Court Updates: Domestic Violence Restraining Orders

The courts that handle Domestic Violence Restraining Orders in Orange County got a shake-up earlier this year.  The laws haven't changed, but the names and places have. 

Previously, all Domestic Violence Restraining Orders were heard at the Lamoreaux Family Justice Center in Orange.  Due to overcrowding, though, these hearings are now being conducted at the other branch courts.  Some of the judges who now hear restraining order cases previously handled serious criminal matters and probation violations.

Some DVROs are still being heard at Lamoreaux, but the judges who officiate have all been shuffled.  Judge De La Cruz from L-63 is now at the Westminster Courthouse, and Commissioner Wilson from L-11 is hearing criminal cases in the Harbor Justice Center. 

Some of the forms used in Domestic Violence Restraining Orders were updated earlier this year, with some minor revisions to the DV-109 Notice of Court Hearing and some changes to protect confidential information of minors.  If you're using old forms, it's time to update. 

Restraining Order courts are taking a more active role in ensuring that firearms are accounted for.  If a restraining order is granted against an individual, the restrained party must surrender any firearms in his or her possession within 24 hours.  Weapons may be turned in at a local police station, stored with a licensed firearm dealer, or sold.  Proof that the weapons have been turned in, sold or stored must be filed with the court within 48 hours.  When the case called for a hearing, the judge is now required by law to check with the California Department of Justice to determine whether or not the restrained party has any firearms registered in his or her name.  If weapons are unaccounted for, the respondent can be held arrested.

Local enforcement teams from the California State Department of Justice have also been busy physically going door-to-door and collecting firearms from prohibited individuals.  Most of these actions are "knock and talk" encounters.  If the DOJ believes that someone who is the subject of a restraining order is in possession of firearms, they will simply knock on the subject's door and ask about the weapons.  If the homeowner refuses to hand over the guns, then the DOJ agents may apply for a search warrant, depending on the strength of their evidence. 

Domestic Violence Restraining Orders probably have more serious consequences now than ever before.  If you or a loved one has questions about a restraining order in Orange County, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Orange County Restraining Order Lawyer.

Can I Drop Domestic Violence Charges?

Domestic violence cases can be frustrating for victims (or "alleged" victims).  Police investigators and prosecutors at the DA's office might pick up cases and run with them aggressively before the facts are fully known.  Even when victims come forward and explain that the allegations are exaggerated or completely untrue, prosecutors probably aren't interested in hearing it.  Once they've made up their minds to hammer some defendant, prosecutors can develop tunnel vision and simply fixate on winning their convictions.

Victims of domestic violence often call my office and say that they want to "drop the charges" against their husbands (or boyfriends, girlfriends, etc.).  Unfortunately, I have to explain that DV cases aren't that simple.  The decision to file / prosecute / negotiate / dismiss a domestic violence charge rests entirely with the District Attorney.  Just as individual victims cannot personally file criminal charges, individuals cannot simply dismiss criminal charges once they have been filed by the DA.  That doesn't mean that the case is hopeless or that the defendant will definitely be convicted, though.  It just means that the "victim" has very little control over how the criminal case will proceed.

As the DA sees it, people who hit their partners and spouses don't just commit crimes against those victims, they commit crimes against the "People of the State of California".  If prosecutors believe that the evidence supports a conviction, the DA will aggressively pursue a case regardless of the actual victim's wishes.  

In many DV cases, prosecutors can easily prove the defendant guilty even without the victim's cooperation.  If the victim called 911 and described the abuse as it was happening, police arrived and found the victim injured, the defendant was drunk and admitted to the crime, etc., then the DA probably doesn't need a credible victim to establish what happened here.  Prosecutors might have an audio recording of the 911 call, footage from body-worn cameras as police responded and spoke with witnesses, photos of injuries, etc.   Even if the victim refuses to testify in a case like that, the prosecutor can probably prove the crime based on the totality of the other evidence. 

In many DV cases, though, the facts aren't so clear-cut.  Maybe neighbors called the police but they didn't actually see anything.  When police arrived, both husband and wife were drunk, some property was broken and both had scratches on their arms.  If the wife is screaming and the husband is refusing to answer any questions, the husband will probably spend a night in jail.  If the DA picks up the case, they will seek harsh penalties against the husband.  They will not simply dismiss the case just because the wife asks them to.

That doesn't mean the DA always gets what they want, though.  An experienced criminal defense attorney can work with a cooperative "victim" to collect and prepare helpful evidence.  This may include additional witness statements that were not taken as part of the initial police investigation -- and statements that may have "evolved" since they were recorded in the police reports.  It can also include things like audio recordings, text messages, surveillance camera footage, medical records, or anything else that pokes holes in the prosecutor's story.  By the time we're done with a cooperative "victim", the DA's case might be a lot weaker than they initially understood it to be.  Once the case starts to fall apart, prosecutors may be forced to negotiate or even dismiss the case entirely.

If you or a loved one is listed as an alleged "victim" in a domestic violence case, call us for a free attorney consultation. (714) 449-3335.  Ask for John.  Don't ever talk to police or prosecutors without calling us first.

Thanks for reading.

Fullerton Domestic Violence Lawyer

What We're Working On Now

It's been a while since I've published an update.  We've been busy and I'm proud of some of our recent results.  Here are a few highlights, if I may brag:

-LF v. GT:  We represented the respondent in a Civil Harassment Restraining Order.  His next door neighbor was seeking protection based on a series of baseless, frivolous allegations.  Most of the petitioner's claims were not actually grounds for a restraining order, and she had no evidence or witnesses to support other accusations she was making.  I warned the petitioner before the hearing that she had exactly zero chance of winning, and I gave her the opportunity to save her own time and mine.  Instead, she chose to waste a bunch of taxpayer resources before leaving the court sad and empty-handed.  My client was happy, though, so I'm happy.

-People v. RR:  My client was arrested last year on suspicion of DUI.  At the time of his arrest, officers found tactical gear, police scanners, a dagger and a replica firearm in his car.  The DUI was reduced down to "wet & reckless" and my client was never charged or convicted for anything related to impersonating an officer.  The items in his car were not contraband and there was no evidence that they were tied to any crime.  This week, a judge ordered the San Gabriel Police Department to return all of those items to my client.

-People v. AO:  My client was visiting Disneyland with her family.  Her mom had previously given her a "self-defense" key chain, with an object that could technically be considered "brass knuckles" attached.  She obviously didn't intend any harm and she had even flown on a commercial flight carrying the item.  Police at Disneyland, though, decided to cite her for a misdemeanor.  This week, the Anaheim City Attorney agreed to reduce the charge to an infraction so that it will not affect her criminal record.

-People v. MA:  Our defendant is a mentally ill homeless man who was charged with several counts of trespassing and being drunk in public around Orange County.  He had at least one case with the Orange County District Attorney, and a handful of others that were prosecuted by the Anaheim City Attorney.  Defendant's family got him into a residential alcohol treatment facility.  We were able to coordinate a deal with both prosecuting agencies so that our client would receive "credit for time served" in treatment.  Some counts were dismissed and others were given a "terminal disposition" (time served, no probation).

-JS v. KC:  We represented an elderly man in a restraining order that his (also elderly) wife had filed against him.  After prolonged negotiations, she agreed to dismiss the case entirely and to seek couples' therapy jointly with my client.

-People v. JG:  Our client was accused of a laundry list of felony charges, including domestic violence, child endangerment and false imprisonment.  By the time we were done, he pled to a misdemeanor with no jail time.  I call that a "win".

We're currently fighting some really interesting cases, but I can't comment while they're pending.  I hope to share some more good news soon.  Stay tuned for future success stories as they become available.

If you or a loved one has questions, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Attorney

The Disneyland Brawl: How OC Politics Will Run the Show

Updated 7/23/19:  The OC District Attorney has charged Avery Robinson, 35, with 14 separate criminal charges, including 5 felonies.  His sister, Andrea Robinson, was charged with 5 misdemeanor counts of assault / battery.  Ms. Robinson's husband, Daman Petrie, was additionally charged with a single misdemeanor count of battery.  All charges will be prosecuted by the OCDA.  

Legal observers are curious to see how the investigation and prosecution(s) will play out after last weekend's Disneyland Brawl.  In case you missed it, take a moment, grab some popcorn, turn up your volume, click the link and watch one family turn Toon Town into "The Slappiest Place on Earth".

Now the real fists are about to fly as the OCDA and the Anaheim City Attorney slug it out over who will have jurisdiction to prosecute.  First, a little background:

All felonies in Orange County are prosecuted by the District Attorney's Office.  The DA is an elected official.  The DA also prosecutes ALMOST all of the misdemeanors arising within the county's borders.  As one notable exception, though, the City of Anaheim maintains its own local prosecutor.  The Anaheim City Attorney is responsible for prosecuting all misdemeanors that occur within the City of Anaheim.

Since the ACA reports to the Anaheim City Council and the Anaheim City Council effectively reports to Disneyland, the Disney Corporation indirectly operates its own prosecutor's office via the Anaheim City Attorney.  This arrangement essentially allows Disney's shareholders to call the shots regarding how / if misdemeanors are prosecuted in the City of Anaheim.  It's no wonder that the policies and priorities of the Anaheim City Attorney's Office sometimes seem like they're more intended to promote tourism than to promote justice.

The short version is this: if charges are filed as felonies, the cases will be prosecuted by the Orange County's elected DA.  If they're filed as misdemeanors, then the cases will be prosecuted by the Disney Corporation via the Anaheim City Attorney's Office.

The video of Sunday's brawl shows a laundry list of violent offenses, including assault, battery, criminal threats, disturbing the peace, child endangerment, and assault by means likely to induce serious injury.  Depending on the relationship of the parties, there might also be a variety of domestic violence-related charges.  Some of these charges can potentially be filed as felonies.  This is where it gets interesting.

I'm sure that the ACA would love to keep this one in-house.  If charges are filed as misdemeanors, then Disneyland can call the shots.  By aggressively prosecuting the case, the Disney Corporation could reassure potential tourists that the park is safe.  They must be eager to save some face, too.  Their security should be humiliated by their complete failure to address the situation in the video.  The fight lasts almost 4 minutes and 30 seconds.  The fact that a bystander recorded the beginning of the fight also suggests that onlookers had some warning that trouble was about to erupt.  Disneyland loves to brag that every inch of their park is covered by cameras, but they sure didn't respond to this melee in a timely manner.  At some point, security guards appear to officiate the brawl like Mills Lane, but they don't make any serious effort to intervene.

If the case is really going to be prosecuted aggressively, though, the DA must take the lead.  Only the DA can bring the kind of felony charges that might carry serious prison sentences.  Of course, the DA might not take their marching orders from Disneyland, though.  Anaheim's biggest fear is probably that the DA will claim jurisdiction by filing felony charges.  After prolonged plea negotiations, the defendants might eventually accept misdemeanor convictions and the ACA will be left completely out of the loop.  It would be ironic if the ACA lobbies the DA to reject felony charges, just so that they can file their own misdemeanor charges and "really play hardball".

Stay tuned to see how this plays out.  I expect we should see a press release by the Anaheim PD, the OC DA and / or the Anaheim City Attorney within a day or two.

If you or a loved one has questions for a criminal defense attorney in Orange County, call our office for a free consultation.  Ask for John.  (714) 449-3335.

Thanks for reading.

Orange County Criminal Defense

Getting (or Fighting) a Restraining Order Against a Neighbor

Intro to Civil Harassment:  When Neighbors Go Bad

California law allow individuals who have been the victims of harassment to seek the protection of a restraining order.  There are specific types of restraining orders and special procedures depending the relationship of the parties -- coworkers can file for "workplace violence" restraining orders, family members and exes can seek "domestic violence" restraining orders, etc.  Today, I want to specifically discuss restraining orders between neighbors.

Restraining order cases that arise between neighbors are usually based on allegations of "civil harassment" (rather than workplace or domestic violence).  Restraining orders that are based on civil harassment are cleverly called "Civil Harassment Restraining Orders".  They are filed and heard in the local branch of the superior court that is closest to where the parties live and where the harassment is alleged to have occurred.

To get a restraining order against a neighbor in California, the petitioner (the person who is seeking protection) must prove that he or she has been the victim of actual violence, credible threats of immanent violence, or "harassment".  The petitioner bears the burden of proving the case by "clear and convincing evidence".  "Clear and convincing" is a higher burden than the "preponderance of evidence" standard that applies in most civil cases (and lower than the "beyond a reasonable doubt" standard that applies in criminal cases).  It means what it sounds like -- the petitioner must present enough evidence to clearly convince the judge that the alleged harassment has occurred.

If the judge finds in favor of the petitioner, he or she can order the respondent to stay a specific distance away, not to contact the petitioner by any means (including over the internet, by phone, etc.), and to stop doing whatever the court finds to constitute "harassment".  Those orders can also protect other individuals who live with the petitioner, and even pets.

Harassment, Defined

Everyone knows what "violence" and "threats" mean, but "harassment" causes a lot of confusion.  In restraining order court, the judge is looking for something more than just behavior that irritates or annoys you, no matter how irritating or annoying that behavior might be.  The legal definition of "harassment" is:

• a course of conduct (not just a single act), 
• which is directed AT a particular person (not just some behavior that affects the petitioner),
• which serves no lawful purpose (more on this below),
• which would cause a reasonable person to suffer distress, and
• which does actually cause the petitioner to suffer distress. 

That means the conduct in question must be something that your neighbor has done TO you, not just something your neighbor has done that AFFECTS you.  A good example is illegal parking.  Your neighbor might violate every single ordinance in the book by constantly parking his cars illegally.  Maybe he leaves inoperable vehicles on the street for weeks at a time, leaking oil everywhere.  This conduct might affect you because it creates an eyesore and because your guests have nowhere to park.  It might even cause you to "suffer distress", but it is not directed AT you.  Since your neighbor is not doing anything TO you, illegal parking is not the basis for a restraining order.  You may have other remedies (e.g. calling the police or Code Enforcement, etc.), but a restraining order is not appropriate here, no matter how much your neighbor's illegal parking bothers or annoys you.  The same is true for neighbors who smoke on their own property, let their lawns grow 3 feet high or who build bonfires that aggravate your asthma.  Those things might be code violations and they might cause you to suffer distress, but they're not "harassment" because they're not targeted AT you.  

What about a neighbor who constantly calls the police to report every perceived infraction?  I'm talking about the nervous old lady who reports "loud parties" at 7:30 PM -- I'm talking about the self-appointed "neighborhood watchman" who has Code Enforcement on speed dial, like Wyatt Earp of the cul-de-sac.  What can be done if you've become the target of one of these vigilantes?  Unfortunately, not much, at least not in restraining order court.  Remember, to constitute "harassment", the conduct must serve "no lawful purpose".  Calling the police to report some perceived offense is a lawful purpose, even if that conduct is directed at you and it causes you to suffer distress.  The judge will never order someone to stop calling the police.  Eventually, the police might tell them to stop calling, or they might simply stop responding.  If the police determine that someone is filing reports that they know to be false, they can pursue criminal charges against the caller.  Again, though, a restraining order is not the appropriate remedy here.

Scope of Orders, and Their Limits

The court has wide power to "enjoin" (legally prohibit) someone from doing all sorts of things that it deems to be "harassment".  As mentioned above, the judge can order someone to stay away from you, your home, your workplace, your vehicle, your school, your children's school, your children's daycare, and any other place where the judge finds that harassment is likely to occur.

The respondent can be ordered not to contact you by any means, directly or indirectly.  That includes in person, by phone, text, mail, etc.  That even includes asking someone else to pass along a message to you, except through an attorney.

If the respondent violates any of those orders, he or she can be arrested for "contempt of court".  If some other person knows about the restraining order and helps the respondent violate it (by passing along an apology, for instance), that person can also be arrested.

The judge cannot, however, order someone to stop talking about you if you're not present.  If someone is spreading false, defamatory information about you, you may have a lawsuit against that person, especially if you can prove that you've actually been harmed by the lies.  Again, though, a restraining order is not the appropriate remedy.

Restraining Orders and Firearms

If a restraining order is granted, even temporarily, the respondent will be ordered to immediately surrender any firearms under his control to the local police or to a licensed firearms dealer.  The State Department of Justice will notify the court if the respondent has any firearms registered in his name, and whether or not those weapons have been accounted for.

If the DOJ's records indicate that the respondent may have guns that have not been surrendered, agents will visit the respondent's home and perform a "knock and talk".  Inspectors might ask about specific weapons, and they might ask permission to search the premises for the missing firearms.  The respondent is not obligated to let them in unless agents present a search warrant.  (NOTE:  Generally, any adult who is present at the time can give agents consent to a search.  If the husband refuses and the wife allows it, for instance, then agents have consent.  Make sure your family members understand this, and NEVER GIVE CONSENT TO A SEARCH!!!)

If the respondent / homeowner refuses to allow agents to search his or her home, and inspectors believe he is illegally in possession of firearms, inspectors might take their evidence to a local judge and request a search warrant.  The governor recently granted more funding to these regional teams of DOJ investigators.  They're going door-to-door daily, gradually clearing a backlog of "prohibited persons" and missing firearms.

If you are served with a restraining order and you are required to surrender your firearms, call our office to discuss your options.  If your weapons have great sentimental value, you may be able to legally transfer them to a friend or family member.  If they have great financial value, you may also be able to sell them for their fair market value.  You may also be permitted to store them for a longer period if you expect to recover them later.

Free Attorney Consultation

If you or a loved one has problems with a neighbor, or questions about restraining orders in general, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Restraining Order Lawyer

Arrested in Catalina -- What to Expect

If you found this blog, you're probably one of the hundreds of tourists every year who "have too much fun" while visiting Catalina Island.  Hopefully, I can answer some of your questions and give you a better idea of what to expect.

The most commonly-charged offenses on the island include drunk in public, DUI, domestic violence, possession of drugs, assault / battery and fishing violations.

Alcohol-Related Violations

Alcohol-related offenses are treated especially harshly in Avalon.  Local police and prosecutors have really made a concerted effort to maintain their "family friendly" reputation, and they've decided that this includes bringing down the hammer on alcohol offenders.

In most California courts, an arrest for being "drunk in public" means a night in jail and a stern warning.  In Catalina, though, you're looking at probation, CalTrans labor or some other community service, fines, mandatory alcohol counseling or AA meetings, and whatever onerous terms they can think to impose.

And remember, golf carts are considered "vehicles" under California law.  If you drink alcohol or consume drugs before operating an electric cart, you can be arrested for DUI.  These types of cases are common on the island.

Fishing Violations

Fishing laws are also a minefield for visitors.  Catalina Island is surrounded by a checkerboard of "marine life protected areas".  These sanctuaries are not marked and wardens do not issue warnings.  If you drift across the imaginary line into one of the protected areas, agents from the Dept of Fish & Wildlife will issue citations.  They will board your boat and search your cooler for contraband species and undersized fish.  You will be criminally prosecuted for every ticky tacky offense that they uncover, regardless of whether or not you knew that you were breaking the rules.
Possession of unidentifiable fish fillets are a big violation that snares a lot well-meaning anglers.  If you clean your fish at sea, remember to leave a 1" square of skin attached so that wardens can identify the species.

Possession of abalone can also be a major headache for divers around Catalina.  The minimum fine for possession of a single abalone is $10,000.  Once all the mandatory fees and court costs are included, the minimum fine jumps to over $60,000 for a first offense.  That's the MINIMUM.  Luckily, we have some tricks for negotiating these cases down to less than the minimum in most cases.

Logistics

The tiny courthouse on Catalina Island is open every other Friday, weather permitting.  Most of the week, the building is dark and empty.  They do not store any files on site.  If you appear in court on a date when they were not expecting you, they will not be able to help you.

To schedule a court appearance, you (or your attorney) must appear at the courthouse in Long Beach and coordinate with the clerks and prosecutors there to add your case onto the Catalina calendar for a date that is convenient for all parties.  Failure to follow all the appropriate steps will result in a wasted trip.

To make matters even more frustrating, cases on Catalina are often delayed or filed sometime after the date listed on your citation.  When that happens, you might spend the time and money to travel all the way back to Catalina, only to find out that your case has been rescheduled for next month.  Your case will not simply be dismissed.

If you've been cited or arrested while visiting Catalina Island, a private attorney (such as myself) can attend your court hearings without you being personally present in most cases.  There's no sense in traveling all the way back to the island for a series of routine appearances.  Let me save you the time, expense and hassle by appearing for you.  I can receive copies of police reports, negotiate with the DA and work to secure the best outcome possible for your case.

If you or a loved one was cited or arrested on Catalina Island, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

Drunk In Public on Catalina Island -- What to Expect

In the 9 years that I've been serving clients in the Catalina Courthouse, I have watched the island turn into a hot spot for Drunk in Public enforcement.

Not long ago, local sheriffs would regularly escort drunken tourists back to their hotels.  If an inebriated visitor couldn't remember where he was staying, or if he didn't have accommodations for the night, deputies would even him help book a room.  It took effort to get arrested for PC 647(f) in Avalon.

In the rare case where someone was actually cited and booked for being dangerously drunk, the prosecutor was generous with a plea offer when the case got to court.  A typical deal used to include reducing the misdemeanor charge to an infraction, paying a small fine, and promising not to do it again.

Times have changed, though.  A new crop of deputy sheriffs and prosecutors on the island have recently adopted a zero-tolerance, no-holds-barred approach to disorderly conduct in Avalon.  Today, the Catalina Court imposes some of the harshest penalties in the state for alcohol-related offenses.  Standard offers now include probation, hefty fines, mandatory attendance at AA meetings and significant amounts of community service or hard labor (not to mention, a misdemeanor conviction on your criminal record).  This doesn't mean that the DA always gets what they want, but you and your attorney should be prepared for a fight.

Lawyers from outside of the area may be shocked when they appear in court on the island for the first time.  In most courthouses, "drunk in public" is considered a very petty crime.  Prosecutors in downtown LA, for instance, have bigger fish to fry.  They cannot afford to dedicate significant resources to throw the book at some tourist who got caught staggering back to his hotel.  Catalina takes these cases seriously, though.  You should, too.

Section 647 of the California Penal Code governs a variety of bad behaviors that collectively fall under the umbrella of "disorderly conduct".  Subsection (f) specifically prohibits public drunkenness.  PC 647(f) is a misdemeanor, meaning that the maximum penalty includes 6 months in jail and a base fine of $1,000.00.  After all the mandatory fees and court costs are tallied, the total maximum fine is about $5,000.00.

To be convicted of PC 647(f), the prosecutor must prove 3 elements:

1. That the defendant was under the influence of drugs or alcohol, AND
2. That the defendant was in a public place, AND
3. That the defendant was unable to care for his own safety or the safety of others, OR that the defendant interfered with a sidewalk or public walkway

Each of these elements is subject to some argument and interpretation.  How drunk does someone have to be before he is considered "under the influence"?  What if the person had been "dosed" or was involuntarily impaired?  What counts as a "public place"? etc.  These cases can be more complicated than they appear.  

Of course, the defense in your case will depend on the specific facts and circumstances surrounding your arrest.  Why were deputies summoned in the first place?  Did some witness(es) complain about your behavior?  Was the arrest recorded in any way (audio or video)?  Did the arresting officers conduct any sort of chemical test (e.g. a breathalyzer, etc.)?  Were you cooperative or belligerent?  Do you have a history of alcohol-related arrests?  Do the "interests of justice" dictate that you be harshly punished or that you deserve some lenience?  

Our office defends more cases on Catalina Island every year than any other private attorney in the State of California.  We have extensive experience in fighting against Drunk in Public charges, as well as all other misdemeanors that arise in and around Avalon.  In most cases, we can appear in court on your behalf so that you don't need to worry about traveling all the way back to Catalina for a series of court appearances. 

If you or a loved one have been cited or arrested while visiting Catalina, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

  

Catalina Island Lawyer

Fighting Domestic Violence Charges in Orange County

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. 

Fullerton Domestic Violence Lawyer

What to Do if You've Been Served With a Restraining Order

If you've been served with a restraining order, you must immediately begin the process of preparing your defense.  That process should start by consulting with a qualified, local attorney to discuss your options and to coordinate your strategy.  A competent attorney will understand the types of arguments that are likely to be effective, and how to present admissible evidence to support your position.

If you possess firearms, you must surrender them to the local police or to a licensed gun dealer within 48 hours.  You may not simply sell them to a friend or ask a family member to hold them for you.  The police or the gun dealer will prepare some paperwork that you must file with the court.  Before your hearing, the judge will confirm that any firearms registered in your name have been accounted for.

Most importantly, though, you must resist the impulse to make matters worse.  Do not contact the petitioner in any way.  Do not ask someone else to contact the petitioner or to pass along a message on your behalf.  Do not try to "fix" the situation yourself by apologizing or by attempting to "smooth things out".  Remember, a temporary restraining order IS a restraining order.  If you violate it, you will be arrested and prosecuted.  Your violation will also be used against you at your hearing.  If the judge finds that you have violated the temporary order, he or she will almost certainly grant a permanent restraining order against you, even if the original petition was weak or deficient.  As the court sees it, your violation of the temporary order demonstrates that you are impulsive, you don't respect the law, and you are probably dangerous.

Even if the petitioner attempts to contact you while the temporary restraining order is in effect, you may not respond.  This seems unfair, and it is, but remember that the temporary restraining order prohibits you from contacting the petitioner, not vice versa.  If a judge has ordered you not to contact the petitioner, the petitioner cannot simply grant you permission to disobey the judge.

If you have some valid reason why you NEED to contact the petitioner before your hearing (e.g. you need to pick up your medication from her house, etc.), or you want to negotiate a dismissal outside of court, that communication must be done through your attorney.  Your lawyer is the ONLY person who may contact the petitioner or pass along messages to her on your behalf.

If you or a loved one has been served with a temporary restraining order in Southern California, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

How to Fight a Restraining Order When the Facts are BAD

I've previously written on this blog about the process of getting or fighting a restraining order in California.  If you haven't already, take a moment to read some of the basics here.  In these introductory articles, I explain the legal procedures and the issues you should be prepared to discuss at your hearing.

I've also previously written on this blog about a common situation -- fighting a restraining order when the petitioner is crazy.  Defending yourself against a crazy person requires a special strategy, and that's not the focus of this article.

Today's post is specifically about fighting a restraining order when the facts against you are BAD.  Maybe you've said or done things that you're not proud of, and maybe the petitioner has proof (emails, text messages, surveillance videos, reliable witnesses, etc.).  Even if you've behaved badly, and even if we all agree on what happened, it's not necessarily a slam dunk that the petitioner will walk out of court with a restraining order in hand.  There are several effective strategies for fighting restraining orders, even if the facts appear bad at first glance.

There are situations where it may be futile to deny your bad behavior.  If the petitioner has reliable proof, you will harm your own case by disingenuously trying to deny the facts.  You will look like a liar, you will lose your credibility, and you will lose your case.  Of course, that's not to say that you should admit to things you haven't done or confess when the evidence is weak.  I'm speaking specifically about situations where you behaved badly and the petitioner can prove it.

Bad facts must be justified, excused or explained.  A justification is a defense where you essentially argue that you did the RIGHT thing under the circumstances.  Your behavior might have been illegal or improper in other situations, but perfectly proper in that particular place and time.  "Self defense" or "defense of others" are common justifications.  In most situations, for example, it is illegal to threaten someone with a weapon.  If you threaten your neighbor with a bat to make him stop beating his wife, though, you've done a GOOD thing.  If your neighbor then files a restraining order against you for threatening him with a bat, you should admit that you engaged in that conduct (you DID threaten him with a bat), and you should explain to the judge why your actions were justified under the circumstances.

If you can't justify your actions, maybe you can excuse them. An excuse is a defense where you acknowledge that your behavior wasn't "good", but you argue that you don't deserve to accept the blame.  If, for example, you were involuntarily drugged, you might not deserve to be punished for your behavior while you were under the influence.

If your behavior can't be justified or excused, maybe it can at least be explained.  An explanation is a defense where you admit that you did the wrong thing, but you argue that your blame is mitigated or reduced under the circumstances.  For example, maybe you were provoked with offensive insults and you responded with violence.  We don't agree that your violent reaction was appropriate, but maybe we understand why you reacted the way you did.  Your outburst was out-of-character and it won't happen again.

That last part is important -- it won't happen again.  As I've previously explained on this blog, a restraining order is an "injunction".  An injunction is a court order that is intended to prevent some future harm that has not yet happened, not to punish you for some past wrongdoing.  This is tricky.  The issue that the judge must decide at the restraining order hearing is: has the petitioner proven that the respondent has harassed him or her?  Sometimes -- and this is risky -- we must acknowledge that the respondent has committed some act of violence, threats or harassment against the petitioner, but we establish that the harm is not likely to reoccur in the future.  Since we're talking about an injunction and not a criminal violation, the analysis doesn't stop with, "did this happen?".  A restraining order is not appropriate unless the harm is likely to happen in the future.  If the harm has already passed and is not likely to happen again, then a restraining order is not appropriate.  There is valid case law to support this defense, but the proper citations and legal argument must be presented effectively by an experienced, competent lawyer.  Don't try this at home.

If you or a loved one has questions about a restraining order in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Catalina Island Special Appearance Attorney

Our office handles more criminal cases on Catalina Island than any other private firm.  If you're scheduled to appear in the Avalon courthouse, save yourself the time and hassle of the trip and allow us to make a special appearance.

Our appearance fee is usually less than the cost of the trip, especially if you factor in the value of your time.  An appearance on Catalina Island takes most of the day.  The Catalina Express leaves from Long Beach at 6:00 AM.  If your case goes smoothly and you can catch the 11:45 boat back, you'll arrive back on the mainland around 1:00 PM.  If the court staff is delayed by inclement weather, cases are often heard in the afternoon, or not at all.  There is nothing quick or simple about a "quick and simple appearance" on the island.

We have extensive experience in defending against the most common charges that arise on Catalina, including fishing violations (undersized lobster, fishing in a protected area, commercial fishing without the necessary permits and endorsements, etc.) and other misdemeanors (drunk in public, golf cart DUI, possession of drugs and domestic violence).

If you need an appearance covered on Catalina Island, or if you have questions about what to expect, call us for a free consultation.  (714) 449 3335.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

What Kind of Lawyer Do I Need for a Restraining Order?

If you're seeking the protection of a restraining order, or if you've been served with one, you should consider retaining a qualified, local attorney to assist you throughout the process.  Having the right lawyer by your side will significantly increase your chances of success.  An experienced attorney will understand the rules of evidence and the legal issues at stake, so that you can craft a compelling argument and present your case in the most favorable light possible.

But what kind of lawyer should you be looking for?  There are several different types of restraining orders in California, and they cross over a few different legal disciplines.  A restraining order may be issued based on allegations of domestic violence, civil harassment, workplace violence, elder abuse or gun violence.  Depending on the type of order requested, petitions may be heard in family court or in civil court.  And depending on which court hears the case, the rules of evidence will vary.  There might also be potentially overlapping criminal issues when a restraining order petition is based on some alleged criminal misconduct.

Very few lawyers in California focus their practices specifically on restraining orders.  The state bar doesn't even offer a certification for "Restraining Order Specialist", as they do for some other specific fields of law.  Most "restraining order lawyers" are actually experts in some other, related field.  That could be family law, criminal defense, or general civil litigation.  But that doesn't mean that every "general practice" civil lawyer is well-versed in the law regarding restraining orders.  I'm often surprised to see very competent, well-respected attorneys bumble their way through restraining order hearings because they're not familiar with the unique rules and procedures that apply in restraining order court. Unfortunately, some great lawyers just don't understand the important distinctions between a domestic violence restraining order and, say, a civil harassment restraining order.  Hiring a great attorney can backfire if he or she isn't the right attorney.

If you have questions about restraining orders in California, you should resist the impulse to ask your lawyer neighbor or some family friend who specializes in construction defect law.  He or she might be very well-versed in some other legal specialty, but completely lost in a restraining order hearing.  Hiring an attorney simply because you know him isn't always a smart move.

You should also resist the impulse to hire the most expensive or well-known attorney you can think of.  Again, that person might be the world's most successful worker's comp lawyer, but if he doesn't have experience in restraining order court, then he's probably not right for you.

Our firm has extensive experience with all types of restraining orders in California.  We have successfully represented petitioners and respondents on both sides of these issues throughout Orange County, Los Angeles and Riverside.  We understand the rules of evidence and how to present your story effectively so that you can walk away with the best results possible.

If you or a loved one has questions about a restraining order in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Drunk in Public on Catalina Island

According to the Los Angeles Sheriff's Department, deputies arrested several individuals on suspicion of being drunk in public this month.  In my experience, this is probably the most commonly charged offense on the island, other than minor fishing violations.

To convict you for being drunk in public under PC 647(f), the prosecutor must prove that you were so drunk that you could not reasonably care for your own safety, or that you posed a danger to people around you.  To determine whether or not you were "dangerously" drunk, the court will consider the totality of the circumstances -- the condition in which you were found, how / why you attracted attention from the police, objective and subjective observations of the arresting officers, your own statements, statements from other witnesses, audio / video recordings of the incident, etc.

There is no magic number that clearly distinguishes "fun drunk" from "criminally drunk".  The decision of whether or not to make an arrest is generally left to the officer's discretion.  You have a right to take a breath test if you are arrested for being drunk in public, but police are not required to administer one unless you demand it.  If you decide to demand a breath test, that number will be used against you in court.

If you are arrested for being drunk in public in Avalon, deputies will take you to the tiny jail on Sumner street, attached to the local courthouse.  You will be held for several hours and released in the morning.  Being polite and cooperative during this process will definitely speed up your release.  Deputies will also make a note of your attitude in the reports that they prepare.  If your arrest report shows that you were cooperative, that fact will go a long way when your attorney attempts to negotiate a reduced charge or a dismissal in court.

When you are released from custody, the deputies will give you a "notice to appear" in court at some future date.  Regardless of what the deputies told you, your case cannot simply be resolved through the mail or at the Long Beach courthouse.  All misdemeanors arising on Catalina Island are heard at the Catalina courthouse.

If you retain a local attorney, you do not need to travel back to the island for your court date -- your attorney can go for you.  Your lawyer will gather copies of the police reports and any other evidence (photos, videos, etc.), enter a "not guilty" plea, and schedule a series of future court dates to come back and discuss the case with prosecutors.

If the prosecutor recognizes that the evidence in your case is weak, you have a clean criminal record and you were cooperative during your arrest, they might make an offer that's too good to refuse.  A "good offer" might include a reduced charge or a complete dismissal.  If the evidence is strong, or if you have a history of alcohol-related offenses, or if your police report indicates that you were uncooperative, the DA's offers get less generous.  "Drunk in Public" is a misdemeanor, so penalties may include probation, fines, community service, CalTrans labor, mandatory AA meetings, or even jail time.  

Unfortunately, the Los Angeles District Attorney's Office has decided to take an aggressive stand in prosecuting "drunk in public" cases on Catalina.  Lawyers who visit Avalon from out of the area are often shocked by the harsh offers they receive on the island.  In other courthouses, 647(f) cases are routinely reduced to infractions or settled for minimal penalties.  In Avalon, though, standard offers from the DA often include dozens of AA meetings, high fines, 1-3 years of probation, 10-30 days of CalTrans service, or worse.

Our office has extensive experience defending against all types of cases that arise on Catalina Island, including drunk in public.  We offer competitive rates and affordable payments, and we never charge clients for our travel expenses.

If you or a loved one has been cited or arrested while visiting Catalina, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Catalina Island Lawyer

I Lost in Restraining Order Court. Can I Get Another Hearing?

You generally get one bite of the apple in restraining order court. This is why I'm always stressing the importance of showing up to court prepared for your hearing. Part of effectively preparing for your day before the judge includes speaking with a qualified, local attorney as early as possible. Your attorney understands the rules of evidence, how to issue subpoenas, how to properly examine witnesses, and how to effectively present a case in court. You wouldn't operate on yourself; don't try to represent yourself in court.

If, despite your best efforts, you haven't had an opportunity to thoroughly prepare before your court hearing, there's some good news -- you are entitled to at least one free continuance. Maybe you haven't been able to save up the money to retain a qualified lawyer. Maybe you're still trying to locate and interview prospective witnesses. If you need more time for any reason, all you have to do is show up and ask the judge nicely for 2-4 more weeks to get your ducks into a row. The court will give you as much time as you reasonably need to prepare your defense.

That being said, there are a handful of good reasons to request a new hearing if a restraining order is granted against you. First, though, you need to understand a few things that are NOT good reasons to request a new hearing:

I Wasn't Ready 

The court does NOT want to hear that you were simply unprepared. As mentioned above, you were entitled to a continuance before the hearing if you weren't ready to go forward. If you wanted more time, you only had to ask for it. If you announced that you were ready to litigate, though, it's too late to request a postponement now. That ship has sailed.

I'm Not a Lawyer

It is also NOT effective to argue that your hearing was unfair because you aren't a lawyer and you didn't understand the rules. If you choose to represent yourself in court, you will be held to the same standards as a professionally trained and licensed attorney. You will not receive any special considerations or preferential treatment if you appear without a lawyer.

The Petitioner Lied and the Judge Believed It

Finally, you CANNOT argue that the restraining order should be overturned because you disagree with the judge's ruling. Again, the point of the hearing was to present relevant facts and evidence -- that was your chance. If you showed up in court without any evidence and unprepared to explain / deny / excuse the petitioner's evidence, reread the previous paragraphs.

After hearing the evidence, the judge had discretion to determine whether or not harassment has occurred. If the judge heard the facts and weighed the evidence fairly, in accordance with the law, then the issues are settled. The court will not reconsider any new arguments, except...

Motion to Reconsider a Restraining Order

The Respondent MAY ask the court for a new hearing if there are some "new or different facts, circumstances or law" since the first hearing. If the situation has changed since you last appeared in court, you may appear before a judge and explain why the restraining order against you is no longer necessary or warranted.

In a motion to reconsider a restraining order, the judge does not want to hear a better version of the arguments you've already made. Instead, the court wants to hear something new that wasn't available at the last hearing.

Here's the kicker, though: a motion to reconsider a restraining order must be filed within 10 days after the respondent is served with the original order. This is why motions to reconsider are difficult -- you're required to prove some "change in circumstances", but you only have 10 days to do so. Since circumstances are unlikely to change that drastically in 10 days, motions to reconsider restraining orders can be an uphill battle.

If you or a loved one has questions about restraining orders in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer.

How to Recall an Arrest Warrant in Catalina Court

Catalina Island is a tourist destination located about 20 miles off the coast of Southern California. The town of Avalon and its surrounding waters are home to world class diving, fishing, hiking, boating, drinking and getting arrested.

If you've been cited or arrested for a misdemeanor while visiting Catalina Island, you're in for a treat. The local sheriffs will arbitrarily assign a future court date for you to return and appear before a judge. More often than not, that date will be rescheduled. The DA may or may not notify you of the change. If you fail to appear on the proper date, a warrant will be issued for your arrest.

Local police also like to falsely advise people that their criminal cases can be addressed in Long Beach. Most of the time, they cannot. Felony cases are heard on the mainland, but misdemeanors and infractions from Catalina must be heard at the courthouse on the island.

The Catalina court is only open on alternating Fridays. The rest of the time, the building is dark and vacant. You cannot simply appear on an unscheduled date and ask to be heard by the judge.

If you appear at the Catalina courthouse on a date when the court is open but your case is not scheduled to be heard, you will be told to come back another time. The tiny courthouse in Avalon does not store its own files. All records are maintained back in Long Beach. Case files are flown out to Catalina by helicopter on their appointed hearing dates. If you appear on a date when DA left your paperwork back on the mainland, prepare to make another trip.

If you have an outstanding warrant from Catalina, your case must be added onto the court's calendar to be heard at a later date. To be added to the calendar in Catalina, you must speak to the court clerk in Long Beach (because that's where the case files are stored). Once the Long Beach clerk adds your case to the Catalina court's calendar, then you may plan to appear on the appointed date back in Catalina.

Or, you can have an experienced, local attorney handle the entire process for you. Our firm regularly appears in the Catalina court. We defend more cases in Avalon than any other private law firm in the state. Since we appear in Catalina so frequently, we do not charge our clients for travel time or expenses. In most misdemeanor cases, we can appear without you being personally present. We can save you the time, hassle and expense of returning to the island for multiple court appearances. Our office has extensive experience defending against all types of criminal offenses that are commonly filed on the island, including fishing violations, drunk in public, domestic violence, fighting and drug possession.

If you or a loved one has questions about appearing in court on Catalina Island, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Catalina Lawyer

Is it Worth My Time to Fight a Restraining Order?

I believe I've posted about this question before, but I still hear it a few times every week. Callers tell me that an ex-girlfriend or a former co-worker has filed a restraining order petition against them. They don't see the petitioner anymore and they have no reason or desire to have further contact with that person. As they see it, a restraining order really wouldn't affect their life in any way -- it wouldn't prohibit them from doing anything that they really want to do. Why take the time and effort to fight it?

There are plenty of good reasons to oppose a restraining order, even if you agree to the petitioner's basic demands (e.g. stay away, have no contact, do not follow or stalk, etc.), and even if you have no interest in doing those things anyway. Having a restraining order issued against you will affect your life in ways that might not be obvious. These court orders are public records. Subjects of restraining orders forfeit various rights that the rest of us enjoy. Being the subject of a restraining order may also lead to some other nightmare scenarios that I've seen, and that I'll describe below.

Even if you're not interested in the restraining order, your employer might be. As mentioned, restraining orders are public records. They're available for anyone to see, with or without your permission. They are easily discovered by a simple background check. Most courts even put this information online now. Being the subject of a restraining order can make you ineligible to hold certain jobs or professional licenses. Good luck getting a security clearance or a Global Entry pass with an active restraining order against you.

Anyone who is the subject of a restraining order is prohibited from owning or possessing firearms. If there's a restraining order against you, you may not even have access to firearms that someone else in your home owns. If you already own guns, you will be ordered to surrender them to local police, or else sell them to a licensed dealer immediately. You may not simply give them or "sell" them to a friend or family member for safekeeping. If your job requires you to carry a weapon in the course of your duties, you might be looking for a new job. Again, good luck finding work with a restraining order on your record.

Having a restraining order issued against you may also make you vulnerable to false accusations or "accidental violations". If the petitioner spots you (or someone who looks like you) in a restaurant or a public place, she is likely to call the police. Even if you haven't "knowingly and willfully" violated the order, you can expect an unpleasant and embarrassing encounter with investigators. I've handled too many cases where my client accidentally butt-dialed an ex-girlfriend, allegedly violating an active restraining order. If your email gets hacked and your account starts sending spam messages to everyone in your address book, you could end up back in court trying to explain yourself.

Take restraining orders seriously, and make the necessary preparations to ensure the best outcome possible for your case. Of course, the best way to effectively prepare for your day in court is to retain a qualified, local expert. If you or a loved one has questions about restraining orders, call us for a free attorney consultation.  (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

How to Fight a Restraining Order When the Petitioner is Crazy

One of the inherent problems in restraining order court is that anybody can file a petition against anybody else, at any time.  This often means that the petitioner (the person seeking the protection of a restraining order), is crazy.  He or she may be paranoid, delusional, senile, drug-addled, vindictive, or just plain nuts.

If a crazy person is seeking a restraining order against you, presenting an effective defense can be tricky.  It is not sufficient to simply argue that the petitioner is crazy.  Instead, you must carefully show the judge that your opponent is detached from reality, and that the allegations against you are entirely made up.  The goal here is to prove that the accusations against you are false, not just to prove that the person making the accusations is erratic or afflicted with some mental disease.

This defense strategy can be more complicated and difficult than some people expect.  Even if you have personal knowledge of the petitioner's mental health problems, the rules of evidence will restrict the types of arguments that you're allowed to present in court.  First of all, you may not testify that somebody else told you about the petitioner's diagnosis.  That would be hearsay.  The person who actually made that diagnosis must appear in court to testify.  If that person is the petitioner's doctor, then the rules of confidentiality would prohibit the doctor from revealing the petitioner's medical records.

In some types of restraining order hearings, hearsay is admissible.  Even if this evidence may come in under the hearsay rules, it may still be excluded if you are not qualified to render an opinion on the subject.  Before any evidence is admissible in court, the witness must "lay the foundation" -- that is, you must prove that you possess the knowledge that you're now presenting as fact.  Psychiatric diagnoses are obviously complicated medical issues.  Even if you've personally observed "crazy" behavior by the petitioner, the judge will not allow you to express an opinion about the petitioner's medical condition or mental state because you're simply not qualified to do so.

Remember also that even crazy people have the right to be free from civil harassment and domestic violence.  If your defense is that the petitioner is crazy, you must be careful not to blame the victim for your harassment.  You must be extremely mindful not to argue that the petitioner deserves to be harassed because she is crazy.  Instead, you must argue that you have not harassed anybody.  If the petitioner believes that you have harassed her, you must prove that she is mistaken and that her false beliefs are rooted in delusions.  This is done by effectively cross-examining the witness in court.  A qualified attorney knows how to ask probing questions, drill down on the details, let the witness discuss her false beliefs, and give her enough rope to hang herself.  A lawyer who is experienced in the art of cross-examination will not argue with the witness or become confrontational.  Instead, the witness should have the opportunity to destroy her own credibility.

Last, and most important, is to always consider the relevance of any argument that you want to present.  The big question in restraining order court is always whether or not the petitioner can prove that the respondent has engaged in harassment or domestic violence.  The court is not interested in determining whether or not you're a good person, or whether the opposing party is a bad person, or whether someone has lied about something unrelated in the past, or who was responsible for the breakup, or even if one party suffers from a mental illness.  Those issues might be important to you, and they might be loosely related to something in your case, but the court simply does not care.  It might be tempting, but you must not waste the court's time and your own by focusing on details that are legally irrelevant.

Every piece of evidence that you present as the respondent must support the fact that you have not engaged in conduct that would legally justify the issuance of a restraining order.  If your argument is that the petitioner is crazy, you must prove that the allegations against you are untrue.  The petitioner's mental health issues are not an excuse for your bad behavior.  Instead, those delusions help explain why the petitioner falsely believes that you have done something inappropriate.

If you or a loved one has questions about restraining orders in California, call our office for a free attorney consultation.  714 449 3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

How Can I Drop Domestic Violence Charges?

Here's a situation that our office sees very frequently:  A couple (married, dating, etc.) has a big, blowup argument.  The police show up and one party accuses the other of domestic violence.  Someone spends the night in jail.  The police conduct an investigation and the DA files criminal charges against the party that they determine to be "the aggressor".

By the time the case ends up in court, emotions have cooled, the parties have attended some counseling and the "victim" no longer desires the involvement of the courts.  She asks prosecutors to drop the case, but they refuse.  Instead, the DA proceeds "full speed ahead", with or without cooperation from the reporting party / "victim". 

Many of my clients are surprised to learn that an alleged victim of domestic violence cannot simply "drop the charges" in California.  The decision of whether to file / drop criminal cases is made by the District Attorney's Office.  Prosecutors may consult with victims, but they're not legally required to follow a victim's wishes.  

When a victim asks to drop charges (or indicates that she will not cooperate in a prosecution), the DA must decide whether or not they believe that they have a strong case without their victim's testimony.  The evidence might include a recorded 911 call where the victim describes events as they're happening ("He's hitting me now! Help!").  The suspect might be heard in the background shouting threats.  The police might have recorded an interview with the victim near the time of the incident in which she discusses her injuries and how they occurred.  Cops might have photographed the injuries to corroborate the reporting party's story.  Maybe other witness tell police that they saw the suspect personally striking the victim, etc.  In those situations, prosecutors will aggressively follow through with a criminal prosecution even if the victim asks them to dismiss the case.  Their reasoning is easy to understand -- they can prove that the suspect has committed a serious, violent crime against the People of the State of California.  He shouldn't be allowed to intimidate his victim into recanting her story.  Prosecutors have a responsibility to protect vulnerable citizens and to seek justice against those who would do them harm.  Plus, they don't need the victim's testimony to win a conviction.  There's enough independent evidence to prove the charges even without her cooperation.  That much makes sense.  

Most cases aren't that cut and dry, though.  A fact pattern that I see more commonly goes like this: Both parties have been drinking or using drugs and arguing.  At some point, one party (or a neighbor, or a stranger) calls police to report something nebulous ("I think they're fighting or something.  I heard a loud noise", etc.).  When the police show up, one party or both accuses the other of domestic violence.  There are no injuries, witnesses or physical evidence to support the accusations, but cops take a report anyway.  By the time the case ends up in court, the accuser changes her story.  Maybe she admits that she exaggerated a little, or even that she was the aggressor.  In these situations, an ethical prosecutor should consider the interests of justice, the wishes of the parties, the cost to taxpayers, the burden to the court system, and their priorities in general.  When those considerations tilt in favor of dropping the case, they should do so. 

But these guys didn't get to be overpaid government employees by making reasonable decisions.  Often, prosecutors need a little arm-twisting to help them come to their senses.  That's where we step in.  Our professional staff can help dig you out of a hole without making the hole any deeper.  We have extensive experience defending against all types of domestic violence cases in Orange County, Los Angeles, Riverside and San Bernardino.  We can deal directly with investigators, witnesses and prosecutors to ensure that your rights are protected.  Domestic violence charges may carry harsh, mandatory penalties.  They're complicated, emotional matters and they require the attention of an expert. 

If you or a loved one has questions about domestic violence, call us for a free attorney consultation. (714) 449-3335.  Ask for John.  Thanks for reading. 

Fullerton Domestic Violence Lawyer

Send an Offensive Text Message, Lose Your Gun Rights

Many of my clients are shocked to learn how quickly a rude or offensive text message can cost them their gun rights in California.  Don't make that mistake.  Before you hit "send", think about what you're willing to sacrifice.

California has a very permissive system of issuing restraining orders, especially in cases of alleged domestic violence -- and the definition of "domestic violence" in California is expansive.  The court will issue a restraining order when the petitioner can prove "by a preponderance of the evidence" (a very low burden) that the respondent has "harassed" him or her.  "Harassment" includes some behavior that we might not consider to be "abuse" or "domestic violence" within the conventional meanings of those terms.  Harassment in California includes any course of conduct, directed at a specific person, which serves no lawful purpose, and which would cause a reasonable person to suffer emotional distress.

"Harassment" in restraining order hearings often includes rude, offensive or insulting text messages or emails.  Calling your ex-girlfriend a "bitch" in a text message may be the grounds for the court to slap you with domestic violence restraining order, even if you never hurt or threatened anyone.  In many cases, a judge may find that an insulting text message meets the definition of "harassment", described above.

A judge can also issue a domestic violence restraining order when one party has sent repeated, unwanted messages to an ex.  Depending on the circumstances, sending annoying text messages may constitute "harassment".  The messages don't even have to be rude or insulting. If your ex-girlfriend has asked you to stop calling or texting, you are legally obligated to respect her wishes.  If you continue sending her unwanted messages, she may take those screen shots to court and get a restraining order against you.

Anyone who is the subject of a restraining order in California must immediately surrender all their firearms to the local police, or else sell them to a licensed gun dealer.  You may not simply "sell" your collection to a friend or have a family member hold your weapons.  You also may not buy, possess or even have access to firearms while the restraining order is in effect.  If you're a hunter, collector or target shooter, you may be legally barred from enjoying your hobbies for up to 5 years.

The laws and procedures regarding restraining orders in California are complicated. If you or a loved one has questions about the process, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Orange County Restraining Orders

Can a Restraining Order be Resolved Before the Court Hearing?

As I've previously discussed on this blog, obtaining a restraining order in California is a 2-step process. First, the petitioner files a "Request for a Restraining Order". Within 24 hours, a judge will determine whether or not to grant a temporary order based on the facts alleged in the petition. Next, a hearing will be scheduled within 3 weeks. At the hearing, both sides will have an opportunity to present their arguments and a judge will decide whether or not to extend the order for a longer period (up to 5 years in cases involving domestic violence, or up to 3 years in cases involving civil harassment).

Unfortunately, this 2-step process often means that nonsense restraining orders are issued for 3 weeks before the respondent has an opportunity to present his side of the story in court. During this time, the respondent's life can be turned upside down. He can be barred from his home, separated from his kids and denied access to his belongings. By the time he has a chance to defend himself, the damage may be done.

Clients often ask me about resolving their restraining orders before their scheduled court hearings. Luckily, it may be possible to start negotiating a dismissal immediately, but this must be done properly. Disregarding the court's temporary orders can make a bad situation much worse. If the respondent calls the petitioner to discuss the case while the temporary order is in effect, he can be arrested. Any violation of the temporary order can also be grounds for the issuance of a permanent order, even if the petition itself was inadequate.

If you are the subject of a temporary order, you must absolutely abide by it until the time of the hearing. That means do not contact the petitioner in any way, directly or indirectly. Don't ask someone else to pass along a message. Don't send an email or a text message. Don't leave a note on her car. Don't even respond to a message from the petitioner if he or she attempts to contact you.

Your attorney may contact the petitioner to discuss your case, though. Any communication between you and the petitioner must be done through your counsel. If you need your work uniform or your medication, talk to your attorney about reaching out to the petitioner to arrange a hand-off.

Your lawyer can also start the process of trying to negotiate a dismissal before the hearing. Restraining order hearings are often arbitrary and unpredictable. No matter how strong you believe your case is, there's a pretty good chance that the judge will disagree. Whenever you choose to fight it out in court, there's a 50/50 chance that you'll lose. Stipulated dismissals (where both parties agree to resolve the case privately, rather than in court) can be a great way to ensure that both sides get 100% of whatever they want. Usually, the petitioner wants some assurance that the respondent will stay away, and the respondent wants to avoid a restraining order and everything that comes with it.

Stipulated dismissals work like this: the parties make an informal, written agreement through their attorneys. Typically, the respondent promises to stay away from the petitioner, to stop calling, to return the petitioner's iPad, etc., and the petitioner agrees to dismiss the case. If the respondent ever violates this agreement, the petitioner can go back to court and reopen the case. She'll simply show the judge the written contract and she'll explain how the respondent has violated it. Now she has a slam dunk case, and she's much more likely to win a restraining order. If the respondent demonstrates that he's unwilling or unable to abide by his promise to stay away, then the judge will see him as dangerous or unstable, and the court will grant the petitioner's restraining order. Of course, if the respondent complies with the agreement and he stays away as promised, then everybody wins.

If you've been served with a restraining order, call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience litigating restraining orders in all Southern California courts.

Thanks for reading.

Orange County Restraining Order Lawyer