Penal Code 166 PC is the California statute that defines the offense commonly known as "contempt of court." This refers to any behavior that is disrespectful to the court process. Examples include (but are not limited to):
- being excessively loud or belligerent,
- refusing to be sworn in as a witness and/or refusing to comply with the judge's requests during any court proceeding, and
- willfully disobeying a court order.1
It's the last example that tends to trigger the greatest penalties and the type of contempt upon which this article will focus.
Defenses to Penal Code 166
There are a number of legal defenses that apply to Penal Code 166 PC. Some of the most common include:
- you didn't intend to violate the court order,
- you didn't have the ability to comply with the court order,
- you didn't know about the court order, and/or
- you were falsely accused of disobeying the court.
For the most part, contempt of court (including violations of court orders) is a misdemeanor, punishable by up to six months in county jail and a maximum $1,000 fine. That said, there are situations that invite more serious penalties such as higher fines and up to one year in jail and/or a potential state prison sentence.
Some of these "aggravated" acts of contempt include (but are not limited to):
- violating the terms of a domestic violence protective order (which is also punishable under Penal Code 273.6 PC California's law against violating a protective order),
- violating a protective order when you have a prior stalking conviction, or
- owning or possessing firearms in violation of a court order.2
In this article, our California criminal defense attorneys3 explain Penal Code 166 PC California's "contempt of court" law by addressing the following:
- 1. What is Penal Code 166 "Contempt of Court"?
- 1.1. Lawful order
- 1.2. Knowledge about the order
- 1.3. Ability to comply with the order
- 1.4. Willful failure to comply with the order
- 1.5. Penal Code 273.6 PC California's law against violating a restraining order
- 2. Legal Defenses to Penal Code 166 PC Contempt of Court
- 3. Penalties, Punishment and Sentencing
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Penal Code 166 PC defines a variety of conduct that constitutes "contempt of court." "The purpose of the contempt charge is to enable the courts to vindicate their authority and maintain the dignity and respect due to them."4 Contempt of court includes (but is not limited to):
- inappropriately interrupting court proceedings (that is, engaging in disrespectful behavior or disorderly conduct, being excessively loud, etc.),
- willfully disobeying a lawfully issued court order,
- refusing to be sworn in as a witness or to answer any material question when no legal exception exists,
- publishing a false or grossly inaccurate account of court proceedings,
- willfully disobeying the terms of a lawfully issued injunction (that is, "order") that restricts gang activity, and
- willfully and knowingly violating a protective or stay-away court order involving
- domestic violence,
- elder abuse, and/or
- adult dependent abuse.5
Violating one's probation does not subject him/her to a contempt charge despite the fact that violating probation is a willful disobedience of a court order. Those proceedings are charged separately in a California probation violation hearing.6
So while Penal Code 166 PC details a number of behaviors that all qualify as contempt of court, disobeying a court order is the most common violation and is therefore the one on which this article will focus.
In order to convict you of contempt of court for violating a court order, the prosecutor must prove the following facts (otherwise known as "elements" of the crime):
- the judge issued a legal order,
- you knew about the order,
- you had the ability to comply with the order, yet
- you willfully failed to do so.7
Let's take a closer look at each of these elements in order to better understand their meanings.
Penal Code 166 section (a)(4) specifically condemns "Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by any court, including orders pending trial."
The word "lawfully" was not inadvertently placed in the writing...its use was intentional. As California courts have noted, "an order of contempt cannot stand if the underlying order is invalid."8
And as Newport Beach criminal defense attorney John Murray9 explains, "Unlike many other states...California not only allows a person who is affected by an unlawful order to challenge the order's validity while he/she nevertheless complies with the order but also allows an individual to disobey the order and raise his/her concerns at the time when the court attempts to punish that disobedience."
"If he has correctly assessed his legal position, and it is therefore finally determined that the order was issued without or in excess of jurisdiction, his violation of such void order constitutes no punishable wrong."10 "If, however, the final judicial determination is otherwise he may be punished."11
Example: The court issues an injunction at the request of the County of Sacramento to prohibit union workers from striking and picketing at various county facilities. The county asks for the injunction because these activities would impair the county's ability to comply with its obligations to provide public welfare services, medical care and other governmental services.
Union officials and their attorneys respond by stating that the temporary restraining order suffers from constitutional defects which render it void, and the strike will proceed as scheduled in spite of the order.
The police arrive during the strike, hand out copies of the injunction and order everyone to leave. The defendants remain at the scene and are arrested. The Supreme Court of California agrees that the order violates the defendant's free speech rights and is therefore unconstitutional and unlawful. As a result, the defendants cannot be convicted of contempt of court.12
Before you can be convicted of violating a court order, the prosecutor must prove that you knew about the order. This knowledge includes having had an opportunity to read the order (even if you didn't actually do so).13
What's more is that you can be convicted of violating a court order even if you are not one of the persons named in the order if you aid and abet in its violation...that is, as long as you know about the order and help another person(s) violate its terms or conditions.14 But without that knowledge, you cannot be convicted of contempt of court or of violating California's aiding and abetting laws with respect to this type of contempt charge.
Conversely, even if you technically violate the terms of a court order...for example, you come upon a demonstration and are moved by an independent purpose to join in...you cannot be convicted of contempt of court if you didn't know about the order. Simply doing an act that is forbidden to those who are bound by the court's order isn't sufficient.15 The prosecutor must always prove that you personally knew about the order!
And as long as the prosecutor can prove that you knew about the order...and you engaged in conduct that was specifically prohibited by the order...you can be held liable for contempt, even without proof that you received a copy of the order.16
Penal Code 166 PC California's contempt of court law is what we call a "general intent" crime. This means that you can violate this law simply by engaging in the prohibited act.
This is distinguished from a "specific intent" crime which requires that you have the specific intent to bring about a particular outcome or consequence. "Theft" is a good example of a specific intent crime...you not only must intend to take property that doesn't belong to you, but you must also intend to deprive the owner of that property permanently.
Because violating a court order is a general intent crime, the prosecutor doesn't need to prove that you intended to violate a court order...only that you intended to engage in the action that constituted the violation.
Example: Despite the fact that the court has issued a restraining order against you, you continue to harass the person protected by that order. Your attorney claims that you don't have the mental capacity to understand the order.
Because violating a court's order only requires that you violate the order, your mental capacity isn't relevant. Disobeying the order is enough...your ability to comply is assumed.17
However, if something beyond your control keeps you from complying with the court's order, then you may have a legitimate reason why you are unable to comply with the order.
- your car breaks down on the way to court, and you simply can't make it to court on-time
- you are laid-off and are financially unable to make a restitution payment
- you are in a terrible car accident, and the paramedics take you to the nearest hospital where it just so happens that your ex-girlfriend (from whom you've been ordered to stay away) is an Emergency Room nurse
Along these same lines, if you violate a court order...but did not do so willfully...then you shouldn't be convicted of contempt of court. Contempt of court requires willful disobedience.
This means that if, for example, you are prohibited from communicating with a co-worker...yet you send him an email saying that you are sorry for the problems you've caused...you are willfully violating the order. You were specifically ordered to refrain from contact and instead willfully chose to violate that order.
However, if you bump into your co-worker at a restaurant, your conduct may not be willful. Whether the court believes the "run in" was an accident or on purpose would probably depend on your actions once you saw him...for example, did you immediately leave or did you attempt to make further contact? Making further contact would support the fact that you may have willfully disobeyed the order, whereas immediately leaving the restaurant would demonstrate a true accident.
Penal Code 273.6 PC prohibits violating a California restraining order. This offense is closely related to PC 166. In fact, many of the elements described above are common to both violations. The main difference is that Penal Code 166 not only prohibits violating any court order but also acting in a disrespectful way that interrupts court proceedings. It's simply a broader law.
PC 273.6 specifically prohibits violating a California restraining or protective order.18 If you violate this type of order...which is also addressed under PC 166...prosecutors may choose which offense to charge you with.
Fortunately, there are a variety of California legal defenses that apply to Penal Code 166 PC California's "contempt of court" law that a skilled California defense lawyer could present on your behalf. The following are some examples:
It bears repeating that if you didn't know about the court's order or directive, you can't be convicted of willfully violating it.
If you can demonstrate that you didn't know about the court order...perhaps because the injunction wasn't properly mailed to you, because it was delivered to the wrong person or because (using an example from above) you were moved to participate in what you believed was a peaceful demonstration unaware that there was already an injunction in place...you have not knowingly committed contempt of court.
Suppose, for example, you incorrectly write down your next court date...and therefore don't appear as instructed. Or you visit a store not knowing that the person you have been ordered to stay away from has begun working there. In these cases, you don't intentionally violate the court's order. Good-faith, honest accidents are not the same as intentional violations.
But note this caveat: If the order you are accused of violating is a domestic violence protective order or another order restraining you from having contact with someone with whom you share a relationship...as opposed to, for example, an injunction prohibiting you from soliciting in front of a store...the judge is the only person who can lift the order.
This means that even if the protected party contacts you and tells you he/she wants to see you and no longer wishes to enforce the order, you cannot comply with that request. The judge is the only person who can terminate a court order. If you ignore the order...even at the protected party's request...you can be convicted of contempt of court.
Because little (if any) physical proof is necessary to prove contempt of court, it is a crime that lends itself to false accusations.
If the court has issued a protective order or other injunction, chances are there is some "bad blood" between you and the protected party. These types of strained relationships can oftentimes prompt that individual or business to accuse you of violating the court's order even though you've done no such thing.
But rest assured, we know the most effective ways to expose false charges for what they really are. As former police investigators and district attorneys, we know how to investigate these types of false allegations and clear your name.
Most violations of Penal Code 166 PC California's contempt of court law are California misdemeanors, punishable by a maximum $1,000 fine and up to six months in a county jail.19 However, there are a few violations that subject an offender to increased penalties. These are as follows:
3.1. Violations of California's Domestic violence laws / Violations of California's elder abuse laws
If you are accused of violating a protective or "stay-away" order involving
- a California domestic violence offense,
- Penal Code 368 PC California's elder abuse law, and/or
- dependent adult abuse,
your fine remains the same but you face up to one year in a county jail. If...because of the violation...the victim suffers a physical injury, you face a minimum of 48 hours in jail.
And a second or subsequent conviction for one of these domestic / elder / dependent abuse violations that involves an act of violence or a credible threat of violence elevates the crime to a California wobbler.
A "wobbler" is a crime that prosecutors may charge as either a misdemeanor or a felony depending on
- the facts of the case, and
- your criminal history.
If convicted of the misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine. If convicted of the California felony, you face up to $10,000 in fines and 16 months or two or three years in the
California state prison.
In addition, the judge may require you to pay
- up to $1,000 to a battered women's shelter, and/or
- for any medical and/or counseling costs that the victim reasonably incurred as a result of the violation(s).20
If you are convicted of willfully disobeying the terms of a court order because you contacted the protected party
- in person,
- by telephone, or
- by mail (∗although this specific penalty only refers to contact in person, by telephone or mail, contact via text messaging or e-mail may also subject you to a violation),
and you have been previously convicted of violating Penal Code 646.9 PC California's stalking law, you face a misdemeanor punishable by up to one year in a county jail and a maximum fine of $5,000. And this penalty applies for each contact you have that is in violation of a court order.21
You violate Penal Code 646.9 PC California's stalking law when you harass or threaten another person to the point where that individual fears for his/her safety or the safety of his/her family.22 Stalking is also a wobbler, punishable by up to one year in a county jail or by up to five years in the state prison.23
One more note about stalking: if you are accused of contempt of court, and the underlying offending conduct also qualifies as stalking, prosecutors can charge you with both violations. But if you are convicted or acquitted of stalking, you cannot subsequently be punished for a contempt charge that stems from the same act.24
Penal Code 136.1 PC California's law against dissuading a witness prohibits preventing...or attempting to prevent...any witness or victim of a crime from in any way aiding in your arrest or prosecution or in someone else's arrest or prosecution. This offense is also a wobbler, punishable by up to four years in the state prison.25
If you are accused of violating a court order...and the underlying offense involves dissuading a witness...prosecutors can charge you with both violations. But again, if you are convicted or acquitted of PC 136.1, you cannot subsequently be punished for a contempt charge that stems from the same act.26
If you purchase or receive...or attempt to purchase or receive...a firearm in violation of a court order, you face a wobbler. A misdemeanor is punishable by up to $1,000 and a maximum one year in jail. A felony is punishable by the same fine but up to three years in the state prison.27
If you own or possess a firearm in violation of a court order, you face a straight misdemeanor, punishable by up to one year in a county jail and a maximum $1,000 fine.28
Lastly, if you are charged with contempt of court because you willfully disobeyed a court order regarding
- spousal, or
- you haven't yet entered a plea or gone to trial, or
- you've already been convicted but not yet sentenced...
the court may be willing to suspend your proceedings under the following circumstances:
- you appear in court and reaffirm your obligation to pay the previously established payments, and
- you provide a bond or other security that is sufficient to secure your payments for two years (or for a lesser time that is approved by the court).29
Your California criminal defense attorney will be able to help you with this approach in order to avoid the penalties that may otherwise be imposed with this type of willful disobedience.
Call us for help...
If you or loved one is charged with Penal Code 166 PC contempt of court and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Penal Code 166 PC -- Contempt of court; conduct constituting. ("(a) Except as provided in subdivisions (b), (c), and (d), every person guilty of any contempt of court, of any of the following kinds, is guilty of a misdemeanor: (1) Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in the immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority. (2) Behavior as specified in paragraph (1) committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law. (3) Any breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of any court. (4) Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by any court, including orders pending trial. (5) Resistance willfully offered by any person to the lawful order or process of any court. (6) The contumacious and unlawful refusal of any person to be sworn as a witness or, when so sworn, the like refusal to answer any material question. (7) The publication of a false or grossly inaccurate report of the proceedings of any court. (8) Presenting to any court having power to pass sentence upon any prisoner under conviction, or to any member of the court, any affidavit or testimony or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon the prisoner, except as provided in this code. (9) Willful disobedience of the terms of any injunction that restrains the activities of a criminal street gang or any of its members, lawfully issued by any court [like a California protective order], including an order pending trial. (b)(1) Any person who is guilty of contempt of court under paragraph (4) of subdivision (a) by willfully contacting a victim by telephone or mail, or directly, and who has been previously convicted of a violation of Section 646.9 shall be punished by imprisonment in a county jail for not more than one year, by a fine of five thousand dollars ($5,000), or by both that fine and imprisonment.
Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
People v. Gonzalez (1996) 12 Cal.4th 804, 823.
See Penal Code 166 PC California's contempt of court law, endnote 1, above.
People v. Johnson (1993) 20 Cal.App.4th 106, 111. ("Contrary to the People's assertion, a violation of a condition of probation is not punishable by a separate contempt action. The granting of probation and the consequences of a violation of its terms are governed by Penal Code section 1203 et seq....While there appears to be no published California case on the question of whether a trial court can punish a violation of a condition of probation as a contempt of court, there are cases from other jurisdictions which have considered this same question and concluded that a trial court cannot. We agree...")
The Judicial Council of California Advisory Committee on Criminal Jury Instructions "CALCRIM" 2701 - California's contempt of court law, Penal Code 166 PC. ("The defendant is charged [in Count ] with violating a court order [in violation of <insert appropriate code section[s] >].To prove that the defendant is guilty of this crime, the People must prove that: 1 A court [lawfully] issued a written order that the defendant <insert description of content of order>; 2 The court order was a (protective order/stay-away court order/ <insert description of other type of order>), issued under <insert code section under which order made> [in a pending criminal proceeding involving domestic violence/as a condition of probation after a conviction for (domestic violence/elder abuse/dependent adult abuse)]. 3 The defendant knew of the court order; 4 The defendant had the ability to follow the court order; AND <For violations of Pen. Code, § 166(c)(3), choose "willfully"; for violations of Pen. Code § 273.6(c), choose "intentionally" for the scienter requirement.> 5 The defendant (willfully/intentionally) violated the court order. Someone commits an act willfully when he or she does it willingly or on purpose. [The People must prove that the defendant knew of the court order and that (he/she) had the opportunity to read the order or to otherwise become familiar with what it said. But the People do not have to prove that the defendant actually read the court order.] [Domestic violence means abuse committed against (an adult/a fully emancipated minor) who is a (spouse[,]/ [or] former spouse[,]/ [or] cohabitant[,]/ [or] former cohabitant[,]/ [or] person with whom the defendant has had a child[,]/ [or] person who dated or is dating the defendant[,]/ [or] person who was or is engaged to the defendant). Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.] [The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties' holding themselves out as (husband and wife/domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship.] [(Elder/(D/d)ependent adult) abuse means that under circumstances or conditions likely to produce great bodily harm or death, the defendant: 1 Willfully caused or permitted any (elder/dependent adult) to suffer; OR 2 Inflicted on any (elder/dependent adult) unjustifiable physical pain or mental suffering; OR 3 Having the care or custody of any (elder/dependent adult), willfully caused or permitted the person or health of the (elder/dependent adult) to be injured; OR 4 Willfully caused or permitted the (elder/dependent adult) to be placed in a situation in which (his/her) person or health was endangered. [An elder is someone who is at least 65 years old.] [A dependent adult is someone who is between 18 and 64 years old and has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.] [This definition includes an adult who has physical or developmental disabilities or whose physical or mental abilities have decreased because of age.] [A dependent adult is also someone between 18 and 64 years old who is an inpatient in a (health facility/psychiatric health facility/ [or] chemical dependency recovery hospital).]]")
Newport Beach criminal defense lawyer John Murray represents clients throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster, as well as in the South Bay (including Long Beach and Torrance).
See same at 818-819.
In re Berry (1968) 68 Cal.2d 137, 149.
People v. Brindley (1965) 236 Cal.App.2d Supp. 925, 927-928. ("'You are instructed that in order to find a defendant guilty of willful disobedience to a court order [that is, California contempt of court Penal Code 166 PC], in the absence of the defendant actually having read the order or having had it read to him, you must find that the defendant had a reasonable amount of time or opportunity in which to gain actual knowledge of the contents of the order.")
People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 979-980. ("It is also well settled that service of a restraining order or injunction need not be shown to establish a charge of contempt. One who, with knowledge of the order or injunction, does some act forbidden by it, and who comes within one of the classes of persons already mentioned who are subject to the order or injunction, is guilty of contempt [under California Penal Code 166 PC California's contempt of court law]...Plaintiff also contends, and we agree, that where contempt of court is charged as a crime, under section 166 of the Penal Code, section 31 of that code is applicable, and one who is not otherwise subject to the injunction or restraining order may be charged as a principal, if he aids and abets in its violation. Of course, this involves, as a matter of proof, knowledge by the person so charged of the order he is accused of violating, for without such knowledge he could not be an abettor (7 Cal.Jur. 889); but it does not require any further allegation in the pleading than would be necessary against the principal.")
Berger v. Superior Court (1917) 175 Cal. 719, 721.
See People v. Saffell, endnote 14, above.
People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.
Penal Code 273.6 PC -- Intentional and knowing violation of court protective order.
See Penal Code 166 PC California's contempt of court law, endnote 1, above.
Penal Code 646.9 PC California's stalking law.
See Penal Code 166 PC California's contempt of court law, endnote 1, above.
Penal Code 136.1 PC -- California's dissuading a witness law.
See Penal Code 166 PC California's contempt of court law, endnote 1, above.
California Penal Code 166.5 -- Contempt of court; order for child, spousal, or family support; suspension of proceedings; conditions. ("(a) After arrest and before plea or trial or after conviction or plea of guilty and before sentence under paragraph (4) of subdivision (a) of Section 166, for willful disobedience of any order for child, spousal, or family support issued pursuant to Division 9 (commencing with Section 3500) of the Family Code or Section 17400 of the Family Code, the court may suspend proceedings or sentence therein if: (1) The defendant appears before the court and affirms his or her obligation to pay to the person having custody of the child, or the spouse, that sum per month as shall have been previously fixed by the court in order to provide for the minor child or the spouse. (2) The defendant provides a bond or other undertaking with sufficient sureties to the people of the State of California in a sum as the court may fix to secure the defendant's performance of his or her support obligations and that bond or undertaking is valid and binding for two years, or any lesser time that the court shall fix. (b) Upon the failure of the defendant to comply with the conditions imposed by the court in subdivision (a), the defendant may be ordered to appear before the court and show cause why further proceedings should not be had in the action or why sentence should not be imposed, whereupon the court may proceed with the action, or pass sentence, or for good cause shown may modify the order and take a new bond or undertaking and further suspend proceedings or sentence for a like period.")