In domestic violence cases, the magistrate will issue a restraining order against the defendant on the day of arraignment, if one has not already been issued by the arresting officer. To ensure the safety of the victim and to prevent the defendant from attempting to intimidate or persuade the victim from not testifying, the restraining order will generally restrain the defendant from contacting the victim. An exception to this restraining order is that the Defendant's attorney and the attorney's investigator may contact the victim or witnesses in an attempt to interview and communicate with them with regard to the facts of the case. Therefore, any attempt on the part of the Defendant to communicate with the victim not only will be a violation of the restraining order but may be construed as an attempt to prevent or dissuade the victim from testifying.
Defenses to Penal Code 136.1
Some applicable defenses against a charge for Penal Code 136.1 are:
1. Evidence that the defendant was a family member who interceded in an effort to protect the witness or victim creates a presumption that the act was without malice;
2. Defendant was not acting with malice;
3. The Defendant did not attempt to persuade or intimidate the victim from not testifying;
4. Misunderstanding; and
5. Allegation is made by the accuser out of spite.
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