In California, violating any term of a valid protective order is a misdemeanor offense under Penal Code 273.6 PC. If the court issues a restraining or stay-away order, you must comply with its provisions or risk criminal prosecution.
If you have a prior 273.6 PC conviction and you get charged with it again in a case that involves violence, threats of violence or injury to the victim, you can be charged with a felony punishable by up to 3 years in jail or prison.
This chart illustrates the penalties:
| Misdemeanor Penalties | Felony Penalties |
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Our California criminal defense attorneys will explain the following in this article:
- 1. Proving Restraining Order Violations
- 2. Best Defenses
- 3. Jail Time
- 4. Immigration Consequences
- 5. Background Checks
- 6. Expungements
- 7. Effect on Gun Rights
- 8. Can a victim violate a restraining order?
- 9. Related Offenses
- Additional Reading
PC 273.6 is the California statute that makes it a crime for you to violate the terms or conditions of a restraining order.
1. Proving Restraining Order Violations
To convict you under PC 273.6, California prosecutors must prove beyond a reasonable doubt the following five elements of the jury instructions:
- a court lawfully issued a written order against you,1
- the order was a protective order,
- you knew of the court order,
- you had the ability to follow the court order, and
- you willfully violated the court order.2
As to knowledge, you must have known about the existence of a court order for guilt.3 This includes you having the opportunity to read the order (even if you did not do so).4
Note that you commit an act “willfully” when you do it:
- willingly, or
- on purpose.5
Example: Nia has a restraining order against Maurice. One day Maurice runs into Nia at a restaurant where he had no idea she would be. Here, Maurice is not guilty of violating the protective order because he accidentally saw Nia and did not act with any willfulness.
Also note that if you commit another crime while violating a restraining order, you can be guilty under both PC 273.6 and the statute governing the other crime.6
2. Best Defenses
Here at Shouse Law Group, we have represented literally thousands of people charged with violating restraining order. In our experience, the following three defenses can be very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.
The Restraining Order Was Not Valid
Just because a judge issues an order does not necessarily mean it is legal. We have seen restraining orders that were issued with no legal basis or in violation of proper judicial procedures.
Once we show the prosecutor how your restraining order is invalid, they will likely dismiss your charge.
You Were Not Aware of the Restraining Order
If you were not properly served with the restraining order, you are under no obligation to follow it. We use this defense when the process server served the wrong person or simply forgot to serve it.
You Did Not Willfully Violate the Restraining Order
This defense is useful whenever you accidentally run into the person protected by the order. This typically happens when you are on the way to or from work, are out shopping, or going to a park or event like a concert or movie.
Even if the protected person panics and claims you violated the order, the prosecutor should drop the charge once they see it was not on purpose.
A violation of Penal Code 273.6 can result in a fine and/or jail time
3. Punishment
A violation of California Penal Code Section 273.6 is a misdemeanor in most cases.
The crime is punishable by:
- imprisonment in the county jail for up to one year, and/or
- a maximum fine of $1,000.7
Note, though that this offense becomes a wobbler if:
- it is your second conviction for violating a protective order, and
- the violation involved an act of violence.8
A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony.
If charged as a felony, the offense is punishable by:
- custody in state prison for up to three years, and/or
- a maximum fine of $10,000.
4. Immigration Consequences
Violating a restraining order will not impact your immigration status in most cases.
There are times when a criminal conviction results in you being:
- deported, or
- marked as inadmissible
Examples are when you are convicted of an aggravated felony.
A PC 273.6 conviction, however, is not generally such a crime.
5. Background Checks
Restraining orders usually do not show up in criminal background checks since they are technically civil matters. However, if you violate a restraining order, that violation will appear in criminal background checks.
6. Expungement
You can usually get an expungement if convicted under this statute.
This is true provided that:
- you completed probation (if imposed), or
- you completed his jail term (if imposed).
7. Gun Rights
A conviction under these laws will only hurt your gun rights if it is a felony conviction.
California law says that felons cannot:
- own a gun, or
- possess a gun.
This means you will be:
- stripped of his gun rights if,
- guilty of a felony violation of a protective order.
However, there will be no negative firearm consequences in misdemeanor cases.
8. Can a victim violate a restraining order?
Victims named as the “protected person” in a restraining will not get into legal trouble for contacting the “restrained person” against whom the order was taken out. Only the restrained person faces arrest and criminal charges for violating the restraining order.
That being said, it is not a good idea for victims to contact the restrained person. The restrained person could use it as evidence in future court proceedings that the victim does not fear the restrained person, and that the restraining order is no longer necessary.9
9. Related Offenses
There are six crimes related to violating a restraining order. These are:
- domestic violence, including dometsic battery — Penal Code 243e1 PC and inflicting corporal injury on an intimate partner — Penal Code 273.5 PC,
- stalking – Penal Code 646.9 PC,
- criminal threats – Penal Code 422 PC,
- elder abuse – Penal Code 368 PC,
- vandalism – Penal Code 594 PC, and
- contempt of court – Penal Code 166 PC.
Additional Reading
For additional resources, refer to the following:
- California Courts Self-Help Center: Restraining Orders – The California Courts official site provides forms, FAQs and Step-by-Step guides on filing for restraining orders.
- California Attorney General: Gun violence Restraining Orders – Overview on obtaining gun violence restraining orders.
- WomensLaw.org: Restraining Orders in California – WomensLaw.org provides California-specific legal information and resources on getting a restraining order.
- National Domestic Violence Hotline – Resources for victims.
- California Partnership to End Domestic Violence – Coalition of advocates advancing public policy to end domestic violence.
Legal References:
- Penal Code 273.6 PC. The language of the code section reads:
(a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.
(b) In the event of a violation of subdivision (a) that results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interest of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.
(c) Subdivisions (a) and (b) shall apply to the following court orders:
(1) Any order issued pursuant to Section 6320 or 6389 of the Family Code.
(2) An order excluding one party from the family dwelling or from the dwelling of the other.
(3) An order enjoining a party from specified behavior that the court determined was necessary to effectuate the order described in subdivision (a).
(4) Any order issued by another state that is recognized under Part 5 (commencing with Section 6400) of Division 10 of the Family Code.
(d) A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or “a credible threat” of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or pursuant to subdivision (h) of Section 1170.
(e) In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) that results in physical injury to a victim, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than six months nor more than one year, by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interest of justice and for reasons stated in the record, reduce or eliminate the six-month minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.
(f) The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders described in subdivisions (a), (b), (d), and (e).
(g) (1) Every person who owns, possesses, purchases, or receives a firearm knowing they are prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, shall be punished under Section 29825.
(2) Every person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (f) of Section 527.9 of the Code of Civil Procedure, or subdivision (h) of Section 6389 of the Family Code.
(h) If probation is granted upon conviction of a violation of subdivision (a), (b), (c), (d), or (e), the court shall impose probation consistent with Section 1203.097, and the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a domestic violence shelter-based program or to a shelter for abused elder persons or dependent adults, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.
(i) For any order to pay a fine, make payments to a domestic violence shelter-based program, or pay restitution as a condition of probation under subdivision (e), the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a domestic violence shelter-based program be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of their spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.
- CALCRIM No. 2701 – Violation of Court Order, Protective Order, or Stay Away. Judicial Council of California Criminal Jury Instructions (2024 edition).
To prove that the defendant is guilty of this crime, the People must prove that:
1. A court [lawfully] issued a written order that the defendant <insert description of content of order>;
2. The court order was a (protective order/stay-away court order/ ), issued under [in a pending criminal proceeding involving domestic violence/as a condition of probation after a conviction for (domestic violence/ elder abuse/dependent adult abuse)].
3. The defendant knew of the court order;
4. The defendant had the ability to follow the court order;
AND
5. The defendant (willfully/intentionally) violated the court order. - People v. Saffell (1946) 74 Cal.App.2d Supp 967.
- CALCRIM No. 2701 – Violation of Court Order, Protective Order, or Stay Away.
- See same. See also People v. Lara (1996) 44 Cal.App.4th 102.
- People v. Smith (2006), 142 Cal.App.4th 923.
- California Penal Code 273.6 PC.
- See same.
- See also Patterson v. State, (2012) 979 N.E.2d 1066.