There are two sources in California law for Restraining Orders: Family Code Section 6203 and Code of Civil Procedure 527.6. The family code section pertains to Restraining Orders between family members, and is generally used by husbands and wives against each other as well as people involved in a dating relationship; the Civil Procedure Code allows persons not related to each other to bring restraining orders against one another. So the Civil Procedure Code can be used against co-workers, neighbors as well as between girlfriends and boyfriends. There is some overlap with Family Code Section 6211 because people who are dating can also bring a Restraining Order under that section when there have been occasions of domestic violence.

Regardless of which of the two sections a restraining order is brought under the Petitioner (person requesting the restraining order) must prove the following against the Respondent (person against whom the Restraining Order is being sought):

1. That actual physical violence occurred against the Petitioner by the Respondent; or  
2. That there was an immediate threat of physical violence by the Respondent and the Petitioner reasonably believed this to be an immediate threat; or  
3. That there is harassment by the Respondent against the Petitioner. 

Any single one of these grounds is enough to justify the granting of a Restraining Order. A threat of physical violence can be the statements “I am going to kill you,” or “I am going to beat you up.” The Petitioner must reasonably believe that this threat is immediate and that the Respondent could carry out the act. For example if an elderly wheel chair bound individual says “I am going to beat you up” this may not meet the standard if directed toward a full grown man. However, if the same wheelchair bound individual threatens to kill someone with a gun, then that may be sufficient to permit the court to grant a Restraining Order. Restraining Orders based on Harassment commonly occur when the Respondent makes many unwanted telephone calls in a row; or if the Respondent calls once or twice a day and yells obscenities at the Petitioner; or if the Respondent passes by outside the Petitioner’s home and yells obscenities on a daily or frequent basis. To obtain a Restraining Order based on Harassment the Petitioner must prove that the conduct is of a harassing nature and occurs with some frequency.

Actual violence occurs when the Respondent uses force and physically strikes the Petitioner. The Petitioner does not need to actually suffer an injury to have a Restraining Order granted on these grounds. The word of the Petitioner is enough, although it is easier to prove the case if there is a photograph of the injury taken close to the time of the incident. If you are unclear whether you have grounds for a Restraining Order under any of these bases contact Attorney Will Bruzzo at (714) 547-4636.

Restraining Orders often come up in Domestic Violence situations between husbands and wives and people in a dating relationship. Sometimes the police will come to a home on a call of Domestic Violence and not find adequate evidence to arrest the spouse; or, the spouse will get arrested but the District Attorney decides not to file the case. In those instances it is not uncommon for the police to recommend that the person get a Restraining Order. There are many reasons why police may make this recommendation as opposed to taking the person into custody. The most obvious one is that a Restraining Order has a much lower standard of proof then a criminal case. A criminal case requires that there be evidence beyond a reasonable doubt that the physical violence or threat of physical violence or harassment occurred. Because a Restraining Order is civil in nature the Petitioner need only prove that the incident occurred by clear and convincing evidence. Also, to prove the crime of Domestic Violence in a criminal proceeding there must be some physical injury no matter how slight. No physical injury is required at all for the granting of a Restraining Order.

There are two stages to the granting of a Restraining Order. The first stage results in a Temporary Restraining Order (TRO). This is when the Petitioner drafts her request for a Restraining Order and files it with the court. If the Petitioner feels like they are in immediate danger they do not need to even notify the Respondent, they can just note that in their moving papers and file it with the court. However, the Petitioner must usually try to give the Respondent notice; telephone notice is permitted. The court will then review the Petitioner’s moving papers and can choose to hear from the Respondent or not. If the court grants the Temporary Restraining Order that means that the Respondent may not have contact with the victim from that moment forward. If the Respondent violates the Restraining Order by contacting the Petitioner through e-mail, telephone or letter he can be charged with violating a court order which is a criminal act and can subject him/her to criminal proceedings and jail time. The second stage of the process is the actual Restraining Order hearing. If the Petitioner can show that the elements of a Restraining Order are met then the order is granted for three years and the Respondent may have no contact of any type with the Petitioner for that three year period. A Restraining Order is like any other judicial hearing, relevant witnesses, photographic evidence and documentary evidence as well as the testimony of the Petitioner and the Respondent is permitted. Each party has the right to be represented by counsel.

Attorney Will Bruzzo has been very successful representing Petitioners and Respondents in Restraining Order hearings. Contact him to discuss your case at (714) 547-4636.

David Viens’ defense attorney, Fred McCurry, explained that he had not intended to kill his wife. That he had bound her limbs and covered her mouth with duct tape. Adding that he had done it “at least twice before to silence her histrionics.” Once Viens realized that his wife was dead he panicked. McCurry also dismissed the explanation of his client having boiled his wife’s remains. That was the confession Viens had told police while in the hospital recovering from his leap off a cliff. His attorney questioned whether it was scientifically possible to boil down human remains. Viens had also said that his wife’s skull was in his mother’s attic. Her remains were never found.

David Viens had jumped off a cliff in Rancho Palos Verdes while he was being followed by the Sheriff’s Department. His girlfriend at the time was in the car with him and pleaded for him to pull over. Viens then got out of the car and then jumped.

Here is NBCLA.COM video coverage of the verdict.

If you are having trouble viewing the video, you can see it here.

Criminal Law Updates by the Law Offices of Orange County Defense Lawyer William W. Bruzzo (714) 547-4636.

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The caretaker had been in the house, ran outside at the first sound of the shots, and ran back in after hearing a few more gunshots. Inside the home she discovered the bodies of the 72 year-old woman and 77 year-old man. Homicide(California Penal Code 187) is on the table, but the coroner and Orange County Sheriff have yet to report anything official. See, also Domestic Violence, 273.5(a).

Charlie Sheen, who was recently charged with domestic violence in Colorado, is now set to take a deal. The agreement worked out with his attorneys and the district attorney requires Sheen to complete a 30-day jail sentence. However, if approved, Sheen would be allowed to complete his sentence by doing work-release. Under the agreement, Sheen would leave the jail every morning to go to work at a nonprofit theatre as an acting coach and then return later that evening.

Sheen was set to go to trial in July for allegedly brandishing a knife and threatening his wife back in December, but now the star of “Two and a Half Men” is set to take his sweet deal. See, Penal Code Section 273.5.

Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636

NOTE: This is an ongoing story.

Ultimate Fighting champion, Tito Ortiz, will not have any domestic violence charges filed against him. The Orange County District Attorney’s Office said there was “insufficient corroboration to prove a case beyond a reasonable doubt.” Thus, Ortiz is a free man!

Ortiz was arrested back in April on suspicion of felony domestic violence under California Penal Code 273.5 inside his Huntington Beach home. The victim, famous porn star Jenna Jameson, was allegedly thrown into the tub and suffered torn ligaments. However, Ortiz denied all allegations and said that he never touched Jameson. Police did issue a 7-day emergency protective order when they came on scene, which was later lifted.

The couple is now spending time together with their twin boys and were seen recently at a Lakers’ game.

Domestic violence is frequently in the news, recently the movie The Girl With The Dragon Tattoo chronicled the affects of domestic violence, and for the past 30 years The Take Back the Night Foundation has existed to end domestic violence. Each incident has its own set of facts, but what if the violence is mutual? Read what one client says:

“I was arrested for Domestic Violence under Penal Code Section 273.5(a) as a felony for an incident that occurred with my spouse in Orange County, California. My bail was set at $50,000.00. For the crime I was arrested for I faced a maximum of three years in prison. After I bailed out of jail I went to speak to Attorney William Bruzzo whom I understood to be a very effective attorney and very familiar with the judges and the District Attorneys in Orange County. Mr. Bruzzo told me that he would start working on my case even before my court date and that he would try to persuade the District Attorney NOT TO FILE the case against me which would mean there would never actually be a court case. Mr. Bruzzo told me it appeared that at a minimum both parties had engaged equally in the physical altercation. He also told me that the law says if both parties engage in mutual combat then the case can be dismissed. He made several phone calls to the District Attorney and then submitted a letter to the District Attorney which provided additional information about the incident that was helpful to me. Two days after I hired Mr. Bruzzo and before I even had to appear in court he informed me that the District Attorney had REJECTED the case and decided not to file against me. I NEVER HAD TO APPEAR IN COURT AND I HAVE NO CONVICTION. I am very grateful to Mr. Bruzzo for his efforts and I would enthusiastically recommend him for an Domestic Violence or Criminal matter.” ~~ CL 05/2010

Charlie Sheen and his wife received a visit from Child Protective Services (CPS) at their home in Los Angeles. The reason for the home visit by authorities was a result of an alleged domestic violence incident which occurred near a ski resort in Colorado. After domestic violence incidents it is not uncommon for CPS to visit the home to insure the safety of the children who live there. The Sheens have two infant sons and Mr. Sheen has two other children from a previous relationship. After an official visit like this one CPS can decide to take no action or they may institute Dependency Proceedings, wherein the courts assess whether the parenting skills of the parents are sufficient for the children to remain in the home. In extreme cases the children can be removed from the parent and placed with a family member or in foster case. In the case of the Sheens it appears no action was taken by CPS.

The degree of injury to the victim will decide if a domestic violence case is charged as a misdemeanor or a felony. Regardless of whether the matter is charged as a felony or a misdemeanor if the client is found guilty or pleas guilty he/she must complete a 52-week batterer’s course, 8 hours of community service and pay various fines and fees.

In order to avoid a client doing the 52-week batterer’s class an agreement must be negotiated with the District Attorney whereby a non-domestic violence charge (Disturbing the Peace, Assault) is substituted for the domestic violence charge.

Each domestic violence charge needs to be thoroughly investigated by defense counsel. Depending on the facts of the domestic violence case and the record of the client, agreements can be reached whereby even if the crime occurred attendance at an anger management class (10-weeks) or counseling can relieve a client of the normal requirements of a domestic violence charge.

Here is a recent case result:

“I was charged with Penal Code Section 243(e) (1) [Domestic Violence Battery on a Spouse]; a conviction of this crime could have caused me to spend up to 1 year in custody. This case arose from an incident whereby I was alleged to have struck my spouse causing injury. I hired William W. Bruzzo to represent me in this matter because of his effectiveness in court and his knowledge of the law. Mr. Bruzzo told me that a conviction for a violent act such as this would have been detrimental to my record and therefore my future. In addition I was told that such a conviction could cause me to lose my job. This was especially significant because I have a family to feed and my spouse does not work. Mr. Bruzzo worked hard to get the charge changed to include going to the supervising district attorney. In the end he had the charge reduced to a Penal Code Section 415 [Disturbing the Peace]. The Domestic Violence Charge was dismissed. I truly believe that without Mr. Bruzzo’s familiarity with the Orange County Courts and the law I would not have received such a good result. I would enthusiastically recommend him for any criminal matter.”  ~~JC, December 2, 2009

On September 30, 2009–the eve of Domestic Violence Awareness Month, President Obama remarked how this violent epidemic “touches the lives of Americans of all ages, leaving a devastating impact on women, men, and children of every background and circumstance.”

This month is Domestic Violence Awareness Month. Two different California code sections explain domestic violence. Under Penal Code 243(e) (1), domestic violence occurs when a person purposefully touches his/her partner in an offensive or angry way. A partner is defined by the code as your current or former spouse, your fiance/fiancee, someone you have lived with or currently live with, someone you have dated or are currently dating, or your child’s parent. If an injury results from the contact, then one can be charged under Penal Code 273.5(a) – Corporal Injury on a Spouse. In addition to fines and jail time, a person must also complete a one year batterer’s treatment program if convicted on one of the above offenses.

However, if you are charged with a domestic violence offense, there are some defenses available to you that an experienced criminal defense attorney can explore. A person accused of domestic violence can claim the defense of self-defense. Self-defense occurs when a person uses force against another because they reasonably believe that they are in imminent danger of bodily injury or that someone else is in imminent danger of bodily injury and that they must use force to protect them. The person using the force must not use more force then is necessary to defend against the danger. Another defense available to people in domestic violence situations is that of mutual combat. This defense allows the first person who used violence to claim self-defense if: (1) He/she in good faith tries to stop fighting; (2) He/she indicates in a way that a reasonable person would understand that he/she wants to stop fighting and he/she actually stops fighting; (3) He/She gives opponent the opportunity to stop fighting. If the District Attorney finds that the defendant acted in self defense as described in the two situations above then the case may be DISMISSED. Similarly a jury can find the Defendant NOT GUILTY on the same grounds. Criminal Law Updates by Law Offices of William W. Bruzzo. The Law Offices of William W. Bruzzo represent Defendants charged with Penal Code Sections 273.5 and 243(e) (1).