Actual Case #1
In People v. J. Nichols - Case 3IW03056, the Prosecution alleged that my client violated a restraining order that was issued against him by his soon to be ex-wife. The wife lied about the facts underlying the restraining order to the Police and Civil Court at the Restraining Order hearing and Jeff Voll was able to get a transcript of what was said to use against her at the criminal trial against his client, Mr. Nichols. Mr. Voll even subpoenaed a Los Angeles County Sheriff's Deputy who testified for the DEFENSE to show that the "victim" wife was clearly lying about my client violating the restraining order issued against him. The jury was out for maybe one hour before they returned a Not Guilty Verdict on the Two Counts of Violating a Restraining Order pursuant to California Penal Code section 166(a)(4).
California Penal Code Section 273.6, criminalizes the intentional violation of the terms of a judge-issued Domestic Violence type restraining order. Such restraining orders are issued to protect those who have been victims of violence in the past and/or are considered likely to be so in the future. The four types of restraining orders addressed in PC 273.6 are as follows:
- Domestic Violence Restraining Orders: These are issued for the protection of those who suffered from a violent crime committed by an “intimate partner.”
- Civil Harassment Restraining Orders: This type of order is meant to protect a non-intimate such as a neighbor of the restrained individual.
- Elder or Dependent Abuse Restraining Orders: These restraining orders are aimed at protecting those 65 years old or older and those with various physical and mental disabilities.
- Workplace Violence Restraining Orders: These orders protect employees or coworkers from violence in the workplace.
Who Can Be Charged?
Your restraining order may have denied you the right to contact with a specific individual or, at least, refused access under certain circumstances. Whatever the exact terms of the order, you can be charged with a violation if three elements are present:
- A lawful, judge-issued restraining order was, in fact, issued against you.
- You knew that such an order had been issued at the time you violated it.
- You willfully broke the terms of your restraining order.
What Must the Prosecutor Prove?
When charged with violating a restraining order, the prosecution must prove all three of the elements of the crime, as noted above, beyond all reasonable doubt, in order to obtain a conviction. Element by element, this process involves the following:
- The first point is simply to produce the proof that a judge issued a restraining order against you, that its terms included barment from actions you undertook, that the order pertained to the jurisdiction of the violation, and that the judge acted lawfully in issuing the order.
- Second, the prosecutor must show you were aware of the restraining order and its terms. Ways you likely learned of it include: by oral statement from the issuing judge, by written notification, or by verbal statement of a police officer.
- Third, it must be shown that your violation was intentional. If, for example, you came across the person who has a restraining order against you by pure chance, you are not guilty. However, even then, you must have quickly left and made no attempts at communication.
Common Defense Strategies
The four most common defense strategies used by attorneys defending against these allegations are as follows:
- First, your attorney can attempt to show that, even if a judge issued the restraining order, he failed to do it in a proper manner or did not possess the authority to issue it.
- If the order is valid, your lawyer can attempt to show you were unaware of the existence of the restraining order. You may not have been present in court when the order was read nor ever informed of it by an authority figure.
- The defense can attempt to prove that any contact or other violation was entirely unintentional.
- It is also possible that the accuser, out of a spirit of revenge, is simply fabricating the charges. If so, a good defense attorney can thoroughly investigate and likely defeat the allegations. See the case mentioned above.
Finally, it should be noted that only a judge has the authority to remove a restraining order. That is, even if the person who requested the restraint suddenly invites you to meet with him/her, you are guilty of a violation if you do so.
For a first-time offense, violating a restraining order will usually be filed as a misdemeanor. The sentence for a misdemeanor conviction includes:
- A maximum fine of $1,000
- A maximum county jail term of 12 months
- 36 months of Informal Stay Out of Trouble Probation
For second and subsequent violations, the charge may be filed as either a misdemeanor or a felony. When violent actions or threats thereof are involved, the chances of a felony conviction are higher. A felony violation is punishable by:
- A maximum fine of $10,000
- 36 months of Informal Stay Out of Trouble Probation if Filed as a Misdemeanor
- A maximum state prison term of 3 years if Filed as Felony
The “Firearms Restriction”
Those under a restraining order are barred from possessing or purchasing firearms. A simple possession violation will be a misdemeanor and punished as outlined above, but purchasing or attempting to purchase a firearm during your restraining order term can result in a felony conviction.
How We Can Help
At the Law Offices of Jeff Voll, we have long experience in defending against allegations of violating a restraining order in the L.A. area. Contact us today toll-free at 323-467-6400 for further information or for a free legal consultation. We have the expertise necessary to improve the outcome of your case, so don’t hesitate to reach out for us to help you.