GENERAL INFORMATION ABOUT DOMESTIC VIOLENCE CASES
Domestic Violence Charges
These are very serious charges which can carry severe consequences, including “no contact or peaceful contact” criminal court restraing orders, jail and or prison time, fines, domestic violence counseling and other penal remedies. Our Domestic Violence Lawyers at Roberts | Elliott Law Corp, can help you to investigate the facts of your case, appear in court on your behalf, and may in some cases have the charges dismissed or reduced.
Offenses involving domestic violence can be charged in a variety of different ways. If there is an alleged significant injury or a history of prior convictions, the case can be charged as a Felony. If there are no injuries suffered by the victim or the injuries sustained are minor, the case will usually be charged as a Misdemeanor.
Two of the most common charges for these types of cases are as follows:
Penal Code Section 273.5 (Domestic Violence) -“Willful Infliction of Corporal Injury: Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, or former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, 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. A criminal court protective order of up to Ten (10) years, is also required.
As used in this section, “traumatic condition” means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force. Accordingly, to be convicted of this charge you must cause a “traumatic condition” such as a wound or external or internal injury, whether of a minor or serious nature).
Penal Code Section 243(e)(1) – Battery on Spouse/Cohabitant.
When a battery is committed against a spouse, a person with whom the defendant is cohabitating, a person who is the parent of the defendant’s child, former spouse, fiance or fiancé, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceed two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. A criminal court protective order of up to Ten (10) years, is also required. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer’s treatment program, as defined in Section 1203.097.
Other charges often brought in these situations include Penal Code Section 273.6– “intentional and knowing violation of court order restricting harassment, disturbing the peace or threats of acts of violence. A conviction fpr this charge requires that a valid court order has been properly served on you, and you knowingly violated said order.
In the current political environment, an arrest which emanates out of a verbal argument and/or minor physical contact can result in serious felony or misdemeanor domestic violence charges. Normally those arrested for domestic violence are held in custody on felony charges and bail is set generally at $25,000.00 or higher. Often an “Criminal Court Emergency Restraining Order” is issued (if requested by the alleged victim) for up to five days by the Court. Violation of the emergency order (i.e. Any contact with spouse or cohabitant) may result in further arrest, and additional charges. Unfortunately, in some cases a felony arrest coupled with a high bail is not fair nor warranted in light of the underlying offense. This can result in punishment to those charged with this type of offense prior to their first appearance and/or conviction in Court. Our San Jose Domestic Violence Attorney’s may help in avoiding high bail, obtaining early release from jail, (Own Recognizance Release (OR) or Supervised Own recognizance Release (SORP), avoiding burdensome restraining orders, community service, fines and other penalties.
Penalties and Punishments
A. Penalties for a Violation of Penal Code Section 273.5 – domestic violence – first offense
Felony
– Imprisonment in the state prison for two, three or four years or in county jail for not more than one year or by a fine of up to six thousand dollars ($6,000) or both fine and imprisonment.
– Probation up to five (5) years or parole.
– Domestic violence counseling of not less than one year in length and at a cost of approximately one thousand three hundred dollars ($1,300).
– Criminal Protective orders (No Contact or Peaceful Contact) protecting victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and if appropriate containing residence exclusion and or stay away conditions.
– Domestic violence restitution fines.
– The Court can also order defendants to make payments to the battered women’s shelter up to a maximum of five thousand dollars ($5,000).
– The defendantcan be ordered to reimburse the victim for reasonable expenses, i.e., medical bills, counseling. This would be a Restituion order.
– The Court can also order parenting classes, and alcohol or drug programs, in addition to the batterers treatment fifty-two (52) week program.
-The Court must also order a”Ten (10) year Firearms Ban” for almost all domestic violence and battery convictions.
Misdemeanor
– Imprisonment in county jail for not more than one year, a fine of up to six thousand dollars ($6,000) or by both fine and imprisonment
– Minimum probation period of thirty- six (36) months; maximum probation five (5) years.
– Domestic violence counseling of not less than one year in length at a cost of approximately one thousand five hundred dollars ($1,500).
–Criminal Protective orders (No Contact or Peaceful Contact) protecting victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and if appropriate containing residence exclusion or stay away conditions.
– Domestic violence restitution fines and fee’s.
– The Courts also shall order the defendant to perform a specified amount of appropriate community service as designated.
-The Court can also order defendants to make payments to the battered women’s shelter up to a maximum of five
thousand dollars ($5,000).
-The defendant can be ordered to reimburse the victim for reasonable expenses, i.e, medical bills’, counseling. This would by way of a restituion order.
– The Court can also order parenting, or alcohol or drug programs in addition to the fity-two (52) week batterer’s treatment program.
-The Court must also order a Ten (10) year firearms ban for almost all domestic violence convictions.
Penalties for a Violation of Penal Code Section 273.5 – domestic violence -second offense within.seven (7) years of first offense
All the above-mentioned conditions, plus a mandatory minimum county jail commitment for fifteen (15) days.
Penalties for a Violation of Penal Code Section 273.5 – domestic violence – third offense or more
Mandatory conditions of probation as listed above, plus a mandatory county jail sentence of sixty (60) days or more.
Penal Code Section 243(e) – battery on spouse or cohabitant – (misdemeanor only).
– by fine not to exceed two thousand dollars ($2,000).
– Imprisonment in the county jail for a period of up to one (1) year or by both fine and imprisonment.
– Completion of at least one year of batterer’s treatment program as defined in Penal Code Section 1203.097. (Cost approximately $1,500.)
– Defendant can be ordered to make payments to the battered women’s shelter up to a maximum of five thousand dollars ($5,000).
– Defendant can be ordered to reimburse victim for reasonable costs including medical expenses, psychological counseling, etc.
Upon a conviction of Penal Code Section 243(e) with a prior conviction:
– All of the above mentioned conditions can be ordered along with a mandatory minimum incarceration in the county jail for no less than forty eight (48) hours.
– No owning, possesing or controlling a firearm or amunition for ten (10) years.
Penalties for 273.6(a) – violation of restraining order – misdemeanor violation.
– Fine up to one thousand dollars ($1,000.00) plus penalty assessments.
– Prison or county jail for up to one year.
– Or by both fine and imprisonment.
–A Ten (10) year firearms ban must be ordered as well.
Penalties for 273.6 (b)
In the event of violation of subdivision (a) which results in physical injury, the same conditions of probation can be granted along with mandatory county jail sentence of thirty (30) days and up to one year.
Immigration Consequences
Crimes of violence which result in a prison or county jail sentence in excess of one year, can cause serious immigration problems for non-citizens and can result in automatic deportation. Further, domestic violence charges are crimes of violence, as are violations of domestic violence restraining orders, which can result in non-citizens being deported, denied naturalization and or excluded from admisssion into the Unites States. Many of these crimes of violence may also be considered “Crimes of Moral Turpitude (CMT) for immigration/deportation purposes. If you are not a United States Citizen and you are facing a criminal charge, you should consult with an Attorney who Specializes in Immigration law, immediately before entering a plea and resolving your case
Penal Code 136.1 – Dissuading/Intimidation of Witnesses/Victim.
Additional offenses in this area can include Califronia Penal Code Section 136.1 ( intimidation or dissuading witnesses or victims). In almost every domestic violence case, the complaining victim and/or witness is a spouse, girlfriend, boyfriend ,domestic partner or family memeber and they represent the only witness to the alleged crime. Accordingly, any intimidation of such witnesses and/or victims, or dissuading them to appear in Court can result in serious additional charges being brought against you.
Penal Code Section 136.1 states that “any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison”:
- “Knowingly and maliciously” prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
- “Knowingly and maliciously” attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry.authorized by law.
- For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.
Penal Code Section 136.1(b)
Every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
- Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.
- Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof;
- Arresting or causing or seeking the arrest of a person in connection with that victimization.
This offense can be charged as a Felony if the act of dissuading the witness is accompanied by force or by threats of force or violence upon the witness or victim. Where the act of dissuading or threatening a witness or victim is in furtherance of a conspiracy or if the acts is committed by any person for pecuniary gain or any other consideration acting upon the request of any other person, all parties to such a transaction are guilty of a Felony in addition to the above penalties imposed by the Court. In many cases, our San Jose Domestic Violence Defense Attorney’s can minimize these penalties and punishment, by developing a proper defense (i.e Self-Defense) and/or plea bargaining the charge to a lesser included offense.
DEFENSES TO DOMESTIC VIOLENCE CASES
There are many “defenses” to domestic violence or battery charges. The main defense to domestic violence or battery charges would be “self-defense.” In this situation, the defendant must ordinarily prove that his/her actions were reasonable and necessary to defend themselves against an attack by a spouse or cohabitant. The force used must be reasonable or “legal force” in comparison with the force being used against the individual.
THE COURT SYSTEM
Your misdemeanor or felony domestic violence charge will be handled entirely in Superior Court. There are many hearings and procedures available to both the prosecution and the defendant. A Lawyer may assist you in these hearings and procedures and in many cases can appear on your behalf without your presence in Court. In domestic violence cases, the defendant must appear at the arraignment and at sentencing in all cases. This is required, so that the Defendant can be personally served with a Criminal Court restraing order. At all pretrial conference hearings and other proceedings, an attorney can appear on behalf of his or her client. (Penal Code Section 977).
Further, our Domestic Violence Attorney’s at Roberts | Elliott Law Corp. may assist you in taking evidentiary statements from witnesses, alleged victims and providing requests for “discovery” to the prosecution. This would include police reports, lab reports and criminal records of potential witnesses and victims who may testify against you. In many of these cases, drugs and alcohol are involved. Our Lawyer’s can retest the blood sample, to rebut an allegation of alcohol and/or drug intoxication..
Many defenses exist to domestic violence charges and they are very emotionally charged cases. Many times, the facts and circumstances are exaggerated to the police in the heat of the moment. Plea bargaining is common in these types of cases, wherein the defendant’s word is generally posed against the word of a single witness spouse or cohabitant. The defendant must be proved guilty beyond a reasonable doubt in order to be convicted and there is no public record of a domestic violence charge until or unless you are convicted.
NOTICE: This general information sheet is not intended to guide you in the defenses of your particular case or provide legal advice as to your particular case. Each case is different. For legal advice on. the particulars of your case, you should consult an attorney.