(California) CPO against me. Ex gf is moving out next week (my condo), what do I need to do before I move back?

[BPD79]

What is the name of your state? California

So long story short, my ex gf and I were living together in my condo. We had an argument one night, the police were called and I was arrested. Im currently fighting a DV charge against the state, so I have been living at my parents house since. I have a Criminal Protection Order against me that says I cannot go anywhere near her residence, work, or 100yds from her until the court stuff has been completed. She is moving out next week, can I just move back into my house or is there something I need to do or someone to notify before Im allowed back home? I do not want to infringe on anything and obviously dont want to go back to jail for doing so.

Appreciate any help or advise.

 

[CdwJava]

That depends ... is the residence she is vacating specifically listed as an exclusion on the CPO? If it is specifically indicated on the order, then you cannot go back until the order is modified.

You should probably work with your attorney on this. A mistake will land you in jail since the violation of a DV-related restraining order is the only offense under CA law that mandates an arrest if there is probable cause.

 

[BPD79]

That depends ... is the residence she is vacating specifically listed as an exclusion on the CPO? If it is specifically indicated on the order, then you cannot go back until the order is modified.

You should probably work with your attorney on this. A mistake will land you in jail since the violation of a DV-related restraining order is the only offense under CA law that mandates an arrest if there is probable cause.

Yes, I have reached out to my attorney to confirm this and have it modified if it is. Thank you for the response!

 

[CdwJava]

Yes, I have reached out to my attorney to confirm this and have it modified if it is. Thank you for the response!

You're welcome.

It's always better to err on the side of caution with these things because they have a way of snowballing, especially if you as the protected party decide to let ego get in the way of common sense. It's best to take a breath, reason things out, and take any actions slowly and thoughtfully - as you appear to be doing, rather than act on impulse.

 

[Just Blue]

That depends ... is the residence she is vacating specifically listed as an exclusion on the CPO? If it is specifically indicated on the order, then you cannot go back until the order is modified.

You should probably work with your attorney on this. A mistake will land you in jail since the violation of a DV-related restraining order is the only offense under CA law that mandates an arrest if there is probable cause.

small hijack...

The only offence? So if you came upon a dead body and a person standing their with a gun, you couldn't arrest them?

 

[CdwJava]

small hijack...

The only offence? So if you came upon a dead body and a person standing their with a gun, you couldn't arrest them?

Sure, I MAY make the arrest, but I would not be mandated to do so. There's a difference between the permissive "may" and the inflexible, "shall." PC 836(c)(1) states (in summary) that an arrest SHALL be made if there is probable cause to believe a DV TRO/CPO/EPO has been violated. No other section in CA law (to my knowledge) has such language.

 

[Just Blue]

Sure, I MAY make the arrest, but I would not be mandated to do so. There's a difference between the permissive "may" and the inflexible, "shall." PC 836(c)(1) states (in summary) that an arrest SHALL be made if there is probable cause to believe a DV TRO/CPO/EPO has been violated. No other section in CA law (to my knowledge) has such language.

Goodness. No wonder you bitch about the laws of Cali. Do you at least have to (as in the inflexible "shall") check and see if out apparent murderer is licensed to carry?

 

[CdwJava]

Goodness. No wonder you bitch about the laws of Cali. Do you at least have to (as in the inflexible "shall") check and see if out apparent murderer is licensed to carry?

I don't think you will find a state (or at least not many) where it is mandatory that they make an arrest for a potential felony. It's not just CA. The problem with mandating an arrest is that it also starts a clock ticking if you also cannot release them prior to charging. Keep in mind that agency POLICY may state that an arrest is mandatory in such situations, but if it did, it'd be a poor policy for several reasons.

And, no, there's no "shall" for checking on firearms status, either. Although, in CA there is no statewide database of CCW permits so if they are licensed in another county you won't know about it unless you check with the issuing agency. About all you could do is check and see if they are a prohibited person (ineligible to posses a firearm). Though, if you see someone standing over a body with a bullet wound and they have a gun in hand, chances are they are AT LEAST going to be detained until the matter is sorted out.

Understand that not having a mandatory arrest section does not prohibit an arrest, it just does not impose a duty on the officer to make such an arrest.

 

[stealth2]

So if you came upon a dead body and a person standing their with a gun, you couldn't arrest them?

(Sorry for hijacking, OP, but since your question was answered...) I can think of at least one scenario where an arrest would likely not be warranted...

 

[CdwJava]

(Sorry for hijacking, OP, but since your question was answered...) I can think of at least one scenario where an arrest would likely not be warranted...

As can I ... several, in fact. But, it is important to note that mandatory arrests could lead to questionable arrests and/or hasty prosecutions. Which is probably why there are few of them (and only one in CA that I know of, and that requires a verifiable court order be in place, so very little subjective reasoning might be necessary).

 

[commentator]

And I can see the wisdom of a mandatory arrest in this type of case, as in I have heard of people hauled away threatening, "Tell them to drop the charges, get me out of this or I'll come back and make this 20 times worse for you!" It is certainly better to have the police mandated to arrest in some cases with both parties knowing that they are so directed. And you always have the DV situations where people have the protection orders in place then beg the officers NOT to arrest the violator for various reasons.

 

[CdwJava]

And I can see the wisdom of a mandatory arrest in this type of case, as in I have heard of people hauled away threatening, "Tell them to drop the charges, get me out of this or I'll come back and make this 20 times worse for you!" It is certainly better to have the police mandated to arrest in some cases with both parties knowing that they are so directed. And you always have the DV situations where people have the protection orders in place then beg the officers NOT to arrest the violator for various reasons.

Yep! This is how changes in the law regarding DV transformed these relationships. CA law also mandates agencies craft so-called "pro-arrest" policies that encourage an arrest if a primary aggressor in a DV battery can be determined, but just shy of mandating it. It took away a great deal of the discretion of the officers - for good or ill - and took the decision away from the victim (a good call, given the dynamic).

When I first started, we could not arrest for a misdemeanor DV battery (lack of corporal injury) without the victim's private person's arrest (i.e. a "citizen's arrest"). Victims would rarely sign one, and I cannot recall EVER having an arrest for a misdemeanor DV battery. But, very often, the suspect would yank the phone from the wall or break it, and we had (still have) a nice felony on the books for interrupting a landline! (Goes back to the days when AT&T owned the lines and the phones as well.)

 

[BPD79]

So, small update. My lawyer called me and said she actually wasnt sure what the laws were around this specific instance where I am the home owner with my ex gf and I both living together, but then me having to move out due to a CPO and then being able to move back in once she has moved out. So my lawyer had to contact the DA to see what needs to happen and I might very well need to talk to a judge in person to get something modified. So until I hear further, I'm stuck at my parents house with her apparently moving everything out today, per her brother's call to me.