Domestic Violence
Domestic Violence Charges in California
What counts as Domestic Violence in California?
As mentioned above, “domestic violence” covers a wide variety of criminal charges in California. A domestic violence case usually involves an allegation of violence against a person that the defendant has a certain type of relationship with. California Penal Code Section 13700 establishes what types of crimes count as “domestic violence.” A crime is charge-able as “domestic violence” in California under this section when the alleged victim is:
- The defendant’s spouse
- The defendant’s former spouse
- The defendant’s cohabitant
- The mother or father of the defendant’s child
- Engaged to marry the defendant
- Previously engaged to marry the defendant
- Previously in a dating relationship with the defendant
Notice that even a previous relationship between the defendant and alleged victim can transform a criminal case into a “domestic violence” charge. Also notice that a domestic violence offense does not have to occur “at home.” What matters is the defendant and victim’s relationship-or previous relationship.
What can happen to me after I am charged with domestic violence?
The California Penal Code contains several provisions that are meant to treat domestic violence cases differently. If you are charged with a domestic violence offense, several different things could happen in your case:
In some criminal cases, especially misdemeanors, you can “appear” in court through your attorney. This can help save a lot of stress and travel expenses because criminal court proceedings can be very time-consuming. California Penal Code Section 977 allows attorneys to “appear for” their clients at multiple court dates, but it contains an important exception for some domestic violence cases (and other cases where the victim comes under a certain category defined in the family code). In a domestic violence case, you might be required to be in-person at your “arraignment” (usually your first court date) and your sentencing. You may also be required to appear on court dates where the court intends to serve a protective order in your case.
This is true for all cases where there is an alleged victim or “complaining witness”, but it is especially frequent in domestic violence cases. The alleged victim has the right to be put on notice about court proceedings, they have the right to be present and they have the right to be heard on issues concerning restitution or protective orders.
The alleged victim can also retain their own attorney during the case if they wish. This can lead to some complications when trying to conduct a proper investigation on a domestic violence case, because your attorney may want to speak with the alleged victim between court dates or send an investigator to do so. But the alleged victim has the right to have their own counsel, and must be advised of this before your lawyer contacts them. This might cause them to avoid speaking with your attorney altogether, and if they already have their own attorney, your attorney absolutely cannot contact them directly.
Sometimes, however, it is helpful when the alleged victim has their own attorney when they are asking the court or the District Attorney for leniency in your case. Consult your own attorney about this issue if you are facing domestic violence charges.
In a domestic violence case, the alleged victim has the absolute right to not testify if they do not want to. The courts can order the alleged victim to come to court and obey subpoenas, but they cannot compel an alleged domestic violence victim to take the stand and testify in your case. This rule comes from California Code of Civil Procedure Section 1219(b).
Be warned, however, that if you are charged with domestic violence and the court suspects that YOU convinced the alleged victim to not testify, you might be facing very serious charges such as witness tampering, even though the alleged victim still has the right to refuse to testify.
Sentencing and Probation are more burdensome
If you are convicted of a domestic violence charge and placed on probation, your probation will likely be very different, and more strict, than probation for non-domestic violence offenses. California Penal Code Section 1203.097 requires the Court to structure probation in a certain way for domestic violence offenses. This includes:
1.
Your probation must last for at least three (3) years
2.
You must perform some hours of community service
3.
You must contribute some of your fines to a battered women’s shelter
4.
The court must consider imposing some kind of protective order in your case, which could last for up to ten (10) years-even after you are already finished probation!
5.
You must participate in a fifty-two (52) week batterer’s program, and demonstrate your progress at later court dates throughout that program. The program must meet weekly and must meet in two (2) hour long sessions.
California Penal Code Section 1203.097 makes these terms “non negotiable” in domestic violence cases-they must be imposed in any case where someone is placed on domestic violence probation. To get around these strict terms, your attorney might consider asking the prosecutor to agree to a plea bargain where they “stipulate” or agree, that the charge you are convicted of is actually not a “domestic violence” charge, even though it was originally charged as such.
6.
Protective orders usually come into play
The courts often consider, and frequently impose, protective orders in domestic violence cases. Protective orders can be very restrictive and they can be issued on very little proof; a report of violence or imminent violence from the complaining witness could be enough to trigger a protective order forcing you to stay a certain distance from the other party and even move out of your home.
What Kinds of Protective Orders Can be Issued in Domestic Violence Cases?
Generally, protective orders in domestic violence cases fall into two (2) different categories: emergency protective orders and criminal protective orders. Both are serious because they can restrict your freedom in important ways. It is not uncommon for the defendant and complainant in a domestic violence case to live together, so a protective order might force you out of your own house. A protective order can also prohibit you from having any communication with the other party, even through intermediaries. A violation of a protective order could be punished separately as contempt of court, or as a violation of California Penal Code Section 273.6. Also, if you are alleged to have violated a protective order while your domestic violence case is pending, the court might consider revoking your bail and ordering you to stay in custody while your case continues.
Emergency Protective Order (“EPO”)
An emergency protective order is protective order that is meant to be issued quickly, often right after a domestic violence arrest or investigation. An EPO can be just as restrictive as any other protective order, but it is supposed to last for a short period of time-5 business days or 7 calendar days, whichever is shorter. Judges are available 24/7 to issue EPOs. An EPO can only be issued based on an application by law enforcement-the complaining witness cannot get one themselves.
Family Code Section 6251 sets the requirements for an EPO. An EPO can only be issued when A Law enforcement officer asserts facts that give “reasonable and probable grounds” to believe that:
- There is Immediate and present danger of DV based on person’s allegation of a recent incident of abuse or threat by person against whom the order is sought
- Child is in immediate and present danger of abuse by a family or household member based on allegation of recent threat or abuse by family or household member
- Child is in immediate and present danger of being abducted by parent or relative based on an allegation of recent threat to abduct from jurisdiction OR
- Elder or dependent adult is in immediate or present danger of abuse based on allegation of abuse or recent threat of abuse
Notice that, in some cases, an EPO can be based on an allegation that violence occurred, or that it will occur. A judge does not need proof of both in order to issue an EPO in a domestic violence case.
If you are facing domestic violence charges or if you have been arrested for domestic violence, you might already have an EPO issued against you. You should consult an attorney soon to discuss your options, as the allegations leading to an EPO could form the basis for a criminal protective order, or CPO, later on.
Criminal Protective Orders
A Criminal Protective Order, or “CPO”, can be just as restrictive as an EPO, but it can last much longer. Under a CPO, a judge can order you to refrain from harming, threatening, or even contacting or coming within a certain distance of the alleged victim in a domestic violence case. California Penal Code Section 136.2 allows a judge to issue a CPO based on a finding of “good cause” that “harm to, or dissuasion or intimidation of a victim or witness has occurred or is likely to occur.” Notice, again, that the judge does not need to be convinced that you are CURRENTLY a threat to the alleged victim or that you plan to dissuade or intimidate them. A “good cause” belief that you previously harmed or threatened the alleged victim-which usually forms the basis for a domestic violence charge itself-can form the basis of a CPO.
A CPO can last up to ten (10) years, even after the case is resolved and you have completed a sentence. Because CPOs are so frequent in domestic violence cases, and because the Penal Code requires judges to at least entertain the possibility of issuing them at various stages of a domestic violence case, it becomes crucial to figure out ways to challenge a CPO throughout the case and find ways to make it less restrictive.
Do Not Harm, Annoy, or Molest Order (“No-HAM”)
Domestic Violence FAQs
The court can still issue one anyway. The law says that, at various stages of a domestic violence case, the court “shall” consider issuing a protective order “on its own motion.” This means that the court decides whether a protective order shall be in place, not the alleged victim. While the alleged victim does have the right to be heard on this issue, the court does not necessarily have to abide by their wishes.
Unfortunately, not always. Just like with protective orders, the alleged victim does not get the “final say” on whether charges go forward. A criminal case is not like a civil case where private parties bring claims against each other in court. A criminal domestic case is brought when the district attorney or prosecutor-a public employee-decides to bring charges based on information that they receive. The DA decides whether charges will be brought, not the alleged victim.
The victim in a domestic violence has the right to refuse to testify. This can cause some problems with the prosecution’s case, but it does not necessarily lead to a dismissal. Sometimes the prosecutor could still try to prove the charges against you without live testimony from the alleged victim. Some examples are:
-Physical evidence of injury to the alleged victim
-Statements that you may have made
-Third-party eyewitnesses who may have witnessed the events and will say that you assaulted the alleged victim
-Statements that the alleged victim made out of court while under certain circumstances
Still, an uncooperative complainant might tend to make the case against you weaker, so you and your attorney should explore these issues thoroughly to see just exactly HOW the government might try to mount their case against you.
Fortunately, there are several defenses available in a domestic violence case.
Like in most cases where physical injury is alleged, self-defense and defense of others may be viable issues. If the defense successfully argues that the defendant reasonably believed that the force used was necessary to prevent imminent bodily harm to themselves, and the force used was a proportionate response under the circumstances, then the defendant should be found “not guilty.”
Please note that, in a “self-defense” case, the defendant does not necessarily have to show that the alleged victim was, in fact, threatening the defendant or that they would have harmed the defendant if given a chance. Rather, the defendant need only show that they “reasonably believed” that the alleged victim was threatening them and that the force used was needed in order to stop it. Also, the defense does not have to put forward any evidence in its own “side” of the case to succeed on a self-defense claim. Instead, they can show or suggest a self-defense claim through the physical evidence or witnesses that the prosecution puts forward. And furthermore, is the burden of the prosecution to disprove self-defense beyond a reasonable doubt once the defense raises it at trial. So, if a jury hears all of the evidence, and they have any reasonable doubt that the defendant might have in fact been acting in self-defense, then they would find that defendant “not guilty.”
Another defense to a domestic violence charge, common to other criminal trials, is fabrication. Many trials can often boil down to “their word against mine” situations, and trials for violations of PC 273.5 are no exception. A successful defense of a domestic violence charge should explore every option available to probe into the credibility of the prosecution’s evidence-both live witnesses and physical or photographic evidence. And the defense should also explore whether any witnesses for their own side are available to exonerate the defendant as well-was the defendant even in the area when the injury allegedly took place? Did the complaining witness actually suffer their injuries in some other event, and is now trying to “frame” the defendant? Was the complaining witness even injured at all, and how do we know? All of these and more are the types of a questions that a well-prepared defense counsel should look into when representing someone charged with domestic violence
Domestic violence under articles
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