Penal Code 273.6 PC – Violating a Restraining Order or Protective Order

Updated


Penal Code 273.6 PC is the California statute that makes it a crime for a person to violate the terms or conditions of a restraining order. This offense is a misdemeanor in California that can lead to up to one year in jail.

A restraining order - also referred to as a "protective order" - is a court order that is designed to protect a person from

  • harassment,
  • physical abuse,
  • stalking, or
  • 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."

Examples:

  • contacting an ex-boyfriend when a court order prohibits it.
  • following a co-worker home when a restraining order says no stalking that person.
  • not relinquishing a gun to authorities when a protective order states no possessing one.

Defenses

A defendant can raise a legal defense to beat a charge under this statute. Common defenses include:

  • no lawful order,
  • no knowledge, and/or
  • no willful act.

Penalties

A violation of this statute is a misdemeanor in most cases. 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 highlight the following in this article:

judge upset with defendent for violating her restraining order
PC 273.6 is the California statute that makes it a crime for a person to violate the terms or conditions of a restraining order

1. When is it a crime to violate a restraining order?

A prosecutor must prove the following to convict a person under PC 273.6:

  1. a court lawfully issued a protective order,1
  2. the defendant knew of the court order,
  3. the defendant had the ability to follow the court order, and
  4. 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 prohibits him from coming into 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:

  1. no lawful order,
  2. no knowledge, and/or
  3. 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 an 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 on accident.

woman behind bars
A violation of Penal Code 273.6 can result in a fine and/or jail time

3. What are the penalties?

A violation of Penal Code 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:

  1. it is a defendant's second conviction for violating a protective order, and
  2. 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. 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).

6. 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:

This means a defendant will be:

  • stripped of his gun rights if,
  • guilty of felony violation of a protective order.

There will not be any negative firearm consequences, though, in misdemeanor cases.

7. Are there related offenses?

There are six crimes related to violating a restraining order. These are:

  1. domestic violence,
  2. stalking - PC 646.9,
  3. criminal threats – PC 422,
  4. elder abuse – PC 368,
  5. vandalism – PC 594, and
  6. contempt of court – PC 166.

7.1. 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:

7.2. Stalking – PC 646.9

Penal Code 646.9 PC is the California statute that makes it a crime for a person to:

  • follow,
  • harass, and
  • threaten

another person to the point that the other person fears for his or her safety.

7.3. 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:

  1. that person is thereby put in a state of fear,
  2. the threat is specific and unequivocal, and
  3. the accused communicated the threat verbally, in writing, or via an electronically transmitted device.

7.4. 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.

7.5 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.

7.6. 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:

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For information on similar crimes in Nevada or Colorado, please see our articles on:


Legal References:

  1. People v. Gonzalez (1996) 12 Cal.4th 804; and, In re Berry (1968) 68 Cal.2d 137.

  2. CALCRIM No. 2701 - Violation of Court Order, Protective Order, or Stay Away. Judicial Council of California Criminal Jury Instructions (2017 edition).

  3. People v. Saffell (1946) 74 Cal.App.2d Supp 967.

  4. CALCRIM No. 2701 - Violation of Court Order, Protective Order, or Stay Away.

  5. See same. See also People v. Lara (1996) 44 Cal.App.4th 102.

  6. People v. Smith (2006), 142 Cal.App.4th 923.

  7. California Penal Code 273.6 PC.

  8. See same.

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