A GUIDE TO THE LAW IN CALIFORNIA*

How to politely assert your rights and tell the police:

RESTRAINING ORDERS ARE NOT REQUIRED FOR THE POLICE TO PROTECT YOU. AND, THE POLICE CAN OBTAIN EMERGENCY RESTRAINING ORDERS FOR YOU IMMEDIATELY.

TEMPORARY RESTRAINING ORDERS CAN BE OBTAINED BY YOU AT NO COST BY YOUR COMPLETING AND FILING YOUR REQUEST FORMS AT YOUR LOCAL SUPERIOR COURT.

The TRO says:

"This Order shall be enforced by all law enforcement officers." (CC 4359 and CCP 552)

If the police hesitate to enforce the TRO, say:

Sure the TRO's are good. The expiration date is not until the date of the hearing.

OR:

OKAY, so my TRO's expired. He/she still committed assault.

Assault (PC 240), Battery (PC 242), Assault with a deadly weapon (PC 245), ALL ARE PUNISHABLE BY UP TO 4 YEARS IN PRISON IF A FELONY.

"What do you mean you didn't see what he/she did to me, IT WAS A FELONY; he/she went after me with a baseball bat; or, a car; or, a knife; or, a gun (etc.)! It's a felony! You don't have to see it when he/she is attempting to commit or is committing great bodily harm." (PC 245, PC 836[3])

"Okay, I'll make a citizen's arrest, I SAW IT. The Judge can decide if it's a felony."

(PC 834 PC 837)

(If a policeman tries to decide if an action is a felony, he is engaged in the unauthorized practice of law.)

He/she could get SIX MONTHS in jail if the Judge decides it's only a misdemeanor.

PC 273.5: Willful traumatic injury, a felony. This means the police can arrest if they have a reasonable belief 273.5 was violated. AND, the police DON'T have to see it happen; just show them the bruises.

HE/SHE ALSO COMMITTED VIOLATION OF:

CCP 551: Violation of the TRO's under PC 273.6

PC 273.6: Willfully disobeying a TRO, a misdemeanor, punishable by up to $1,000.00 and one year in jail, a felony if prior conviction. ("He/she is here now and he/she is not allowed to be according to the TRO's").

PC 166.4: Criminal contempt, a misdemeanor, because he/she disobeyed a Court Order. ("He/she is still here, isn't he/she?")

PC 602 [J] and [L]: Criminal trespass. It's also a civil contempt which is punishable by 5 days in jail. (CC 4380; CCP 1218, 1221)

"And he/she can be punished for both civil and criminal contempt and for any other crime he/she's committed." (PC 657)

"And, he/she's been calling me and harrassing me on the telephone, a violation of PC 653 M, a misdemeanor."

"Arrest him/her for all the reasons I told you."

"I guess even you (the police) could be charged with PC 166.4 for not obeying a Court order!"

"Well, you find a way to arrest him/her"

"He/she is where he/she doesn't belong."

"He/she has committed a bunch of different crimes and should be arrested."

"PC 273.84 says all reasonable efforts should be made to resist the release of spouse abusers before trial."

PC 13700 SAYS:

By January 1, 1986, every law enforcement agency shall develop, adopt and implement policies and standards for officers' response to domestic violence cases. These policies shall be in writing and available to the public and include specific standards for:

FELONY ARRESTS

MISDEMEANOR ARRESTS

CITIZEN'S ARRESTS

ENFORCEMENT OF TROs, even if suspect has fled

SUPERIOR COURT OPTIONS: Women's shelters, etc.

and, ASSISTING VICTIMS IN PURSUING OTHER OPTIONS (PC 13700, et seq.)

WHERE ARE THEY?

And at least:

1. Get him/her away from me.
2. Call the 24-hour ON-DUTY Judge right now and get emergency TROs immediately, pursuant to CCP 546.
3. Serve my TROs on him/her. (CC 4359)

"WHAT DO YOU MEAN WE RECONCILED? That I "invited" him/her in? We didn't reconcile. I didn't tell him/her to abuse me. I invited him/her in on the condition he/she wouldn't abuse me. He/she breached the condition and abused me."

"WHAT? Of course, the Orders are good even if I invited him/her in. The Orders are right there."

"ONLY A COURT CAN VOID THEM (THE TROs), OR SAY WE RECONCILED."

"Read Kelly V. Kelly, 227 C.A.2d 379 and Cochran V. Cochran, 13 C.A. 3d 339. They say these Orders are good and you must enforce them until a Judge changes the Order."

Write down the time and date, the police officers' names, a summary of what happened and list all of your injuries. Document the incident for future trips to Court.

KEEP YOUR TROs IN FORCE: Remember, if you have obtained TROs, you MUST return to Court for the date set by the Court whether or not you have served the other party. If you do not return to Court, your TROs will EXPIRE AUTOMATICALLY.

CC 4359: Always keep a Proof of Service form and an extra copy of your TROs to give to the police. They must serve it on the abuser when they are called out and they must file the Proof of Service with the Court.

PC 273.7 and 1102.7: No one can tell the abuser your whereabouts.

PC 136.2: The CRIMINAL COURT can issue restraining orders at any time after abuser is arrested.

PC 679.02: Gives you the right to be notified upon request of the abuser's release from police custody. [See PC 12021.1 (b) (8) (9) (22) (24) (25)]

CC 4607.2: If you go to Court and mediation regarding children is required, the mediator must meet with you separately to protect you.

PC 277, 278, 278.5: Even without a Court Order, malicious withholding of a child from a parent is a crime.

PC 279: The police may take custody of a child if it appears the parent may flee, and upon locating a missing child, the police must take custody and return to the other parent or Juvenile Court.

CC 4604: The District Attorney can be ordered to attempt to locate and return missing children.

ABBREVIATIONS:

PC: California Penal Code

CC: California Civil Code

CCP: California Code of Civil Procedure

TRO: Temporary Restraining Orders

(*): This Guideline was written for California. The same principles may apply in your area. Check with a local Domestic Violence Prevention Hotline in your area for the laws in your area. There are numbers in your phone book. Also, in California in the 1990s, the police are required to make an arrest in all spousal abuse cases, regardless of gender.

GERALD L. KLEIN:
Attorney at Law

-Member, Board of Directors of the Orange Co. Legal Aid Society
-Past volunteer attorney and Board Member, Women's Transitional Living Center
-Past Board Member, Orange County Coalition Against Domestic Violence
-Member, Advisory Board and volunteer attorney, Orange Co. Victim-Witness Program
-Past president, presently on Board of COPES, a Shelter for Abused Children
-Co-founder, chairman of the board, Orange County Coalition
-Past member, Huntington Beach Housing and Community Development Citizens Advisory Board
-Volunteer attorney Amicus Publico (volunteer attorney program)
-Lecturer, Orange Co. Legal Education Program of Orange Co. Dept of Education
-Past member, Advisory Board, Family Crisis Center
-Member, Orange Co. Superior Court Domestic Violence Program Committee
-Past Extra-help Juvenile Court Referee