Is a restraining order issued pursuant to certain sections of the Family Code, Code of Civil Procedure or Welfare and Institutions Code valid?

California, United States of America


The following excerpt is from People v. Brockett, C078975 (Cal. App. 2017):

temporary restraining order issued pursuant to certain sections of the Family Code, Code of Civil Procedure, or Welfare and Institutions Code. It is patently obvious that these are not elements contained within the statutorily defined offense of stalking, as defined by section 646.9(a), which requires: (1) that the defendant willfully, maliciously, and repeatedly followed another person or harasses another person, and (2) made a credible threat with the intent to place the other person in reasonable fear for his or her safety or for the safety of his or her immediate family. (People v. Tran (1996) 47 Cal.App.4th 253, 259.) Accordingly, we conclude violation of a court order is not a necessarily included offense of stalking because the offense of stalking may be committed without violating a court order.

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