What Happens If You Violate a Restraining Order in California? Penal Code 273.6 Explained
The short answer: violating a restraining order in California is a crime under Penal Code section 273.6, usually a misdemeanor punishable by up to one year in county jail, and it becomes a wobbler that can be charged as a felony when the violation involves violence or a credible threat of violence and the person has a prior conviction within seven years, or when a second violation within a year causes physical injury. A single text message, a drive past the protected person's house, or showing up at a child's game can be enough. Violations of a criminal protective order issued in a pending criminal case are often charged instead under Penal Code section 166, subdivision (c), which carries similar penalties. This guide explains what the prosecutor must prove, the defenses that actually work, and what a violation does to the rest of your life, including a pending restraining order case or custody case.
Why these cases are different. Most crimes require the prosecutor to prove that something bad happened. A restraining order violation only requires proof that a court order existed and that you knowingly did something it prohibited, even if the protected person invited the contact and nothing harmful occurred. Judges in Riverside, San Bernardino, Los Angeles, and Orange County treat these cases as tests of whether a defendant respects court orders, and that framing drives both charging and sentencing.
Which Orders Can Be Violated Under Penal Code 273.6?
The covered orders. Penal Code section 273.6 applies to protective orders and restraining orders issued under the Domestic Violence Prevention Act, including temporary restraining orders under Family Code section 6320 and orders after hearing, emergency protective orders issued at the scene under Family Code section 6250, civil harassment orders under Code of Civil Procedure section 527.6, workplace violence orders under Code of Civil Procedure section 527.8, elder abuse orders, and protective orders issued in family law cases. The standard forms are the DV-110 temporary order, the DV-130 order after hearing, and the CH-130 civil harassment order. Our guide to what happens when a restraining order is filed against you explains how these orders come to exist.
Criminal protective orders. When a criminal case is pending for a domestic violence offense, the judge issues a criminal protective order under Penal Code section 136.2 on form CR-160, usually at arraignment, and a post-conviction protective order under Penal Code section 1203.097 as a condition of probation. Violating those orders is typically charged as contempt under Penal Code section 166, subdivision (c)(1), and it is also a probation violation in the underlying case. The practical result is the same: a new misdemeanor charge, a likely custody hold, and a prosecutor who now views the original case as stronger. Our article on domestic violence charges in Orange County describes how the criminal protective order is issued and served.
Out-of-state and tribal orders. Protective orders issued by courts in other states and by tribal courts are enforceable in California under the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act in the Family Code, and a violation in California can be prosecuted here.
What the Prosecutor Must Prove for a Penal Code 273.6 Violation
The elements. Under Penal Code section 273.6 and the pattern jury instruction, CALCRIM 2701, the prosecutor must prove beyond a reasonable doubt that (1) a court lawfully issued a written order protecting a person, (2) the order was one of the types covered by the statute, (3) the defendant knew of the court order, (4) the defendant had the ability to follow the order, and (5) the defendant willfully violated it. Each element is a place the defense can push, and cases are won and lost on elements three and five far more often than on whether the contact happened.
Knowledge of the order. The prosecutor proves knowledge with a proof of service showing personal service, with the defendant's presence in court when the judge made the order, or with evidence that an officer told the defendant about the order and its terms before the alleged violation. Under Family Code section 6383, an officer who learns of an unserved order can serve it verbally on the spot and the order is enforceable from that moment. A defendant who was never served and never told cannot be convicted, but a defendant who was in the courtroom when the order issued cannot claim ignorance because a copy was never mailed.
Willfulness. Willfully means on purpose; it does not require an intent to break the law or to harm anyone. Sending a birthday text to a protected person is willful even if it was affectionate. Passing the protected person in a grocery store aisle and leaving immediately is generally not, because the encounter was not deliberate. The video, the phone records, and the timeline usually decide this element, which is why the defense collects them before the first pretrial conference.
Ability to comply. This element matters most in stay-away situations where the order is impossible to obey without violating another obligation, such as a defendant ordered to stay 100 yards from a residence who is also ordered by the family court to exchange children at that residence. The defense presents the conflicting orders and shows the defendant chose the least violative path.
Penalties for Violating a Restraining Order in California
Misdemeanor violations. A first violation under Penal Code section 273.6, subdivision (a) is a misdemeanor punishable by up to one year in county jail, a fine, or both. If the violation results in physical injury, subdivision (b) requires a minimum jail term, which the court may reduce only on specific findings. Courts routinely add domestic violence probation terms under Penal Code section 1203.097 when the protected person is a spouse, former spouse, cohabitant, dating partner, or co-parent, including the 52-week batterer intervention program and a three-year minimum probation period.
When a violation becomes a felony. Penal Code section 273.6 contains two wobbler provisions. Under subdivision (d), a violation involving an act of violence or a credible threat of violence, committed by someone with a prior conviction for violating a protective order within the previous seven years, may be charged as a felony punishable by 16 months, two years, or three years. Under subdivision (e), a second violation within one year that results in physical injury may also be charged as a felony. The District Attorney chooses the charge, and a felony filing means a preliminary hearing, described in our guide to what actually happens at a preliminary hearing.
Stacked charges. A single incident commonly produces several counts. Repeated calls or texts add Penal Code section 653m annoying communications; a threat adds Penal Code section 422 criminal threats, explained in our guide to criminal threats under Penal Code 422; following the protected person adds Penal Code section 646.9 stalking, which is a felony when committed in violation of a restraining order; and any touching adds Penal Code section 243, subdivision (e)(1) domestic battery or Penal Code section 273.5 corporal injury. Our guide to assault and battery charges covers those elements.
Mandatory arrest and bail. Penal Code section 836, subdivision (c) directs officers to arrest when they have probable cause to believe a protective order has been violated, so these calls end in an arrest far more often than other misdemeanor calls. Protective order violations are among the offenses listed in Penal Code section 1270.1, which requires a hearing in open court with notice to the prosecutor before bail is reduced below the schedule or the defendant is released on his own recognizance, and courts apply the ability-to-pay analysis of In re Humphrey (2021) 11 Cal.5th 135. Our guides to bail in San Bernardino County and arraignment in Riverside County explain the first appearance.
Defenses to a Restraining Order Violation
No knowledge of the order. If the order was never served and the defendant was not in court and was never advised by an officer, the knowledge element fails. The defense obtains the court file, the proof of service, and the CLETS entry to show what the defendant could have known and when.
The contact was not willful. Accidental encounters in a small town like Beaumont or Yucaipa, being in a place first and having the protected person arrive, or a mutual friend forwarding a message the defendant sent to someone else are all situations where the prosecution struggles on willfulness. Location data, receipts, and witness statements establish who arrived first and why.
The order did not prohibit the conduct. Restraining orders vary. Some allow peaceful contact about children, some allow contact through a co-parenting application, some have a stay-away distance and no communication ban, and some expired before the incident. The defense reads the actual order, including any modification on form DV-300 or the family court's later custody order, rather than the police summary. When the order allowed the conduct, there is no crime.
The protected person initiated. This is the most misunderstood issue in these cases. A restraining order binds only the restrained person; the protected person cannot violate it and cannot waive it, and only a judge can change it. So a protected person's invitation is not a legal defense to the contact itself. It is, however, powerful evidence on willfulness and on the reasonableness of the defendant's belief about the order's terms, it undercuts the prosecution's narrative of fear, and it matters enormously at sentencing and in negotiations. The defense preserves the protected person's messages immediately, as explained in our guide to how police use text messages.
The order was not lawfully issued. A defendant generally cannot relitigate the underlying restraining order in the criminal case, but an order issued without jurisdiction, without notice where notice was required, or by a court that lacked authority is a defense because the statute requires a lawful order. This is a technical argument that requires the family or civil court file.
False or exaggerated reports. Restraining order violations are sometimes reported strategically during a divorce or custody fight. The defense looks for motive, timing relative to family court hearings, inconsistencies between the 911 call and the later statement, and physical evidence that contradicts the account. Our guides to what makes a criminal case weak and how prosecutors build criminal cases describe what to look for.
How a Violation Affects Your Family Law and Restraining Order Case
The pending DVRO hearing. A criminal violation filed before the hearing on a permanent restraining order is often the deciding fact at that hearing. Family court judges in the Riverside Family Law Courthouse, the San Bernardino Justice Center, and the Los Angeles courthouses treat a violation of the temporary order as strong evidence that a longer order is needed, and orders after hearing can last up to five years under Family Code section 6345. The criminal case and the family case should be coordinated so that statements in one do not damage the other.
Custody. A domestic violence finding within the past five years triggers the rebuttable presumption in Family Code section 3044 against awarding sole or joint custody to the perpetrator, and a conviction for violating a protective order against a co-parent is routinely treated as a domestic violence finding. Parents in a custody case should assume that every alleged violation will be presented to the family court. Our child custody page and guide to supervised visitation explain the consequences.
Firearms. A person subject to a domestic violence restraining order already cannot possess firearms under Family Code section 6389 and Penal Code section 29825, and a misdemeanor conviction under Penal Code section 273.6 adds a 10-year state firearm prohibition under Penal Code section 29805. Federal law imposes its own prohibitions for qualifying domestic violence orders and convictions.
Immigration and professional licenses. A conviction for violating a protective order can carry immigration consequences under federal law that are distinct from those of the underlying domestic violence offense, and Penal Code section 1016.3 requires defense counsel to advise noncitizen clients before any plea. Licensed professionals, teachers, and security guards should expect reporting obligations.
What to Do If You Are Accused of Violating a Restraining Order
Stop all contact now. Do not respond to the protected person, do not explain yourself, and do not ask a friend or relative to pass along a message, because third-party contact is a violation. If the order has terms you believe are unworkable, the remedy is a request to modify it in the court that issued it, not self-help.
Do not talk to the police about the incident. Officers responding to a violation call are collecting evidence for a mandatory arrest. Provide identification, comply with the arrest, and decline to discuss the facts until you have counsel, as explained in our guides to your rights when questioned by police and what to do if you were arrested last night.
Preserve your evidence. Screenshot messages the protected person sent you, save location history, and write down the names of anyone who saw the encounter. This material disappears quickly and it is the foundation of the willfulness and initiation defenses.
Address the family court order. If the alleged violation exposes a conflict between the restraining order and a custody schedule, ask the family court to clarify the exchange terms immediately. Judges respect defendants who fix the problem through the court rather than around it, and the clarification helps both cases.
Resolution options. Many first-time, non-violent violations in Riverside, San Bernardino, and Orange County resolve with probation and counseling rather than jail, and misdemeanor diversion under Penal Code section 1001.95 may be available in some courts for a violation that does not itself qualify as a domestic violence offense, though judges vary on this and many decline. The defense's job is to present the violation in context and to demonstrate compliance since the incident. Our guides to misdemeanor diversion and whether to take a plea deal explain the choices.
Frequently Asked Questions
Is violating a restraining order a felony in California?
Usually a misdemeanor, but it can be a felony. A first violation under Penal Code section 273.6 is a misdemeanor punishable by up to one year in county jail. A violation involving violence or a credible threat of violence by someone with a prior protective order violation within seven years, or a second violation within a year that causes physical injury, is a wobbler that the prosecutor can charge as a felony. Stalking under Penal Code section 646.9 committed in violation of a restraining order is a straight felony.
Can I be charged if the protected person contacted me first?
Yes. The order restrains you, not the protected person, and only the court can change it. Responding to a message from the protected person is a violation if the order bars contact. The protected person's initiation is important evidence for the defense on willfulness and at sentencing, so save the messages, but it does not make the contact legal.
What if I did not know about the restraining order?
Knowledge is an element the prosecutor must prove. Under Penal Code section 273.6 and CALCRIM 2701, you cannot be convicted unless you knew the order existed. Knowledge is shown by personal service, your presence in court when the order was made, or an officer's verbal notice under Family Code section 6383. If none of those happened, the charge should not survive.
Does a restraining order violation affect child custody?
Yes, significantly. A conviction for violating a protective order against a co-parent is treated as domestic violence for purposes of Family Code section 3044, which creates a presumption against custody for five years. Even an arrest without a conviction will be raised in the family court. Coordinate the criminal defense with the custody case from the start.
What is the difference between Penal Code 273.6 and Penal Code 166?
The type of order. Penal Code section 273.6 covers domestic violence, civil harassment, workplace, elder abuse, and family law restraining orders. Penal Code section 166, subdivision (c) covers criminal protective orders issued in a pending or completed criminal case under Penal Code section 136.2 or as a probation condition. Both are misdemeanors with similar penalties, and both can also be charged as probation violations.
Can a restraining order violation be expunged?
Generally yes, after probation ends. A misdemeanor conviction under Penal Code section 273.6 can be dismissed under Penal Code section 1203.4 once probation is completed or terminated early under Penal Code section 1203.3, using form CR-180. The dismissal does not lift the firearm prohibition or erase the conviction for immigration or family court purposes. Our guide to expunging a criminal record in California explains the process.
Talk to a Restraining Order Violation Defense Lawyer
Gramling Law Group defends restraining order and protective order violation charges at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles, the Pomona and Long Beach courthouses, the Central Justice Center in Santa Ana, and criminal courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California, and handles the related restraining order and custody cases in family court. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for clients in Riverside, Corona, San Bernardino, Los Angeles, Pomona, and Santa Ana who are facing a violation charge while a divorce, custody, or restraining order case is pending. 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.
Local criminal defense pages: Riverside criminal defense attorney, Los Angeles criminal defense attorney, Santa Ana criminal defense attorney, our Inland Empire criminal defense overview, and our restraining order defense page.
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