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Double Jeopardy Violating Restraining, Protective Order?

When someone violates a civil protective order or a criminal court order restraining contact with someone, which both sometimes are issued to protect the same person, can defendant be prosecuted for violating Penal Code § 273.6 (or § 273.65) and violating Penal Code § 166(a)(4)?  Would such dual prosecution violate constitutional guarantees against double jeopardy?
The Gist of this Article: Double jeopardy can be violated by dual prosecutions for violating a civil restraining order and a criminal protective order when the protected party is the same person in each order and the same exact conduct is prosecuted in two case, however, a clever prosecutor can keep both complaints pending by distinguishing the conduct at issue as separate in each complaint.
As a reminder, Penal Code § 166(a)(4) prohibits the violation of all lawful court orders.  Penal Code § 273.6 covers certain civil restraining orders issued in domestic violence cases.  Penal Code § 273.65 covers restraining orders issued by juvenile courts and Penal Code § 166(c) covers criminal protective orders issued under Penal Code § 136.2 in domestic violence cases.

The answer is yes, it may.  However, in determining which statute applies, Penal Code §§ 166(a)(4), 273.6, or 273.65, the prosecution should only proceed under a statute that specifically addresses the type of order violated.  Nonetheless, the prosecution may proceed under a more general statute (i.e., 166(a)(4)), if that only one such case is filed – and this is often preferable to defendant because it usually provides less punishment.  Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, 265 Cal. Rptr 144.

When only a criminal protective order is in effect under § 136.2 and that order is violated, defendant may be prosecuted under Penal Code § 166(a)(4) or § 166(c), as well as for the substantive violation of the order under § 136.1.

art_1500_-_long_beach_courthouse.jpgLong Beach Courthouse

Similarly, a person violating a restraining order described in Penal Code § 166(c) in a domestic violence case may be punished for a substantive offense both under § 136.1 or § 646.9 (stalking).

Notably, a contempt finding (a violation under § 166(a)(4)) is not a bar to prosecution for violation of § 136.1 or § 646.9.  However, a conviction or acquittal for a substantive offense under either § 136.1 or § 646.9 is a bar to a subsequent punishment for contempt arising out of the same act.  Likewise, a person held in contempt for violating § 166(c) is entitled to credit for any punishment imposed as a result of that violation against any sentence imposed on conviction of an offense described in § 136.1 or § 646.9. 

For example, in People v. Kelley (1997) 52 Cal. App. 4th 568, 577, 60 Cal. Rptr. 653, Mr. Kelley was convicted of stalking a person he had previously molested.  The court held that Mr. Kelley was properly denied custody credits for time served while he was held in contempt for violating an antistalking order issued under Penal Code § 166(a)(4).  The appellate court noted that § 166(e)(5) applies only to restraining orders issued in criminal domestic violence cases under § 166(c), which was not the case for Mr. Kelley.

When only a civil court restraining order is in effect, the potential for double jeopardy is higher.  When that order is violated, defendant may be prosecuted for a misdemeanor under § 273.6 and may be found in contempt under California Code of Civil Procedure § 1209 in certain cases, depending upon whether the contempt sanction is punitive in nature (criminal contempt) or coercive (civil contempt).

If it is found that the prior contempt is criminal in nature, the court must apply the Blockburger test to determine whether the same elements are present in the charge being prosecuted as were present in the contempt proceeding.  Blockberger v. U.S. (1932) 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306.

When the objective of the proceedings is to vindicate the dignity or authority of the court, the proceeding is regarded as criminal in character, even though it arises from, or is ancillary to, a civil action.  Morelli v. Superior Court (1969) 1 Cal.3d 328, 333, 82 Cal. Rptr. 375; People v. Batey (1986) 183 Cal. App. 3d  1281, 1284-1285, 228 Cal. Rptr. 787.  If, on the other hand, the sentence is intended to protect and enforce the rights of private parties by compelling obedience to court orders and decrees, the proceeding is said to be civil.  Morelli v. Superior Court, supra, 1 Cal. 3d at 333.

The California Supreme Court has held that there is no double jeopardy when a person is found in contempt under California Code of Civil Procedure §§ 1209, et seq., and charged and convicted under Penal Code § 166(a)(4).  See In re Morris (1924) 194 Cal. 63, 227  P. 914.

For more information about double jeopardy issues, please click on the following articles:
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