If you are convicted of violating a domestic violence protective order (criminal protective order) and you have a prior conviction for the same offense within the past seven years, then the offense becomes a “wobbler”. This means that the Orange County District Attorney
can charge the offense as either a misdemeanor (punishable by up to a year in jail), or as a felony (punishable by up to three years in the state prison
. It is entirely within the discretion of the District Attorney whether to file a felony or misdemeanor charge. They will typically consider the defendant’s criminal record and the circumstances of the offense in making their decision. If the DA does file a wobbler as a felony, the defendant’s domestic violence lawyer can petition a judge to reduce it to a misdemeanor pursuant to Penal Code section 17(b)
If you have a prior conviction for violating a domestic violence protective order or criminal protective order within one year of the present violation AND the current violation results in physical injury to the victim, then the offense is a “wobbler”. Moreover, even if the DA files it as a misdemeanor, the law mandates a minimum six-month jail sentence. However, if your domestic violence attorney can convince the court that the mandatory six-month sentence is not in the interest of justice, the court can reduce the mandatory minimum to thirty days. Your lawyer must convince the judge that the reduction is warranted based on the seriousness of the current offense, the circumstances of the offense, that the victim’s safety is not jeopardized by the reduction, and that you are making progress in your court-mandated counseling.
What Constitutes A Violation Of A Criminal Protective Order
When a judge issues a domestic violence protective order or restraining order, the order will explicitly state the terms on its face. The issuing judge has broad discretion with respect to the terms that can be imposed. The order will prohibit any threating or violent contact and will also prohibit you from possessing ANY firearms. The order may also require you to stay a specific distance from the victim, (called a “stay away” order), and may also prohibit you from coming within a specific distance of your residence, even if you own the residence or are the one who is on the lease (called a residence-exclusion order)
When a protective order says you are to have “no contact” with a person, it means that you can’t initiate ANY contact. This means you cannot contact the victim through a third person, you can’t leave a message for the person, and you can’t contact them by social media such as Facebook or Twitter. Moreover, even if the victim initiates contact, you cannot respond. Doing so is a violation of the court order; even if the victim asked you to contact them.
It is common in domestic violence cases for the victim to contact the defendant. If the victim DOES contact you it is best for you to call your lawyer right away. Although it is not a violation of a protective or restraining order for the victim to contact you, it IS a violation for you to respond. So, for example, if you have been ordered not to contact the victim, and the victim sends you a text message, if you RESPOND to the text this is a violation of the protective order for which you can be prosecuted. It is also a violation of a protective order for you to communicate with the victim through a third party. The only exception is communication with the victim through your domestic violence lawyer.
The protective order will prohibit you from possessing or obtaining any firearms while the order is in effect. If you do own guns you MUST either sell them to a licensed gun dealer or surrender them to law enforcement. Also, you must not buy or take possession of any firearm while the order is in place.
If the protective order prohibits you from going within a certain distance of the victim, then you MUST stay away. The fact that the victim requests that you to contact them is no defense. The protective order is issued by a judge, not the victim. So the fact that the victim asked you to contact them, this is NO defense to the charge of violating the court’s domestic violence restraining order.
If you have been ordered to stay away from a residence that you share with the victim, you MUST stay away. The fact that you “have nowhere else to go” is no defense and will prompt a judge to make other accommodations for you in the Orange County jail. The fact that you own the residence or are on the lease is NO DEFENSE. Nor is it a defense that the victim wants you to come home. Again, it is the judge who issues the order, not the victim. So if you violate the restraining order you will have to answer to the judge, regardless of what the victim wants.
What The DA Must Prove
In order to convict someone of violating a protective order or restraining order, the DA must prove ALL of the following: