Criminal Protective Orders

This is the “too-long, didn’t read.”

At arraignment on a DV case, the DA gets their CR-160 CPO that is only good until sentencing. This is CLETS order, and it will fuck around with our clients as every law enforcement officer can see it. If it’s a non-DV case and they want a CPO from the victim, ask for why. They need “good cause,” meaning they need some form of evidence. Some bare assertion ain’t going to cut it. It needs to be some current threat. For a non-DV case, the CPO must be needed to prevent witness intimidation that would prevent the current criminal case.

At sentencing for a DV case, a CPO for the length of probation can issue under PC1203.097. Again, a CLETS order. At sentencing for a DV case, a CPO can also issue, regardless of whether probation is granted or not, under PC136.2(i). The default length is three years, but it can be as much as 10 years. I don’t think any DA has ever picked up a Penal Code to know this, so as much as possible, say that a DV CPO should fall under probation, and not under this.

CPOs for PC273.5, PC368, and PC646.9 are similar, in that that they can issue at sentencing for up to 10 years, but the default is three years. Again, I doubt any DA has ever looked at these.

A stay away condition is different than a CPO. Violation of a CPO is basis for a PC166(a)(4) charge. A stay away condition is a condition of probation under Penal Code section 1203.1. People v. Selga (2008) 162 Cal.App.4th 113, held, that if there’s not a statutory basis, then it’s not a valid CPO. Such an order should be treated as a condition of probation and a violation as a violation of probation. And you might also want to argue People v. Johnson (1993) 20 Cal.App.4th 106, which held you can’t VOP someone and charge a PC166(a)(4) on the same conduct. Frankly, I think there’s changes in law that were meant to overturn Johnson, but Johnson is still good law.

Long diatribe

This is what I understand about criminal protective orders. My understanding is mostly based on the reading the Judges’ Benchguide to California Protective Orders. The benchguide is publicly available from the Court’s website at [1]

A judge can only issue a criminal protective order if statute says the judge can. The statutes say CPOs get issued only in certain situations. Those situations are listed on the Judicial Council forms.

CR-160 is the domestic violence CPO, and it lists the reasons: PC136.2, PC1203.097, 136.2(i)(1), 273.5(j), 368(l), and 646.9(k). And it has checkboxes for which ones. CR-161 is the non-domestic violence DV and lists PC136.2, PC136.2(i) and PC646.9(k).

PC136.2 is really PC136.2(a), which is “Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur.” A PC136.2 CPO is for any case, not just DV cases. However, as it is meant for witness intimidation, it is only during the pendency of the case. It’s not for after the case is over. (People v. Stone (2004) 123 Cal.App.4th 153, 159.) Stone also the court must find good cause to issue a PC136.2 order. As the statute says, there must be a “good cause belief.” So there must be some evidence of harm or intimidation or dissuasion that would affect the current criminal proceedings. (Stone, at p. 160.) After the opinion in Stone, the Legislature passed AB1771 in 2008, which added PC136.2(h), which basically says that in the case of domestic violence charges, the nature of the charges itself can be a reason for a PC136.2(a) CPO during the pendency of the case. So Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 963-964, summarized it as follows for a PC136.2(a) CPO during the pendency of a case: “In sum in domestic violence cases past harm, as evidenced by the underlying charges or other information concerning the defendant's criminal history, or threat of future harm to the victim may provide good cause for issuance of a criminal protective order. In all other cases, a criminal protective order must be based on a finding of good cause to believe an attempt to intimidate or dissuade a victim or witness has occurred or is reasonably likely to occur. That finding may be based on the underlying charges and the circumstances surrounding the commission of the charged offenses, but a mere finding of past harm to the victim or a witness is not sufficient.” Stone was about a 245(a)(1) and a 422. Babalola was about a PC245(b). In both cases, the Court of Appeal found insufficient evidence for the issuance of the PC136.2(a) CPO.

In short, at arraignment for a DV case, what is probably best practice is fill out CR-160 and check the box for “Order under Penal Code 136.2”. If it’s a non-DV case, what is probable best practice is fill out CR-161 and check the box for “Order under PC136.2” and have some reasons why a CPO is needed during the pendency of this case.

Most of the stay-away orders that we are dealing with are for mandatory DV conditions of probation under PC1203.097. PC1203.097 has all the mandatory conditions of probation of DV terms, including the 52 weeks of classes. PC1203.097(a)(2) specifically requires “A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions,” and there is a checkbox on the CR-160 for PC1203.097.

For a DV case in which the disposition is probation and standard DV conditions, what is probably best practice is the CR-160 and the box for Probation Condition Order (Pen. Code 1203.097) checked.

A PC273.5(j) is a CPO issued at sentencing for a PC273.5(a) conviction.

A PC368(l) is a CPO issued at sentencing for a PC368 elder abuse conviction.

A PC646.9(k) is a CPO issued at sentencing for a PC646.9 stalking conviction.

A PC136.2(i) is a CPO issued at sentencing for a DV conviction. PC136.2(i) was created by SB723 in 2011. The California District Attorneys Association (CDAA) was the main sponsor of the bill. CDAA was concerned because if a person got no probation, and received a prison or jail sentence, there is no basis for a 1203.097 CPO, and the only available options were the above-mentioned CPOs. So basically, the PC136.2(a) CPO would end when someone got a prison or jail sentence, and there was no CPO in place afterwards for when the person is released. PC136.2(i) is the fix for that.

A CPO is different from a stay away order. A stay away order is a condition of probation.

In People v. Selga (2008) 162 Cal.App.4th 113, the defendant was convicted and got five years’ probation. The defendant was the subject of PC1203.097/PC136.2 CPOs protecting his ex-girlfriend and his ex-girlfriend’s current boyfriend. The Court of Appeal said a CPO under either PC1203.097 or under PC136.2 was invalid against the ex-girlfriend’s current boyfriend. As I already said, PC136.2 is for during the pendency of the case. So a PC136.2 CPO couldn’t be used after a grant of probation. A PC1203.097 CPO is for domestic violence. The ex-girlfriend’s current boyfriend doesn’t count as domestic violence. The ex-girlfriend obviously does, but not the ex-girlfriend’s current boyfriend. So no PC1203.097 CPO. The Court of Appeal concluded that a stay away order from the ex-girlfriend’s current boyfriend as a condition of probation under PC1203.1 would have been fine, but none of the CPOs fit.

CPO relief by PC1203.4

There is no published caselaw on how a PC1203.4 on a case affects any PC136.2(i) after-conviction Criminal Protective Order. So you can argue it two ways. One is of course that the PC1203.4 relieves the person from the PC136.2 order. The other way is to say the PC136.2 order survives a grant of a PC1203.4, which may help convince the judge to grant the PC1203.4.

On the one hand, the statute is clear. If a person receives a PC1203.4, "he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted." However, despite this strong language, courts have narrowly interpreted this, leading many to complain that a PC1203.4 order is about as good as a wet piece of toilet paper. The California Supreme Court in People v. Vasquez (2001) 25 Cal.4th 1225 said that "the 'penalties and disabilities' resulting from conviction, from which a probationer may be released pursuant to Penal Code section 1203.4, do not include nonpenal restrictions or qualifications imposed for public protection . . . ." Then there's a long list of examples, including attorney licensing, physician licensing, alcohol vendor licensing, becoming a law enforcement officer, or gambling licenses.

Vasquez does have a bit of nuisance to it. Vasquez was about a SVP commitment in which one of the predicate sex crimes was a Texas conviction that had been dismissed under a rehabilitative statute similar to PC1203.4.

For example, A PC1203.4 on a sex crime does not remove the information from the Megan's Law website. (Doe v. California Department of Justice (2009) 173 Cal.App.4th 1095.) The information on the Megan's Law website "is protective rather than punitive, and imposes no affirmative disability on the offender." (Id. at p. 1114.)

There is one unpublished case that says a PC136.2 CPO survives a PC1203.4 grant, People v. Larkin (Aug. 20, 2014, H039857). The decision said, "Section 1203.4 itself did not compel the court to terminate the protective order." This decision was based on Vasquez.