When a prosecutor files criminal charges, they depend on the victims of the offense and witnesses to prove their case. Therefore, the law allows prosecutors to request that judges issue criminal protective orders (CPOs), which safeguard witnesses and victims from potential violence or threats from the restrained party. At Goldman Flores Restraining Order Law Firm, our dedicated legal team has experience helping individuals in San Diego navigate the complexities and intricacies of these orders. Once you call us, we can dedicate quality time to reviewing and discussing the order, answering all your questions, and providing guidance, insight, and advice on how to protect yourself as the protected party or the restrained party.

Understanding a Criminal Protective Order (CPO)

A judge grants a criminal protective order in a criminal case, often after a person is charged with harassment, assault, domestic violence, or sexual assault. The objective is to safeguard the alleged victim or witness in the case as it proceeds.

Alleged victims do not request CPOs. Instead, prosecutors request that courts grant them. Therefore, if the protected party seeks to forgive the restrained party or dismiss the case, the CPO will remain in effect until the court modifies it.

A judge will decide whether to issue the CPO when the defendant attends an initial court hearing. The victim or witness can offer input about the CPO at that time.

CPOs often prohibit any contact, including calls, texts, or messages via friends. Breaching a CPO is an offense, and it could result in your arrest, incarceration, or additional charges to your initial crime.

Additionally, judges can issue stay-away orders or forbid you from going home if the witness or alleged victim resides with you. Sometimes, the conditions of a CPO may separate you from your children or make it challenging to see loved ones while the criminal case proceeds.

Other restrictions include requiring the defendant to comply with electronic monitoring orders and prohibiting them from possessing body armor, ammunition, or firearms.

The restrained person learns of the CPO when they are given a copy of it in court. On the contrary, the protected person is informed of the CPO when the deputy provides them with a copy of it, if they are in court. However, if the victim or witness is not in court, they can request a copy from the district attorney's (D.A.'s) office.

The court also enters the CPO into a statewide database available to law enforcers within one day of its issuance.

Difference Between a Civil Restraining Order and a CPO

A person who claims to face a potential threat, harassment, or harm from someone else requests the court to grant a civil protective order, but it does not always involve a crime. Typically, courts grant civil restraining orders in stalking, domestic violence, or neighbor disputes. The individual filing, referred to as the petitioner, does not have to demonstrate that an offense has occurred; they only need to show that they feel at risk or that their alleged conduct is disturbing their peace of mind.

Civil protective orders restrict where you can go, whom you can contact, and whether you can visit your children. The civil protection order could require you to stay away from the petitioner’s workplace, school, or home. It may also prohibit you from owning firearms or contacting the petitioner, even through a third party. Although the orders are civil in nature, a violation could result in criminal repercussions.

Although the case is not a criminal matter, a civil restraining order may appear on your background checks. It can damage your reputation and adversely affect you during child custody disputes. Therefore, you should not ignore the order or assume it will go away on its own.

Types of CPOs

The two levels of CPOs include the following:

  • Full stay-away order
  • Peaceful contact order

A stay-away restraining order prohibits the defendant from communicating with the alleged victim via any method or maintaining a certain distance from the victim, their home, car, workplace, or other specified locations.

In circumstances where a full stay-away order could interfere with a couple’s ability to co-parent, the court may defer to custody and visitation orders that a family law court had issued.

The alleged victim can request the court for a less restrictive CPO, also called a peaceful contact order.

A peaceful contact restraining order can permit you to continue living with the alleged victim or communicate with them via phone or any other electronic device, provided the contact does not involve threats, stalking, intimidation, or violence and remains peaceful.

What happens when the protected party contacts you despite an effective no-contact order? You should end the contact. While the order bars you from contacting the victim or witness, the order does not bar the victim or witness from contacting you. Unlike the defendant, the victim or witness is not breaking any law when they contact the restrained individual and will not face any criminal consequences.

The Length of a CPO

A CPO expires on the date written on its document. If your order document does not have a written date, the CPO will expire three (3) years after the court issued it.

Typically, the duration of the CPO depends on the reason why the judge granted the order. Suppose the order was issued to protect a witness or alleged victim from harm or intimidation, allowing them to testify against the defendant in a trial. In that case, the court can terminate the CPO after the defendant is found guilty and sentenced.

For sex crimes, the judge could issue a COP banning the defendant from contacting the alleged victim for ten years. The CPO can remain effective even when the accused is detained.

The protected person can request the court to extend the postconviction CPO after it expires. If they do so, you can respond to the request and present your argument against extending the CPO.

Factors Courts Consider Before Issuing a CPO

Judges do not automatically issue a CPO in all criminal cases. Instead, the judge considers the circumstances surrounding your case to decide whether there exists good cause to limit your activities. Good cause means a reason to believe that proximity to or contact with the restrained party poses a threat to the protected person.

Some of the factors the judge considers are as follows:

  • The seriousness of your criminal activity
  • Are there any effective CPOs or civil restraining orders against you
  • Your relationship with the witness or victim
  • Whether the witness or victim expressed fear of harm inflicted by you in the future
  • Your previous record of convictions, domestic violence accusations, or arrests

It can present arguments and evidence that indicate the absence of good cause to limit your conduct during the judicial criminal case process. When defending against the CPO, your lawyer can present mitigating factors to support your claim that you are not a threat to the witness or victim.

How To Request Modification of a CPO as the Protected Person

For a pending criminal case, you can request a modification by calling the D.A. office Victim Services Unit at 408-295-2656 and requesting that they schedule a case for you.

Suppose the case is completed and the defendant is on formal probation. In that case, you can see the modification by calling the deputy probation officer and requesting them to schedule your case on the calendar.

If your case is completed and the defendant is not on formal probation, you can request modification by calling the D.A. office Victim Services Unit at 408-295-2656 and requesting that they schedule a case for you.

Next, you will receive a referral letter from the D.A.'s office Victim Services Unit or the deputy probation officer. The referral letter requires you to attend a consultation that will help you make a wise request to the court.

There is no guarantee that the court will alter your CPO terms.

Modifying or Terminating a CPO

In cases involving domestic violence, the judge issues a CPO as the case proceeds and then another CPO during probation or even after conviction.

In cases involving children, the restrained party or alleged victim can request the judge to modify the order to enable the parties involved to start communicating for the benefit of the children, stay together again, attend counseling together, or participate in any other event. Sometimes, if the restrained party or alleged victim leaves the shared home, they may have nowhere else to stay, especially in cases involving immigrants, and must rent a hotel room or live out of their car.

A workable solution is that the judge consider modifying the CPO to permit peaceful contact between the two parties. However, judges should review every case based on the available facts, and the prosecution team can object to a modification or termination that may place the alleged victim at risk.

When seeking a modification or termination of a CPO, you should notify the prosecution team at least five days before your termination or modification hearing. The notice allows the prosecution team to make unofficial calls to the alleged victim, without the presence of a judge or the family, to evaluate whether the alleged victim is under threat or pressure. The prosecution team must assess what is influencing the filing for the CPO’s modification.

During the modification or termination hearing, the court will consider the following:

  • The material change(s) influencing the request, for example, the passing of a loved one who offered childcare services.
  • Whether the alleged victim’s identity matches what is recorded in police reports, and whether there is any actual evidence to confirm their identity.
  • What is the reason for the CPO’s modification or termination request? Is it a lack of alternative housing or childcare?
  • What is the nature of the underlying offense? Whether it was a severe incident or was it a part of a pattern of abuse, or just a one-off incident?
  • Is the alleged victim under threat or coercion? Are your friends or family in court to exert pressure on the alleged victim?
  • Does the alleged victim have a safety plan in place to enhance their personal security? Does the alleged victim know who to call if an issue arises? Does the alleged victim already have the phone number saved on their phone?
  • If substance abuse was involved during the underlying incident, are you attending alcohol or substance abuse counseling?

Steps to Take Once You Receive a CPO

Upon being served with a CPO, you should first analyze the order to ensure you know what specific limitations the court has imposed on you. Then, discuss the CPO with your defense lawyer. Please feel free to ask questions and raise any concerns you may have. It may be necessary for you to consider surrendering, storing, or selling any firearm in your possession and bringing a receipt to the court to ensure your immediate compliance with the CPO.

Since a criminal protective order can alter your daily life as the case unfolds, collect evidence that will assist your attorney in building a formidable defense to fight the criminal charge against you. While the order is in effect, you should not attempt to contact the protected party or visit any location the order forbids to collect exonerating evidence or work things out with the alleged victim. Instead, allow your legal counsel to professionally handle the matter while you focus on demonstrating adherence.

What Happens When You Violate a CPO? 

California Penal Code Section 273.6 PC makes it a crime to violate or disregard a legally issued CPO.

For the prosecution team to prove a violation of a protective order, they must establish elements that include the following:

  • The judge legally issued the CPO, instructing you to stay away from a particular individual or refrain from a specific act.
  • You were aware of the CPO against you
  • You had the capacity to obey the court order
  • You deliberately violated the CPO

Penalties and Consequences of Violating a CPO

Violating 273.6 is a misdemeanor that carries the following potential penalties:

  • Spending a year in county jail
  • A fine not exceeding $1,000

The offense is prosecuted as a wobbler if:

  • You face a second or subsequent conviction for violating a CPO
  • Your violation involved violence

The prosecution team can prosecute a wobbler as a misdemeanor (attracting the penalties outlined above) or as a felony, punishable by:

  • Sixteen months, two years, or three years in county jail
  • A fine of up to $10,000

While violating a CPO might not affect your immigration status, the crime can be deportable if you have a domestic violence conviction on top of violating a CPO. As an immigrant facing criminal charges, it is essential to consult a lawyer to understand your options for remaining in the United States of America.

Defenses to Violation of a CPO

Your defense attorney will review your case facts to develop a strong case defense. Common valid legal strategies and defenses include the following:

  • You did not know of the existence of the CPO — If the court did not serve the CPO legally and appropriately, you have no obligation to adhere to it. Your attorney can use this as a defense if the court serves the order to the wrong party or if the court did not serve the order at all.
  • The CPO was invalid — Just because a judge signed the order does not make it lawful. Examples of illegal CPOs include orders issued without any legal grounds or in breach of established judicial processes. The prosecutor can drop the criminal charge once your lawyer demonstrates to them the invalidity of the CPO.
  • Your violation of the CPO was not deliberate — You can use this legal defense if you accidentally bump into the protected party. It can occur during your journey to and from work, while running errands, going to the park, or while attending a social event. Even if the protected party implies that you breached the CPO, the prosecution team may drop the violation charge once they discover that the breach was not intentional.

Can a Victim Violate a CPO?

A victim will not face criminal charges for contacting the defendant against whom the court took the CPO out. Only the defendant will face legal repercussions.

However, it is inadvisable for a victim to contact the defendant. The defendant could use the contact as proof in a future court hearing that the victim does not fear the defendant, and the CPO is not essential.

Gun and Firearm Restrictions

The judge can bar you from owning, possessing, buying, or attempting to buy or receive a gun while the CPO is effective. If you, as the restrained party, breach this order, it could result in incarceration and a $1,000 fine. Once you learn of the CPO against you, you must sell your gun(s) to a licensed firearm dealer or surrender them to the police.

If you keep holding on to the firearm(s), it becomes a new offense. A judge can schedule a review hearing to decide if you have complied with the court-imposed requirements to surrender the gun(s). During the hearing, you have the opportunity to provide details proving you comply.

If you fail to appear in court for this hearing, a warrant for your arrest may be issued.

A Civil (Family) Court and a Criminal Court have Issued Different Types of Orders, Which Order Will the Courts Enforce?

Sometimes, courts issue civil orders and CPOs that differ in their wording. The courts will use a new law to determine which order to enforce. The rule provides that if any civil restraining order or CPO requires no contact, the court will enforce the no-contact order. For instance, if a CPO orders no contact and the civil restraining order permits peaceful contact, the courts will enforce the CPO, and the defendant will be prohibited from contacting the victim. Alternatively, if the CPO permits peaceful contact and the civil restraining order orders no contact, the court will enforce the civil restraining order and prohibit any contact.

If several CPOs or civil restraining orders are issued and none has a no-contact order, the following rules apply:

  • CPOs have priority over civil restraining orders
  • Emergency protective restraining orders have priority over other civil restraining orders
  • If one criminal protective order differs from another CPO or if one civil restraining order differs from another civil restraining order, the court will enforce the recent order.

Why Hire a Dedicated Lawyer

In a defense case against a CPO, your attorney can challenge the prosecutor's evidence by presenting counter-evidence. If you violated the terms of your CPO, the lawyer can collect and review evidence to develop the most effective legal defense that can help in obtaining a favorable case outcome.

Typically, domestic violence cases intersect with family and child custody legal issues. Your lawyer can fight for your rights in child custody disputes, ensuring the judge makes decisions in your children's best interest and safeguarding your parental rights.

Lawyers also offer guidance and support throughout the legal process, assisting you understand the effects of your decisions.

Finally, the legal counsel provides an objective perspective of the case and CPO, assisting you navigate your emotions and make rational decisions.

Find a Seasoned Attorney Near Me

A CPO seeks to protect a witness or victim from any harm inflicted by a defendant while the criminal case proceeds to trial. If you have been served with a CPO in San Diego or are the protected party, you might be wondering how the order will affect you and what you can do to protect yourself. Goldman Flores Restraining Order Law Firm understands that seeking protection and facing criminal charges can be overwhelming, especially without legal knowledge. We can help you manage the intricacies, ensuring you make wise decisions and reducing stress. We can also advocate for your best interests and ensure your concerns are addressed and that you receive a fair resolution or appropriate protection. Please contact us at 619-943-4400 to learn how we can help you.