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Domestic Violence

Domestic violence refers to abuse committed against those with whom we are related or have an intimate relationship. There are specific categories of persons who are protected under the domestic violence statutes in California. Under Family Code section 6211, a person can be charged with the specific crime of domestic violence if he or she abused any of the following persons:

  •    A person to whom the alleged offender is or was married to;
  •    A person with whom the alleged offender regularly lives in the same household or regularly lived with in the same household the past;
  •    A person with whom the alleged offender is or was in a dating or engagement relationship;
  •    A person with whom the alleged offender has had a child;
  •    A person who is a child of the alleged offender;
  •    A person who is related to the alleged offender within the second degree (this could be the alleged offender’s mother, father, grandparent, sibling, first cousin, niece, or nephew.)

Abuse under the domestic violence laws is set forth in Family Code section 6203 to mean:

  •    Intentionally or recklessly causing or attempting to cause bodily injury to any of the above listed persons;
  •    Sexual assault on any of the above listed persons;
  •    Purposefully putting any of the above listed persons in reasonable fear of serious bodily injury to themselves or to another;
  •    Violating a protective order that protects any of the above listed persons

Prosecutors aggressively act on domestic violence allegations. Even when the allegations are apparently fabricated, charges are often filed. Prosecutors usually will not dismiss the charges even when the person who made the allegations asks the prosecutor to drop the charges. It is unfortunate but true that sometimes allegations of domestic violence are used to manipulate the system. For example, it is not unheard of in a bitter divorce for one spouse to allege domestic violence against the other so that a restraining order is issued effectively kicking the alleged offender out of the house.

The penalties for the various crimes included under the umbrella of domestic violence vary according to the nature of the crime, the seriousness of any injuries inflicted, and the defendant’s prior record. At minimum, every domestic violence conviction comes with 30 days in jail in most counties. Most judges also require a 52-week domestic batterer’s class for individuals convicted of domestic battery.

Battery & Domestic Violence

Battery is any willful and unlawful use of force or violence upon the person of another. Where a battery is committed against certain classes of victims, such as peace officers and probation department employees, the law authorizes longer periods of incarceration. Similarly, batteries involving people in the specified domestic violence relationships, noted above, are punished more severely than ordinary battery offenses. (Although the battery statute omits former cohabitants from the list of battery victims that justify increased jail time, the definition of domestic violence includes abuse against former cohabitants.)

When a defendant commits a battery against a person who is not in one of the classes of victims that triggers increased punishment, a conviction carries a maximum of six months in jail and a $2,000 fine. But if the defendant and victim share one of the domestic relationships identified by the battery statute, a conviction for battery carries up to one year in jail and a $2,000 fine. If the defendant is instead sentenced to probation, or the judge suspends imposition of the sentence, the defendant must complete a batterers’ program.

In addition to assessing a fine, a court may require a person convicted of a domestic violence offense to pay a fee that funds domestic violence prevention programs.

(Calif. Penal Code Sections 243, 1463.27)

Willful Infliction of Bodily Injury

A person who willfully inflicts “corporal” (bodily) injury that results in a traumatic condition upon a spouse, former spouse, cohabitant, former co-habitant, or co-parent of the person’s child is guilty of a felony. “Traumatic condition” is a wound or external or internal injury caused by force.

Upon conviction, a defendant may be sentenced up to four years in prison and fined $6,000. If a defendant is sentenced to probation, the court may in lieu of a fine require the defendant to donate money to a battered women’s shelter and reimburse the victim for counseling and other costs that directly result from the offense.

A conviction for willful infliction of corporal injury can be punished by up to 5 years in prison and a $10,000 fine if the defendant has a prior conviction for any of the following offenses within the previous seven years:

  • willful infliction of corporal injury
  • battery involving serious bodily injury
  • sexual battery
  • an attempt to injure or disfigure a person with a flammable substance or caustic chemical
  • assault with a stun gun, or
  • assault with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury.

(Calif. Penal Code Section 273.5)

Protective Orders & Law Enforcement Duties

A court may issue a temporary protective order, without holding a hearing (known as an ex parte order), where a law enforcement officer asserts reasonable grounds to believe that a person is in immediate danger of domestic violence, based on the person’s allegations of recent domestic violence or threats of domestic violence. The order may prohibit the alleged abuser from harming, harassing, or otherwise having contact with the alleged victim, as well as order the alleged abuser to move out of the home. After conducting a hearing involving the alleged aggressor and victim, the court may extend the order up to five years.

(Calif. Family Code Sections 6250, 6320, 6321, 6345)

Where a person is charged with a domestic violence crime, the court must consider issuing a protective order to protect the alleged victim from further violence, harassment, or any other form of contact from the defendant. Where a court has good cause to believe that harm or intimidation of a victim or witness is reasonably likely to occur, a court may issue an order directing a law enforcement agency to provide protection to a victim, witnesses, or the immediate family of a victim or a witness who reside with or live in close proximity to the victim or witness.

At sentencing for conviction of a domestic violence crime, a court may issue an order prohibiting the defendant from having any contact with the victim. The court may make the order effective for up to ten years.

Officers are required to make an arrest when it appears more likely than not that a suspect has violated a domestic violence protective order. If each side has protective orders against the other, the officer must determine who is the dominant aggressor. California law defines the dominant aggressor as the most significant aggressor, which is not necessarily the initial aggressor. In identifying the dominant aggressor, the officer considers several factors, including whether either person acted in self-defense.

Violating a protective order can have serious consequences. As of January 1, 2017, violating a post-conviction restraining order (one issued after the defendant was convicted of specified acts of domestic violence) carries a sentence of incarceration in the county jail for up to one year, a $1,000 fine, or both. A first violation must result in a sentence of 48 hours in the county jail if the violation resulted in physical injury. And a second or subsequent violation occurring within seven years and involving an act of violence, or a credible threat of violence, with imprisonment in the county jail not to exceed one year; or by 16 months, or two, or three years in state prison.

(Calif. Penal Code Sections 136.2, 166, 836)

Consult A Lawyer

A conviction for a domestic violence offense can result in substantial penalties, including a lengthy prison sentence in some cases. If you are charged with a domestic violence offense in California, you should consult with a lawyer experienced in handling domestic violence cases. An experienced lawyer will guide you through the process while ensuring that your rights are protected. A lawyer will evaluate strengths and weaknesses in your case and may seek to have charges reduced or dismissed. If your case proceeds to trial, a lawyer will zealously protect your rights while advocating for your acquittal.

Even someone who believes he or she is innocent of the charges must take steps immediately to defend against these charges. The first step anyone facing such charges should take is to call an experienced criminal defense attorney

Penal Code section 243(e)(1)

This section specifically punishes battery against a current or former intimate partner, whether it is a spouse or any other person with whom the alleged offender is or has been intimate. “A battery is any willful and unlawful use of force or violence upon the person of another.” (Penal Code section 242.) Note that the definition of battery does not require any visible evidence, such as bruises or cuts. It is a misdemeanor violation with a possible sentence of up to one year in county jail and/or probation and fines. Someone convicted under this section will also be ordered to complete a batterer’s treatment program and/or counseling.

Penal Code section 273.5

This section punishes corporal injury against a current or former spouse or cohabitant or one with whom the offender is or was dating or engaged to be married or the other parent of the alleged offender’s child. Corporal injury results when a wound or an external or internal injury is inflicted on another. Even the slightest physical aggression against another, say for example grabbing the wrists of someone to the extent that it leaves a mark, can trigger this charge.

A conviction under this section is a felony and carries a sentence of imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by fines or by both that fine and imprisonment. Second offense convictions (within the past seven years) are punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and fines. Under the statute the court may also issue an order restraining the offender from any contact with the victim for up to ten years.

Penal Code section 273d

This section punishes corporal punishment or injury to a child. While it is always illegal to inflict any corporal punishment on an adult, California allows a parent to physically hit a child as long as it is not cruel and inhuman and does not cause the child to suffer a traumatic physical condition. Although these conditions are not clearly defined under the statute, and the law on child abuse is evolving, charges under section 273d most often occur when there are visible and traumatic injuries to the child. “Traumatic” can mean a minor injury such as a scratch or a bruise.

Violation of section 273d is a felony punishable by imprisonment for two, four, or six years, or in a county jail for not more than one year and fines or both. Someone who has been previously convicted within the prior ten years of child abuse faces a sentence enhancement of four years imprisonment on top of the sentence received. If probation is granted, the mandatory minimum term is 36 months.

In addition to whatever sentence is ordered, the convicted child offender will often be ordered to a child abuse offender program and/or counseling and the court may also issue a criminal protective order protecting the victim from further acts of violence or threats, or possibly a residence exclusion or stay-away order.