Domestic Violence

Being arrested for a domestic violence crime sets in motion numerous issues that should be addressed as soon as possible. Below is a brief overview of how this type of offense is processed from the point of arrest, through the various possible proceedings, and the potential consequences if convicted. As you read through, remember that every case is different and it is important to meet with an experienced attorney to make a plan as soon as possible to create the best chance for as favorable an outcome as possible.

Persons Who Are Included in Domestic Violence

Family Code 6211 Defines those who are Included in crimes of domestic violence. This code is broadly inclusive of the types of relationships which automatically classify criminal charges as acts of domestic violence. Although the most common pertain to persons who are currently, or whom have been in the past, in a marital or dating relationship, it can extend to family members (i.e siblings) and even include roommates or former roommates.

And remember, this is ANY charge in which the alleged victim has any one of the following relationships to the accused, even if it’s not one we traditionally think of with domestic violence.

Domestic violence is any charge in which the alleged victim is

• A spouse or former spouse.
• A cohabitant or former cohabitant, as defined in Section 6209.
• A person with whom the respondent is having or has had a dating or engagement relationship.
• A person with whom the respondent has had a child (including legal presumptions of parentage even if not an actual biological child). where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).
• 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.
• Any other person related by consanguinity or affinity within the second degree.

Arrest and Prosecution

Once an arrest is made, the decision to prosecute lies squarely with the prosecutor’s office who will often proceed forward vigorously regardless of whether the alleged victim desired the arrest or subsequent prosecution. The prosecutor takes this position because domestic violence is often hidden from the public eye and is repetitive without steps to address the underlying causes. Unfortunately, this position also takes the power away from the alleged victim in that 1) often the statements made the night of the arrest can be inaccurate as to what actually happened and, 2) it removes the alleged victim’s ability to create their own path to addressing the issues without the added stress caused by law enforcement intervention and criminal prosecution.

Emergency Protective Order (EPO)

When an arrest is made, the alleged victim will be offered an emergency protective order. This order will last for 5 calendar days with the intent to allow for a cooling off period and to give the alleged victim the opportunity to file for a Domestic Violence Restraining Order if desired (See DVRO below)

Domestic Violence Restraining Order (Civil Proceeding)

A DVRO is a purely civil restraining order and sought by the alleged victim and not the prosecutor. The prosecutor has no say or role in this proceeding. If filed, a temporary DVRO restraining order is often granted until the outcome of a future hearing date. This temporary restraining order too requires the relinquishment of firearms to a law enforcement agency or licensed firearm dealer immediately upon being served with the temporary DVRO restraining order Where there are minor children in common, this filing greatly complicates the criminal case as there are usually orders made regarding contact with the minor children. These temporary orders can even include a “move-out order” forcing the accused to leave their own home. (See Violation of a Domestic Violence Restraining Order under Commonly Associated Charges below)

Must be Personally Present at Arraignment & Criminal Protective Order (CPO)

While in almost all cases, a retained attorney can appear for their client at an arraignment hearing, the law requires the accused to be personally present at the arraignment hearing in a domestic violence case regardless of the nature of the alleged offense and regardless if the offense is a misdemeanor or felony. Penal Code 977(a)(2).

Part of the reason for this personal appearance requirement is that the court will issue a criminal protective order at the arraignment that needs to be personally served on the accused.

Criminal Protective Order - As the Emergency Protective Oder (EPO) will likely have expired before arraignment on criminal charges, the court will issue a criminal protective order. The prosecutor will seek a no-contact and 100-yard stay-away order often without having any contact with or input from the alleged victim. The prosecutor will seek these strict conditions even where they know the alleged victim does not desire such an order. The alleged victim can request a “peaceable contact order” which allow for in-person, electronic and other communication so long as it is peaceable. This order does require the accused to turn over all firearms to a licensed gun dealer or law enforcement agency. If you own or possess firearms, it is much better to address this issue prior to the arraignment hearing and the imposition of this CPO.

Most Common Charges – Domestic Battery

Domestic Violence Battery – Felony (Penal Code 273.5)

Willful infliction of a corporal injury resulting in a traumatic condition upon a victim who is

• The offender’s spouse or former spouse.
• The offender’s cohabitant or former cohabitant.
• The offender’s fiancé or fiancée, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243.
• The mother or father of the offender’s child (a person shall be considered the father or mother of another person’s child if the alleged male parent is presumed the natural father under Sections 7611 and 7612 of the Family Code)

A “traumatic condition” means 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. For purposes of this section, “strangulation” and “suffocation” include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.

Punishment - As a felony offense and can carry up to four years in state prison where probation is not granted. Even where probation is granted on a felony conviction, you are subject to up to one year in county jail and fine of up to six thousand dollars ($6,000) and other Mandatory Terms and Conditions of Probation (see below)

If charged or convicted of a misdemeanor Penal Code 273.5, you can be sentenced to up to one year in county jail, a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment, and other Mandatory Terms and Conditions of Probation (see below)

A Penal Code 273.5 conviction is a lifetime loss of the right to own or possess a firearm or ammunition.

Prior Convictions

Penal Code 273.5 convictions are priorable offenses. This means a person has prior misdemeanor or felony conviction, a new offense will have enhanced and more severe penalties.

Domestic Violence Battery - Misdemeanor (Penal Code 243(e)(1))

This charge is the exact same charge as Penal Code 273.5 except that is does not require the infliction of a “traumatic condition”.

Punishment: A conviction carries up to one year in county jail, a fine up to two-thousand ($2000), and probation with other Mandatory Terms and Conditions (see below). California law mandates a 10 year prohibition on owning or possessing a firearm or ammunition. Federal law mandates a lifetime prohibition on owning or possessing a firearm or ammunition.

Broad Jurisdictional to Charge Out of County Crimes

Domestic Violence is one of the few areas where other alleged incidents of domestic violence can be charged in the county you are being prosecuted even if those allegations occurred in a completely separate county.

Common Defenses to Domestic Battery

Self-defense - the prosecutor must prove, among other things, that the assault or battery was not done in lawful self-defense.

Defense of Others - the prosecutor must prove, among other things, that the assault or battery was not done in defense of others. This can include protecting minors or other persons present from harm. This defense can even include actions that prevent the alleged victim from harming themselves. One such example that I have encountered more than once is where the alleged victim, after a heated argument, decides to leave the house while intoxicated to drive away from the situation and the accused used reasonable force to prevent the alleged victim from driving in a heavy state of intoxication.

Nature and Cause if the Injury - often injuries observed by law enforcement are not from the incident upon which the accused was arrested. Sometimes those injuries are from prior fights with a completely different situation, from accidental sources, and in a rare occasion, self-inflicted.

Commonly Associated Charges

Below are other common charges that are charged with Domestic Battery. All of them require the same mandatory terms and conditions of probation outlined above.

False Imprisonment (Penal Code 236/237) - This occurs when a person is held against their will or is prevented from movement. For instance, not allowing or blocking someone from leaving a particular room or residence is false imprisonment. If the prevention of movement is accomplished by force or violence, it elevates the punishment even more. As a felony, punishment includes up to three years in state prison. As a misdemeanor, punishment includes up to one year in the county jail.

Threat of Causing Bodily Injury or Death (Penal Code 422) - As a felony, punishment includes up to three years in state prison. As a misdemeanor, punishment includes up to one year in the county jail. This is a serious felony under the three strikes law.

Child Endangerment (Penal Code 273(a) or Penal Code 273a) – Domestic violence committed in the presence of children or where a child is actually placed in harm's way is considered child endangerment. Punishment can include up to six years in state prison. If probation is granted, the court will impose a minimum four-year term of probation, up to a year in county jail, and a mandatory 52-week child abuse classes. The punishment for child endangerment can vary greatly depending upon the specific code section alleged.

Vandalism (Penal Code 594)– The damaging, defacing or destroying property of another. This includes the destruction of jointly owned property. As a felony, punishment includes up to three years in state prison. As a misdemeanor, punishment includes up to one year in the county jail.

Assault with a Deadly Weapon or Assault with Force Likely to Cause Great Bodily Harm (Penal Code 245) – Punishment includes up to four years in state prison. This can be a serious or violent offense under the three strikes law depending on what weapon was allegedly used (i.e - a firearm versus a glass bottle). If a motor vehicle is the alleged weapon, a conviction results in a lifetime loss of driver’s license.

Preventing Another from Calling Law Enforcement (Penal Code 591) - This usually entails taking or preventing access to a phone to summon law enforcement. As a felony, punishment includes up to three years in state prison. As a misdemeanor, punishment includes up to one year in the county jail.

Violation of a Domestic Violence Restraining Order – DVRO (Penal Code 273.6) - This is a misdemeanor offense and punishment included\s up to one year in the county jail. If injury is suffered by the protected party, there is a minimum 30 days in county jail as well. If there is a prior conviction within one year, this can be elevated to a felony offense with up to 3 years incarceration. A conviction for this offense as a misdemeanor or felony is a lifetime loss of firearm rights.

Mandatory Terms & Conditions When Probation is Granted (Penal Code 1203.097)

Upon conviction of misdemeanor or felony domestic violence charge as defined by the Family Law Code 6211 (see above) there are mandatory terms and conditions if probation is granted. The law requires these conditions even if the charges are reduced from felonies to misdemeanors or potentially even charges that on their face do not appear to be domestic violence related. Penal Code 1203.097(c)

• Minimum of three-year probation period
• 52-week anger management - once a week batterer’s intervention program with court status reviews to ensure you are in compliance.
• Lifetime loss of firearm rights – California State law states that a conviction under Penal Code 273.5, as a felony or misdemeanor, is a lifetime loss of firearm rights while a conviction of PC 243(e)1) is a 10-year prohibition. This is the same 10-year firearm prohibition for any assault ot battery in the State of California). Federal law states that any conviction for domestic violence is a lifetime ban on owning or possessing a firearm This applies equally to Penal Code 273.5 and Penal Code 243(e)(1).
• Post-Conviction Criminal Protective Order – generally same as the CPO but for the entire period of probation. This can be a no-contact or a peaceable contact order.

Potential Effect on Family Law Proceedings

A conviction in criminal court can have serious implications in a family law child custody and/or divorce proceeding as the court will make legal presumptions based on the conviction alone that can affect child custody orders and the ability to be awarded spousal support issues. It becomes quite the nefarious tactic for a spouse that is the wage earner to allege ongoing domestic violence in an effort to avoid, in part or entirely, paying otherwise required spousal and/or child support. It is always best to consult with a family law lawyer in addition to a criminal defense attorney if these are potential issues for you.

Early Legal Intervention

It is imperative to make early contact with an experienced lawyer to make a proactive plan which may include making contact with the prosecutor prior to charges being filed in an effort to prevent charges from being filed or if charges are going to be filed, to seek reduction of the severity of the charges upon which the arrest was made.

If you or a loved one has been arrested for a crime of domestic violence, it is important to seek counsel as soon as possible to help navigate the issues that arise from the arrest and the criminal court case that follows. Call us to schedule a confidential consultation so we can discuss your particular situation and how best to proceed.