Penal Code 273.6 PC makes it a crime to violate the terms of a court-issued protective order (commonly called a restraining order or a stay-away order). This offense is a misdemeanor that carries a maximum sentence of up to one year in jail.
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.
273.6 PC states that “any intentional and knowing violation of a protective order…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.”
- 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
A defendant 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.
Criminal charges under this section are normally filed as a misdemeanor. This is opposed to a felony or an infraction.
The offense is punishable by:
- custody in county jail for up to one year, and/or
- a maximum fine of $1,000.
A judge can award misdemeanor (or summary) probation in lieu of jail time.
Our California criminal defense attorneys will explain the following in this article:
- 1. What happens if you violate a restraining order in California?
- 2. Are there legal defenses to 273.6 PC?
- 3. How long can you go to jail for violating a restraining order?
- 4. Are there immigration consequences?
- 5. Do restraining orders show up on background checks?
- 6. Can a person get a conviction expunged?
- 7. Does a conviction affect gun rights?
- 8. Can a victim violate a restraining order?
- 9. Are there related offenses?
1. What happens if you violate a restraining order in California?
A prosecutor must prove the following to convict a person under PC 273.6:
- a court lawfully issued a protective order,1
- the defendant knew of the court order,
- the defendant had the ability to follow the court order, and
- the accused willfully violated the court order.2
As to knowledge, a defendant must have known about the existence of a court order for guilt.3 This includes the accused having the opportunity to read the order (even if he didn’t do so).4
Note that someone commits an act “willfully” when he does it:
- willingly, or
- on purpose.5
Also note that:
- if an accused breaks another crime while violating a restraining order,
- he can be guilty under both PC 273.6 and the statute governing the other crime.6
Example: Maurice has a history of abusing his ex-girlfriend, Nia. She gets a court order that orders him to have “no contact” with her. Maurice’s lawyer shows him a copy of the restraining order after the judge drafts it. Days later, Maurice sees Nia at a neighborhood restaurant. He had no clue she would be there.
Here, Maurice is not guilty of violating the protective order. A judge did lawfully issue it and Maurice knew about it (since his lawyer showed him a copy), But he did not violate the order on purpose. He accidently saw Nia in the restaurant and did not act with any willfulness.
2. Are there legal defenses to 273.6 PC?
A defendant 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
An accused is only guilty under this statute if he violated a lawfully issued order. It is a defense, therefore, for a defendant 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 a defendant must know of a restraining order to be guilty under PC 273.6. This means it is always a defense for an accused to show that he had no knowledge of the order.
2.3. No willful act
An accused must willfully violate a protective order to violate these laws. It is a defense, then, for the defendant to say:
- while he may have violated an order,
- he did not do so on purpose.
Perhaps, for example, the accused committed a violation by accident.
3. How long can you go to jail for violating a restraining order?
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 a defendant’s 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 a person’s immigration status in most cases.
There are times when a criminal conviction results in a non-citizen defendant being:
Examples are when the defendant is 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. But if a person violates a restraining order, that violation will appear in criminal background checks.
6. Can a person get a conviction expunged?
A person can usually get an expungement if convicted under this statute.
This is true provided that:
- the defendant completed probation (if imposed), or
- the defendant completed his jail term (if imposed).
7. Does a conviction affect gun rights?
A conviction under these laws will only hurt a person’s gun rights if it is a felony conviction.
California law says that felons cannot:
- own a gun, or
- possess a gun.
This means a defendant will be:
- stripped of his gun rights if,
- guilty of a felony violation of a protective order.
There will not be any negative firearm consequences, though, 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” that the order was taken out against. 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 for a person 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 for a person to:
- harass, and
another person to the point that the other person fears for his or her 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 a person threatens to kill or physically harm someone and:
- that person is thereby put in a state of fear,
- the threat is specific and unequivocal, and
- the accused 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 a person maliciously does any of the following:
- defaces someone else’s property with graffiti or other written material,
- damages the property, or
- destroys that property.
9.6. Contempt of court – PC 166
Penal Code 166 PC is the California statute that makes it a crime for a person 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 help from a criminal defense lawyer…
For legal advice or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We have offices in Los Angeles, Orange County, San Diego, Riverside, Long Beach, Pasadena, Torrance and other nearby cities.
For information on similar crimes in Nevada or Colorado, please see our articles on:
- “NRS 33.100 – Nevada Laws for Violating Restraining Orders,” and
- “Colorado Violation of a Protective Order Law (18-6-803.5 C.R.S.).”
- People v. Gonzalez (1996) 12 Cal.4th 804; and, In re Berry (1968) 68 Cal.2d 137.
- CALCRIM No. 2701 – Violation of Court Order, Protective Order, or Stay Away. Judicial Council of California Criminal Jury Instructions (2017 edition).
- 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: (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. (c) Subdivisions (a) and (b) shall apply to the following court orders:(1) Any order issued pursuant to Section 6320 or 6389 of the Family Code.(2) An order excluding one party from the family dwelling or from the dwelling of the other.(3) An order enjoining a party from specified behavior that the court determined was necessary to effectuate the order described in subdivision (a).
(4) Any order issued by another state that is recognized under Part 5 (commencing with Section 6400) of Division 10 of the Family Code.
(d) A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or “a credible threat” of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or pursuant to subdivision (h) of Section 1170.
(e) In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) that results in physical injury to a victim, 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 six months nor more than one year, by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interest of justice and for reasons stated in the record, reduce or eliminate the six-month 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.
(f) The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders described in subdivisions (a), (b), (d), and (e).
(g) (1) Every person who owns, possesses, purchases, or receives a firearm knowing he or she is prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, shall be punished under Section 29825.
(2) Every person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (f) of Section 527.9 of the Code of Civil Procedure, or subdivision (h) of Section 6389 of the Family Code.
(h) If probation is granted upon conviction of a violation of subdivision (a), (b), (c), (d), or (e), the court shall impose probation consistent with Section 1203.097, and the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women’s shelter or to a shelter for abused elder persons or dependent adults, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.
(i) For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.
- See same.
- See also Patterson v. State, (2012) 979 N.E.2d 1066.