California Criminal Jury Instructions (CALCRIM) (2017)

2700. Violation of Court Order

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H. VIOLATION OF COURT ORDER
2700.Violation of Court Order (Pen. Code, § 166(a)(4) & (b)(1))
The defendant is charged [in Count ] with violating a court order
[in violation of Penal Code section 166].
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 order>;
2. The defendant knew about the court order and its contents;
3. The defendant had the ability to follow the court order;
AND
4. The defendant willfully violated the court order.
Someone commits an act willfully when he or she does it willingly or on
purpose.
[The People must prove that the defendant knew about 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 prove
that the defendant actually read the court order.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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
(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 re 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 re 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,
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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.
Penal Code section 166(b)(1) provides for an increased sentence if the defendant
was previously convicted of stalking and violated a court order “by willfully
contacting a victim by phone or mail, or directly.” If the prosecution alleges this
factor, in element 1, the court should state that the court ordered the defendant “not
to contact <insert name of victim in stalking case> directly, by
phone, or by mail,” or something similar. The jury must also 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.)
If the prosecution alleges that the defendant violated a protective order in a case
involving domestic violence (Pen. Code, §§ 166(c)(1), 273.6), do not use this
instruction. Give CALCRIM No. 2701, Violation of Court Order: Protective Order
or Stay Away.
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. Von Blum
(1965) 236 Cal.App.2d Supp. 943 [47 Cal.Rptr. 679].)
AUTHORITY
• Elements. Pen. Code, § 166(a)(4) & (b)(1).
Willfully 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 re 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. Von Blum (1965) 236 Cal.App.2d Supp. 943
[47 Cal.Rptr. 679].
• Ability to Comply With Order. People v. Greenfield (1982) 134 Cal.App.3d
Supp. 1, 4 [184 Cal.Rptr. 604].
• General-Intent Offense. People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4
CALCRIM No. 2700 CRIMES AGAINST GOVERNMENT
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[184 Cal.Rptr. 604].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 30.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 1, The
California Defense Advocate, § 1.30 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.13[4]; Ch. 144, Crimes Against Order,
§ 144.10[1] (Matthew Bender).
RELATED ISSUES
Violation of Order to Pay Support—Court May Suspend Proceedings
If the defendant is charged with violating Penal Code section 166(a)(4) based on a
failure to pay child, spousal, or family support, the court may suspend criminal
proceedings if the defendant acknowledges his or her obligation to pay and posts a
bond or other surety. (Pen. Code, § 166.5.)
Person Not Directly Bound by Order
A person who is not directly bound by a court order may nevertheless violate Penal
Code section 166(a)(4) if he or she acts in concert with a person who is directly
bound by the order. (People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 978–979
[168 P.2d 497]; Berger v. Superior Court (1917) 175 Cal. 719, 721 [167 P. 143].)
“[A] nonparty to an injunction is subject to the contempt power of the court when,
with knowledge of the injunction, the nonparty violates its terms with or for those
who are restrained.” (People v. Conrad (1997) 55 Cal.App.4th 896, 903 [64
Cal.Rptr.2d 248] [italics in original].) The mere fact that the nonparty shares the
same purpose as the restrained party is not sufficient. (Ibid.) “An enjoined party
. . . has to be demonstrably implicated in the nonparty’s activity.” (Ibid.)
Violating Condition of Probation
A defendant may not be prosecuted under Penal Code section 166(a)(4) for
violating a condition of probation. (People v. Johnson (1993) 20 Cal.App.4th 106,
109 [24 Cal.Rptr.2d 628].)
CRIMES AGAINST GOVERNMENT CALCRIM No. 2700
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