Under California Penal Code § 136.2, in a criminal case (including a domestic violence case) a judge may issue a criminal protective order. These types of criminal protective orders are common in domestic violence cases in San Francisco and throughout the surrounding areas.
In fact, California Penal Code § 136.2 provides: “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 court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following: (A) An order issued pursuant to Section 6320 of the Family Code.”
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Protective Orders in Domestic Violence Cases in California
The court must issue a criminal protective order as a condition of probation for the perpetrator of a crime of domestic violence. See Cal. Penal Code § 1203.097. A person subject to a criminal protective order must surrender to local law enforcement, lawfully transfer, or sell to a licensed gun dealer, any firearm owned or subject to their immediate possession of control, within 24 hours after service of the order. (CCP 527.9).
The restrained person must file a receipt with the court, showing compliance with the order, within 48 hours of service. In some cases, the defendant is required to return to court in two days for a compliance review hearing to show proof the firearm has been relinquished. (CRC 4.700).
Review Hearing for the Relinquishment of Firearms
In other cases, if the court finds good cause to believe that the defendant has a firearm within his or her immediate possession or control, the court shall set a review hearing to determine if the defendant has complied with the requirement to relinquish the firearm pursuant to Civil Procedure Code section 527.9.49.
Under California Rules of Court 4.700(d)(3), the prosecution bears the burden of proving at the review hearing that the defendant has not complied with the requirement to relinquish firearms. At the review hearing, if the court has issued a criminal protective order in a criminal case:
- If the court finds that the defendant has a firearm in or subject to his or her immediate possession or control, the court must consider whether bail, as set, or defendant’s release on his or her own recognizance is appropriate.
- If the defendant does not appear at the hearing and the court revokes bail, the court should issue a bench warrant (see California Rules of Court 4.700(d)(1)).
In other words, the failure to comply with the relinquishment laws will result in a bail review hearing and may subject the defendant to additional criminal charges for contempt of court and possession of a firearm by a prohibited possessor.
Under Cal. Rules of Court 4.700(d)(2), if the has issued a criminal protective order as a condition of probation, and the court finds at the review hearing that the defendant has a firearm in or subject to his or her immediate possession or control, the court shall terminate the defendant’s participation in any domestic violence program and shall proceed with further sentencing.
The Defendant’s Firearm History in California
Many offices for prosecutors have adopted policies to protect an alleged victim from a person accused of a crime who might own or possess a firearm while the case is pending. At the time the criminal case is presented for filing, law enforcement officers often provide the prosecutor with a copy of the defendant’s firearm history. At
At the arraignment, when the defendant is served with a criminal protective order, many courts will order the defendant to relinquish the firearms. For example, Cal. Penal Code § 136.2 provides:
“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 court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following: (A) An order issued pursuant to Section 6320 of the Family Code.”
