No longer “swept under the rug” or treated informally are domestic violence cases (Penal Code section 273.5(a)). On the contrary, “DV” cases are going to be treated very seriously by the responding deputies or police. Unfortunately, in many cases where an alleged victim or a concerned neighbor calls 911 (to help calm things down or for assistance) and the officers reasonably believe the victim’s or witness’ story, then the other party (the defendant) will probably be arrested. At that point, it is important for the accused individual to speak with an experienced and knowledgeable attorney, as soon as possible, to develop an effective defense approach and strategy.
An arrest can still happen even when the suspect attempts to vigorously protest his/her innocence, even when there are no injuries apparent on the victim, and even when the alleged victim states that he/she does not actually want the other person to be arrested. At that point, it’s usually just too late to prevent the officer from making the arrest if he/she believes an act of violence was committed against the victim!
The suspect will then be transported to the local police department or the sheriff’s station, where he/she will be booked and processed on a felony (even though the case may eventually be filed as a misdemeanor). Making things even harder and more stressful on all concerned, is that the bail will be an exorbitant $50,000 (per California bail schedule). If bail cannot be posted, then the suspect will remain in custody for a couple of days until the prosecutor can evaluate the case.
When the case is evaluated by the local prosecutor, it will be based simply on the contents of the arrest report, whether the contents are accurate or not. The decision will then be made as to whether the case should be filed as a felony, a misdemeanor, or not all. The time to call an attorney is not after the prosecutor has made his/her decision, but rather, immediately! The sooner the call is made, the sooner a discussion can take place with the involved parties to develop a strategy that will assist the client!
In order to prove that the defendant committed an act of domestic violence, the prosecutor will have to prove that the defendant willfully inflicted corporal injury upon the victim resulting in a traumatic condition. The term “victim” is broadly defined by the California legislature to include the defendant’s spouse or former spouse, cohabitant or former cohabitant, fiancé or someone he/she was engaged to, or someone with whom there is a current or past dating relationship. Additionally, the injury may be minor (redness, scratch, cut, and/or bruise) or serious (bone breaks/fractures, internal organ injury, concussion).
The punishments for DV offenses are extremely harsh and strict, and will be based upon the circumstances of the case, any aggravating factors and the defendant’s criminal history. For misdemeanor convictions, the defendant can be sentenced to a period of years of informal probation (usually three years), up to one-year custody in county jail, attendance at 52 domestic violence classes, fines/fees and restitution to the victim (if any). The prosecutor will also automatically request the judge to impose upon the defendant a criminal protective order.
For felony convictions, the defendant may either receive a term of formal probation (a probation officer is assigned to the defendant), up to one year of custody in county jail, attendance at 52 domestic violence classes, fines/fees and restitution to the victim. If probation is denied, then the defendant is facing confinement in state prison for 2 years, 3 years, or 4 years. The prosecutor will also automatically request the judge to impose upon the defendant a criminal protective order.
Dissuading a Witness
In many DV cases, there are other violence-related charges that may be filed, if the facts are present. One in particular, dissuading a witness (Penal Code section 136.1(a)), is common. It usually occurs when the defendant prevents or attempts to prevent, the victim from calling 911 during the DV event by taking or destroying the victim’s cell phone. It may also occur while the case is pending and the defendant (or defendant’s family member/friend), tells the victim “she better not cooperate with the police or testify in court against the defendant”. The threatening communication to the victim can be in-person, by telephone, in writing and through social media (text, email, etc.).
This offense can be charged as a misdemeanor, punishable by up to one year of custody in the county jail. It can also be charged as a felony, punishable by up to one year of custody in the county jail, or 16 months, 2 years, or 3 years in state prison.
Additionally, any felony or misdemeanor domestic violence conviction (involving Penal Code section 273.5) will result in a lifetime ban on owning or possessing a firearm. Period. Moreover, any firearms that the defendant owns or has in his/her possession will have to be given up or confiscated.
The defenses available in a DV case are the same as those available in a simple battery case. The contact against the victim may have been accidental or unintentional, the victim may have provoked the contact, the defendant was merely acting in self-defense, or the defendant is factually innocent. Additionally, unlike many battery cases where the defendant and the victim are usually strangers to one another, in a DV case, the defendant and victim have or shared a unique relationship (even if it’s only a short period of time). This relationship history may reveal aspects of the victim that are especially relevant to the victim’s lack of credibility (“who’s telling the truth?”):
- victim was drinking during alleged event and victim’s best friend says that victim always gets violent against defendant when drinking
- victim has a past history of DV against defendant (or even in past relationships)
- a text exchange exists between the parties revealing the alleged victim was angrily and physically confronting the defendant during the alleged event
- the alleged victim has a history of exaggeration or deceit, or possesses an ulterior motive to get the other party in trouble (to gain an advantage with child custody, to extort money in exchange for not pursuing charges)
Likewise, there may be specific aspects of the defendant’s character that bear on his/her “truthfulness” or “peaceful nature”:
- past girlfriend’s all state that defendant was always kind, patient, and non-violent
- defendant’s friends state that he is mild-mannered, honest and not prone to any type of violence
- long-time employer of defendant states that defendant works in a very sensitive position and has reputation for being very conscientious and trustworthy
In and of themselves, such traits of the victim or the defendant do not prove innocence or guilt, but a knowledgeable and experienced attorney will make a concerted effort to learn as much about the client and the alleged victim as possible, in order to advocate for the client. In cases where such information can be effectively presented to the prosecutor, the attorney may be able to negotiate a dismissal or at least a lesser charge:
- Penal Code section 243(e)1 is similar to section 273.5, but this charge often results in a misdemeanor, rather than a felony conviction, and with less penalties (less jail or no jail, and no gun ownership prohibitions),
- Penal Code section 415(2), commonly known as “disturbing the peace by unreasonable noise”, is a significant reduction from a DV charge and very importantly, has no real connotation of violence. In fact, for practical purposes, it is one step-up from a traffic ticket. In many cases where the DV evidence is “weak” and other compelling reasons exist, a prosecutor may accept a plea to this charge with informal probation and maybe some anger management classes (instead of one year of DV classes).
As in any case involving violence against another person, there is much at stake. In addition to the criminal penalties, there are potential employment and immigration consequences, and not least of which, the loss of a person’s reputation. Given all of the ramifications of a DV offense, it is extremely helpful to speak with an attorney to be well and properly advised, to make informed and intelligent decisions, and to develop an effective defense strategy.