Our office often is asked the above question from a potential client, usually with a comment that he or she should have known better or some form of entrapment occurred. My answer is usually prefaced by a short apology and then a rather open-ended answer. My answer is, “I apologize for sounding like a lawyer, but the answer is ‘it matters.”
Brief Synopsis: The punishment for violating a restraining order often is severe, i.e. some time in custody. Depending upon the circumstances, it can be charged as a misdemeanor or a felony, with up to three years in state prison possible, before sentencing enhancements are applied.
I then explain what the minimum punishment for a violation of Penal Code § 273.6, violation of a restraining order, vary depending upon whether the protected person suffered an injury and whether the violation was the first or subsequent violation. It also matters how many times the violation occurred, as clients often make numerous phone calls to the protected person, which can be charged as separate violations, resulting in multiple charges. Making such phone calls can also be charged as a violation of Penal Code § 653m, a misdemeanor.
When a client also visits the location of the protected person, perhaps simply parking his or her car outside and sitting in it for a few minutes, the client can be charged as a violation of Penal Code § 646.9, which is a felony.
When the client engages is more aggressive conduct, such as speaking to the person protected by the restraining order and threatening her or him, the client not only faces a violation of Penal Code § 422, which can be a felony “strike” offense as well as a misdemeanor.
Violating a restraining order, prohibited by Penal Code § 273.6, is usually a misdemeanor, but it can be charged as a felony. When charged as a misdemeanor, the client faces a maximum fine of $1,000 plus penalties and assessments (leading to a total payment to the court of roughly $4,000) and/or one year in county jail.
If the client is able to reach a plea bargain wherein informal or summary probation is a term, the client should expect to attend anger management, domestic violence batterer’s classes or Alcoholics Anonymous (AA) classes or Narcotics Anonymous (NA) classes. The plea bargain can also include a requirement that the client make a “donation” to a battered women’s shelter.
If the potential client has violated a prior protective order within the last seven years and the current conduct involves a threat of violence or actual physical injury, the prosecution can charge the violation as felony. It can also be charged as a misdemeanor. If charged as a felony, the client faces: 1) up to a year in county jail and probation; or 2) state prison for a minimum of sixteen months and a maximum of three years and a maximum fine of $10,000.
If the potential client has violated a prior protective order within the last year and the current conduct involves a physical injury, and the prosecution charges the offense as a felony, the judge is supposed to impose a minimum county jail sentence of six months.
If this same conduct is charged as a misdemeanor (the conduct is the second violation within a year and the victim suffered a physical injury), the court is supposed to impose a minimum county jail sentence of thirty days.
In our experience, however, this is often not imposed. In fact, the judge has discretion to stay the thirty day sentence if the client does serve 48 hours in county jail or to stay the six month sentence if the client does serve thirty days in jail. The judge will stay such a sentence if the client presents mitigating factors for the court to consider, such as the client’s remorse, the client’s progress in completing anger management or batterer’s program classes and the client’s reputation in the community and family and community involvement.
For more information about restraining orders and criminal threats, click on the following articles:
- Ten Year Restraining Order Proper for Mother Who Stalks Husband and Scares Daughter
- What Are Criminal Threats and the Defenses to This Charge?
- Are Criminal Threats Protected Speech under the First Amendment? Appeals Court Say No
Greg Hill & Associates