APPELLANT HAD NO KNOWLEDGE OF THE CALIFORNIA DOMESTIC
VIOLENCE ORDER, WAS ADVISED THE COLORADO ORDER EXPIRED,
PETITIONER AND LEONARD COHEN WERE NOT IN A DATING RELATIONSHIP
AND SHE WAS DEPRIVED OF DUE PROCESS
In
order to prove a restraining order violation under California Penal
Code section 273.6, the prosecution must prove that: the court lawfully
issued a written restraining order; the court order was a restraining
order or protective order directed at specific conduct; the individual
knew of the court order; the individual had the ability to follow the
court order; and, intentionally violated the court order..
Petitioner
was unaware that a valid California order existed, was not served or
notified of that order, and was advised - by the Boulder County Court -
that the Boulder order had expired. In fact, one voice mail message
confirms that Petitioner was under the impression that the Boulder order
expired. The California order was not lawfully issued due to the fact
that Petitioner was never in a “dating relationship” with Leonard Cohen
and there was no domestic violence involved with the Boulder, Colorado
civil harassment order.. In order to be convicted of violating a court
order under California Penal Code section 273.6, the prosecution must
prove that the court order itself was lawfully issued.
Petitioner
did not waive her right to an evidentiary hearing and no evidence was
presented supporting Leonard Cohen’s application for a restraining order
- apart from his highly perjured declaration that Petitioner addressed
in her Motion to Quash. If a restraining ordered is invalid or
illegally issued, an individual is not bound by its terms and cannot be
convicted for a violation of that order. A restraining order can be
invalid if the court lacked jurisdiction to issue such an order or the
facts on which it was based are clearly false or misleading. Finally,
with respect to the domestic violence order, a dating relationship is
required. Petitioner and Cohen did not have a an intimate dating
relationship.
Leonard Cohen Cross:
Public Defender: Okay. Now, you also mentioned earlier that there was
a brief intimate relationship between you and Ms. Lynch, correct?
Cohen: That’s correct. Kelly: Now, being that she was your business
manager, you wouldn’t say that was probably the best idea, to have a
romantic relationship with your business partner, correct? Cohen: I
don’t think it goes the the description of romantic. Kelly: Okay, but
it was a sexual relationship, correct? Cohen: It was an intimate
relationship, yes. Kelly: Was it a sexual relationship? Cohen: It
involved a sexual - yes. Kelly: Not, it was -- it was actually
spanning years, correct? Cohen: I’m sorry? Kelly: It actually spanned
years, correct? Cohen: I don’t know how long it lasted, sSr. ...
Kelly: But you would agree with me that it was on and off for a period
of time? Cohen: Yes, sir. (RT 275) Kelly: When did it end? Cohen:
I don’t remember exactly when it ended. Like many relationships, it -
it just dissolved. (RT 276) Kelly? Okay. Do you remember testifying
on March 23rd at another hearing? March 23rd, yes. Of this year. You
were in this courthouse testifying, correct? Cohen: That is correct.
Kelly: Now, you were asked if this was -- if your relationship with
Ms. Lynch was purely a business relationship. Do you remember that?
Cohen: I did. Kelly: And you actually said that it was, yes, purely
a business relationship. (RT 276) Cohen: I have said repeatedly that
there was an intimate relationship, but the lady denies it. So I did
not want to insist. Kelly: I’m not asking you about what Ms. Lynch
said. I’m asking about what you said. You said that yes, that it was
purely a business relationship, correct? Cohen: May I explain? Kelly:
I’m just asking for if that’s what you said on March 23rd. Cohen:
Yes. Kelly: In fact, you were asked a follow up question that --
asking you if that was the extent of it, and again you said yes, that
was the extent of it. Cohen: Correct. (RT 277) And finally, there
was a question about a previous testimony that you’ve given, the
description of your relationship with Ms. Lynch. Why at that hearing
did you say that you only had a business relationship with Ms. Lynch?
And not just once or twice. Why did you say that? Because, as it
turns out, the friendship Ms. Lynch displayed was false and deceptive,
so it was not really a friendship. Kelly: Objection. The intimate
relationship we had, she denies. So I’m not going to insist. So,
therefore, it was not -- from that point of view, there was not an
intimate relationship
and
there was not a friendship; it was all business. It was all business
from the point of view of Ms. Lynch. Kelly: Objection; speculation as
to what Ms. Lynch thought. Court: Overruled. The question was why he
did it, and he’s testifying to his subjective reason. (RT 319-320)
Kelly: When you testified on March 23rd, you said that -- you didn’t
give the same answer that you gave now, correct, regarding your
relationship with Ms. Lynch? Cohen: That’s correct. Kelly: Okay.
But you -- when you did testify, you stood in front of the counsel
table, you raísed your right hand, correct? Cohen: Correct. Kelly:
You swore to tell the truth, the whole truth? Cohen: Correct. Kelly:
And then the same oath that you just took right now, correct? Before
testifying, correct? Cohen: Correct. Kelly: Okay. And you
understand that you were under the penalty of perjury on March 23rd?
Streeter: Objection; argumentative. Court: Sustained. Kelly:
Nothing further. (RT 321-322)
Petitioner
contests the validity of the California restraining order Leonard Cohen
registered on May 25, 2011 for lack of jurisdiction under the [84 Cal.
App. 4th 400] Domestic Violence Prevention Act (DVPA or the Act) (Fam.
Code, § 6200 et seq.). The Act extends protection to individuals who are
or have been in certain relationships with the perpetrator of defined
types of abuse, including "a dating or engagement relationship." (Fam.
Code, § 6211, subd. (c).) The DVPA provides for issuance of orders "to
restrain any person for the purpose of preventing a recurrence of
domestic violence and ensuring a period of separation of the persons
involved, if an affidavit shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300.)
"Domestic violence" is defined in section 6211 of the DVPA as "abuse
perpetrated against any of the following persons: (a) A spouse or
former spouse; (b) A cohabitant or former cohabitant, as defined in
Section 6209; (c) A person with whom the respondent is having or has had
a dating or engagement relationship; (d) A person with whom the
respondent has had a child, where the presumption applies that the male
parent is the father of the child of the female parent under the Uniform
Parentage Act; (e) A child of a party or a child who is the subject of
an action under the Uniform Parentage Act, where the presumption applies
that the male parent is the father of the child to be protected; and,
(f) Any other person related by consanguinity or affinity within the
second degree." Petitioner and Leonard Cohen were not in any one of the
above defined relationships that would permit him to obtain a domestic
violence restraining order .
When
registering the Colorado civil protection order, Leonard Cohen sought
the protection of the DVPA under subdivision (c) of Family Code section
6211. Petitioner contends the Court erred in registering the Boulder
civil harassment order - that can only be modified by the original court
- as a domestic violence order because it failed to take into
consideration the fact that Lynch and Cohen were not in a “dating
relationship” of any type whatsoever. Lynch and Cohen’s business
relationship, that also included a friendship, is insufficient to meet
the definition of the DVPA.
The
legal questions these issues present are with respect to the fact that
Petitioner and Cohen were never in a "dating relationship" as used in
the DVPA as well as the fact that the court had no jurisdiction to have
Petitioner arrested for violating an order (or being in contempt) she
was not notified of or served. The restraining order was not valid and
lawful and the arrest was unlawful.