San Diego Domestic Violence Attorney
California state law aims to make it illegal to threaten or cause harm to a current or past intimate partners or individuals with whom we have familial ties. Domestic battery and corporal injury to an intimate partner are also considered under domestic violence laws. The state considers it domestic violence when one commits criminal acts within a prescribed relationship types specified, namely:
- a current or former person whom the accused dated in the past
- a current or former fiancé
- a current or former spouse
- a current or former cohabitant
- a current or former registered domestic partner
- the parent of your child.
The list of individuals that may fall victim to domestic abuse extends beyond romantic interests to include people to whom the accused may be related to within the second degree by blood (consanguinity) or marriage (affinity), including:
- uncles, aunts, nephews, and nieces.
Domestic abuse cases often involve child abuse as these two crimes often co-occur.
When someone is charged with a crime related to domestic violence, the prosecutor will decide which specific sections of California's Penal Code apply, and pursue criminal charges based on the harm sustained by the victim and the seriousness of the alleged conduct.
While "willful and unlawful" force or violence is the core of battery, battery committed within an intimate or familiar relationship is criminalized. A prosecutor may charge a person for battery to reflect a more serious degree or severity of harm or injury suffered by the alleged domestic violence victim.
Domestic violence is also criminalized when the perpetrator's willful actions lead to corporal injury causes the victim to suffer a traumatic condition.
Sadly, it is very common for innocent people to be wrongly accused of domestic violence, and a conviction can have dire consequences. You may not have meant to hurt your partner, or perhaps you acted out of self-defense. The entire accusation could be based on a lie. The good news is that a criminal attorney with experience in domestic violence will be able to help you establish a credible defense. Get in touch with San Diego Criminal Attorney as soon as you become aware of the accusations against you to obtain the best defense and guidance to ensure the best possible outcome for your case.
Penalties typically vary depending on the severity and facts of the case, but may include:
- A permanent listing on their criminal record
- A protective (restraining) order
- Fine payments or criminal restitution
- Mandatory batterer's program attendance
- Loss of custody of minors
- Immigration consequences - non-citizens may be deported or banned from entering the United States
A battery conviction under domestic violence can result in fines of as much as $2,000 or county jail imprisonment for up to a year, or possibly both. Under Section 234(d), person can be sentenced to a year in a county jail or serve up to four years in a state prison as well as a protective order.
These consequences will apply regardless of whether the defendant is sentenced to misdemeanor (summary) or felony (formal) probation.
If a person has been convicted under the same sections of California's Penal Code for domestic violence before, the prosecutor may pursue additional, increased penalties.
Domestic Violence in California
California courts categorize the following crimes committed to the individuals stated above as domestic violence:
While some of the above crimes are considered misdemeanors, others are considered felonies. In most instances of domestic violence in California courts, the crime can be considered a "wobbler" offense, which means that the defendant can be charged with a felony or a misdemeanor. The prosecutor's decision will hinge on:
- the seriousness of the injuries the alleged victim suffered
- the circumstances relating to the offense
- whether the defendant has an existing criminal record, and whether s/he has been convicted of a domestic violence offense in the past.
According to California's Penal Code 273.5 it is a felony to inflict even a slight physical injury on an inhabitant or spouse and if convicted, you may spend a year in a county jail or be sentenced to up to four years in a state prison.
Domestic battery law is explained in Penal Code 243(3)(1) which states that inflicting violence or force on an intimate partner (domestic battery) is a misdemeanor. No visible injury is required for this code to be applied. Penalties can include up to a year in county jail and fines of up to a maximum of $2,000.
Child abuse beyond reasonable spankings is punished under Penal Code 273d, which makes it unlawful to inflict injury, corporal punishment or any cruel punishment that leads to injury on a minor. A conviction can range from a year in county jail or three years in state prison.
Penal Code 273a deals with child endangerment, which is defined as the act of willfully allowing the child to be in the care of someone who causes the child to suffer harm or endangers his or her health or safety. Child endangerment is typically considered a misdemeanor and punishable by a jail sentence of up to six months. However, if there is a risk of great bodily injury to the child, the charge becomes a wobbler. Felony charges will depend on the various aspects of the case and prior convictions.
Penal Code 270 deals with child neglect or a parent's failure to provide necessities to a minor child. This demeanor can result in a one year jail sentence in county, a fine of $2,000 or both.
Penal Code 368 deals with elder abuse which makes it a crime to inflict neglect, physical or emotional abuse, financial fraud or endangerment on a person aged 65 or older. As a wobbler, being convicted of an elder abuse misdemeanor could lead to a one year jail sentence. A felony conviction can lead to a four-year sentence in a state prison.
Penal Code 422 deals with criminal threats of serious harm, which can be charged as either a felony or misdemeanor. A criminal threats misdemeanor conviction is punishable by a jail term of a maximum of one year, while a felony conviction can fetch a prison sentence of as much as four years and a strike under the "Three Strikes" law.
Stalking is prohibited by Penal Code 646.9. This law prohibits a person from threatening or harassing a person to the point that he or she fears for his or her own safety and that of his or her loved ones. The alleged stalker's criminal history will determine whether the crime is trialed as a felony or misdemeanor. A stalking misdemeanor conviction is punishable by up to one year in jail, while a felony can result in three years imprisonment.
Other actions that relate to domestic violence include:
- damaging the victim's telephone line
- aggravated trespass
- revenge pornography
- posting harmful information online
Domestic Violence: Probation and Jail Time
If you have been charged with domestic violence you may wonder whether there is any way to avoid jail time if you are convicted. The good news is that judge may grant probation if it is your first offense, or if the victim's injuries are insignificant.
Naturally, probation is more likely in the event of misdemeanor cases, since felony charges are usually applicable to significant injuries. In such a case, if the defendant is sentenced to probation, other consequences will still be applicable. However, you will probably receive the minimum jail time and be subject to certain conditions. If you violate the conditions of probation, your probation will be revoked and you will be sentenced to jail or prison.
California Domestic Violence Conviction Consequences
Most often, a domestic violence conviction in California will have more consequences in addition to fines and incarceration, including:
- Mandatory minimum jail time: A minimum 30-day jail sentence for domestic violence convictions apply in most counties across California, even when it is a first offense and a misdemeanor.
- Permanent criminal record: Domestic violence convictions will appear on your criminal record and visible to anyone who performs a routine background check, which will make it difficult to apply for benefits such as housing, state licensing or to obtain employment.
- Loss of custody rights: Most often, people who are convicted of domestic violence in California are often prohibited from obtaining custody of their minor children. However, they may be able to obtain visitation rights. It is important to note that a family law judge does not require a criminal conviction to determine that domestic violence took place.
- Victim restitution: Judges often order individuals who are convicted of domestic violence (DV) to pay victim restitution, including medical bills, property damage, lost wages, and mental health counseling. Additionally, you may be ordered to pay $500 towards a domestic violence program in California.
- Batterer's program: If you are convicted of domestic violence, you will most probably be ordered to attend a batterer's program, which involves counseling and treatment for one year. This will apply to both a misdemeanor or felony probation and may be part of or in lieu of your sentence.
- Loss of gun rights: A domestic violence conviction will most certainly result in your rights of owning a firearm being revoked and these rights cannot be recovered. In fact, you will be banned from owning a firearm for ten years for a misdemeanor and for life if you are convicted of a federal misdemeanor of domestic violence. If you are convicted of a domestic violence felony, California Penal Code 29800 ("felon with a firearm" law) will impose a lifetime firearm ban by both federal and state law. This ban can only be expunged by applying for a presidential pardon.
- Restraining orders: Whether you are tried in criminal or civil court, the alleged victim of the domestic violence may apply for an emergency restraining order, even in the absence of physical harm, provided it can be proved that you have threatened or abused the petitioner or their minor child, and that he or she is a first-degree or second-degree relative or intimate partner. Violating the restraining or protective order is a crime, but your criminal defense attorney can help provide a defense against the order.
- Immigration: Domestic violence convictions in California are often considered 'crimes involving moral turpitude' or ' aggravated felony'. If you are a non-U.S. citizen and convicted of such a crime, you may be deported or declared inadmissible to the U.S. You will therefore undergo an adjustment of immigration status and you may be ineligible to apply for a green card.
Domestic Violence Defense Strategies
When you are accused of domestic violence, it is important to speak to a specialist criminal attorney who can advise on the best positions for your defense. Common defenses against a domestic violence allegation include the following positions:
- The defendant did not cause the injuries the alleged victim sustained.
- The injuries were caused by an accident.
- The defendant acted in self-defense or in defense of children or other bystanders.
- The accusations are false and based on the victim's jealousy, anger or an attempt to gain an upper hand in child custody or divorce proceedings.
San Diego Criminal Attorney deals with domestic violence cases all the time and is able to help you negotiate a plea bargain. By pleading guilty to a misdemeanor, you can potentially avoid the negative consequences and stigma that goes with a conviction of domestic violence. For instance, if your case circumstances allow you to obtain a plea bargain for disturbing the peace or criminal trespass, you may be able to retain your right to own a firearm. Additionally, you will not automatically lose the right to have custody of your children and you should not be deported.
Domestic violence is a serious offense under California law and the consequences of a conviction can change your life completely. San Diego Criminal Attorney understands that circumstances and evidence against you may have been misrepresented. We can help ensure that your truth is told and that you receive a fair trial. Speak to San Diego Criminal Attorney today by calling 619-880-5474 and booking a case assessment.