Domestic violence cases are emotional and complicated by nature. If you or a loved one has been arrested for domestic violence, you probably have a lot of questions. Today, I want to discuss the process of fighting domestic violence charges and what to expect in court.
What Kinds of Charges Count as "Domestic Violence"?
The most common domestic violence charges in California are "spousal battery" (PC 243(e)(1)), and "inflicting corporal injury on a spouse / cohabitant" (PC 273.5).
To be convicted of spousal battery, the DA must prove two things: 1) that you willfully "used unlawful force or violence upon the person of another", and 2) that you and the victim had ever been married, engaged, dating or you had a child together. You can be convicted of spousal battery even if the victim was not your spouse. Spousal battery is a misdemeanor, but it carries some heavy penalties that I'll discuss below.
PC 273.5 is a "wobbler", so it can be charged as either a misdemeanor or a felony. To be convicted under this code section, the DA must prove that you and the victim had a relationship (currently or formerly married, engaged, dating, or had a child together). Additionally, prosecutors must prove that you caused some injury that resulted in a "traumatic condition".
"Domestic violence" also includes some crimes that we don't normally consider to be "violent", like vandalism, stalking, or even making harassing phone calls. Since California is a community property state, anything that you have earned or purchased during your marriage is technically your spouse's property. Even you earned the money and purchased an item for your own use, your spouse owns it (my wife technically owns some great fishing gear that she's never seen). If you get pissed and break your own stuff, you have committed vandalism and your spouse is the victim.
What is the Penalty for Domestic Violence?
For most misdemeanor domestic violence crimes, the maximum penalty includes a year in jail. If the judge agrees to grant probation rather than jail time, he is required by law to impose some community service.
If you are convicted of domestic violence, the court is also required to order a 52-week course of anger management counseling, called the "Batterer's Intervention Program". If a judge determines that drugs or alcohol were involved, the defendant must attend additional substance abuse counseling.
The maximum fine for most misdemeanor domestic violence offenses is $2,000.00, plus various state-imposed penalties and assessments. Once all those court costs are tallied, you're looking at something closer to $8,000.00. That number does not lawyer's fees, booking fees from the jail or restitution that the court may order you to pay.
A first conviction for felony domestic violence carries a maximum prison sentence of 4 years and a fine of $6,000.00. Court costs may quadruple that number. If you have another violent conviction within the previous 7 years, the prison time goes up to 5 years and the maximum fine goes to $10,000.00 plus court costs. If a weapon was involved, children were present, or if the victim suffered "great bodily injury", the penalties get worse.
If you are convicted of any felony offense, you will lose your right to purchase or possess firearms for the rest of your life. Federal law also prohibits anyone from possessing guns if they have ever been convicted of misdemeanor domestic violence against a spouse. California, though, goes one step farther. If you are convicted of any misdemeanor domestic violence in California (even against a non-spouse), you will be barred from buying or possessing firearms for the next 10 years.
Criminal Protective Orders & Restraining Orders
The judge is required by law impose a temporary Criminal Protective Order (CPO) while your domestic violence case is pending. You will be personally served with the order when you appear for your arraignment (your first court appearance). The terms of a CPOs can vary, depending on the seriousness of your case. It may order you to stay away from your own house and prevent you from having contact with the accuser, or it may allow for some limited, peaceful contact. Once you are served with a CPO, you must surrender any firearms in your possession to the local police or to a licensed firearms dealer within 48 hours. If you are eventually convicted of domestic violence, that CPO will be extended for the duration of the time that you are on probation (usually 3-5 years).
A CPO is a lot like a restraining order, but there are some key differences. For one, a CPO is issued at the request of the DA during criminal proceedings. A domestic violence restraining order is issued at the request of an individual petitioner in family court. They have most of the same effects (stay away, have no contact, do not harass, etc.), but the procedures involved are completely different.
Since CPOs and domestic violence restraining orders are granted by different judges in different courts, it's common to see orders that conflict with each other. If you are facing a domestic violence case in criminal court and a related restraining order simultaneously at family court, I strongly recommend that you use the same attorney in both matters. It's important to coordinate your defense strategy in the two separate-but-related cases. If your attorneys aren't on the same page, it's hard to achieve the best results.
Can I Tell the Judge to Drop the Charges?
Unfortunately, the decision of whether or not to drop charges rests solely with the District Attorney. It's very common for accusers in domestic violence cases to recant, to admit that they lied, and to ask the court to dismiss the case. The judge will not throw it out, though, just because victim asks him to. The victim didn't file criminal charges (the DA did), so the victim cannot simply drop them.
In cases where the accuser recants or is uncooperative, the DA will press ahead if they believe that they have enough evidence to do so. Prosecutors might have 911 recordings that captured events as they happened. There are probably audio and video recordings of interviews with police at the scene, photos of injuries, statements from neighbors, medical reports, etc. Even without the victim's testimony, the DA might still have enough evidence to put the case before a jury.
If the accuser is changing his or her story, or if the victim does not wish to cooperate with the prosecution, speak with a qualified, local attorney to discuss your options. You should not attempt to negotiate or coordinate with the victim on your own. That could be considered "witness tampering", and may be a violation of the CPO.
As I mentioned at the top, domestic violence cases are emotional and complicated by nature. If you or a loved one is facing a domestic violence case in Orange County, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
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