The state of California's domestic violence laws are written in a manner designed to prevent violence in the home. California identifies acts of domestic violence as having occurred when one commits a criminal act within a relationship type specified by the state's Penal Code. These acts can occur between spouses or former spouses, cohabitants, former roommates, parents with whom one has a child an individual one is dating. In many cases, domestic violence occurs in combination with child abuse.
Domestic Violence Charges
When the prosecutor charges an individual with a domestic violence-related crime, there is a good chance multiple sections of the state's Penal Code will apply. The prosecutor can select the criminal charges worth pursuing based on a number of different factors. Examples of such considerations include the conduct's severity, the harm caused to the victim and the case's unique circumstances.
A Closer Look at the Penal Code 242
It is interesting to note Section 242 of the state of California's Penal Code provides a detailed definition of battery. It is defined as a willful yet unlawful use of violence or force against another individual. Section 243 criminalizes such battery within the family/intimate relationships outlined above. The prosecutor can also choose to charge the defendant with battery under section 243(d) if the individual in question caused serious injury to the victim. This section of the state's Penal Code makes it clear battery has a considerable degree of harm in the context of domestic violence.
Furthermore, the state's Penal Code criminalizes domestic violence with Section 273.5. If an individual's willful behavior causes a corporal injury that leads to a traumatic condition suffered by a victim who has a familial or intimate relationship with the aggressor, the action is criminalized according to the Penal Code.
The Option of a Restraining Order
State law permits domestic violence victims to apply for an emergency order for protection and restraining in civil and criminal court. The issuing of a restraining order does not hinge on the visibility or extent of the victim's physical harm. It is possible for someone who suspects imminent harm or has endured emotional abuse to qualify for protection through the state's legal system.
The Consequences of a Domestic Violence Conviction in the State of California
An individual who is convicted of domestic violence in the state of California will face time in jail or prison. It is also possible for this person to face a criminal fine. Sentences for a conviction of domestic violence in California have the potential to include a mandatory minimum jail stay of at least 30 days. The vast majority of the state's counties have this minimum jail sentence for those found guilty of domestic violence. This mandatory minimum jail time holds true even if the charge in question is a misdemeanor or if it is the defendant's initial offense.
There is also the potential for the guilty party to be forced to pay restitution to the victim. Victim restitution payments are sometimes a component of the defendant's sentence. Restitution covers the cost for things like lost wages, medical bills, property damage and mental health counseling. Most defendants are forced to participate in a program for batterers. The typical judge requires participation in this year-long treatment program. This experience provides important counseling. Those who are sentenced to summary probation or formal probation will also obtain considerable benefit from participation in such a program.
Perhaps the worst part of being found guilty of domestic violence is the fact that it creates a criminal record. All domestic violence convictions in the state of California go right onto your permanent criminal record. The conviction will pop up in the future whenever someone performs a routine background check for a job, rental property, license or something else that is important. Furthermore, domestic abusers are not permitted to obtain custody of minor children. Though domestic abusers can certainly obtain visitation rights to spend time with their offspring, they will not be able to obtain full custody due to their violent behavior in the past.
The consequences of being found guilty of domestic violence extend all the way to immigration. Plenty of California's domestic violence convictions qualify as aggravated felonies or crimes that involve moral turpitude under the United States immigration law. A conviction on such charges will subject an individual who is not a legal citizen of the United States to deportation from the country and/or inadmissibility to the country in the future. Finally, a conviction of domestic abuse can prevent one from legally owning a gun. You read that right. If you are found guilty of domestic violence, you will have a felony conviction that prevents you from owning a firearm.
The Prospect of a Plea Bargain for a Lesser Charge
It might be possible to negotiate a plea bargain that prevents the harsh consequences of a domestic violence conviction. There is a considerable stigma associated with a domestic violence conviction. You do not need such a conviction to haunt your personal and professional life for decades to come. A plea bargain can also prove helpful for a defendant who is a non-citizen. Such an individual might be able to avoid immigration consequences tied to aggravated felonies and crimes related to moral turpitude by opting for a plea bargain.
Meet with an Attorney to Discuss Strategies Like the Pre-trial Diversion Tactic
Savvy California domestic violence attorneys know the best strategies for negotiating a pre-trial diversion, also referred to as a deferred entry of judgment for the accused party. Once the defendant has completed a program for batterers, the charges can be dismissed and there will be no record of existence for most purposes.
Legal Defenses Against Charges of Domestic Violence
Hire the right attorney and you will find there are all sorts of legal defenses against accusations of domestic violence. Some of the more popular legal defenses against these charges include claiming one is being falsely accused. It is actually quite common for individuals to be falsely accused by angry family members. Some people will simply make up claims that the party in question hurt them when in reality, the damage was inflicted by someone else or an accident. Even if the police can't pinpoint contradictions in statements, your attorney may be able to do so.
Others have successfully argued the defendant acted in self-defense or was simply defending another person. In some situations, the use of force to defend oneself or another against imminent physical harm is justified under the law. This is an affirmative defense legal strategy in which the attorney must prove all elements of self-defense in order for the jury or other trier-of-fact to reach a verdict of not guilty. These elements include a reasonable belief imminent danger was present, physical force was necessary for defense and no more force was used than necessary.
Some have argued the supposed injures do not stem from the defendant's actions. It has been successfully argued the plaintiff's injuries were the result of a slip and fall or other unfortunate accident. If it can be proven the defendant did not have willful intent to harm the plaintiff, it will be difficult to reach a guilty verdict. The aggressor must have the intention of harming the family member or intimate partner.
As an example, if there is an argument in the house, it can lead to unintended consequences like mistakenly pushing the victim when exiting the room in a fit of rage. If the individual who is pushed falls to the ground and hits his or her head on something hard, the damage could prove deadly. Such a fall with contact to the head can lead to a concussion, sensitivity, brain damage or even death. However, it must be proven the defendant had the intent to harm the plaintiff.
Excessive use of Force
In many domestic violence cases, the prosecutor will go after circumstances in which more force was used than necessary. Some will take the angle that the continued use of force proved excessive as it was no longer necessary beyond the point in time in which the danger was present. As an example, if an attacker exits, one is not legally allowed to pursue that individual and continue to apply force. If the aggressor is subdued, one cannot legally continue to harm him or her.
Domestic Abuse: Child Endangerment
Child endangerment occurs when a child is present during the physical harming of a spouse, parent of the child or another intimate partner. The point of these protective laws is no child should be forced to witness such violent acts against anyone, let alone a family member. If the child is present during these acts, the aggressor faces the prospect of a charge of child endangerment.
The district attorney will be tasked with proving the defendant placed the child in danger or at a heightened risk for bodily injury or death. Child endangerment is a misdemeanor yet it can qualify as a “wobbler” offense if the little one was put in danger of enduring a serious injury. If this is the case, the district attorney will likely charge the defendant with a felony.
According to Section 243(e)(1) of the state's Penal Code, domestic battery is a misdemeanor offense that mandates a maximum sentence of a full year in county jail. The defendant can also be fined upwards of $2,000 if found guilty. It is important to note there does not need to be any sort of visible evidence of an injury in order for a conviction to occur. All it takes is a shove or even a slap on the face to find a defendant guilty of domestic battery.
Disturbing the Peace
If the district attorney has little proof or no proof at all that the defendant made physical contact with the alleged victim, a Disturbing the Peace charge can be applied. This is typically a last resort yet it can prove helpful when there are fights on the street, verbal threats, disturbances and other altercations. Disturbing the peace is a misdemeanor that carries a jail sentence upwards of 90 days.
In cases where the DA has little-to-no proof that any injury or any contact was even made, or where the victim states that no violence occurred, a charge of Disturbing the Peace under PC 415 may prove optimal. Examples can be fighting in a bar or on the street, yelling out threats, cursing loudly, screaming at someone in public or disturbing other tenants/residents in the area. Disturbing the Peace is a misdemeanor yet only carries a maximum county jail sentence of 90 days. It can also be charged as an infraction, which is not a criminal offense. A conviction under PC 415 is not a deport able offense.
If the intimate partner or family member who was allegedly physically harmed is at least 65 years old, an additional charge of elder abuse can be levied. This domestic violence offense is usually taken against individuals who steal from their elders or those who work in nursing homes and abuse elderly patients. If convicted as a felony, one can face between two and four years in state prison along with a fine upwards of $$6,000.
Expungement of Domestic Violence Convictions
According to PC 273.5, it is possible to have a criminal conviction expunged. Those who are convicted of a misdemeanor and otherwise did not spend time in state prison will be considered for expungement relief. This code section states a felony charge can lead to sate prison time. One can petition the court for an expungement of a misdemeanor conviction for domestic violence classified as corporal. Expungement often proves quite helpful as the conviction will not appear on any public databases if a potential employer or landlord desires to run a criminal background check.
However, an expungement will not wipe your entire criminal record clean. Your criminal record will still be accessible to those who are considering you for an open position, law enforcement personnel and even those who work at courts. Obtain expungement and you will be able to state on any rental application or job application that you have never been convicted of a crime. The conviction does not have to be disclosed even if you run for public office.
Contact Our Domestic Violence Family Law Attorney
If you are in need of proper representation to ensure you and your family get the best outcome in a Domestic Violence Family Law issue, look no further than San Diego Family Law Attorney. We are available when you need us and can be reached at all hours at 619-610-7425. Let our knowledgable team help you navigate this troubling time correctly.