Section 2702 | CALCRIM (Jury Instructions)

(1996) 12 Cal.4th 804, 816–817 [50 Cal.Rptr.2d 74, 910 P.2d 1366].) The defendant
may not be convicted for violating an order that is unconstitutional, and the
defendant may bring a collateral attack on the validity of the order as a defense to
this charge. (People v. Gonzalez, supra, 12 Cal.4th at pp. 816–818; In re Berry
(1968) 68 Cal.2d 137, 147 [65 Cal.Rptr. 273, 436 P.2d 273].) The defendant may
raise this issue on demurrer but is not required to. (People v. Gonzalez, supra, 12
Cal.4th at pp. 821, 824; In re Berry, supra, 68 Cal.2d at p. 146.) The legal question
of whether the order was lawfully issued is the type of question normally resolved
by the court. (People v. Gonzalez, supra, 12 Cal.4th at pp. 816–820; In re Berry,
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.
In element 2, give the bracketed phrase “in a criminal case involving domestic
violence” if the defendant is charged with a violation of Penal Code section
166(c)(1). In such cases, also give the bracketed definition of “domestic violence”
and the associated terms.
In element 2, if the order was not a “protective order” or “stay away order” but
another type of qualifying order listed in Penal Code section 166(c)(3) or 273.6(c),
insert a description of the type of order from the statute.
In element 2, in all cases, insert the statutory authority under which the order was
issued. (See Pen. Code, §§ 166(c)(1) & (3), 273.6(a) & (c).)
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].)
If the prosecution alleges that physical injury resulted from the defendant’s conduct,
in addition to this instruction, give CALCRIM No. 2702, Violation of Court Order:
Protective Order or Stay Away—Physical Injury. (Pen. Code, §§ 166(c)(2),
273.6(b).)
If the prosecution charges the defendant with a felony based on a prior conviction
and a current offense involving an act of violence or credible threat of violence, in
addition to this instruction, give CALCRIM No. 2703, Violation of Court Order:
Protective Order or Stay Away—Act of Violence. (Pen. Code, §§ 166(c)(4),
273.6(d).) The jury also must 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.)
Related Instruction
CALCRIM No. 831, Abuse of Elder or Dependent Adult (Pen. Code, § 368(c)).
CALCRIM No. 2701
CRIMES AGAINST GOVERNMENT
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