Domestic Violence Offences

One of the most common offences of violence is domestic violence.

Domestic violence is defined as abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship. It is also when the abused person and the abusive person are closely related by blood or marriage. Abuse is “physically hurting or trying to hurt someone, intentionally or recklessly; sexual assault; making someone reasonably afraid that they or someone else are about to be seriously hurt; or behavior like harassing, stalking, threatening or hitting someone; disturbing someone’s peace; or destroying someone property.”

Physical abuse involves a wide range of behavior such as: hitting, kicking, shoving, pushing, hair pulling, throwing objects at a person, scaring or following a person, or controlling a persons movements.

The most commonly charged domestic violence offences are under penal code 273.5 and 243(e)(1)

Types of Offences

PC 273.5.

This offence involves the willful infliction of corporal injury resulting in a traumatic injury to a spouse or former spouse, cohabitant or former cohabitant, fiancé or fiancée or a person who was in a dating relationship with the defendant.

A traumatic injury is defined as “a wound, or external or internal injury, including but not limited to, injury as a result of strangulation or suffocation, whether minor or serious in nature, caused by physical force.

The offence can be charged as a felony when committed by a defendant who was convicted in the preceding 7 years of an offence under penal code 243, 243.4, 244, 244.5 or 245. If the offence is charged as a misdemeanor and the defendant has a prior conviction in the last 7 years for any of the offences listed above, the sentence must include imprisonment in county jail for not less than 15 days. If charged as a misdemeanor and the defendant has two prior convictions for the offences listed above within the last 7 years, his sentence must include at least 60 days in county jail. The court can decide not to impose the mandatory imprisonment terms upon a showing of good cause.

The offence is charged as a felony if the defendant was convicted under PC 243(e) within the last 7 years.

Generally speaking, first time defendants convicted of misdemenor domestic violence under PC 273.5 receive the following sentences:

• Placed on probation for 3 years. The sentence will either be suspended i.e. 180 days suspended for 3 years, or the imposition of sentence will be suspended.
• The terms of probation: serve 30-60 days at the county jail, complete the 12 month batterers treatment program, complete 12 sessions of anger management, Obey all laws, pay $175 victim restitution fine, pay domestic violence fee of $500, $40 court security fee and community work service.
• The probation will be formal (i.e. will required defendant to report to a probation officer and pay probation fees) until the defendant has completed the batterers treatment program and community work service.

PC 243(e)(1)

This offence is battery against a spouse, person with whom the defendant is cohabiting, parent of the defendant’s child, former spouse, fiancé, fiancée, or a person with whom the defendant has or previously had a dating or engagement relationship.

A battery is any wilful and unlawful use of force or violence upon the person of another.

PC233(e)(1) is a misdemeanor offence punishable with up to one year in county jail and a fine of up to $2,000.

An individual convicted of this offence should expect to be placed on probation for 3 years. As part of his or her probation terms the sentence will include at least 48 hours in jail unless the court finds good cause for not imposing this term of imprisonment. As with PC 273.5 the terms of probation will also include the completion of a 1 year batterers program, and payment of a domestic violence fee together with fines and fees.

Evidence in a domestic violence case

Pursuant to PC 13701(b) California has a mandatory arrest policy in DV cases. The law states that arrest is encouraged where probable cause exists, and mandatory arrest is necessary when the claim involves alleged violation of domestic violence protective or restraining order. In addition the law states that law enforcement should make reasonable efforts to identify the primary aggressor.

Often the prosecution of a domestic violence case rests upon the testimony of the victim. More often than not victims are uncooperative. Once the dust has settled after the arrest a high proportion of victims contact the police, and or the DA, stating that the incident didn’t happen, that they were mistaken, and that they do not want the defendant prosecuted. Unfortunately, by this stage it is often too late to stop the prosecution in moving forward with the case.

In a high proportion of cases victims recant their testimony. This does not deter the prosecution who will generally prosecute a DV case despite a victim recanting especially if there is additional evidence available to them. Other evidence of the crime may include things such as police reports, photographs of injury or damage to property, 911 calls, statements made on social media, eyewitness accounts and medical reports.

In addition, the prosecution can subpoena an unwilling victim to court to give evidence. If the victim fails to come to court the victim can be prosecuted for contempt of court.

Legal Defenses

There are a number of legal defenses to domestic violence offences. The most frequently used are:

• self defense or defense of another
• the allegations are false i.e. the defendant is being falsely accused
• the injury occurred as a result of an accident

Given the profound consequences of a DV charge, it is extremely important to seek legal advice at an early stage. We may be able to convince the DA not to file charges against you, if charges are filed we may be able to negotiate a pre-plea diversion or an alternative charge such as criminal trespass or disturbing the peace.

If you need assistance with issues of violence or rage control we are here to help. We can assist you in getting you enrolled in anger managements sessions, drug and alcohol rehabilitation and councelling sessions. Such pro-active steps oftentimes assist in plea negotiations.

Collateral consequence of a domestic violence conviction

Domestic violence offences are crimes of moral turpitude. This means they can have profound consequences from an immigration perspective. In addition a conviction of even a misdemeanor domestic violence offence will result in a prohibition under Californian law from possessing a gun for 10 years. In addition under federal law most domestic violence convictions result in a lifetime firearms ban. In short  most people convicted in California of Domestic Violence will never legally be able to own a gun anywhere in the US.