March 21, 2014 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
In domestic violence cases in California, there are two varieties of protective orders which control contact between the defendant and any alleged victims or witnesses. While these orders apply in any applicable case classified under Family Code 6211, they are most commonly used in domestic violence cases filed under Penal Code 273.5 or Penal Code 243(e)(1).
PROTECTIVE ORDER WHILE CASE IS PENDING (Penal Code Sec. 136.2)
At any point in a domestic violence case, although usually it is dealt with at arraignment), a court can order a defendant to have no contact or restrict the contact with the alleged victim or witness. If the protected person and/or the defendant wish to contest the order, both parties are entitled to hearing. In domestic violence cases, the prosecution always requests some form of a protective order and the court will always grant, at the very least, a “peaceful contact” order. Or, as I like to call it, a “no drama” order. Any reports of fighting, even without physical violence, could be a violation of the peaceful contact order. Other orders may be limited to peaceful transfer of children, or the court may issue a strict no contact order. Violation of this order may result in increase or revocation of bail or “own recognizance” status or the filing of a new charge for violating a court order.
What is important to know is that this protective order, even if it has a termination date years in to the future, expires as a matter of law at the conclusion of the case. In other words, if the defendant pleads guilty or is convicted and sentenced after trial, this order automatically expires unless a new post-conviction protective order is issued. This issue was definitely clarified by the California Court of Appeal in 2009, in a case called People v Ponce, 173 Cal.App.4th 378: The court found that “under (Penal Code) section 136.2 …, during the pendency of a criminal proceeding when the court has a ‘good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur,’ the court is authorized to issue a restraining order.” But orders issued under this section are of a limited duration. The trial court has jurisdiction to issue one only during ‘the pendency of [a] criminal action’ before it.” [Internal Citations Omitted].
IF THE DEFENDANT IS PUT ON PROBATION, THE COURT MAY ISSUE A POST-CONVICTION ISSUE (Penal Code 1203.097(2))
Even though the pre-trial protective order terminates upon conviction, if the defendant is put on a probation for a domestic violence or domestic violence related offense, the court is supposed to issue a new protective order under Penal Code1203.097(2) as a condition of probation. However, as many criminal defense attorneys will tell you, this does not always happen, especially in cases where the underlying conduct is not all that serious. The prosecutor sometimes does not ask for it, or the court omits it from a condition of probation. This is especially the case when the parties wish to reconcile or otherwise reside together.
Like the pre-trial protective order, both the defendant and the protected person are entitled to be heard as to the nature and extent of the order (again, it can range from “peaceful contact” to a strict “no contact” order). Also, under Penal Code 1203.3, both parties have the right to go to court at any point during the probation period and ask that the protective order be modified to allow contact. This should be done with the advice and assistance of an experienced criminal defense attorney. IMPORTANT: If there is a “no contact” order in place during the terms of probation, the defendant must comply with the order (even if the protected person wants contact) until a court modifies the order. In other words, let’s say the protected person is the defendant’s girlfriend or boyfriend, and the girlfriend or boyfriend want to get back together with the defendant. The defendant should not have contact until they get permission from the court. The consequences could be severe, including a revocation of probation and possible jail time.
BOTTOM LINE: If you or a loved one are facing domestic violence charges in Los Angeles County or anywhere in California, or have questions about protective orders in these cases, contact The Law Offices of Jerod Gunsberg at (323) 633-3423 or via this confidential contact form.