Domestic violence is a hugely debated, highly emotional, and largely misunderstood area of criminal defense. It’s difficult to have a meaningful discussion with almost anyone on the subject matter without somebody becoming upset or emotional. The reason for this friction is unfortunately because everyone has known someone to have experienced this form of violence in some manner based on ordinary day-to-day human dynamics.
The problem with this once it gets to the courtroom–is that this is one of the most abused of all crimes based on false-accusations. Hurtful and vindictive spouses have routinely used this criminal offense because they have known for quite some time now that someone will be arrested by the time the police come to the door and it’s usually the one who did NOT call them to come to the house. The brutal truth to the other side of the coin however, is that both police officers and prosecutors and judges all know this to be true as well. The difficult part in all of this is trying to prove it.
When the officer arrives on scene to a domestic violence call and places one of the parties under arrest, the officer will ask the victim whether they want an emergency protective order (EPO). The EPO is granted ex parte by an on call judge that the officer requests the EPO from. The EPO extends for 5 business days, which is the time the officers and District Attorney’ office uses to build the case before filing charges. It is crucial that if you have been arrested for domestic violence, you contact an attorney right away, because if an EPO was granted there will be court within that week to determine whether a criminal protective order should be placed.
These five days after arrest are crucial, if the police call you to get a statement (or if any unrecognized number calls, really) let them leave a message, or if you must answer the phone, answer and refer them to your lawyer. All police phone calls are being recorded, and any promises the police may make you will not be enforced by the district attorney’s office. If you have been arrested, you have been given your Miranda rights, which means the right to remain silent. Officers are serious about that when they say “anything you say can and will be used against you in a court of law”, because it actually will. If you have been arrested for domestic violence, contact Kaspero law immediately, talking to the police will just hurt your case.
There are two common charges to domestic violence.
The first is usually called a “domestic battery” under Penal Code Section 243(e)(1). Domestic Battery Someone can be arrested or charged for this offense if they (1) willfully inflict (2) force or violence (3) on their intimate partner. Unlike PC 273.5, it does not require that the victim be injured in any way. Prosecutors much prefer a conviction for PC 273.5, but if the evidence is weak, or for other tactical purposes (for example to avoid immigration consequences in exchange for more jail time), the prosecutor may reduce the charge to a PC 243(e)(1).
The other type of domestic violence charge is the “Corporal Injury to a Spouse, Cohabitant, or fellow Parent”. The new statute has been broadened in the last couple years to include a girlfriend or boyfriend.
This is under Penal Code Section 273.5 in California. To be arrested or charged with this offense, they must (1) inflict bodily injury on a current/former spouse (or) current/former cohabitant (or) the mother/father of that child and (2) they have willfully inflicted the injury and (3) the injury resulted in a traumatic condition.
The traumatic condition is a wound that resulted from an application of force. To make it easy, the traumatic condition must usually be visible (i.e. blood or bruises, including a black eye). A traumatic condition is the result of an injury if (1) the traumatic condition was a natural and probable result of the injury (2) the injury was a direct and substantial cause of the traumatic condition and (3) the condition would not have happened without the injury.
In California PC 273.5 is a wobbler, which means it can be charged as either a felony or a misdemeanor.
Defenses to PC 273.5 include (1) self defense, (2) you didn’t willfully injure your accuser and (3) you were falsely accused. The sad fact about domestic violence arrests is they are one of the most common crimes you can be falsely accused of.
Self defense means that:
(1) you reasonably believed you or another person was in imminent danger of suffering bodily injury or at risk for being touched unlawfully;
(2) you reasonably believed that immediate use of force was necessary to defend against that danger;
(3) you used no more force than was necessary to defend against that danger;
If we can prove the above mentioned elements, you are not guilty of domestic violence because you acted in self defense or defense of another.
You’re only guilty of domestic violence if you acted willfully. To break it down a bit, “willfully” means that you acted on purpose or willingly, this does not mean that you intend to injure the person. If there was an accident where another person was injured, you did not act willfully and you cannot be found guilty of domestic violence.
As one can imagine, when two lovers, parents, intimate partners quarrel…all’s fair in their minds. In other words, “all is fair in Love and War.” Therefore, physical violence sometimes makes emotional and logical sense to one or both people. Unfortunately, sometimes picking up the phone and accusing the other person of committing a crime against them is also fair. Often the case comes down to one partner hurting the other in some way (either through dishonesty or infidelity or any kind of irresponsible action), and that is surely enough to set off the other with this kind of accusation.
A commonly charged crime in a domestic violence case is PC 422, criminal threats. Criminal threats can almost be anything, and they are tricky for the prosecutors. Often, the DA may charge PC 422 only to dismiss it at a later time. The best advice for preventing a charge of PC 422 criminal threats, is do not ever, ever say you’re going to kill someone. Just don’t do it. But, if you’re reading this, it’s probably too late because the alleged incident has already occurred.
Another charge to watch out for is a charge of PC 415, disturbing the peace, which is a low level misdemeanor, sometimes even an infraction.
If there is going to be some kind of altercation, make sure the kids aren’t around. If there are children present during a domestic violence incident, even if you are not charged with domestic violence, even if you are the victim you can be charged with PC 273d, child abuse, or PC 273a, child endangerment, or PC 270, child neglect. This invokes all kind of issues with child custody, child support, alimony, Child Protective Services will often become involved, and the entire ordeal becomes a real mess. So if you’re going to fight with your partner, make sure the kids aren’t around.
There are some crimes that aren’t necessarily considered domestic violence crimes that we have to worry about in the new technology age that previous generations did not have to worry about. Specifically, PC 591, which is damaging a telephone line. We’ve all been there, you’re on the phone with the some kind of cable provider or other 1-800 number, where you’re on hold and you just want to pull the phone cord out of the wall or smash your cell phone because no one is getting back to you and you can’t stand the on hold music for another 45 minutes. That is one thing, to rip the phone out the wall during an argument with your spouse or to smash their cell phone, can be charged as a felony on a misdemeanor depending on the severity.
Another crime to worry about now is PC 647(j)(4) which is Revenge Porn, which has been recently been a popular topic in the media, due to the harsh punishments imposed for even first time offenders (commonly teenagers and young adults). Another online crime is PC 653.2, which makes it a misdemeanor to release harmful information on the Internet.
A “sideways” witness is somebody who claims something occurred when they first talked to police–but then some something completely different by the time they testify in court. We call this going “sideways” in the law. An interesting facet of this criminal offense is that because so many false accusations and witnesses who go “sideways” in court, the law allows prior acts of domestic violence (1101(b) Evidence) to be introduced into court to establish whether or not someone (the defendant) has a propensity for violence. After all, if someone gets away with this kind of offense and the victim continuously takes back their accusation once the courts get involved, it seems fair to some that we are allowed to hear as potential jurors what the defendant has done in the past to the victim or other victims. To some, this is a blatantly unfair way to try a case in front of a jury because it denies a person the right to cross-examine some witnesses or to be judged based on the evidence itself as it stands. Others feel differently about this since it gives a closer look into the history of a person’s life and look past someone’s spouse or partner protecting the accused from liability. The issue will forever keep people from seeing eye-to-eye because it will always bring up the classic topics of “the battle of the sexes”. But it’s the writer’s opinion that domestic violence is at the center of what it is like when the law and our private lives clash for interests. Some people want the government to have no part in what happens in the household–which others feel that it is the state’s duty to regulate violence in any form even if it impedes on our private lives. There is no clear answer unfortunately. And we must leave it to the law and the courts try to fix these problems on a daily basis.
At Kaspero Law, we understand what it is like to be wrongfully accused of a crime, which is why we work with you personally to mitigate the harm to your life both now and in the long run.
Having a criminal conviction on your record is never good, even misdemeanors have can have many consequences, both directly and collaterally. Direct consequences are legal punishments imposed by the court; these include most commonly, jail fines and mandatory classes. Collateral consequences include loss of professional licenses, loss of vouchers/public benefits, loss of residency status/potential deportation issues, trouble getting a job and the loss of the right to own a firearm.
Direct consequences of a domestic violence conviction may include jail time, if you do not consult an attorney quickly. A felony conviction for PC 273.5, the defendant may face up to 2, 3 or 4 years in state prison (5 years if you have a prior conviction for domestic violence within 7 years). A misdemeanor conviction of PC 273.5 carries a maximum sentence of 1 year in county jail and a fine of up to $6,000 ($10,000 if you have a prior domestic violence conviction within 7 years). Additionally, if the injuries to the alleged victim are severe, you may face sentencing enhancements for inflicting great bodily injury, which can lead to another 3-5 years for even a misdemeanor PC 273.5.
Even a misdemeanor conviction can warrant a jail sentence or 30 days or more in most counties. In the alternative, if you are able to hire an attorney that can build your defenses and represent you, jail time may be converted into community service, house arrest, and volunteer work.
In addition to jail time, most prosecutor’s offices routinely impose additional sanctions, such as a 52 week batterer’s treatment program, or anger management class or counseling. If alcohol was involved, AA meetings or an alcohol treatment program. However, the court will consider a variety of factors at sentencing, including the seriousness of injuries to the alleged victim and your criminal record, if any.
In addition, you will be put on probation, but the terms will vary based on whether the conviction was a misdemeanor or a felony. Part of the terms of probation may include paying restitution to the victim, if there is any hospital bills/property damage. In addition to the above-mentioned consequences, it is likely that the judge will grant a restraining order or protective order (discussed above) that will bar your contact with the alleged victim for up to ten years.
If you’re not a United States citizen, a conviction for domestic violence may have immigration consequences because it is a crime of moral turpitude. A conviction for a crime of moral turpitude for a non-citizen may result in deportation or ineligibility for naturalization, both which are serious consequences. Obviously, for immigration purposes, a felony conviction is normally more serious than a misdemeanor conviction, even one of moral turpitude. This is why it is imperative to hire an attorney to mitigate any potential immigration issues, to give you the best chance of having the least amount of long term repercussions.
Landlords will use criminal background checks to see whether or not someone will be a problem where future police calls for services will be needed
Like most convictions in California, a domestic violence conviction will stay on your record if anyone does a background check, which can lead to housing issues and employment consequences, like the loss of a professional license. (See our article on criminal background checks and effect of convictions on certain licenses for specifics).