In California, harming (or threatening to harm) a spouse, cohabitant, coparenting, dating partner, or other intimate partner is against the state’s domestic violence laws. Those protected under these laws include parents, children, and family members. Under these laws, it is unlawful to touch a spouse, child, or relative in an aggressive or disrespectful manner, even
Sexual Assault, Domestic Violence, & Battery
At Criminal Defense Hero, we have a great record of getting sexual assault and domestic violence cases rejected, reduced, or dismissed, but each case is different and must be handled very carefully and urgently. Because of the COVID-19 Quarantine, domestic violence arrests are on the rise right now, as people are stuck at home with their loved ones – or people they thought they loved. We can help get your record cleared. Domestic violence charges are usually eligible for expungement after probation is completed.
For immediate help, call 323.529.3660.
WHAT YOU NEED TO KNOW ABOUT DOMESTIC VIOLENCE CHARGES
1. Early Intervention is Key
Domestic violence cases are tricky and require immediate assistance with shaping the narrative. A lot of progress can be made by a great attorney contacting the detective before the case is filed in court.
2. Types of Domestic Violence Charges
- 273.5 (corporal injury to spouse)
- 243(e)(1) (spousal battery)
- 422 (criminal threats)
- 594 (vandalism).
Many of these charges can also lead to firearms prohibitions, even as misdemeanors.
3. No Accusation Takesies-Backsies
The most common domestic violence call that we get is “my boyfriend was arrested the other night for hitting me, but now I want to drop the charges.” Unfortunately, it’s not that simple – a complaining witness or victim cannot simply drop the charges once a case is set in motion. The best thing to do at that point is to hire a great criminal defense attorney for the person who was arrested. In cases where the victim is not cooperating with the government, a skilled attorney can get great results, but you need an attorney who is willing to go the distance and answer ready for trial.
4. Beware of Restraining Orders
At the first court appearance, the prosecutor will always ask for a restraining order while the case is pending, and a full stay-away order will be granted, unless the alleged victim is there in court to say that he or she does not want that – then we can argue for a peaceful contact order while the case is pending. That proceeding alone can have a major impact on the case, and on the lives of the defendant and the alleged victim. If a full stay away order is in place, the defendant will have to live somewhere else while the case is pending.
5. Making Sure It Never Happens Again
If there are underlying issues that contributed to the alleged domestic violence incident, we can help our client address them. We regularly connect clients to alcohol and drug treatment, anger management programs, therapists, counselors, mental health professionals, and more. Getting enrolled in a court-approved domestic violence program early in the process can also help the case. Mental Health Diversion and Veterans Diversion programs are available for domestic violence cases.
WHAT CALIFORNIA LAW SAYS ABOUT DOMESTIC VIOLENCE
The California Penal Code makes Domestic violence illegal under sections 243 and 273.5. Domestic Violence includes stalking, abandonment, criminal threats, damaging property of the victim, or causing physical injury to the protected person. Section 273.5, which is the most common of domestic violence across the state and country, states:
“Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction, thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment…”
Subdivision (b) describes the protected victim as:
- A spouse or a former spouse
- A cohabitant or a former cohabitant
- A fiancé/ a former fiancé/ or someone the offender was previously engaged to or in a dating relationship
- A parent to the offender’s child
When applying domestic violence charges, prosecutors will use Sections 243(e) 1) and 273.5 since their implications are relatively similar. The only difference between domestic battery and inflicting corporal injury law is that the former does not require evidence of physical injury. According to section 243, the crime of domestic violence is committed when you willfully inflict force or violence on someone you are currently or was once in an intimate relationship. It should be noted that domestic violence charges don’t only apply to intimate partners. The same law still protects children and the elderly who are under the care of the offender.
CAN DOMESTIC VIOLENCE RESULT IN FELONY CHARGES?
Violations of some domestic violence codes can result in felony charges in California. Violations of the following codes can be charged as either a misdemeanor or felony – sometimes called a “wobbler” – depending on the facts of the specific case and the offender’s prior criminal history.
Penal Code 273.5, Corporal Injury to a Spouse or Cohabitant
This code makes it a crime to strike another person and cause a visible injury, even a minor one such as bruising or swelling. Although this crime can be charged as a misdemeanor, it is usually charged as a felony.
Penal Code 273d, Child Abuse
This code makes it a crime to inflict even minor injuries on a child as the result of “cruel or inhuman” treatment which does not represent reasonable discipline of a child.
Penal Code 273a, Child Endangerment
Offenses under this code include willfully allowing a child under one’s care to be harmed, or putting the child’s health or safety at risk.
In addition to the above codes, certain violations of PC 270 (Child Neglect/Failure to Provide Care), PC 368 (Elder Abuse), and PC 422 (Criminal Threats) can also result in felony domestic violence charges and prosecution.
CONSEQUENCES OF DOMESTIC VIOLENCE FOR OFFENDERS
Like similar crimes, the penalties for domestic violence depend on each case and criminal charges. Violating section 243 (e) 1) is a misdemeanor that carries up to one year in county jail and a maximum of $2,000 in fines. For section 273.5, this could be a wobbler case. This means that the prosecution could apply either a misdemeanor or felony charges. If prosecution goes for misdemeanor charges, penalties could include a maximum of one year in county jail and $6,000 in fines. A felony conviction carries maximum sentencing of 4 years in state prison and/or fines of $6,000. A domestic violence violation perpetrated against children or the elderly is also considered wobbler cases with similar penalties.
Other than facing possible time in jail and fines, other consequences of a domestic violence conviction may include:
- A mandatory batterers treatment for no less than a year
- Probation of a minimum of 30 days
- Payments to battered women’s shelter of up to $5,000
- Restitution to the victim such as counseling fees or any other expenses deemed reasonable by the court
- Loss of child custody
- A restraining order from the victim
To make a strong case against offenders, the prosecution has to prove that:
- The defendant inflicted bodily injury with physical force
- The injury resulted in a traumatic condition
- The defendant willingly used physical force or violence
- The victim was a current or former spouse, cohabitant, or intimate partner
- The incident was in no way a form of self-defense
With this in mind, possible defenses for domestic violence may include:
- Self-defense – if you were acting to defend yourself or another, self-defense is a very plausible legal defense. With self-defense, the courts will also be driven to assess whether the force used was reasonable for someone in such a situation.
- False allegations – One can also try and prove that they did not commit the crime of domestic violence. For example, the alleged victim might be trying to pin the incident on you when in reality someone else committed the act.
- Accidental – Unless you willfully inflicted corporal injury or used physical force against someone, you are not guilty of domestic violence. Accidentally dropping something on your partner’s foot does not count as domestic violence.
Domestic violence charges can have long-term and serious repercussions like a criminal record and losing custody of your children. If you have been charged with domestic violence, please do not hesitate to reach out to us at Criminal Defense Hero.
How to Avoid Jail Time for a Domestic Violence Charge: Diversion Options in California
Domestic battery under Cal. PC 243(e)(1)
The people of the state of California — as evidenced by the bills passed by the legislature and signed into law by the governor — do not take domestic violence lightly. Even domestic battery, which is the least serious crime defined by California’s strict domestic violence laws, carries substantial penalties.
Anyone involved in a relationship with a current or former spouse or fiancé/fiancée, a co-parent of a child, someone you currently date or live with, or even someone you used to live with, is covered by California’s domestic violence codes and should be familiar with these important laws.
There are multiple domestic violence crimes that you can be charged with under California’s strict domestic violence laws. Of these, domestic battery is the least serious offense. Under California Penal Code Section 243(e)(1), domestic battery is a “battery” committed against a person with whom you have an intimate relationship. A battery is any willful and unlawful use of force or violence upon the person of another.
ELEMENTS OF DOMESTIC BATTERY
To prove that someone is guilty of “domestic battery,” the prosecutor must prove the following two elements:
- The defendant willfully and unlawfully touched the victim/accuser in a harmful or offensive manner;
- The victim/accuser was one of the following:
- A current or former spouse of the defendant
- Someone the defendant used to live with
- A current or former fiancé/fiancée of the defendant
- Person the defendant currently or previously had a dating relationship with
- The mother or father of the defendant’s child, regardless of whether or not the parents were in a relationship at the time of the offense
Unlike the more serious crime of corporal injury on an intimate partner which requires the victim to suffer physical injury, charges of domestic battery can be filed even if the victim was not hurt.
PENALTIES FOR DOMESTIC BATTERY
Anyone convicted of domestic battery faces the following penalties under California Penal Code Section 243(e)(1):
- A maximum of one year in county jail; and/or
- A maximum fine of $2,000; or
- Probation (informal) for up to three years
If probation is granted, the court will require the offender to attend a batterer’s educational program for a minimum of one year. Even if the offender receives a sentence of probation, the court will also order them to serve a minimum sentence of 48 hours in county jail if they have a prior domestic battery conviction on their record.
DEFENSES AGAINST A DOMESTIC BATTERY CHARGE
The best defense to a domestic battery charge is Self-Defense. This defense may apply if:
- You had a reasonable belief that you or another person would suffer a great bodily injury unless you defended yourself or another person;
- The force that you used in response was not excessive compared to the threat; and
- You responded with force only until you or the person you were protecting was no longer in danger.
For example, if one person first punches another person, but the second person then hits the first repeatedly with a bat, self-defense probably will not apply.
Because battery requires a willful touching, you cannot be guilty of domestic battery if you did not intend the contact. For example, if you were arguing with your fiancé, turned your back to answer the phone, and then elbowed her in the face when you turned back around, you are not guilty of domestic battery because the harm was unintentional. However, you can still be guilty of domestic battery if you intend the contact but an unexpected result occurs. For example, if you playfully shove someone and they stumble over the curb into oncoming traffic and are struck, you can still be convicted of domestic battery even though you did not intend for them to get hit by a car.
You should not be convicted of a crime that someone else committed. This defense hinges on showing that the defendant is not actually the person who committed the crime, and may employ witnesses and other evidence which establishes an alibi for the defendant.
The Penal Code under Section 290 requires that a sex offender informs the local law enforcement agency of their whereabouts provided that they live, work or attend school in California. In addition, this section requires that anyone who, while residing in California, attending school, or working in California, is convicted of certain sex crimes must
A sex crime will generally adversely reflect on your reputation for a lifetime. This is because, for the longest time, California Sex Offender Registration Act required all sex offenders to register in the criminal offender record information system. For felony sex crimes, the records cannot be expunged from the information system and stay with the