It is not uncommon for someone who is the subject of a criminal protective order (CPO) to feel overwhelmed and like he or she is the victim, although such an order is meant to protect someone else who is legally regarded as the “victim” and the person deserving of protection.
The Reader’s Digest Version: A criminal protective order is invalid if it was not properly served or it is unconstitutional on its face. A defense to a violation of the order than the order restrains lawful conduct is a collateral attack on the order and is not permitted once the order is properly served.
The person who is the subject of such a criminal protective order with restrictions on what he or she can or cannot do often feels like he is on the edge of a cliff, looking down. While it is certain what one’s fate is if one steps forward, the person may feel helpless although he can avoid stepping forward.
A good criminal defense attorney or family law attorney is extremely helpful at this point.
That attorney will explain that what the judge said in admonishing defendant when issuing the order. That is, a willful and knowing violation of a court order like a CPO can be an act of criminal contempt, but only if the order is valid. People v. Gonzalez (1996) 12 Cal. 4th 804, 816-817. It is not criminal contempt if court order was issued in excess of the jurisdiction of the issuing court. In re Berry (1968) 68 Cal.2d 137, 147. This seems logical and straightforward.
However, this area of the law quickly becomes counterintuitive, based on over 64 years of California law that has remained solid: “An order duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within its jurisdiction, must be obeyed by them however erroneous the action of the court may be.” Signal Oil Gas Co. v. Ashland Oil & Refining Co. (1958) 49 Cal. 2d 764, 776, fn. 6.
In other words, only an erroneous order that is either “unconstitutional on its face” or “in excess of the issuing court’s jurisdiction” is subject to collateral attack in a later contempt proceeding for violating the order. Gonzalez, supra, 12 Cal.4th at 823.
To understand how this applies, the recent Fourth Appellate District opinion involving Mark Aaron Sorden is helpful.
In May 2017, Mr. Sorden pleaded guilty to violating a Penal Code § 136.2 domestic violence protective order, which is a violation of Penal Code § 166(c)(1). There was then a new criminal protective order (CPO) issued to protect Gloria G. The CPO ordered that Sorden “must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of” Gloria G.
About sixteen months later, in September 2018. As it turned out, Mr. Sorden and Gloria G. lived together continuously even after the protective order was issued, but in September 2018, Gloria decided she “needed some space.” So she left the converted tool shed in Fallbrook in which the two had been living and moved up to Vista. Gloria did not tell Sorden where she had moved and did not answer his telephone calls.
After about a month, however, she came back to Fallbrook and went into a male friend’s house. By coincidence, Sorden stopped by the friend’s house and was surprised to see Gloria. The two started to talk and at one point, Sorden grabbed Gloria’s arm to lead her outside to talk. The male friend told Sorden to let go of Gloria and punched Sorden. Sorden then punched the other male back.
Police arrived and arrested Sorden. He was then prosecuted for violating the CPO as a felony. Sorden defended himself by making a collateral attack on the CPO, arguing that it was not a valid CPO because “disturbing the peace” is not a valid restriction in a CPO issued under Penal Code § 1203.097(a)(2).
The jury found Sorden guilty and the judge sentenced him to five years in state prison, based on three years for the violation, plus two more years for two prison priors under Penal Code § 667.5(b).
Sorden appealed to the Fourth Appellate District, arguing that he could not be guilty of violating 166(c)(1) because “disturbing the peace” is a condition that exceeds the jurisdiction of the court to order.
The appellate court first and foremost recognized that his appeal was a collateral attack and therefore void unless it addressed a constitutional issue or a statutory prohibition, neither of which were implicated here. Moreover, it noted that a judge had discretion to issue orders such as issued here to support the order and thus, the “disturbing the peace” prohibition was valid.
However, the appellate court did order resentencing on the two one-year prison priors, as AB 136 made such sentence enhancements void.
We offer this article to exemplify the point that if a CPO seems overbroad, it is best to seek modification of it before one violates it, as a collateral attack on its validity is difficult, as Mr. Sorden found out.
The citation for the Fourth Appellate District Court ruling discussed above is People v. Mark Aaron Sorden (4th App. Dist., 2021) 65 Cal. App. 5th 582, 280 Cal. Rptr. 3d 116.
For more information about defending a case for violation of a criminal protective order, please click on the following articles: