Domestic Violence
Domestic Violence Basics
Domestic abuse is defined by California as when a person inflicts physical injury on a former or current spouse, cohabitant, or a mother or father of one’s child deliberately. The injury can be something minor, like a: scratch, redness, swelling or bruising; or something more serious, like a: broken nose, concussion, or fractured bones. However, the injury must be visible. Domestic abuse cases can be prosecuted as a felony, or as a misdemeanor, depending on the defendant’s criminal record and the details of the case, and are therefore classified as a “wobbler offense“.
A good criminal defense attorney may leverage this to the defendant’s advantage during the plea bargaining stage, opting for a misdemeanor with option to expunge in a year, if no better strategy is possible.
Let’s Get Your Felony Domestic Charges Reduced or Dropped
In 2010 he was selected as one of the 70 attorneys to hold the distinction of “Certified Specialist“.
If you’ve recently been accused of domestic abuse or a related crime, it’s imperative to hire a criminal defense attorney with experience in cases involving the following domestic violence charges:
- Corporal injury, Cohabitant abuse (PC 273.5)
- Domestic Battery (PC 243(e)(1))
PC 273.5 convictions could result in heavy fines and mandatory county jail or even a state prison sentence.
The earlier you call, the greater your chances are of winning the case. (877) 705-0052
Domestic Violence Laws in Los Angeles
Charges Associated to Domestic Violence Offenses
1. Physical Assault
California Penal Code §273.5 – Corporal Injury
California Penal Code §273.5, Physical assault involves any form of physical harm inflicted upon an intimate partner, such as hitting, slapping, or pushing. In Los Angeles, physical assault in a domestic context is charged under PC 273.5. A conviction for physical assault can result in severe penalties, including imprisonment.
California Penal Code §243(e)(1) – Domestic Battery
California Penal Code §243(e)(1) is also a domestic violence offense, but is considered to be a less serious offense. The difference is that, unlike corporeal injury or cohabitant abuse, domestic battery under California Penal Code §243(e)(1) has no requirement that the victim actually suffered any injury.
This is also a worthwhile venture if the individual accused is undocumented. As will be discussed below in further detail, California Penal Code §273.5 can have serious consequences for an undocumented individual. If convicted under California Penal Code §273.5, the individual can be deported, in addition to receiving a sentence of no right of re-entry into the country after leaving, no possibility of becoming a U.S. citizen, and no right to apply for a green card or an “adjustment of status.” Therefore, if at all possible, pushing for a reduction in sentencing from §273.5 to §243(e)(1) is essential.
When defending against physical assault charges, our attorneys meticulously analyze the evidence and witness testimonies. We challenge any inconsistencies or exaggerations in the prosecution’s case and consider any claims of self-defense. Our goal is to protect your rights and present a strong defense.
2. Threats
California Penal Code §422, Threats of violence, whether verbal or through intimidating behavior, are also considered domestic abuse. This can include threats to inflict harm upon an intimate partner or their property. Charges of threats are filed under California Penal Code §422.
3. Sexual Offenses
Sexual offenses, such as rape or attempted rape, can also occur in the context of domestic violence. Rape within a domestic relationship is a grave offense that involves non-consensual sexual intercourse. These charges are heavily penalized under California law.
4. Stalking
California Penal Code §646.9, Stalking involves repeated unwanted attention or harassment that creates fear in the victim. In a domestic context, stalking can include following, monitoring, or repeatedly contacting the victim. These cases often involve complex evidence, including electronic communications.
5. Kidnapping
California Penal Code §207, Kidnapping in a domestic violence context involves forcibly taking or holding someone against their will. This can include taking a child or partner without their consent. Kidnapping charges in domestic violence cases are severe and require a vigorous defense strategy.
When defending against sexual offense charges, our attorneys meticulously examine all available evidence. This includes scrutinizing the credibility of testimonies and any physical evidence. We aim to challenge any inconsistencies in the prosecution’s case and provide a robust defense to protect your innocence until proven guilty.
6. Child Endangerment
California Penal Code §273(a) is charged if child endangerment occured. If there is an allegation that a child was present or involved in the domestic violence dispute, an individual can also be charged with Child Endangerment, under California Penal Code §273(a). For instance, if a wife attacks a husband with a knife and there are kids in the room, the person may have put the children at risk of suffering bodily injury. The charge of California Penal Code §273(a) would be charged in addition to the California Penal Code §273.5 charge. California Penal Code §273(a) is a wobbler that can be charged as a misdemeanor or a felony. However, the determining factor in bumping it up to a felony is usually if the individual put the child at risk of great bodily injury or death.
NOTE: DCSF CAN TAKE YOUR KIDS AWAY
If a domestic violence incident happens in front of an individual’s children, the Department of Children and Family Services (DCFS) will get involved and attempt to remove the children from the home. Under these circumstances, it is imperative that the individual NOT speak to the DCSF. Not only can they use your statements to remove the children from the individual’s custody, but those same statements can and most likely will be used against the individual in the criminal domestic violence case. The golden rule here, as in with pretty much all interactions with law enforcement of any kind, is do not speak with them if you don’t have to and contact a criminal defense attorney immediately.
7. Elder Abuse
California Penal Code §368(a) states, “The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.” California Penal Code §368(b) goes on to say essentially that it is a crime to willfully or negligently impose unjustifiable physical pain or mental suffering on an elderly or dependent adult.
An allegation of domestic violence where the victim is 70 years or older may subject you to additional liability of Elder Abuse under California Penal Code §368. This is a usually a crime that is charged against people who are taking care of or in charge of older people, such as a caretaker or adult child. Elder abuse is a serious domestic violence crime that can land you in prison for three years if the victim is under 70, and five years if the victim is 70 years of age and older. If the domestic violence offense ultimately leads to the elderly individual’s death, the sentence gets bumped up to five years for under 70 years of age and seven years if the victim is 70 years of age or older.
8. Disturbing the Peace
Under California Penal Code §415, it is a crime to unlawfully fight or challenge to a fight a person in a public place, maliciously and willfully disturb another person by loud and unreasonable noise, and use offensive words in a public place which are inherently likely to provoke an immediate and violent reaction. It is not uncommon for a prosecutor to reduce an original charge of domestic violence to one of disturbing the peace if a plea bargain can be arranged with the defense attorney. This is worthwhile to pursue because unlike domestic violence, disturbing the peace can be either a misdemeanor offense or the even lesser infraction (which is known as a “wobblette”). Furthermore, disturbing the peace carries none of the stigma and baggage associated with domestic violence, nor any of the immigration or employment consequences.
Legal Penalties for Domestic Violence Offenses
The legal penalties for domestic violence offenses in Los Angeles can be severe, depending on the nature and severity of the offense. Domestic violence charges can be filed as either misdemeanors or felonies, with the severity of the penalties determined by the circumstances of the case and the defendant’s criminal history.
If convicted for a misdemeanor, the defendant could face the following penalties:
- A maximum of one year in county jail and/or
- Maximum fines of $6,000
- 3 years of informal probation
For a felony, the defendant could be sentenced to:
- Two, three, or four years in state prison
- A maximum fine of $6000
- 5 years of formal probation
The earlier you call, the greater your chances are of winning the case.
Defenses Against Domestic Violence Charges
Self-Defense or Defense of Others
If you reasonably believed that you or someone else was in immediate danger of harm, you may assert self-defense or defense of others as a defense strategy. This defense asserts that your actions were necessary to protect yourself or another person from harm.
False Allegations
In some cases, individuals may be falsely accused of domestic violence due to misunderstandings, personal vendettas, or manipulation. A defense based on false allegations involves demonstrating inconsistencies in the accuser’s story or providing evidence that disproves the allegations.
To provide context, here are some real-life examples:
- A wife is angry at her husband because she suspects him of cheating on her after looking through his cell phone. A heated verbal argument ensues where the police are ultimately called. The wife falsely accuses her husband of domestic violence because she is so incensed.
- A husband is trying to get an advantage over his wife in a divorce and child custody battle so he accuses his wife of domestic violence to use as leverage.
Lack of Evidence
Accident or Mistake
Lack of Willful Intent to Harm
Domestic Violence in Detail
What is the Definition of Domestic Violence in California?
Most of these terms are in common usage, but what about “cohabitant?” Used in the context of California Penal Code §273.5(a), a cohabitant is not simply a person that lives with the individual. Under the law, to determine of two people are in cohabitation, the law examines whether or not the two individuals maintain a single residence, consummate the relationship while maintaining the single residence, share financial responsibilities for living expenses, and jointly own property associated with the residence. Other factors that can be examined to determine cohabitation in a domestic violence case include the length of the relationship, any statements by the individuals involved confirming that they are in a domestic partnership of some kind, and the length of the relationship. Essentially, looking at all of these factors and various relationship structures, any person that an individual has lived with and been in an intimate relationship with at some point in time can qualify as an appropriate victim under California Penal Code §273.5.
Now that we have established the necessary people involved for a charge of domestic violence, another key term to understand when looking at domestic violence in California is “traumatic condition.” To qualify as a traumatic condition, California Penal Code §273.5(d) states that the inflicted injury must be a “condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force.” The language of California Penal Code §273.5 is fairly specific in calling out strangulation and suffocation, but is still broad enough to include myriad other injuries, including external bruising, internal bleeding, or even open wounds. The condition does not need to be life-threatening in order to qualify as a traumatic condition. Instead, it only needs to be a natural and probable consequence of the physical force used. The standard here would be if a reasonable person would expect the type of traumatic condition to result from the physical force in question.
A final key element to the crime of domestic violence in California involves the issue of “willfully.” As with many crimes, the legal principle of mens rea is essential for proving a case of domestic violence under the penal code. Literally meaning “guilty mind” in Latin, California criminal law looks to the intent and mental state of the individual in question. For domestic violence, this principle is written directly into the penal code through the use of the term “willfully.” In order to be found guilty of domestic violence, as codified in California Penal Code §273.5, an individual must be aware of and know that his or her actions will result in the previously defined traumatic condition. The infliction must be done knowingly, deliberately, and intentionally. If the traumatic condition is the result of simply wanton or reckless behavior, then it is lacking the requisite mental state to qualify as domestic violence. However, an important distinction to understand is that the individual need not have intended to break the law. Willfulness only goes to the intentionality of the act itself, not in breaking the law per se.
Now that we have defined fully what constitutes domestic violence under California Penal Code §273.5, as well as examined all of its moving parts and terms, it is time to examine what happens once an individual has already allegedly committed the offense and enters the criminal justice system. Remember, it is important to bear in mind that the earlier a domestic violence attorney is contacted in the process of dealing with an issue under California Penal Code §273.5, the better the result is likely to be.
Recalcitrant Victims, Testimony Reversals in Domestic Violence Cases
In these situations, the police and prosecution consider this to be a “recanting victim.” What this means is that the state and its agents will continue to believe the original account and that the alleged victim is simply making up a new story to either protect the individual or because they are being coerced by the individual. Under these circumstances, even though neither the alleged victim nor the individual accused of domestic violence want to proceed with the prosecution of the charges under California Penal Code §273.5, the prosecution can, and all too often, will, proceed with the case. This is important to keep in mind in the heat of the moment, as there are life-altering consequences once charges have been filed.
However, if the accuser has now changed their story but the prosecution still wants to proceed with the domestic violence case, this is not necessarily a bad thing and can in fact still be quite helpful. The prosecution’s main asset in successfully prosecuting a domestic violence case is usually the alleged victim. Therefore, a reluctant victim means the prosecutor may see their case as weak or hard to prove. This will often lead to a significantly better outcome for the accused individual, and, in fact, can sometimes lead to an outright dismissal of the domestic violence charge.
Technically, if an alleged victim in a domestic violence case refuses to testify, they can still be compelled to appear in court. However, even if they are served with a subpoena and forced to appear, they can still refuse to testify without the fear of being jailed. California Civil Code §1219 provides protection to victims in domestic violence cases from the usual consequences of refusing to testify, namely being jailed for contempt. But, this does not mean that the individual is out of the woods yet. Given the way that the rules of evidence work, the prosecution can still use the alleged victim’s previously given statements if they are considered “excitable utterances”. This excitable utterances exception will lead to the exclusion of all comments except those made during the actual event itself to law enforcement, often times during an emergency 911 call. Anything that falls outside the “excitable utterance” category is considered “hearsay”, and will not be admissible. However, sometimes these excitable utterance statements can provide enough damning evidence even without the live testimony of the alleged victim.
A reluctant witness can make it harder to prove a domestic violence case against an accused individual because (1) they may not show up to court (2) they may testify to things that are inconsistent with what they told the police and therefore their credibility will be compromised and (3) they may admit that they lied to the police in the first place. However, even if an alleged victim refuses to testify, they will still most likely have to take the stand. While on the stand, if the alleged victim makes comments other than affirming that they will not testify, these new statements can be used to bring in other evidence. For example, if the alleged victim of domestic violence states that they are withdrawing what they said previously or that they had been previously lying about the domestic violence encounter, this will allow the prosecutor to bring into evidence through other witness testimony all previous statements made by the alleged victim that contradict these new statements. Because of the intricate manner in which these rules of evidence interconnect, it is important to have the counsel of a skilled domestic violence attorney.
Protective Orders and Domestic Violence
Given that in many if not most of these instances, because domestic violence necessitates an intimate relationship between the individuals, the two people involved live together, this restraining order inherently places extreme hardship on the accused individual. If the accused and the alleged victim of the domestic violence live together, the accused individual will be forced to find a new place to live while still paying their share of the rent for the shared residence. In addition, if the accused and the alleged victim have children, the protective order will prevent them from seeing each other. Also, in the event that the alleged victim decides they want to change their story, and the accused and the alleged victim decide they want to discuss the case together and coordinate a defense, they will be prevented by law from talking to each other because of the protective order.
What this does mean though is that if the individual has already posted bail, but has not yet gone to the arraignment hearing, they may still be able to talk to the alleged victim. Because the timeline here can get tricky, the accused individual should always consult with a criminal defense attorney beforehand. A violation of a protective order will present further difficulties for the individual, and therefore the guidance offered by a skilled domestic violence attorney is of paramount importance.
Domestic Violence is a “Wobbler” Offense
A “wobbler” is a crime that can be filed either as a misdemeanor or felony in California. When the arrest is for domestic violence, an individual is almost always booked as a felony. However, this does not necessarily mean it will stay a felony. Even if the prosecutor files the domestic violence charge as a felony, a criminal defense attorney can ask the Judge to reduce it pursuant to California Penal Code §17(b)(5) to a misdemeanor because it is a wobbler offense.
The Judge has the power to do this and may consider myriad supporting facts, including but not limited to an individual’s previous criminal record, their previous domestic violence-specific charges, the extent of the injuries, any mitigating circumstances or evidence including good character references, the strength of the case, and the reputation of the individual within the community.
Given all the variables at play when attempting to make a felony into a misdemeanor, it is important to consult with a trained criminal defense attorney concerning the issue of wobblers.
Bail for Domestic Violence
As such, $5,000 is a lot of money. This being the case, an individual might want to speak to a criminal defense attorney first, as often times an attorney can get the individual out without having to pay any money. This is known as an OR (Own Recognizance) release. When trying for an OR release, the Judge will consider whether the individual is a flight risk or a potential danger to the community. For the most part, people charged with domestic violence are neither, and therefore they are presumptively eligible for an OR release. However, knowing how this system works is key, therefore hiring a criminal defense attorney to help guide an individual through this process is important.
Early Intervention in Domestic Violence Cases
Given this, the earlier an individual is able to present their point of view and perspective on an incident, the broader the context becomes for the law enforcement officers and prosecutors involved in the case. This allows the incident to become less black and white. That being said then, the earlier an individual hires a criminal defense attorney, the higher the likelihood of success as they are better able to protect themselves against making a mistake. In addition, they are also able to put their best foot forward in presenting a balanced picture of things. Therefore, the greatest asset an individual has when ensnared in the criminal justice system, whether for domestic violence or any other issue, is their criminal defense attorney.
Loss of Rights if Convicted of Felony Offense
A conviction of California Penal Code §273.5(a) or 243(e)(1) will result in the loss of your gun rights. Previously, this loss of gun rights was for an individual’s lifetime if convicted of a felony, or for 10 years if convicted for the misdemeanor offense. However, on August 28, 2018, California lawmakers approved a bill that extended the 10 year to a lifetime ban as well for those convicted of misdemeanor domestic violence.
Consequences on Immigration Status
Unfortunately, domestic violence carries with it severe consequences for non-citizens. California Penal Code §273.5 is a deportable offense and if the accused individual is not a citizen, then it is imperative that they hire a qualified attorney to help advise them on how to prevent deportation or exclusion from naturalization and citizenship. Deportable crimes are enforced by the Department of Homeland Security and include the following crimes in California: (1) those involving domestic violence (2) those involving “moral turpitude,” (3) those which involve possession or sale of drugs (controlled substances) (4) a list of felonies which are considered “aggravated felonies” and (5) offenses involving guns.
Furthermore, domestic violence also qualifies as an “inadmissible crime,” meaning that it carries with it a no right of re-entry into the country after leaving, no possibility of becoming a U.S. citizen, and no right to apply for a green card or an “adjustment of status.” This means, in short, that the individual would be barred from ever changing their status from illegal to legal immigration status.
Expungement of a Domestic Violence Conviction
Although expungement does not extend to felonies, you can have it reduced to a misdemeanor under California Penal Code §1203.4. If an individual successfully completes probation and are is not facing a new offense, they are eligible for their felony to be reduced.
The Legal Process in Domestic Violence Cases
1. Arrest and Booking Procedures
If you are arrested for a domestic violence offense, you will undergo arrest and booking procedures. This includes providing personal information, fingerprints, and photographs.
2. Arraignment and Bail Hearings
During the arraignment, you will hear the charges against you and enter a plea. Bail hearings may also take place to determine whether you will be released from custody and under what conditions.
3. Pre-Trial Proceedings
4. Trial
If your case proceeds to trial, both the prosecution and defense will present their arguments and evidence before a judge or jury. It is crucial to have a skilled Los Angeles Domestic Violence Attorney by your side to navigate the complexities of the trial process and present a strong defense.
5. Sentencing
Related Articles:
For more information, please read:
