Contempt of Court – Penal Code 166

Contempt of Court – Penal Code 166

Contempt of Court in California – Family Law and Criminal Law

There are several types of contempt proceedings in California.  Generally, contempt proceedings in family law are quasi-criminal and may subject the citee to jail time and/or a fine depending on the seriousness of the contempt proceedings.    Family law contempt proceedings  are governed by California Code of Civil Procedure Section 1209 while Criminal Contempt Proceedings and violation of a stay away protective orders are governed by Penal Code Section 166.

Family Law Contempt Proceedings – California Code of Civil Procedure Section 1209

Family law contempt proceedings are commenced by a party filing an Order to Show Cause along with an Affidavit for Contempt.  The affidavit is a sworn written statement by the moving party declaring under penalty and perjury under the laws of the State of California that the foregoing statements alleged are true and correct.   The moving party completes family law FL-410 and states how the citee willfully disobeyed certain orders of the court.  A contempt proceeding is quasi-criminal.  At the hearing, the judge will make determination as to whether the person is guilt of the contempt charge.  If the judge finds that the defendant is guilty of contempt, he may impose a maximum of 5 days jail or a fine of up to $1000 or both.  The citee is not entitled to trial by a jury but the citee does have a right to an attorney.  The moving party must prove that there was a valid court order, the defendant had knowledge of the court order; and the defendant willfully disobeyed it.

In Los Angeles Superior Court, after the court has made a determination of guilt or innocence regarding the contempt proceedings, the judge will make an order regarding punishment (up to 5 days in jail or fine of up to $1000 or both).  In addition to the court’s punishment, the court may also award the party initiating the contempt proceedings the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding if successful. California Civil Procedure Section 1218(a).  

A successful contempt proceeding provides substantial leverage in family dissolution matter and subjects the defendant to significant hardship. It empowers the other party in bringing forth additional motions and actions in the family law proceedings.  Whether the issue is failure to pay child support, spousal support, or visitation rights, winning a contempt proceeding changes the court’s perception of the party who violated the court’s order.  This becomes a major advantage for the other party in a family dissolution proceeding.  

On the flip side, if the defendant hires a qualified Los Angeles defense attorney who is able to show to the court that the contempt proceeding was done in bad faith and that the defendant did not violate the court’s order, then the defendant may ask the court for his attorneys’ fees pursuant to California Code of Civil Procedure section 128.5(a).   The court may order a party to pay the reasonable expenses, including attorney’s fees and other costs, incurred by the opposing party as a result of bad-faith actions or tactics taken by a litigant that are frivolous. Under this section, actions or tactics include making motions or the filing and service of a responsive pleading. Cal. Code Civ. Proc. §128.5(b)(1). The filing and service of a contempt affidavit is such an action. Id. This section defines frivolous as being totally and completely without merit or for the sole purpose of harassing an opposing party. Id. at §128.5(b)(2). Expenses pursuant to this section may be awarded after notice and opportunity to be heard. Id. at §128.5(c).

Arthur Khachatourians has successfully defended against contempt proceedings in Los Angeles Superior Courthouse and obtain attorneys’ fees in favor of his client.  In one instance, father had filed contempt proceedings against his ex-wife alleging that she had purposely violated the court’s order by placing the child in the middle of the communications between the parents, interrupting the child during father’s time to harass father, and disregarded the proper use of Family Wizard.  

Through oral testimony and introducing documentary evidence, Mr. Khachatourians demonstrated to the court that the mother did not violate the court order and in fact it was father who violated it and he was attempting to “beat her to the punch” by filing a contempt proceeding before mother did so.  The Los Angeles Superior Court Judge not only denied father’s contempt proceeding, but awarded Mr. Khachatourians’ client his attorneys’ fees and costs.


Criminal Contempt Proceedings – Penal Code Section 166

Unlike family law, in a criminal contempt proceeding the defendant is entitled the right to a jury since the defendant may face jail time for no more than a year. The People have the burden to prove the case beyond a reasonable doubt that the defendant violated the court’s order.  To prove that the defendant is guilty of Penal Code section 166, the People must prove that:

  1. The court issued a written order that the defendant act in a certain fashion;
  2. The defendant knew about the court order and its contents;
  3. The defendant had the ability to follow the court order; and
  4. The defendant willfully violated the court order.

The defendant acts are willfully when he or she does it willingly or on purpose. It is the People burden to  proove that the defendant knew about the court order and that the defendant had the opportunity to read the order or to otherwise become familiar with what it said. The People just need to show that he had an opportunity to read and do not need to prove that the defendant actually read the court order.  

One example is the stay away order is given to the Defendant in custody and another inmate takes the order from him and destroys it, not providing the Defendant an opportunity to read the order.  When the Defendant comes out of custody, he goes back to see his kids who are staying with the victim, and violates the court’s order.

Allegation that the Victim Sustained Injuries as a Result of Violating Court’s Order

If the People are also alleging that the victim sustained injuries as a result of the defendant violating the court’s order, the jury must also make a determination as to whether the defendant’s conduct resulted in physical injury to another person.  It may just be that the victim is fabricating the circumstances as to get the defendant in further trouble in order to use it as leverage in the family dissolution for child custody.  The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.

Allegation Regarding Acts of Violence

With respect to allegation of acts of violence, the California jury instructions state that if the jury finds the defendant guilty of violating a court order, the jury then must decide whether the People have proved that the defendant’s conduct involved an act of violence or a credible threat of violence. A person makes a credible threat of violence when he or she willfully and maliciously communicates a threat to a victim of or a witness to the conduct that violated a court order. The threat must be to use force or violence against that person or that person’s family. The threat must be made with the intent and the apparent ability to carry out the threat in a way to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

California Penal Code 166 requires willfulness of the act.  Someone commits an act willfully when he or she does it willingly or on purpose. Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.

Is the Court Order a Lawful Court Order?

A defendant may challenge the court’s order collaterally on the basis that the court order was not lawful and that it violated the defendant’s constitutionally protected rights.  When the issue is whether the court’s order was lawful, the jury instructions include the words “lawful order” for the jury to make a determination.

Enhancement for Prior Violation of Court Order

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, the jury must also determine if the prior conviction has been proved unless the defendant stipulates to the truth of the prior conviction.

Violation of Order to Pay Support—Court May Suspend Proceedings

If the defendant is charged with violating Penal Code section 166(a)(4) based on a failure to pay child, spousal, or family support, the court may suspend criminal proceedings if the defendant acknowledges his or her obligation to pay and posts a bond or other surety. (Pen. Code, § 166.5.)

Person Not Directly Bound by Order

A person who is not directly bound by a court order may nevertheless violate Penal Code section 166(a)(4) if he or she acts in concert with a person who is directly bound by the order. (People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 978–979 [168 P.2d 497]; Berger v. Superior Court (1917) 175 Cal. 719, 721 [167 P. 143].) “[A] nonparty to an injunction is subject to the contempt power of the court when, with knowledge of the injunction, the nonparty violates its terms with or for those who are restrained.” (People v. Conrad (1997) 55 Cal.App.4th 896, 903 [64 Cal.Rptr.2d 248] [italics in original].) The mere fact that the nonparty shares the same purpose as the restrained party is not sufficient. (Ibid.) “An enjoined party … has to be demonstrably implicated in the nonparty’s activity.” (Ibid.)

Violating Condition of Probation is not Contempt

A defendant may not be prosecuted under Penal Code section 166(a)(4) for violating a condition of probation. (People v. Johnson (1993) 20 Cal.App.4th 106, 109 [24 Cal.Rptr.2d 628].) If the defendant is being accused of violating probation, the defendant is entitled to a probation revocation hearing.  The judge determines probation revocation hearings and not the jury. Mr. Khachatourians is highly experienced in handling probation revocation hearings in Los Angeles. Mr. Khachatouriains has successfully intervened and provided the court the additional facts and circumstances as well as mitigating factors that warrant reinstating the defendant back on probation as oppose to imposing sentencing.   

  1.  (a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: (1) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding. (2) A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding. (3) Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service. (4) Abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court. (5) Disobedience of any lawful judgment, order, or process of the court.  (6) Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.  (7) Rescuing any person or property in the custody of an officer by virtue of an order or process of that court.  (8) Unlawfully detaining a witness or party to an action while going to, remaining at, or returning from the court where the action is on the calendar for trial.  (9) Any other unlawful interference with the process or proceedings of a court.  (10) Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness. (11) When summoned as a juror in a court, neglecting to attend or serve as a juror, or improperly conversing with a party to an action to be tried at the court, or with any other person, in relation to the merits of the action, or receiving a communication from a party or other person in respect to the action, without immediately disclosing the communication to the court. (12) Disobedience by an inferior tribunal or judicial officer of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after the action or special proceeding is removed from the jurisdiction of the inferior tribunal or judicial officer.


California Civil Procedure Section 1218.  (a) Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), payable to the court, or he or she may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.


In order for a defendant to be guilty of violating Penal Code section 166(a)(4), the court 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].) 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.)