Section 2701 | CALCRIM (Jury Instructions)

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.
Penal Code section 166(b)(1) provides for an increased sentence if the defendant
was previously convicted of stalking and violated a court order “by willfully
contacting a victim by phone or mail, or directly.” If the prosecution alleges this
factor, in element 1, the court should state that the court ordered the defendant “not
to contact
<insert name of victim in stalking case> directly, by
phone, or by mail,” or something similar. The jury must also 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.)
If the prosecution alleges that the defendant violated a protective order in a case
involving domestic violence (Pen. Code, §§ 166(c)(1), 273.6), do not use this
instruction. Give CALCRIM No. 2701, Violation of Court Order: Protective Order
or Stay Away.
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].)
AUTHORITY
•
Elements. Pen. Code, § 166(a)(4) & (b)(1).
•
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].
CALCRIM No. 2700
CRIMES AGAINST GOVERNMENT
594

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