Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Crimes Against Government CALCRIM No. 2701. Violation of Court Order: Protective Order or Stay Away (Pen. Code, §§ 166(c)(1), 273.6)

CALCRIM No. 2701. Violation of Court Order: Protective Order or Stay Away (Pen. Code, §§ 166(c)(1), 273.6)

Judicial Council of California Criminal Jury Instructions (2023 edition)

Download PDF

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

596

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;

2. Inflicted on any (elder/dependent adult) unjustifiable physical

pain or mental suffering;

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 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

CRIMES AGAINST GOVERNMENT CALCRIM No. 2701

597

(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)).

CALCRIM No. 2701 CRIMES AGAINST GOVERNMENT

598

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.

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

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

CRIMES AGAINST GOVERNMENT CALCRIM No. 2701

599

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.

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against

Governmental Authority, § 31.

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the

Person, §§ 64, 66-68.

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).

CALCRIM No. 2701 CRIMES AGAINST GOVERNMENT

600

Page last reviewed May 2023