What Is a Criminal Protective Order in California? Penal Code 136.2 Explained
The short answer: a criminal protective order, often called a CPO, is a court order issued by the judge in a criminal case under Penal Code section 136.2 that restricts your contact with the alleged victim or a witness while the case is pending, and in domestic violence cases it can be extended for years after a conviction. It is issued on Judicial Council form CR-160, it is entered into the statewide CLETS database, it prohibits you from owning or possessing firearms, and violating it is a separate crime. Most people in Riverside, San Bernardino, Los Angeles, and Orange County first encounter a CPO at their arraignment on a domestic battery or corporal injury charge, when the judge hands them the order before they have had any chance to explain their side. This guide explains what the order does, how it differs from a family court restraining order, and how to live with it or change it.
When Does a Judge Issue a Criminal Protective Order?
At arraignment in almost every domestic violence case. Penal Code section 136.2 authorizes a criminal court to issue protective orders when there is good cause to believe that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. In cases involving domestic violence under the definition in Family Code section 6211, the prosecutor requests the order at the first appearance as a matter of routine, and judges at the Riverside Hall of Justice, the San Bernardino Justice Center, and the Central Justice Center in Santa Ana grant it in nearly every case. The order is served on you in court, which is one reason domestic violence arraignments usually require your personal appearance rather than an appearance through counsel under Penal Code section 977.
Also in assault, threats, stalking, and witness cases. The statute is not limited to domestic violence. A judge can issue a CPO in a criminal threats case under Penal Code section 422, a stalking case under Penal Code section 646.9, an assault case, an elder abuse case, or any case in which a witness has been threatened or intimidated. Our guides on criminal threats under Penal Code 422 and assault and battery under Penal Code 240 and 242 describe cases where the order commonly appears.
Before arraignment, the emergency protective order. At the scene of a domestic violence arrest, the responding officer in Riverside, Fontana, or Anaheim will usually call a judge and obtain an emergency protective order under Family Code section 6250, which lasts a short period, generally about five court days or seven calendar days. The EPO bridges the gap between the arrest and the arraignment, at which point the CPO takes over. Do not treat the EPO's short duration as an invitation to reach out; the CPO will almost certainly follow, and any contact in between can be used to argue for a stricter order.
What Does a Criminal Protective Order Prohibit?
Full no-contact orders. The most restrictive version of the CPO orders you to have no contact of any kind with the protected person, directly or through third parties, in person, by phone, by text, by email, by social media, or by mail, and to stay a stated distance away from the person, the person's home, workplace, vehicle, and school. Form CR-160 also typically orders you to move out of a shared residence if the protected person lives there, regardless of whose name is on the lease or deed. The judge can add a provision that the order remains in effect even if the protected person invites contact, and most Southern California judges include it.
Peaceful contact orders. A less restrictive version, often called a level one or peaceful contact order, allows you to have contact with the protected person and live in the same home so long as the contact is peaceful and does not involve threats, harassment, or violence. Prosecutors and judges in Riverside County and San Bernardino County are often willing to agree to a peaceful contact order in a misdemeanor case where the protected person asks for it, there is no history of prior violence, and there are children in the home who need both parents present. Getting to that result usually requires a defense request supported by the protected person's own statement.
Firearms. Every CPO issued under Penal Code section 136.2 prohibits the restrained person from owning, possessing, purchasing, or receiving a firearm or ammunition while the order is in effect, and requires you to relinquish any firearms you own within a short period after service by turning them in to law enforcement or selling them to a licensed dealer and filing proof with the court. Possessing a firearm while subject to the order is a crime under Penal Code section 29825. The firearm prohibition applies whether the order is a full no-contact order or a peaceful contact order.
Custody and visitation. A CPO can include provisions about the children when the protected person is a parent, and it can conflict with existing family court orders. The law provides a priority rule for conflicting orders, and as a general matter the criminal protective order controls where it is more restrictive, subject to modifications the criminal judge may make to allow custody exchanges. Read our guide on how a domestic violence arrest affects child custody and our California child custody practice page for the family court side.
Criminal Protective Order Versus Domestic Violence Restraining Order
Different courts, different parties. A criminal protective order is requested by the prosecutor and issued by the criminal judge in the People's case against you; the alleged victim is not a party and cannot dismiss it. A domestic violence restraining order, or DVRO, is requested by the protected person in family court under the Domestic Violence Prevention Act beginning at Family Code section 6200, on form DV-100, and the family judge decides after a hearing whether to issue it. A person can be subject to both at the same time, and it is common for the family court DVRO to be filed within days of the arrest. Our domestic violence restraining order practice page covers the family court process.
Different standards and consequences. A CPO is issued on a showing of good cause and typically lasts as long as the criminal case, or longer after a conviction. A DVRO after hearing can last up to five years under Family Code section 6345 and carries the custody presumption under Family Code section 3044, which makes it much harder to obtain joint or sole custody. The criminal case ending does not end the DVRO, and a DVRO can issue even if the criminal case is dismissed, because the family court applies a lower standard of proof. Both orders are entered into CLETS and both prohibit firearms, the DVRO under Family Code section 6389.
Why the difference matters for your defense. Statements you make in the family court DVRO hearing are under oath and can be used by the prosecutor in the criminal case, which is why defense lawyers often ask the family court to continue the DVRO hearing until the criminal case resolves. Conversely, a favorable outcome in the criminal case, such as a dismissal or a plea to a non-domestic violence offense, becomes evidence in the family court. Our article on what to do if a DVRO is filed against you explains the coordination between the two cases.
How Long Does a Criminal Protective Order Last?
During the case. A CPO issued at arraignment remains in effect while the case is pending. The California Supreme Court held in People v. Stowell (2003) 31 Cal.4th 1107 that a protective order under this section is operative during the pendency of the criminal proceedings, so if the case is dismissed or you are acquitted, the order ends and the court should enter the termination in CLETS. Ask your lawyer to confirm the termination on the record and to obtain a signed order so law enforcement databases are updated.
After a conviction in a domestic violence case. Penal Code section 136.2, subdivision (i) allows the court, at sentencing in a domestic violence case, a case involving specified sex offenses, or a case in which the defendant was convicted of certain crimes against a witness, to issue a post-conviction protective order for a period of up to 10 years. The judge decides the length based on the seriousness of the facts, the probability of future violations, and the safety of the victim. Probation conditions under Penal Code section 1203.097 in a domestic violence case also require a protective order, the 52-week batterer intervention program, and other terms. Read domestic battery under Penal Code 243(e)(1) and corporal injury under Penal Code 273.5 for the sentencing rules in those cases.
The Ponce limit. The Court of Appeal in People v. Ponce (2009) 173 Cal.App.4th 378 held that a trial court needs an evidentiary basis showing good cause before issuing a protective order under this section, and that the order cannot simply be imposed reflexively. The practical lesson is that a defense lawyer can, and sometimes should, object to a CPO or to its scope when the record does not support it, particularly in a case that does not involve domestic violence.
How to Modify or Lift a Criminal Protective Order
Ask the criminal judge, not the protected person. The protected person cannot cancel a CPO by telling you it is fine to come home, by dropping charges, or by signing a letter. Only the judge who issued the order can modify or terminate it, and the request must be made in the criminal case. The prosecutor will have a position on the request, and the judge must hear from the protected person, who has a right to be heard under the Victims' Bill of Rights in article I, section 28 of the California Constitution.
What persuades a judge to modify. Judges in the Inland Empire and Los Angeles County commonly modify a full no-contact order to a peaceful contact order when the protected person appears in court or submits a signed declaration asking for the change, there is no history of prior domestic violence, the defendant has enrolled in counseling or a batterer program voluntarily, there has been no violation of the existing order, and the parties share children or a household. A request made at the first pretrial conference, supported by documents, has a far better chance than a request made verbally at arraignment. Read what happens at a pretrial conference.
Protect the case while you wait. Until the order is changed, follow it to the letter. Do not respond to messages from the protected person, do not attend the same events, and do not send gifts or money through relatives. A defense lawyer can arrange the retrieval of your belongings from the shared home through a civil standby with the police, which is the lawful way to get your clothes, documents, and tools without a violation.
What Happens If You Violate a Criminal Protective Order?
A new criminal charge. Violating a CPO is a crime under Penal Code section 273.6, which is a misdemeanor for a first violation without injury and a wobbler when the violation involves an act of violence or a prior conviction within a defined period. It can also be charged as contempt under Penal Code section 166, subdivision (c). Our guide on what happens if you violate a restraining order explains the elements and defenses.
Damage to the underlying case. The bigger cost is usually to the original case. A violation gives the prosecutor a reason to revoke release, ask for higher bail under Penal Code section 1275, and refuse the plea offer that was on the table. Judges view a violation as evidence that the defendant cannot follow orders, which affects sentencing and the length of any post-conviction protective order. A text message sent in violation of the order is also routinely admitted as evidence in the underlying case, as our article on can the police use your text messages against you explains.
The protected person cannot violate the order. A CPO restrains only the defendant. If the protected person calls you, shows up at your home, or invites you to a family event, you are the only person who can be arrested when you respond. Document the contact and give it to your lawyer, because a pattern of invitations can support a modification request, but do not reply.
Defending the Underlying Domestic Violence Case
The order is not evidence of guilt. The CPO is issued on a good cause standard at the start of the case, before any evidence has been tested. It does not mean the judge believes the accusation, and it is not admissible to prove the charge. Domestic violence cases are frequently defended on self-defense, false accusation in the context of a custody dispute or breakup, lack of injury, and inconsistencies between the 911 call, the officer's report, and later statements. Read what makes a criminal case weak and how prosecutors build criminal cases.
When the protected person does not want to testify. Prosecutors in Riverside, San Bernardino, and Orange County routinely proceed without the alleged victim's cooperation by relying on the 911 recording, body camera footage, photographs, and statements to officers. Whether those statements are admissible depends on the confrontation clause analysis in Crawford v. Washington (2004) 541 U.S. 36 and Davis v. Washington (2006) 547 U.S. 813, the spontaneous statement exception in Evidence Code section 1240, and the domestic violence hearsay provision in Evidence Code section 1370. Prior acts of domestic violence may also be admitted under Evidence Code section 1109. These are the issues a defense lawyer litigates before trial.
Resolution options. Depending on the county, the facts, and your record, a domestic violence case may resolve with a dismissal, a plea to a non-domestic violence offense such as disturbing the peace under Penal Code section 415, or a plea to the charge with probation and the batterer program. Misdemeanor diversion under Penal Code section 1001.95 excludes domestic violence offenses, but mental health diversion under Penal Code section 1001.36 may be available in an appropriate case. Read should you take a plea deal, how to get criminal charges dismissed, and our county guides on domestic violence charges at the Central Justice Center in Santa Ana and domestic violence charges at the Southwest Justice Center in Murrieta.
Frequently Asked Questions
Can the victim drop a criminal protective order?
No. A criminal protective order under Penal Code section 136.2 belongs to the court, not the protected person. The protected person can tell the judge and the prosecutor that they want the order modified or lifted, and that request carries weight, but only the judge can change the order, and until the judge does, any contact by the restrained person is a violation.
Can I live at home with a criminal protective order?
Only if the order is a peaceful contact order or the judge modifies it. A full no-contact order requires you to move out of a shared residence. Your lawyer can ask the judge to modify the order to allow peaceful contact and residence, and judges in Riverside County and San Bernardino County often grant that request in misdemeanor cases when the protected person supports it and there is no history of violence.
Do I have to give up my guns under a criminal protective order?
Yes. Every criminal protective order prohibits owning or possessing firearms and ammunition while it is in effect and requires you to relinquish any firearms you have by turning them in to law enforcement or selling them to a licensed dealer within the time stated in the order, with proof filed with the court. Possessing a firearm while subject to the order is a separate crime under Penal Code section 29825.
What is the difference between a criminal protective order and a restraining order?
A criminal protective order is issued by the criminal judge in the prosecutor's case; a restraining order is issued by the family or civil court at the request of the protected person. A DVRO under Family Code section 6200 and following can last up to five years under Family Code section 6345 and carries the custody presumption in Family Code section 3044. Both orders prohibit firearms and are entered in CLETS, and you can be subject to both at once.
How long does a criminal protective order last after a conviction?
Up to 10 years in a domestic violence case. Penal Code section 136.2, subdivision (i) allows the sentencing judge to issue a post-conviction protective order for up to 10 years, with the length based on the seriousness of the facts and the risk of future violations. Without a conviction, the order ends when the case ends.
What should I do if the protected person contacts me?
Do not respond, and tell your lawyer. The order restrains only you, so responding to a call or text is a violation under Penal Code section 273.6 even though the protected person started the contact. Save the messages, because a pattern of invitations can support a request to modify the order, and let your lawyer raise it with the judge.
Talk to a Criminal Protective Order Lawyer
Gramling Law Group defends domestic violence, assault, and criminal threats cases, and handles criminal protective order modifications, at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Central Justice Center in Santa Ana, and the Los Angeles County courthouses, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. We represent clients from Riverside, Moreno Valley, Corona, San Bernardino, Fontana, Ontario, Santa Ana, Anaheim, and Los Angeles, and we handle the related family court restraining order and custody case in the same office. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so you know the cost before you commit. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
Gramling Law Group also serves clients through our Riverside criminal defense attorney, San Bernardino criminal defense attorney, and Santa Ana criminal defense attorney pages, our Inland Empire criminal defense landing page, and our domestic violence restraining order practice page.
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Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
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