I haven’t had a trial yet. I haven’t been convicted of anything. Can the judge really order me to stay away from the alleged victim and surrender the firearms in my house?”
A judge’s authority to issue a stay-away order or other restraining order in a criminal case is two-fold. First, the judge can issue the stay-away order as a term and condition of your probation if you are convicted. Second, under Penal Code 136.2, the judge can issue a stay-away order that you are subject to while the case is pending against you.
Judges and prosecutors frequently try to issue broad restraining orders against defendants under Penal Code Section 136.2. You have couples that have been together for years in which the alleged abuser has to suddenly move out and stay away from the spouse and the couple’s house.
While Penal Code 126.3 grants judges fairly broad discretion, discretion is by no means unlimited. The California Court of Appeals held in Babalola v. Superior Court (Feb. 14, 2011), that if a case charges a crime of domestic violence, “past harm” or “threat of future harm” may provide good cause for issuance of a criminal protective order. In all other cases, however, there must be “good cause to believe an attempt to intimidate or dissuade a victim or witness has occurred or is reasonably likely to occur.”