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  1. #1
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    Default Accidental Encounters as a Defense to Restraining Order Violations

    California.

    Restraining Order granted in Humboldt County, served in Humboldt County, in person, by Humboldt County Sheriff.

    I am a protected party, along with my mother, on the DVRO, because we are, essentially, a family unit with protected parties, mother and son. He refers to me as his father and my mother as his grandmother. Restrained person, bio father, responded to being served by moving 163 yards from my home, where my mother is living. The only way in and out is less than 100 yards away.

    The police won't arrest him, saying the violations that occur in the neighborhood were all by accident.

    What can I do?


  2. #2
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    Default Re: Ca. Can This Be Enforced

    If the only way he can travel from his residence is by traversing thorough a street within 100 yards of you, then this is what is referred to as "incidental" contact and is not generally punishable. If he has some other option and then deliberately drives past your residence, then that might be actionable, but, if the only way out from where he lives is on a street that is within the 100 yard distance then there will be no crime absent some additional actions that violate the order (contact, gestures, etc.).

    As for what you can do, unless he otherwise violates the order, there's really nothing you CAN do unless you want to move.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  3. #3
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    Default Re: Ca. Can This Be Enforced

    He has violated repeatedly. I have emails, videos, confessions. The police don't seem to care, since he has an excuse for over a dozen violations. This has been my house for thirty years and he just gets to move in and, essentially, trap me, into violating by his proximity to the only exit from my house. He keeps saying that I'm the one violating. It is all pretty defeating. Thanks for your input.

  4. #4
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    Default Re: Ca. Can This Be Enforced

    Quote Quoting embattled
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    He has violated repeatedly. I have emails, videos, confessions. The police don't seem to care, since he has an excuse for over a dozen violations.
    Emails, by themselves, are not always proof of a TRO violation as they require verification unless the sender admits to sending them. A defense attorney can argue that someone hacked his email account.

    I am not sure what videos you might have, or confessions, but I can also conceive of circumstances where those can be discounted as well.

    have the police taken reports? Do you know if they have sent them to the DA? Have you spoken to a DV advocate or to your county's Victim-witness program? These other offices might be able to explain what is happening ... or, maybe not. You can also ask to speak to a supervisor at the police department and see if there is any explanation there as well.

    But, as for the incident you posted about, if the only way for him to leave his residence is to traverse a roadway within the 100 yard zone, then no DA is going to file that (alone) as a violation.

    This has been my house for thirty years and he just gets to move in and, essentially, trap me, into violating by his proximity to the only exit from my house. He keeps saying that I'm the one violating. It is all pretty defeating. Thanks for your input.
    Well, you are not subject to any order, so YOU can't violate it.

    Upon further reading, I think I may have found out why the police are not acting on this ... the restrained party is a younger male who sees you as a father figure? If he was not a romantic interest, then this is not likely a DVRO, it is a CHO (civil harassment order). As such, it is not seen quite as serious by law enforcement and not subject to the same mandatory arrest provisions as a DVRO. In some counties (mine included) the DA won't file on non-intrusive or violent violations and, instead, insists that the protected party report the violation to the issuing court ... which can be a hassle.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  5. #5
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    Default Re: Ca. Can This Be Enforced

    Thank for taking the time to reply.

    The police have taken reports for about half of the violations. He admitted, in family court mediation, to the mediator that he left that voicemail, "whether I was supposed to or not." There are other similar admissions, and he seems to be using "I'm sorry, I didn't know any better" as a way to get away with it, every time. For some reason, everyone, except DA Victim Witness, DVS, CWS, etc, think it's okay.

    I apologize for my convoluted description.

    Myself, my cohabitant, the boy, and my mother are protected parties. The restrained person is my age and is the biological father of the child.

    He admitted to knocking out three of my cohabitant's teeth, several years ago. "We were arguing" "I pushed her" "8 feet" "Into a bathroom countertop." "It was the worst thing I have ever done and I ask god for forgiveness everyday" is what he submitted to the court, regarding the incident. In the face of a rape accusation, where he almost choked her to death he said, "we had sex, but it was because we were going to miss each other." He admits that he was mad at her for finding out she was with me, before this sex and is on recording, in a conversation with a FCS mediator, referring to the incident as "the rape." There is also photographic evidence of severe damage that he did to her face. He claimed that she did it to herself.

    I am still flabbergasted that he is not in jail.

    At a FedEx in Eureka, in front of several employees and customers, on camera, while on the phone with his girlfriend, he said he was going to "smash your ****ing face in" to me and that he was coming for my mom. A week later, he is living 163 yards from my mom.

    Before we realized he was living 163 yards away, he was at the community pool and had contact with his son. He admitted this to the police as an accident.

    A few days ago, we have him on video, pulling up to the pool in the next neighborhood, since we don't use the one next to the house, anymore, where he parks and stares at us for about a half hour.

    Still, police make no arrest.

    The last visit, we got the advice you are stating... "Go to the court, see about having the radius of this circle reduced." WTF? RO states that no contact, no attempt to determine location, and stay away orders. Cannot get an arrest, still.

    Sorry to vent. But, that is where I'm at. Thank you for your explanation. It is a DVRO, and I cannot get any traction. It appears that a serious incident will come first, and he only acts exactly as much as he can get away with at any given moment. He has no job, but lots of drug money, so he can just f@#$ with us until he can make his move.

  6. #6
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    Default Re: Ca. Can This Be Enforced

    Quote Quoting embattled
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    Thank for taking the time to reply.

    The police have taken reports for about half of the violations. He admitted, in family court mediation, to the mediator that he left that voicemail, "whether I was supposed to or not." There are other similar admissions, and he seems to be using "I'm sorry, I didn't know any better" as a way to get away with it, every time. For some reason, everyone, except DA Victim Witness, DVS, CWS, etc, think it's okay.
    About all you can do is keep reporting the violations.

    I apologize for my convoluted description.
    Well, you DID say he refers to you as his "father." That has left me confused. So, I am unsure of what the relationship is here. If you are not a former romantic interest of his or the mother of the child, I am a little befuddled as to how this is actually a DVRO unless the primary protected party is someone else in your household and you are simply one of the other parties listed. In such a case, a lot may depend on what the primary protected party might be saying.

    He admitted to knocking out three of my cohabitant's teeth, several years ago. "We were arguing" "I pushed her" "8 feet" "Into a bathroom countertop." "It was the worst thing I have ever done and I ask god for forgiveness everyday" is what he submitted to the court, regarding the incident. In the face of a rape accusation, where he almost choked her to death he said, "we had sex, but it was because we were going to miss each other." He admits that he was mad at her for finding out she was with me, before this sex and is on recording, in a conversation with a FCS mediator, referring to the incident as "the rape." There is also photographic evidence of severe damage that he did to her face. He claimed that she did it to herself.

    I am still flabbergasted that he is not in jail.
    If she failed to report it all those years ago, that would be why. An admission after the fact without any proof contemporary to the time is nearly impossible to prosecute. Plus, depending on how many years have passed, the statute of limitations may have run.

    Given this description, I am thinking that it is your cohabitant that has the TRO against this guy, and you are listed as an additional protected party and NOT the plaintiff? If so, what is SHE doing about all of this? Is SHE reporting these violations to the police, or not? Or, is she making contrary or conflicting statements?

    At a FedEx in Eureka, in front of several employees and customers, on camera, while on the phone with his girlfriend, he said he was going to "smash your ****ing face in" to me and that he was coming for my mom. A week later, he is living 163 yards from my mom.
    And, you reported this to the police at the time? It may not have been actionable on its face, but, it would certainly be useful info to have on record for the TRO or any future acts of violence.

    A few days ago, we have him on video, pulling up to the pool in the next neighborhood, since we don't use the one next to the house, anymore, where he parks and stares at us for about a half hour.
    Should have called the police right then! If they contact him in violation of the order, and it is a DVRO, then it is a mandatory arrest. However, if the report is made sometime later, then it becomes less likely the arrest can be made at the time and they have to wait until the DA files and seeks an arrest warrant.

    Still, police make no arrest.
    If he is not there when they make contact, and they cannot contact him contemporaneous to the violation for which they have probable cause to believe he committed a crime in violating the DVRO, then they cannot - as a matter of law - arrest him.

    The last visit, we got the advice you are stating... "Go to the court, see about having the radius of this circle reduced." WTF? RO states that no contact, no attempt to determine location, and stay away orders. Cannot get an arrest, still.
    Well, either by design or happenstance, he is in a situation where he is forced to pass through the neighborhood to leave his residence. As such, it is highly unlikely any DA will file on such a case.

    The petitioner should speak to the DA about the case. It could be they have the case, but have not yet filed it because of staffing or other issues. Many cases right now are falling through the cracks.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  7. #7
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    Default Re: Ca. Can This Be Enforced

    The child refers to me as his father.

    You are right. Petitioner has the RO, and I am on it, with my mother and the child.

    Call the police every time, right then. He just leaves. They ask him questions. Nothing comes of it. It takes them a long time to arrive.

    He admitted to the knocking out of the teeth on an incident where mandatory reporters made the call. There is a police report. They did suspect he did it. She made no statement, he said it was a car accident. There are medical records, x-rays, etc. Plus, there is a visible scar on her face and you can clearly see where the teeth have been repaired.

    We bug the DA all the time. They refer to their giant stack of papers every single time. "Our stack is this big," then they show us their arms far apart.

    To give you an idea of how responsive they are, restrained person's drug dealing friend was caught on camera burglarizing a firearm from the residence. We had no idea they knew each other. He brought in the gun to the Humboldt County Sheriff, loaded, into the interrogation room, with one in the chamber. The Deputy claims he was arrested for a misdemeanor and two felonies, but he doesn't show up in the arrest records and the DA just refers to their giant stack when we ask about it. Sometimes I feel paranoid that a higher authority is at work, here.

  8. #8
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    Default Re: Ca. Can This Be Enforced

    Quote Quoting embattled
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    The child refers to me as his father.
    Okay. I thought you were referring to the restrained party.

    Call the police every time, right then. He just leaves. They ask him questions. Nothing comes of it. It takes them a long time to arrive.
    Unfortunately, that's the way of it. Calls are prioritized and law enforcement agencies in CA are woefully understaffed these days so response times for non-priority calls suffer.

    He admitted to the knocking out of the teeth on an incident where mandatory reporters made the call. There is a police report. They did suspect he did it. She made no statement, he said it was a car accident. There are medical records, x-rays, etc. Plus, there is a visible scar on her face and you can clearly see where the teeth have been repaired.
    There's the problem - she made no statement and he said it was a car crash. An uncooperative or contradicting victim can make a prosecution difficult, at best ... impossible, at worst. While it's possible a harder push might have made the case back then, it's impossible to know since the facts are not known (and, I doubt you were in the picture at that time, either). Second guessing something from years earlier does no good for now.

    We bug the DA all the time. They refer to their giant stack of papers every single time. "Our stack is this big," then they show us their arms far apart.
    Ours is the same way. We're lucky to get violent felonies filed. Court order violations without violence or threats? Not happening. At least, not for many months. They have one year to file, so you might have to wait until the last couple of months of the SOL before they take some action.

    To give you an idea of how responsive they are, restrained person's drug dealing friend was caught on camera burglarizing a firearm from the residence. We had no idea they knew each other. He brought in the gun to the Humboldt County Sheriff, loaded, into the interrogation room, with one in the chamber. The Deputy claims he was arrested for a misdemeanor and two felonies, but he doesn't show up in the arrest records and the DA just refers to their giant stack when we ask about it. Sometimes I feel paranoid that a higher authority is at work, here.
    The suspect showed up armed? And was escorted into an interrogation room?

    That's one I would think would have been filed ASAP.

    As for your significant other's situation, she might consider lighting a fire under victim-witness or a DV advocacy organization. Sometimes, if these organizations start bugging the DA, that can get the ball rolling if there's a ball to be pushed. But, SHE is going to have to be seen as the primary mover and shaker here - not you. YOU will likely be seen as a guy with an axe to grind whereas SHE will (or should) be seen as the "victim." Even though your name might be on the order as well, SHE will be the party most likely to enjoin sympathy.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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