Criminal Protective Order

Restraining Order Attorney helps clients located all over Los Angeles with any legal issues as they pertain to restraining and protective orders. A criminal protective order is a specific kind of court order that is used in criminal proceedings. Depending on whether a client needs to request or combat one, skillful legal representation is necessary to achieve the desired results for the client.

What is a Criminal Protective Order?

A criminal protective order is a type of restraining order. All restraining orders are used by the court to protect someone who is vulnerable to potential abuse, threats, or intimidation. A criminal protective order is specifically used in criminal courts to protect witnesses or victims of a crime. There are two primary types of criminal protective orders under California law. The first is a Criminal Protective Order – Domestic Violence (CR-160) and is used in instances where the accuser is a victim of domestic violence. The second is Criminal Protective Order – Other than Domestic Violence (CR-161) and is used in all other instances where the accuser or witness needs the court’s protection (including if they are a witness and are vulnerable to witness intimidation).

A judge will issue a protective order if the defendant has:

  1. Hurt the victim in any way, including most forms of chronic and/or sustained abuse. This includes sexual abuse and physical abuse. A protective order is usually issued in cases of assault and battery as well as domestic violence cases, and in many instances is automatically issued by the presiding judge before the first hearing. This is due to the violent nature of some these crimes and the chances of the defendant attacking and harming the victim.

  2. Made the victim feel sustained and substantial fear. In certain cases, it may include forms of emotional abuse if there were felony threats made that were substantial enough to make the victim fear for their life and/or safety as well as the life and/or safety of their loved ones. The District Attorney (DA) will have to prove that the threats were credible and imminent.

  3. Tried to get the victim to not testify at a criminal trial. This is a serious crime under California law and can potentially be charged as a felony. It is listed under California Penal Code Section 136.1 PC and the charge is officially known as “intimidating a witness or victim”. Because the DA is trying to build a case against a defendant and usually has to compel (via subpoena) witnesses to testify, the state of California must ensure that victims and witnesses feel sufficiently safe (and that their loved ones are sufficiently safe) in order for them to testify in the criminal proceedings. Most criminal cases are built around eyewitness testimony (being only partially buttressed by forensic evidence) and the state of California takes the issue of protecting witnesses and victims very seriously.

  4. Threatened to do any of the above to a victim. California law allows provisions that a victim or vulnerable person is afforded protection if there is even the possibility of violence or retribution for their cooperation with law enforcement. The defendant need not have actually done any of the above to trigger the issuance of a protective order; they need only have made credible and imminent threats and the courts will then move to protect the witness or victim as well as the integrity of their testimony. The entire criminal court system relies on it.

It is important to note that a protective order is a type of restraining order but there are certain key differences between the two. For one, a criminal restraining order can only limit a narrower set of behaviors while a restraining order can actually compel the defendant to do or not do a wide variety of things. Secondly, a restraining order is a civil matter: they are petitions made to judges by private citizens to protect them from another private citizen. The official legal term for this is an ex parte request, where the victim requests that the court make a decree of allowable behavior without notifying the other party until a final hearing for a Permanent Restraining Order (also called a PRO) is mandated.

However, a criminal restraining order is either requested by the District Attorney or prosecutor’s office on behalf of the people of the state of California (to protect the victim or witness in the interest of their testimony or the law of the land) or is handed down automatically by the judge. This action of issuing a criminal protective order is done pursuant to California Penal Code Section 136.2 PC. This very reason is why it so crucial for either side to have a legal team; the legal specifics of civil and criminal orders can be too complex for the average person not versed in these affairs.

Criminal versus Civil Courts in California

The legal language used in California law may sometimes be confusing: the two terms restraining order and protective order are both used in California legal policy. The crime of violating a protective order is the same as the crime for violating a restraining order: it is delineated under California Penal Code Section 273.6 PC and is officially known as “violating a protective or restraining order”. This means that a judge may issue two different types of restraining orders: civil or criminal. The specifics of each are a little different, but the broad strokes are the same: they order a defendant to adhere to certain types of behavior for the protection of a victim or witness. “Protective order” almost always refers to restraining orders issued by the criminal courts.

This potential confusion is due to the fact that the American legal system (and by extension, the California legal system) has two court circuits: criminal and civil. There are two sets of protocols and even two sets of laws that govern the two circuits. California Penal Code refers to the criminal courts and the California Code of Civil Procedure refers to the civil courts (whereby civil courts are where private citizens can sue each other with the court being the arbiter and mediator of the law of the land). The two may overlap, though. Both criminal charges and a civil lawsuit may be pursued concurrently against a given defendant. The operating difference is who takes the case to court: the state and prosecutor’s office (criminal circuit) or another private citizen and/or non-state entity (civil circuit).

Furthermore, criminal cases are prosecuted by the DA who represents the interests of the people of the state of California. In these circumstances, it is the DA who determines if the charges are brought against the defendant and if the case continues. If there is insufficient evidence (for example, they are unable to get witnesses to testify) then they drop the charges. In a criminal case, even if the accuser or victim wants to drop the case, the DA may decide to continue to trial and will even subpoena witnesses against their will. It is for this very reason that criminal protective orders are such a valuable tool in the California criminal justice system: they protect victims and witnesses and allow the DA to essentially do their job.

A criminal restraining order definitively overrules any other order issued by a judge in civil court. So if a civil restraining order allows a certain behavior while a criminal protective order does not, then the criminal protective order wins out every time and in every context. This is an inviolable principle of the state criminal courts and it compels law enforcement to enforce every provision of the protective order for as long as it is valid.

What Does the District Attorney Have to Prove to Get A Protective Order?

A criminal protective order is requested by the prosecuting attorney (otherwise referred to as the District Attorney or DA) pursuant to California Penal Code Section 136.2. This means that the DA must present a case of sorts to the presiding judge and explain why the victim or witness needs the protection of the protective order. This means that the burden of proof lies with the DA in proving the need for the order. However, as they are not convincing a jury of the defendant’s peers that said the defendant is guilty of some crime, they do not need to prove it “beyond a reasonable doubt”. That standard of evidence is necessary only for criminal charges. Instead, the DA must adhere to the same standard of evidence that a private citizen adheres to in their petition for a restraining order: a level of “reasonable proof”.

This means that the DA has to prove that the victim or witness has already suffered some level of abuse or harm from the defendant, as in assault or sexual abuse, or is in imminent danger of suffering some level of abuse or harm from the defendant, as in the charge of intimidating a witness or victim. If there are written communications from the defendant threatening the victim, then the level of “reasonable proof” has been far surpassed and the issuance of a protective order is a foregone conclusion. However, even if there is no smoking gun, so to speak, and the DA can merely prove that the victim or witness is living in fear, then the judge will almost certainly issue the protective order.

This is because it is in the court’s best interest to issue protective orders. This protects victims from crimes that are notoriously stepping stones to more violent encounters as well as the integrity of the system of eyewitnesses and victim testimony that allow the criminal justice system to enforce the laws of the state of California. In essence, the court is geared toward issuing protective orders. However, it is still advisable that legal representation is retained whether a person is fighting or requesting an order; the lower burden of proof cuts both ways. Just as a prosecutor needs less evidence to prove an order’s necessity, then a skilled lawyer needs less evidence to counter this claim.

Certain crimes are almost always granted a protective order, including:

  1. Assault (California Penal Code Section 240 PC) and/or battery (California Penal Code Section 242 PC)

  2. Sexual battery (California Penal Code Section 243.4 PC) and/or rape (California Penal Code Section 261 PC)

  3. Stalking (California Penal Code Section 646.9 PC) and/or criminal threats (California Penal Code Section 422 PC)

  4. Intimidation of a witness or victim (California Penal Code Section 136.1 PC)

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Intimidation of a Witness or Victim and Protective Orders

The crime of intimidating a witness or victim is one of the primary reasons that protective orders were created. This particular violation is triggered in cases where a defendant threatens a witness not to testify or press charges. It is used to protect the function and integrity of both high profile and large scale criminal cases as well as smaller and less widely covered domestic violence cases.

In order to prove that Penal Code 136.1 was violated, then the DA must prove that the intimidation occurred. Doing so requires that all arguments adhere to California’s basic “reasonable person” edict in legal proceedings. This states that an action is criminal intimidation (and thus punishable under the law) if execution of said action would result in any reasonable person fearing for their life and/or safety as well as the life and/or safety of their loved ones.

Usually, for a threat to qualify as criminal it must be imminent (meaning that it is certainly going to happen any moment) and credible (meaning that it is possible for the antagonist to actually follow through on said threat). If the threat is clearly fantastical or impossible to execute, then no criminal intimidation occurred. The DA would thus fail in convincing the judge and getting the protective order issued.

Once a protective order is issued, then it is entered into a national database called CLETS that is used by virtually all law enforcement agencies. Any officer responding to a crime may access this database and see if a person is obeying the directives set down by the order. Furthermore, a protective order that is valid remains in effect all over the United States. This is the case even if the defendant moves out of California; the order will be enforced by any law enforcement agency anywhere in the country.

How Long Does A Protective Order Last?

A protective order is issued immediately following an Emergency Protective Order (also known as an EPO). An EPO is always issued by the police officer who responds to the scene of the crime and determines that there is “probable cause” to protect the victim or witness. They may contact a judge any time of the day or night to get the EPO issued, effective immediately, and have it last for up to seven (7) days.

After that, the DA will usually handle the issue of getting the judge to issue a longer-lasting protective order. The length of the protective order is based on the reason for its issuance and the severity of the accusations. If it was issued to ensure a victim or witness will testify in a criminal trial, its length can be up to three (3) years. Once the court has convicted and sentenced the defendant, then the order is automatically ended. This is unless a new threat has emerged and the victim or witness requires protection from another person who is not the defendant, the DA may request another order.

If there is a conviction of sexual assault or any crime of domestic violence, the protective order issued by the judge can prevent contact with the victim for ten (10) years. This will remain valid even if the defendant is convicted and sentenced. This is an exceptionally long time, nearly twice as long as most restraining orders, and is due to the fact that there are patterns of abusive behavior and intimidation in domestic violence and sexual assault cases that may far predate the crime and continue well after the conclusion of the trial. Essentially, California legal policy errs on the side of protecting the victim, even if the length of the protective order may seem excessive.

The victim who is protected by the order may request that it be modified. For people who have children and are married while living together, they may ask that the judge allow that the defendant stays in the family home. This is to allow them to continue their relationship with the children while limiting their contact with the victim. The judge may issue two different caveats to the order: either “peaceful contact” and/or “no negative contact”. Rather than terminate the whole order outright, this merely requires that the restrained person keep their contact to only the sort that is peaceful and civil. This kind of modification may require a certain amount of legal wrangling and is definitely suggested it be done with legal help.