2701 . Violation of Court Order: Protective Order or Stay Away
(Pen. Code, §§ 166(c)(1), 273.6)
The defendant is charged [in Count ] with violating a court order
[in violation of
T o 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
2. The court order was a (protective order/stay-away court order/
[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;
of Pen. Code § 273.6(c), choose “intentionally” for the scienter r equir ement.> 5. The defendant (willfully/intentionally) violated the court order. Someone commits an act willfully when he or she does it willingly or on [The People must prove that the defendant knew of the court order and that (he/she) had the opportunity to read the order or to otherwise become familiar with what it said. But the People do not have to pr ove that the defendant actually read the court order .] [ Domestic violence means abuse committed against (an adult/a fully emancipated minor) who is a (spouse[,]/ [or] former spouse[,]/ [or] cohabitant[,]/ [or] former cohabitant[,]/ [or] person with whom the defendant has had a child[,]/ [or] person who dated or is dating the defendant[,]/ [or] person who was or is engaged to the defendant). Abuse means intentionally or r ecklessly causing or attempting to cause bodily injury , or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.] [The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual r elations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of pr operty , (4) the parties’ holding themselves out as (husband and wife/domestic partners), (5) the continuity of the relationship, and (6) the length of the r elationship.] [ (Elder/(D/d)ependent adult) abuse means that under cir cumstances or conditions likely to produce gr eat bodily harm or death, the defendant: 1. Willfully caused or permitted any (elder/dependent adult) to 2. Inflicted on any (elder/dependent adult) unjustifiable physical pain or mental suf fering; 3. Having the care or custody of any (elder/dependent adult), willfully caused or permitted the person or health of the (elder/ dependent adult) to be injured; 4. Willfully caused or permitted the (elder/dependent adult) to be placed in a situation in which (his/her) person or health was endangered. [An elder is someone who is at least 65 years old.] [A dependent adult is someone who is between 18 and 64 years old and has physical or mental limitations that r estrict his or her ability to carry out normal activities or to pr otect his or her rights.] [This definition includes an adult who has physical or developmental disabilities or whose physical or mental abilities have decr eased because of age.] [A dependent adult is also someone between 18 and 64 years old who is an inpatient in a (health facility/psychiatric health facility/ [or] chemical dependency recovery hospital).]] New January 2006; Revised June 2007, April 2008, August 2009 BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the In order for a defendant to be guilty of violating Penal Code section 166(a)(4), the court order must be “lawfully issued.” (Pen. Code, § 166(a)(4); People v . Gonzalez CRIMES AGAINST GOVERNMENT CALCRIM No. 2701 (1996) 12 Cal.4th 804, 816-817 [50 Cal.Rptr .2d 74, 910 P .2d 1366].) The defendant may not be convicted for violating an order that is unconstitutional, and the defendant may bring a collateral attack on the validity of the order as a defense to this charge. ( People v . Gonzalez, supra, 12 Cal.4th at pp. 816-818; In r e Berry (1968) 68 Cal.2d 137, 147 [65 Cal.Rptr . 273, 436 P .2d 273].) The defendant may raise this issue on demurrer but is not required to. ( People v . Gonzalez, supra, 12 Cal.4th at pp. 821, 824; In r e Berry , supra, 68 Cal.2d at p. 146.) The legal question of whether the order was lawfully issued is the type of question normally resolved by the court. ( People v . Gonzalez, supra, 12 Cal.4th at pp. 816-820; In re Berry , supra, 68 Cal.2d at p. 147.) If, however , there is a factual issue regarding the lawfulness of the court order and the trial court concludes that the issue must be submitted to the jury , give the bracketed word “lawfully” in element 1. The court must also instruct on the facts that must be proved to establish that the order was lawfully issued. In element 2, give the bracketed phrase “in a criminal case involving domestic violence” if the defendant is charged with a violation of Penal Code section 166(c)(1). In such cases, also give the bracketed definition of “domestic violence” and the associated terms. In element 2, if the order was not a “protective order” or “stay away order” but another type of qualifying order listed in Penal Code section 166(c)(3) or 273.6(c), insert a description of the type of order from the statute. In element 2, in all cases, insert the statutory authority under which the order was issued. (See Pen. Code, §§ 166(c)(1) & (3), 273.6(a) & (c).) Give the bracketed paragraph that begins with “The People must prove that the defendant knew” on request. ( People v . Poe (1965) 236 Cal.App.2d Supp. 928, 938-941 [47 Cal.Rptr . 670]; People v . Brindley (1965) 236 Cal.App.2d Supp. 925, 927-928 [47 Cal.Rptr . 668], both decisions affd. sub nom. People v . V on Blum (1965) 236 Cal.App.2d Supp. 943 [47 Cal.Rptr . 679].) If the prosecution alleges that physical injury resulted from the defendant’ s conduct, in addition to this instruction, give CALCRIM No. 2702, V iolation of Court Order: Pr otective Or der or Stay A way - Physical Injury . (Pen. Code, §§ 166(c)(2), If the prosecution charges the defendant with a felony based on a prior conviction and a current of fense involving an act of violence or credible threat of violence, in addition to this instruction, give CALCRIM No. 2703, V iolation of Court Order: Pr otective Or der or Stay A way - Act of V iolence . (Pen. Code, §§ 166(c)(4), 273.6(d).) The jury also must determine if the prior conviction has been proved unless the defendant stipulates to the truth of the prior . (See CALCRIM Nos. 3100-3103 on prior convictions.) Related Instruction CALCRIM No. 831, Abuse of Elder or Dependent Adult (Pen. Code, § 368(c)) . CALCRIM No. 2701 CRIMES AGAINST GOVERNMENT • Elements. Pen. Code, §§ 166(c)(1), 273.6. • W illfully Defined. Pen. Code, § 7(1); People v . Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr .2d 402]. • Order Must Be Lawfully Issued. Pen. Code, § 166(a)(4); People v . Gonzalez (1996) 12 Cal.4th 804, 816-817 [50 Cal.Rptr .2d 74, 910 P .2d 1366]; In r e Berry (1968) 68 Cal.2d 137, 147 [65 Cal.Rptr . 273, 436 P .2d 273]. • Knowledge of Order Required. People v . Saffell (1946) 74 Cal.App.2d Supp. 967, 979 [168 P .2d 497]. • Proof of Service Not Required. People v . Saffell (1946) 74 Cal.App.2d Supp. 967, 979 [168 P .2d 497]. • Must Have Opportunity to Read but Need Not Actually Read Order . People v . Poe (1965) 236 Cal.App.2d Supp. 928, 938-941 [47 Cal.Rptr . 670]; People v . Brindley (1965) 236 Cal.App.2d Supp. 925, 927-928 [47 Cal.Rptr . 668], both decisions affd. sub nom. People v . V on Blum (1965) 236 Cal.App.2d Supp. 943 [47 Cal.Rptr . 679]. • Ability to Comply With Order . People v . Gr eenfield (1982) 134 Cal.App.3d Supp. 1, 4 [184 Cal.Rptr . 604]. • General-Intent Of fense. People v . Greenfield (1982) 134 Cal.App.3d Supp. 1, 4 [184 Cal.Rptr . 604]. • Abuse Defined. Pen. Code, § 13700(a). • Cohabitant Defined. Pen. Code, § 13700(b). • Domestic V iolence Defined. Evid. Code, § 1109(d)(3); Pen. Code, § 13700(b); see People v . Poplar (1999) 70 Cal.App.4th 1129, 1 139 [83 Cal.Rptr .2d 320] [spousal rape is higher level of domestic violence]. • Abuse of Elder or Dependent Adult Defined. Pen. Code, § 368. COMMENT AR Y Penal Code section 166(c)(1) also includes protective orders and stay aways “issued as a condition of probation after a conviction in a criminal proceeding involving domestic violence . . . .” However , in People v . Johnson (1993) 20 Cal.App.4th 106, 109 [24 Cal.Rptr .2d 628], the court held that a defendant cannot be prosecuted for contempt of court under Penal Code section 166 for violating a condition of probation. Thus, the committee has not included this option in the instruction. LESSER INCLUDED OFFENSES If the defendant is charged with a felony based on a prior conviction and the allegation that the current of fense involved an act of violence or credible threat of violence (Pen. Code, §§ 166(c)(4), 273.6(d)), then the misdemeanor of fense is a lesser included of fense. The court must provide the jury with a verdict form on which the jury will indicate if the additional allegations have or have not been CRIMES AGAINST GOVERNMENT CALCRIM No. 2701 proved. If the jury finds that the either allegation was not proved, then the of fense should be set at a misdemeanor . RELA TED ISSUES See the Related Issues section of CALCRIM No. 2700, V iolation of Court Order . SECONDAR Y SOURCES 2 W itkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Governmental Authority , § 31. 1 W itkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the Person, §§ 64, 66-68. 1 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 1 1, Arr est , § 1 1.02[1] (Matthew Bender). 6 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 142, Crimes Against the Person , § 142.13[4] (Matthew Bender). CALCRIM No. 2701 CRIMES AGAINST GOVERNMENT Page last reviewed May 2024 Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America. Lawyers - Get Listed Now! Get a free directory profile listing
