Facing Criminal Charges For Domestic Violence? The Sooner You Act, the Stronger Your Defense Will Be.
Defending California Domestic Violence Charges
Our domestic violence attorneys can help people fight back. Legal defenses to these charges include showing that:
It was an accident;
The injuries did not result from the defendant's actions;
The defendant acted in self-defense or defense of another person; or
The victim made a false accusation.
Sometimes we can convince the prosecutor not to pursue a criminal case at all. Or we can negotiate a favorable plea bargain to a lesser charge. And if what our client needs is help, we do our best to see that he or she gets treatment instead of jail time.
What is the legal definition of “domestic violence” in California?
California Penal Code 13700 defines “domestic violence” as abuse committed against an intimate partner. A person commits “abuse” when he or she intentionally or recklessly uses, or threatens the use of, physical force against an intimate partner.
Who counts as a victim?
For purposes of criminal law:
California domestic violence laws define “domestic violence” as abuse against an “intimate partner.” An “intimate partner” is defined as:
A current or former spouse,
A current or former registered domestic partner,
A current or former fiancé(e),
A current or former live-in romantic partner (a “cohabitant”),
A person with whom the accused has, or has had, a child, or
Someone the accused is seriously dating or has seriously dated in the past.
For Purposes of Custody Disputes:
The California Family Code has a longer list of people who can be considered victims of domestic violence. In addition to intimate partners, victims can include:
The defendant's child, or
Any other person related by to the defendant by consanguinity (blood) or affinity (marriage) within the second degree, including:
Brothers and sisters,
Half-brothers and half-sisters,
Step-brothers and step-sisters,
Aunts and uncles, and
Nephews and nieces.
These additional categories are important for purposes of California custody laws, discussed in Section 4.5, below.
What Are The Common Domestic Violence Crimes And Penalties?
Common crimes of “Domestic Violence” in California include battery, abuse, threats, and neglect. Some of these offenses are misdemeanors. Others are felonies. But most of these crimes are California “wobbler” offenses. A “wobbler” is a crime that can be charged as either a misdemeanor or a felony, depending on:
The circumstances of the offense,
The seriousness of the alleged victim's injuries (if any), and
The defendant's criminal record (if any).
Penal Code 273.5, Corporal Injury To A Spouse or Inhabitant:
Penal Code 273.5 makes it illegal to inflict a "corporal injury" that results in even a slight physical injury to an intimate partner. PC 273.5 is a felony. Possible penalties for a first offense range from one (1) year in county jail to up to four (4) years in California state prison.
Penal Code 243(e)(1), Domestic Battery:
Penal Code 243(e)(1) – California's domestic battery law -- makes it a misdemeanor to inflict force or violence on an intimate partner. Unlike Penal Code 273.5, this California domestic violence law does not require a visible injury. Domestic battery is a misdemeanor. Punishment can include a fine of up to $2,000, and/or up to one (1) year in county jail.
Penal Code 273d, Child Abuse:
Penal Code 273d PC California's “child abuse” law, makes it a crime to inflict corporal punishment or injury on a child. Reasonable spankings are excluded, but any punishment that is cruel or causes injury is considered child abuse in California. A first offense for child abuse can be punished by up to one (1) year in county jail or up to three (3) years in state prison. Hitting a child with a hangar is not a “reasonable spanking” under California's child abuse laws
Penal Code 273a, Child Endangerment:
Penal Code 273a PC California's child endangerment law, makes it a crime to willfully allow a child in one's care to:
Suffer harm, or
Have his/her safety or health endangered.
A mother who permits her boyfriend to beat her 6-year-old, or
A parent who operates a dangerous meth lab in the same home where his/her child lives.
If the child is at risk of great bodily injury, the crime is a “wobbler.” Otherwise, child endangerment is a misdemeanor, punishable by up to six (6) months in jail.
Penal Code 270, Child Neglect/Failure To Provide Care:
California's “child neglect” law, Penal Code 270 PC, makes it a crime for a parent to willfully fail to provide necessities (like food, shelter, medical care, etc.) to his or her minor child. Child neglect is a misdemeanor. It can be punished by a fine of up to $2,000 and/or up to one (1) year in county jail.
Penal Code 368, Elder Abuse:
Penal Code 368 PC, California's law on elder abuse, makes it a “wobbler” to inflict any of the following on a victim 65 years of age or older:
As a misdemeanor elder abuse can be punished by up to one (1) year in jail. As a felony, elder abuse penalties can include up to four (4) years in state prison. Abuse of a senior citizen is a California crime of domestic violence that can affect custody rights.
Penal Code 422, Criminal Threats:
California's “criminal threats” law, Penal Code 422 PC, makes it a crime to threaten someone with serious harm. PC 422 may be charged as a misdemeanor or a felony. As a misdemeanor, criminal threats can be punished by up to one (1) year in jail. As a felony, potential penalties can include up to four (4) years in prison. Plus, a felony conviction counts as a strike under California's “Three Strikes” Law.
Penal Code 646.9, Stalking:
Penal Code 646.9, California's “Stalking Law", prohibits:
Harassing or threatening another person,
To the point at which the person fears for his/her safety or the safety of his/her family.
Stalking can be a misdemeanor or a felony, depending on the defendant's criminal history.
Misdemeanor stalking can be punished by up to one (1) year in jail. As a felony, stalking penalties can include up to three (3) years in prison
Penal Code 591, Damaging A Telephone Line:
Penal Code 591 PC is California's law on "Damaging A Telephone Line." It makes it a crime to cut or otherwise damage a phone line or phone equipment. An example is a domestic abuser who prevents his/her victim from making a phone call.
PC 591 can be charged as a misdemeanor or a felony. If charged as a felony, penalties can include a fine of up to $10,000 and/or up to three (3) years in prison.
Penal Code 601, Aggravated Trespass:
Someone commits Penal Code 601 PC “Aggravated Trespass” when he or she:
Makes a criminal threat, and
Within the next 30 days enters that person's home or workplace to carry it out.
Aggravated trespass can be either a misdemeanor or a felony. Punishment for a felony violation can include up to three (3) years in jail.
Penal Code 647(j)(4), Revenge Porn:
The misdemeanor crime of “Revenge Porn” -- PC 647(j)(4) -- is a type of “Cyber-Harassment.” It occurs when someone:
Intentionally distributes sexual photos of another person (such as an ex-girlfriend or ex-wife),
With the intent to cause that person emotional distress.
Revenge Porn can be punished by a fine of up to $1,000 and up to one (1) year in county jail.
Penal Code 653.2, posting harmful information on the internet:
PC 653.2 - posting harmful info on the internet – is a relatively new misdemeanor offense. Also known as "indirect electronic harassment,” it consists of:
Posting or emailing harmful information about someone,
With the intent of causing other people to harass that person.
PC 653.2 is often charged when someone uses the internet to get revenge on the other party in a domestic dispute.
It can be punished by a fine of up to $1,000 and/or up to one (1) year in jail.
When Can A Defendant In A Domestic Violence Case Receive Probation Instead Of Jail Time?
A judge may be willing to sentence a domestic abuser to probation if:
It is the defendant's first offense, or
The victim's injuries are not significant.
Probation is more likely when the case is prosecuted as a misdemeanor. This is because felony charges are typically brought only when the victim suffers a significant injury. And even if the judge sentences the defendant to probation, many of the consequences listed below will still apply. But, the defendant will be sentenced to a minimum of jail time. In exchange, he or she will be subject to conditions, such as the ones set forth in Section 5, below. If the defendant violates probation conditions, the judge can revoke probation and send the defendant to prison or jail.
Additional Consequences Of A California Domestic Violence Conviction
A conviction for battery or abuse often results in more than just incarceration and a fine. Additional consequences of a California domestic violence conviction can include some or all of the following:
Mandatory minimum jail time:
Most California counties impose a minimum jail sentence of 30 days for a domestic violence conviction. This is true even if the charge is a misdemeanor and it is the defendant's first offense.
Payment of victim restitution & domestic violence fund:
Someone convicted of domestic violence may be ordered to pay victim "restitution" in California. Such restitution can include the victim's:
Mental health counseling,
Lost wages, and/or
The defendant will also have to pay $500 to fund domestic violence programs in California.10
Participation in a “batterers' program":
Judges almost always require convicted batterers to attend a year-long treatment and counseling program. 11
This is true even if the defendant is sentenced to “summary” (misdemeanor) probation or “formal” (felony) probation in lieu of all or part of a defendant's sentence.
Permanent criminal record:
Perhaps worst of all is that a DV conviction goes on the defendant's permanent criminal record.
The conviction will appear anytime someone does a routine background check. This can make it difficult to gain employment, state licensing, housing or other benefits.
Loss of custody rights:
Domestic abusers are usually prohibited from getting custody of their minor children in California. But they are still often able to obtain visitation rights. Note that for purposes of determining custody, a criminal conviction is not required for a family law judge to determine there was domestic violence. But a judge will definitely decide there was domestic violence if one parent was convicted of a crime of domestic violence against the other parent within the previous five years. See Family Code Section 3044. Consequences of a California domestic violence conviction can include a loss of custody rights
Loss of gun rights
A California domestic violence conviction will almost always result in a loss of the right to own or possess a firearm. Unfortunately, for the reasons set forth below, there is no way to recover lost gun rights after a domestic violence conviction.
After a misdemeanor conviction:
Under California Penal Code 29805, most misdemeanor DV convictions result in a ten-year firearms ban. A misdemeanor conviction of violating Penal Code 273.5 PC (corporal injury on a spouse or cohabitant will carry a lifetime loss of gun rights. But if the offense is one that qualifies as a misdemeanor crime of domestic violence ("MCDV") under federal law, a conviction will result in a firearm ban for life.
After a felony conviction:
Penal Code 29800 PC is California's “felon with a firearm” law. It imposes a lifetime firearms ban on people who have been convicted of a felony offense in any state or country.
So if you are convicted of DV as a felony, both California and federal law prohibit you from ever legally possessing a gun.
Can a pardon or expungement restore gun rights after a domestic violence conviction?
Federal law imposes a lifetime firearms ban after a domestic violence conviction. The only way to remove the federal firearms ban is with a Presidential pardon. But such pardons are seldom granted. To learn how to apply for a presidential pardon, please see the United States Department of Justice pardon information and instructions.
California law allows a victim of domestic violence to apply for an emergency restraining order (also known as a "protective order"). A DV restraining order can be obtained in either civil or criminal court. No physical harm is required for a protective order. An alleged victim does not need to have suffered physical harm in order to obtain a protective order in California. The person filing the petition simply needs to prove that:
Someone has abused or threatened to abuse the petitioner or the petitioner's minor child, and
The alleged abuser is an intimate partner or a first- or second-degree relative.
Violation of a protective or restraining order:
California law makes it a crime to violate a restraining order.
Violation of a protective order is usually a misdemeanor as long as the victim wasn't hurt.
Common defenses to a charge of violating a protective order include taking the position that:
The protective order wasn't legally issued;
The defendant didn't know about the restraining order;
The defendant didn't intentionally violate the order; or
The defendant was falsely accused.
Many California domestic violence convictions count as an "Aggravated Felony" or a “Crime Involving Moral Turpitude” (“CIMV”) under U.S. Immigration Law. Conviction on these charges can subject a non-U.S. citizen to:
Inadmissibility to the United States -- including ineligibility to apply for a green card or an adjustment of status (from illegal to legal).
So before pleading guilty, it is critical that a non-citizen consult with a knowledgeable California domestic violence lawyer. Our criminal attorneys may be able to negotiate a plea bargain that avoids the negative immigration consequences of a domestic violence conviction. Arguments in front of children can sometimes lead to false accusations of California's domestic violence laws, with devastating consequences.
Defending Against California Domestic Violence Charges
Legal defense strategies:
There are numerous legal defenses that a criminal defense attorney can assert. Some of the most common include taking the position that:
The other person's injury was the result of an accident;
The alleged victim's injuries did not result from the defendant's actions; or
The defendant was acting in self-defense or defense of someone else.
The defendant is being falsely accused due to:
Anger or jealousy,
An attempt to gain the upper hand in divorce or child custody proceedings, or
Any other reason.
Plea bargains to lesser charges:
An experienced defense attorney can sometimes negotiate a plea bargain to a lesser offense. Pleading guilty to a lesser offense can help a defendant avoid the stigma and negative consequences of a domestic violence conviction.
Two of the most common lesser offenses a domestic violence defendant may be able to plead to are:
Advantages of pleading to one of these crimes can include:
Retention of the right to own a firearm,
No automatic loss of custody rights, and
No deportation or inadmissibility for non-citizens.
Another legal strategy often pursued by a defense attorney is to try to get a pre-trial diversion program or deferred entry of judgment ("DEJ") for the accused batterer.
With pretrial diversion, if the defendant successfully completes a batterers' program, the charges will be dismissed and cease to exist for most purposes.
Eligibility for pretrial diversion depends on:
The specific charges,
Where the accused batterer resides, and
The accused's criminal history (if any).
Talk to our domestic violence attorney to find out whether a pre-trial diversion program is available in your jurisdiction.
How can a California domestic violence lawyer help?
California law enforcement agencies take claims of DV quite seriously.
Someone accused of hitting or threatening a spouse or child may find him- or herself cut off from family and unable even to go home. Our criminal defense attorneys include have decades of experience investigating and trying cases of alleged abuse. We understand how judges decide when to issue a restraining order and what punishment is merited.
When we get involved early in a case we can often persuade the prosecutor not to file charges. Or we can negotiate a plea bargain that allows our client to avoid the negative consequences of a domestic abuse conviction.
And if your case does go to jury trial we will make sure your side of the story is presented. Contrary to what you may have heard, it is possible to win a domestic violence case.
Our criminal lawyer will give you a FREE initial meeting to discuss your case and recommend a course of action. Even one hour talking to a true professional can change the way you view your case. Don’t face a Domestic Violence Charge without representation. We at Monterey Peninsula Law Inc. are here to help.
Call Us For Your Free Consultation Today!