California Criminal Jury Instructions (CALCRIM) (2017)

2701. Violation of Court Order: Protective Order or Stay Away

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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 <insert appropriate code section[s]>].
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 content of order>;
2. The court order was a (protective order/stay-away court order/
<insert description of other type of order>), issued
under <insert code section under which order made>
[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;
AND
<For violations of Pen. Code, § 166(c)(3), choose “willfully”; for violations
of Pen. Code § 273.6(c), choose “intentionally” for the scienter
requirement.>
5. The defendant (willfully/intentionally) 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 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 prove
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 recklessly 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
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relationship. Factors that may determine whether people are cohabiting
include, but are not limited to, (1) sexual relations between the parties
while sharing the same residence, (2) sharing of income or expenses, (3)
joint use or ownership of property, (4) the parties’ holding themselves
out as (husband and wife/domestic partners), (5) the continuity of the
relationship, and (6) the length of the relationship.]
[(Elder/(D/d)ependent adult) abuse means that under circumstances or
conditions likely to produce great bodily harm or death, the defendant:
1. Willfully caused or permitted any (elder/dependent adult) to
suffer;
OR
2. Inflicted on any (elder/dependent adult) unjustifiable physical
pain or mental suffering;
OR
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;
OR
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 restrict his or her ability to carry
out normal activities or to protect his or her rights.] [This definition
includes an adult who has physical or developmental disabilities or
whose physical or mental abilities have decreased 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 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
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(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,
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. Von 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, Violation of
Court Order: Protective Order or Stay Away—Physical Injury. (Pen. Code,
§§ 166(c)(2), 273.6(b).)
If the prosecution charges the defendant with a felony based on a prior conviction
and a current offense involving an act of violence or credible threat of violence, in
addition to this instruction, give CALCRIM No. 2703, Violation of Court Order:
Protective Order or Stay Away—Act of Violence. (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)).
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AUTHORITY
• Elements. Pen. Code, §§ 166(c)(1), 273.6.
• 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
[184 Cal.Rptr. 604].
• Abuse Defined. Pen. Code, § 13700(a).
• Cohabitant Defined. Pen. Code, § 13700(b).
• Domestic Violence Defined. Evid. Code, § 1109(d)(3); Pen. Code, § 13700(b);
see People v. Poplar (1999) 70 Cal.App.4th 1129, 1139 [83 Cal.Rptr.2d 320]
[spousal rape is higher level of domestic violence].
• Abuse of Elder or Dependent Adult Defined. Pen. Code, § 368.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 30.
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 63.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§ 11.02[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.13[4] (Matthew Bender).
COMMENTARY
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
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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 offense involved an act of violence or credible threat of
violence (Pen. Code, §§ 166(c)(4), 273.6(d)), then the misdemeanor offense is a
lesser included offense. 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
proved. If the jury finds that the either allegation was not proved, then the offense
should be set at a misdemeanor.
RELATED ISSUES
See the Related Issues section of CALCRIM No. 2700, Violation of Court Order.
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