San Diego Domestic Battery Attorney
Domestic battery is a misdemeanor crime under section 243(e)(1) in California Penal Code. The crime of domestic battery is an aggravated battery committed "against spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship." As explained on the article about battery, in which battery is defined as any willful and unlawful touching that is harmful or offensive, even if the victim is not injured, the defendant could be charged of battery. Further, domestic battery offense can occurs so long as the touching against the partner is unlawful and there was a use of force to commit the crime.
Here are some examples of behavior that could lead to criminal liability under PC 243(e)(1):
- A woman pushes her boyfriend during a fight.
- A man, feeling frustrated with his ex-wife, grabs her shirt and rips it.
- A lesbian teenager is angry with her girlfriend for cheating on her; she pulls her girlfriend's hair and scratches her face.
In order for a defendant to be charged of domestic battery, the prosecution must prove the following elements to the jury:
- The defendant willfully touched another person.
- That touching was harmful or offensive.
- The person you touched was your intimate partner or former intimate partner.
Let's explain in details those elements of battery for better comprehension. These conditions are essential for someone being convicted of domestic battery, if the prosecution does not prove these elements, a person should not be convicted of domestic battery. San Diego Criminal Attorney will work to prove the innocence of its clients.
The first element that prosecution needs to prove to initiate the battery charges is that there was a willful action of the defendant. A person is acting in a willful way, when the intention is to do something on purpose, when there is no intent to hurt someone, gain advantage or break the law.
The evidence necessary to proof, is that the person, the defendant, willfully committed a conduct that by its nature will probably directly result in injury to another person. The prosecution, in a battery case, does not need to prove a specific intent to inflict a specific harm. However, it must show that the defendant intentionally engaged in an act that would produce detrimental consequences.
Since battery is a general intent crime, it requires an intentional act and knowledge of facts sufficient to lead a reasonable person to realize that the act by its nature will probably and directly result in the application of physical force against another.
Additionally, the term of act wilfully is when the defendant does the touching willingly or purposely, however it does not mean that the individual intent to act an unlawful conduct or hurt someone else.
Nadia was having lunch in a restaurant, when Cris, who was sitting next to Nadia's table, started to cry in the middle of the restaurant. Nadia wanted to comfort her, and gave her a hug.
In this scenario, probably the prosecution is not going to be charge with Battery, since the unwelcome hug to Cris was not harmful or offensive touching.
Harmful or offensive touching
It is important to clarify that domestic battery is only when the defendant act in an offensive or harmful manner, meaning that the contact must be done in a violent, rude, disrespectful or angry way. As stated above, the requirement of battery is the manner of the touch is done, the victim does not need to get injury or harm for someone to be charge or convict of battery. However, if the victim suffered harm, pain, injury or bruise, is likely that the case could get stronger.
Michelle and Joe have been married for 10 years, one day, they were arguing at home. Michelle was angry with Joe and she pushed him.
In this case, Michelle could not hurt Joe, since he is a jiu-jitsu fighter and Michelle is 54 feet tall. However, the unlawful touch is enough to qualify as a domestic battery under California Penal Code.
Example 2: Kevin was arguing with his wife, Joelle at a nightclub. He suddenly threw a bottle of water out of her hand.
In this case, Kevin could be guilty of domestic battery, since the bottle of water touched Joelle's body.
Against an intimate partner
In order to constitute the crime of domestic battery the crime, the unlawful touching, must be done against an intimate partner. This crime can only be committed against someone in which the defendant has a intimate relationship, including spouse, former spouse, a person with whom the defendant is cohabiting, a fiancé or fiancée, a person who is the parent of the victim child or a person with whom the defendant have a "dating relationship"or have previously dated. Thus, the statute protects the person that is engage in a serious relations from domestic violence.
The Courts already have established what is the definition of "dating relationship", in which consists "of frequent, intimate association mainly characterized by the expectation of affectional or sexual involvement, independent of financial consideration." Furthermore, the dating relationship does not acquire an exclusive interest that the relationship would endure for ever, as long as the defendant considered the relationship between him/her or the victim. Also, the dating element does not require an increasingly exclusive interest or it does not preclude a new dating relationship. People v. Rucker (2005) 126 C.A.4th 1107, 25 C.R.3d 62.
Furthermore, under California Rules is possible for a defendant to cohabit with more than one person at the same time to consider domestic battery.
A simple battery is a misdemeanor, punishable by a fine not exceeding two thousand dollars ($2,000) or by imprisonment in the county jail not exceeding one year, or misdemeanor probation, or the fine, imprisonment and probation. (Cal. Penal Code § 243)
Domestic battery is a misdemeanor in California, and the punishment is not severe comparing with some other crimes. However, if the person who committed the domestic battery offense is not a us citizen, she/he could face some immigration consequences, as deportation. Domestic battery is a crime that is called deportable crime under federal immigration law, if you are authorized to stay in the country and you face a domestic battery conviction, you may face deportation proceedings. Thus, if you were charged with domestic battery, you should contact an attorney promptly and San Diego Criminal Attorney could help you to build a strong defense for your case.
A battery is a misdemeanor crime in California Law, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is a battery offense register, it is likely that the employer won't hire someone with a misdemeanor background. If you have been charged with assault, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems.
To contest the charges of domestic battery, San Diego Criminal Attorney would be able to use the following legal defenses:
- The conduct was in self-defense or third party defense.
The self-defense theory could be applied in battery charges, if the client reasonably believe that there was an imminent danger of suffering body injury or being touched unlawfully, there is a reasonable believe that an immediate use of force was necessary to avoid the dangers, and the uses of force was reasonable necessary to defend against the danger. Further, self- defense is different than mutual combat.
If John was furious and mad with David, since he hit on John's girlfriend. John told David to wait for him outside of the bar. John and David started a combat fight.
In this case, mutual combat is not a defense for battery, here both individuals wanted to enter in a fight and hurt the other.
Sheri is very upset with her son Mark and begins hitting him fiercely. Her husband Dan grabs Sheri and holds her down to restrain her.
If Sheri accuses Dan of domestic battery, Dan can argue that he is innocent because he acted in defense of Mark.
- There was no willful conduct.
Sometimes the actions of the defendant were accidental or misunderstanding by the victim. Under this type of defense, it is essential that the defense attorney and the prosecution get the entire facts of the accident. If you have been charged with battery make sure you contact an attorney immediately. San Diego Criminal Attorney can help you build a strong defense, if you did not act willfully.
Matt, who is gay, and his boyfriend Raul are arguing in the apartment they share. Matt grabs a piece of china and throws it at the wall in anger. A china shard ricochets off the wall and hits Raoul, gashing his arm.
If he is charged with domestic battery, Matt can argue that he should be acquitted because he did not willfully touch Raul with the piece of china.
- Wrongfully accused:
Under the rules of Californa Law, it is too easy for a victim falsely accuse another of committing this crime, sometimes the cause of action is out of anger, revenge or jealousy. However, San Diego Criminal Attorney know how to protect its clients from wrongfully accusations. If this is your case, contact an attorney promptly.
California Domestic Violence Laws
In California domestic violence laws make it illegal to use physical force, to communicate threats of harm against intimate partner. These are the most common domestic violence crimes:
- Penal Code 273.5 PC Corporal injury to a spouse or Cohabitant
- Penal Code 243 (e)(1) PC Domestic Battery
- Penal Code 273d PC Child Abuse
- Penal Code 273a PC Child Endangerment
- Penal Code 368 PC Elder Abuse
- Penal Code 422 PC Criminal Threats
Domestic Violence and Immigration Issues
If you are not a citizen and have been accused of a domestic abuse crime, it is important that you fight the case and refrain from criminal conviction. Domestic violence laws in California are especially serious for immigrants who are not citizens of the United States.
California Domestic Violence Penalties & Sentencing
The sentencing, penalties and punishment for domestic violence crimes under California law varies depending on the defendant’s criminal history and the severity of the injuries. The judge typically will require the defendant to complete a one (1) year domestic batterer’s class, and most counties will enforce a jail sentence of at least thirty (30) days - even for first time misdemeanor offenses.
The legal definition of Penal Code 243(e)(1) PC under California’s domestic battery law is any willful and unlawful touching that is offensive or harmful-and is committed against:
- The defendant’s spouse or former spouse
- The defendant’s cohabitant or former cohabitant
- The defendant's finance(e) or former fiancé
- The mother or father of the defendant’s child, or
- A person with whom the defendant has or used to have a dating relationship.
If the “victim”is not injured in any way, the defendant can be convicted of domestic battery (this is sometimes known as“spousal battery.”) All the defendant needs to do is use “violence”or “force”against her/him.
This differentiates domestic battery from domestic violence of corporal injury on a spouse, cohabitant or fellow parent. This requires the victim to suffer from physical injury. Some examples of behavior that can lead to criminal liability PC 243(e)(1):
Corporal Injury on an Intimate Partner Penal Code 273.5 PC
Willful infliction of corporal injury on an intimate partner is a serious California domestic violence crime. Penal Code 273.5 PC means the crime of corporal injury on an intimate partner - which may be referred to as:
- Domestic violence
- Domestic abuse
- Willful infliction of corporal injury
- Intentional infliction of corporal injury
- Spousal abuse
In order to be considered guilty of intentional/willful infliction of corporal injury you must have willfully caused physical harm to an intimate partner and as a result caused traumatic injury to that individual. An intimate partner is classified as the defendant’s spouse or former spouse, cohabitant or former cohabitant, fiancéor former fiancé, a person whom the defendant has or had a dating relationship or the mother or father of the defendant’s child.
In order for you to be guilty of corporal injury you must be willful and have intention.
You must have willfully inflicted physical injury on an intimate partner and as a result caused “traumatic condition”to that person.
An “intimate partner”is described as:
- Defendant’s spouse
- Defendant’s cohabitant or former cohabitant
- Defendant’s fiancé
- Person whom the defendant has or used to have a dating relationship
- Father or mother of the defendant’s child
- A man pushes his girlfriend during a fight.
- A woman, feeling frustrated with her ex-husband, grabs his shirt and rips it.
- A gay teenager is angry with his boyfriend for cheating on him; he pulls his boyfriend’s hair and scratches his face.
In California law domestic battery is a misdemeanor.
What is a Misdemeanor in California Law?
By definition, a misdemeanor is, a less serious offense than a felony. In California there are three (3) types of crimes depending on the severity:
- Felony is the most serious and is punishable by imprisonment for a number of years in California state prison.
- Misdemeanors are punishable only by local county jail time for no longer one (1) year.
- Infractions are referred to as moving violations, parking tickets, and traffic tickets.
Some misdemeanor offenses may entail a more serious punishment, also know as, “gross misdemeanors”or“aggravated misdemeanors.” When this is the circumstance, the county jail sentence could increase up to a maximum and the fine could increase as well.
The potential penalties for domestic battery include, a fine of up to two thousand dollars ($2,000), and/or imprisonment in the county jail for up to one (1) year.
Domestic battery is only a misdemeanor; however, it is a tough conviction to have on your record. Luckily, with an experienced domestic violence attorney there are ways to defend yourself.
Examples of legal defenses to fight a domestic battery charge are:
Common Legal Defenses to California Crimes
Our criminal defense attorneys represent our clients throughout California. If you or someone you know is being wrongfully accused of a crime, please call us today so we can set you up for a free confidential consultation.
Listed below are some commonly used legal defenses that are applicable to California criminal offenses:
- Double Jeopardy
- Coerced Confessions
- False Accusations/Wrongful Arrest
- Lack of Probable Cause
- Mistaken Identity
- Mistake of Facts
- Parent’s Right to Discipline
- Police Misconduct
- Self-Defense/ Defense of Others
- Voluntary/Involuntary Intoxication
Self Defense as a Legal Defense Under California Law
The term self defense in California criminal law means that you can not be guilty of a violent crime that you committed to protect yourself; as long as the conduct was reasonable under the conditions. “Reasonable under the conditions”translates to:
- Reasonably thought you were in danger of being touched unlawfully, injured or killed
- Reasonably thought you had to use force to stop it from happening
- Used no more force than what was necessary to prevent it from happening
Self defense is a useful legal defense to many California crimes, such as, murder, assault with a deadly weapon, aggravated battery and battery on a peace officer.
- You did not “willfully”impose violence or force
- Falsely accused (this is very common in domestic battery cases)
What to do if You Are Falsely Accused of a Crime in California
Innocent people are falsely convicted and sentenced to prison every day. Sometimes an innocent person ends up paying the price, while the guilty party roams free. If you have been falsely accused of a crime, there is great need for legal representation. If someone has been falsely accused of a crime and pleads not guilty, then the charges are dismissed; they may file a suit against the accuser.
Experienced criminal defense lawyers are able to explain in full detail the criminal justice system and advise them on the best way to move forward.
Our California domestic violence attorneys will give you a better understanding of California domestic battery and spousal battery laws.
The Legal Definition of “Domestic Battery” in California
In California, to be guilty of domestic battery, the prosecutor must be able to prove certain facts, which are known as“elements of the crime”have been committed.
The elements of domestic battery Penal Code 243(e)(1) are:
- Willfully touched another person,
- Touching was offensive or harmful,
- The person you touched was an intimate partner or a former intimate partner.
A closer look at what this means.
“Willfully”means you acted willingly or on purpose. You didn’t intend to inflict injury on someone else or break the law.
Example: Mark and Vanessa, who share an apartment and are dating get into an argument. Vanessa tries to leave the apartment, but Mark physically stops her from leaving. Vanessa is trying to break free, but she sprains her wrist from his tight grip.
Mark did use physical force against Vanessa, willingly and in an offensive way. Mark is guilty of domestic battery even though his intentions were not to cause injury to Vanessa.
Harmful or Offensive Touching
You can still be convicted of a domestic violence offense even if you did not actually “hurt”another person.
“Harmful or offensive”touching does not have to cause pain or injury-as long as the touching was done in an angry or disrespectful manner. The crime of domestic battery is close to the crime of Penal Code 242 PC battery.
California Assault & Battery Laws - Penal Code 242 PC
The crime of battery is also known as “simple battery”which means, any unlawful and willful use of force or violence towards someone. For most people, the term “battery” creates images of severe beatings. Under Penal Code 242 PC, you can be found guilty of California battery even if you did not cause the victim any pain or injury. If you have touched him or her in an offensive way, it may be considered battery.
If the battery does result in serious injury, then you could be charged with a related crime of battery causing serious bodily injury, Penal Code 243(d) PC.
California “Assault & Battery”
The phrase is often said as “assault & battery,”but California assault and California battery are two different crimes. Examples of when California battery and when charges may be filed:
- A man pushes a woman who just cut in front of her at the market.
- A woman throws a rock at the person chest who just insulted her.
- A bar tender spits in a patron’s drink who has been treating him disrespectfully.
The Difference Between Assault and Battery
In reality, California assault and California battery are completely different offenses. The difference is:
- Penal Code 240 assault is an action that may cause physical harm or unwanted touching.
- Penal Code 242 battery is the actual infliction of violence or force on someone else.
Assault does not have to involve any physical contact, but battery does. In a clearer way; assault is like “attempted battery”whereas battery is like “completed assault.
Example: An engaged couple, Alex and Pam are fighting outside of the grocery store. Pam is so infuriated with Alex that she pushes him against the wall.
Pam doesn't hurt Alex at all by pushing him, because she is much smaller than Alex. Because Pam has touched him in an angry, violent way, she could be charged with Penal Code 243(e)(1) PC spousal battery.
It is not completely clear if you need to actually touch someone else’s body to be guilty of domestic battery. California law is uncertain on this point - however, you can be convicted if you touch something that is attached to or closely connected to the other person.
Example: Rich argues with his wife Jenny at a birthday party. Rich angrily knocks a glass of soda out of her hand.
This might qualify as offensively touching under California domestic battery law, since the glass of soda was connected closely to Jenny’s body.
Against an Intimate Partner
Domestic battery can only be committed against the person whom you have an intimate relationship with. For purposes of Penal Code 243(e)(1), this includes:
- Spouse or former spouse
- Person who is the parent of your child
- Person with you are cohabiting (someone you are living with)
- Person you have or previously have had a “dating relationship”
Many of these relationships (spouse, finance, other parent) are easy to prove, but in some cases it can be challenging to demonstrate if two people were involved in a dating relationship or cohabiting.
Example: Bi-standards see Scott hitting a woman named Erica (she is not his girlfriend, finance or wife or live-in girlfriend) outside of Scott’s home at 2:30 in the morning. Scott is arrested and charged with domestic battery. Erica has decided not to testify against him.
Scott argues that Erica and him are not involved in a dating relationship. The witnesses have heard Scott refer to Erica as his “lady friend.”
For Erica being at Scott’s house at 2:30 a.m. and the witnesses to say Scott considers her his “lady friend,”this is enough evidence for the jury to come to conclusion that they are in a dating relationship. Scott can be convicted of Penal Code 243(e)(1).
California domestic battery law states that it is possible for a person to cohabit with more than one person at the same time.
Example: Andrew and Angela are dating and sign a lease agreement together for a new apartment. Angela finds a new friend and wants to move out of the apartment. Angela now moves in with John.
Angela spends most of the nights at John’s apartment. Angela and Andrew still continue to see each other on a romantic basis. Angela still stays a few nights a week at the apartment they used to have. Angela still has her mail sent to the apartment address and still has a key.
Andrew is still “cohabiting" with Angela because of the affiliation with their apartment.
Penalties for Penal Code 23(e)(1) Domestic Battery
In California, domestic battery is a misdemeanor. You may face the following penalties if you are convicted:
- Misdemeanor probation
What Can You Expect When Sentenced to Misdemeanor Probation?
Misdemeanor probation in California will usually last between one and three years, although in some cases it may last up to five years and may involve paying fines and doing community service. People that are on misdemeanor probation are required to appear before the judge from time-to-time for “progress reports.”
Informal probation and summary probation are other terms used for misdemeanor probation. Our California criminal defense attorneys know the most effective ways to challenge misdemeanor cases and secure less restrictive probation.
What is Misdemeanor Probation in California?
Misdemeanor probation is for criminal offenders convicted of misdemeanor crimes in California who do not pose as high risk to the public. In some cases, misdemeanor probation can include jail time, the main point of probation is to serve time out of jail and under court supervision.
If you are placed on misdemeanor probation, the judge has agreed to not impose a fine or place you in jail; as long as you agree to the probation conditions.
The intentions for misdemeanor probation is to rehabilitate the offender, restore the victim and protect the public.
- Maximum two thousand dollar fine ($2,000)
- Up to one (1) year in jail
2.1 Probation Conditions
If you are convicted of California domestic battery, it is very common for the defendant to receive probation, also known as a suspended sentence. As a condition of probation, you will be required to complete batterer’s treatment program, which is a minimum of a one-year program. Also, if the court sentences you to probation - instead of a $2,000 fine - you must pay:
- Up to five thousand dollars ($5,000) to a battered woman’s shelter, and/or
- Any valid expenses that the victim incurred as a result of the offense which includes the cost of any counseling.
If convicted for a second or subsequent time of Penal Code 243(e)(1) spousal battery - and you were sentenced to probation - you will still be required to serve a minimum of forty-eight (48) hours in jail. The only way to get out of jail time is if you are able to convince the judge that there is “good cause”why you shouldn’t serve time.
2.2 Immigration Consequences
In some ways domestic battery is a minor offense and the potential penalties are not that serious. Non-citizen defendants need to be mindful of the possible immigration consequences of a California conviction for domestic battery.
Criminal Defense of Immigrants in California
A California criminal conviction can have severe consequences for immigration status if you are not a United State citizen. Certain kinds of criminal convictions can lead to non-citizenship under the United States Immigration Law. This can mean that he/she will not be allowed to re-enter the country after leaving, become a US citizen or apply for permanent residence.
Who is Subject to Deportation for Criminal Convictions?
The “INA”Immigration Nationality Act provides any non-citizen living in the United States may be deported - removed from the United States, if they are convicted of certain criminal offenses. This rule is conclusive, and it does not matter:
- How long you have lived in the United States
- How strong your ties are here, (family, job, business etc.)
- If you have a dependent who is a US citizen
- If you are a legal or illegal immigrant
Luckily, not every criminal conviction can lead to deportation. Section 237 of the INA has a list of specific crimes that may cause an alien to be deported. The leading categories of “deportable crimes”include:
- Crimes of moral turpitude - dishonestly fraud or antisocial behavior that harms others. Arson, burglary, forgery, kidnapping, possession for sale of drugs and repeated felony convictions for driving under the influence - DUI.
- Aggravated felonies - murder, rape, sexual abuse of a minor, theft crimes - for which the sentence is more that one (1) year in prison, crimes related to supervision or operation of prostitution, and swindle fraud crimes - at least $10,000 or more.
- Controlled substance/drug offenses - possession of thirty (30) grams or more.
- Firearm Offense - purchasing, selling, exchanging, possessing, using or carrying.
- Domestic violence crimes - domestic battery, child abuse and even violating a restraining order.
Under federal immigration law, domestic battery is a so-called “deportable crime.” You may face deportation proceedings after a conviction of domestic battery even if you are here legally.
“Because all domestic violence convictions can have serious immigration consequences, defendants who are immigrants should consult with a skilled domestic violence defense attorney as soon as possible. It is especially important to speak to a lawyer who understands immigration law - not just criminal law - before pleading guilty to this offense,”says Rancho Cucamonga domestic violence defense attorney, Nicole Valera.
Legal Defenses vs. Domestic Battery Charges
There are many legal defenses that are able to be used against domestic battery charges. The most common defenses are:
Self Defense & Defense of Others
The legal defense of defense of others and self-defense applies only when the following is true:
- When you believe that yourself or someone else was in danger, being touched unlawfully or suffering bodily injury
- When you believed the the use of force was necessary to protect and defend yourself against harm
- When you only used force to defend against the danger.
If you are able to prove all of the above facts, then you’re not guilty of PC 243(e)(1) spousal battery.
Example: Jessica is very upset with her daughter Raquel and begins hitting her daughter using great force. Her husband, Brian grabs Jessica and holds her down.
Jessica accuses Brian of domestic battery. Brian is innocent, because he can argue that he was acting in defense of Raquel.
Lack of Willfulness
If you did not willfully touch the other person you are not guilty of Penal Code 243(e)(1) domestic battery. This is a type of accident as a legal defense.
Accident as a Legal Defense in California Criminal Law
“It was an accident; I did not do it on purpose!” When is this legal defense to a crime?
An “accident”means unintentional. These days, the world is full of distracted, busy people and as a result of that people suffer every day. A fender bender, smashing your child’s fingers in the car door, bumping into somebody while walking down the street. Accidentally hitting your spouse, burning your child while cooking, causing a car accident that kills somebody else.
California criminal law excuses your conduct in case of misfortune or an accident. This means that, if you had no criminal intent to cause injury or harm, you were not acting negligently, and you were engaged in lawful acts at the time of the accident then the legal defense of an accident should release you from any criminal liability.
California criminal law says that an individual who causes damage or injury based on an accident or through misfortune have not actually committed a crime. In order to declare “accident”as a legal defense, the burden is on the defendant to prove that she/he acted without culpable negligence or criminal intent.
Example: Vivian, who is a lesbian, and her girlfriend Emily are arguing in the house they share. Vivian grabs a glass plate and throws it at the table in anger. A piece of the plate ricochets off the table and hits Emily in the chest causing injury.
If Vivian is charged with domestic battery, she is able to argue she did not willfully touch Emily with the piece of plate.
Everyday people are wrongly arrested for spousal battery. In some cases, the arrest is based on false statements ignited out of jealousy, anger or revenge.
You may feel helpless if this happens to you. A good domestic/criminal violence defense lawyer has seen this on many occasions. We know what kind of evidence to collect and what kind of questions to ask to ensure the truth comes out in the criminal court process.
California’s Criminal Court Process
This will be your first opportunity to enter a plea in your case. The most common pleas are, not guilty, guilty and no contest. If your plea is guilty or no contest you will directly proceed to a sentencing hearing. If you plea not guilty, the judge will address the issue of bail.
California Bail Hearings
During this hearing you are allowed to present supportive factors to reduce or eliminate your set bail. Some factors that the judge will take into consideration is your criminal history, severity of the offense, facts of the case, your community ties, the likelihood that you will return to court and public safety.
California’s Pretrial Process
California’s pretrial process is the part of criminal court where most of the cases are resolved. “Pretrial refers to all proceeding that happen before trial such as, court appearances, motions, discovery - the exchange of relevant evidence, and plea bargains or negations.
Preliminary Hearing in Felony Cases
In California, his is one of the first pretrial steps that takes place in a felony case. This is more commonly known as“prelim.” This proceeding takes place to make sure that you are not being held accountable for a crime that does not have adequate evidence.
Is there probable cause to consider that there was a committed crime?
Is there probable cause to believe you were the one that committed the crime?
The judge will be asked these two questions, and if he/she believes you you are to be held accountable, they will transfer you to the trial court for further proceeding. These proceeding usually involve motions.
Penal Code 995 PC Motion to Set Aside the Information
This Penal Code “motion to set aside the information”is to request or dismiss one or more of the charges. If there is some evidence that suggests probable cause, a judge is unable to grant a 995 motion.
If it appears to the trial judge that the reviewing judge was incorrect in finding probable or reasonable cause, then the trial judge will grant the 995 motion for the appropriate counts.
A pichess motion is a request for information from a police officer’s personnel file which contains information about excessive force, prior complaints, bias and other forms of police misconduct.
If your motion is granted by the judge, you may call those complaints to taint the officer’s credibility. If the prosecutor will most likely dismiss or reduce one or more of the charges if he/she learns there is damaging information.
California Penal Code 1538.5 Motions to Suppress Evidence
If it appears that the police have violated your fourth amendment right to be free from unreasonable searches and seizures, your defense lawyer will file a 1538.5 motion to suppress. This is a request for the judge to exclude any evidence that was obtained illegally.
Cases that are not resolved in pretrial proceeding go into the trial phase of California criminal court process. In California there are two types of trial, bench trials or jury trials. Jury trial, 12 members of the community are randomly selected to hear the evidence, hear your defense and then determine whether you are innocent or guilty. A bench trial is when the judge acts as both judge and jury.
In California, anyone who is charged with a felony or misdemeanor is entitled to a jury trial. California jury trial will usually proceed like this:
- Jury selection
- Opening statements
- Presentation of evidence
- Closing arguments
- Jury deliberations
- If necessary, sentencing
Proceeding Following a Guilty Plea/Guilty Verdict
If, after your trial you realize your verdict was tainted by any of the below reasons you may be eligible for a new trial.
- Jury misconduct
- Prosecutorial misconduct
- Error by the court
- Insufficient evidence
- Transcript or trial record has been destroyed or lost
- New evidence exists
If you are granted you will start the new trial with a clean slate.
California law entitles you to a sentencing hearing once you have been convicted. A sentencing hearing presents both sides of the story, with a chance for both parties to express to the judge an appropriate sentence for the defendant. The defense presents mitigating information to justify a lenient punishment. On the other end, the prosecution presents aggravating circumstances to justify a harsher punishment.
This is just another reason why it is crucial to have a skilled defense attorney by your side to help you through the California criminal court process.
Penal Code 243(e)(1) Domestic Battery & Related Offenses
4.1 Penal Code 273.5 Intentional Infliction of Corporal Injury
Penal Code 273.5 is intentional or a willful act of corporal injury. This is another frequent California domestic violence charge. You have committed this crime if you willfully caused bodily injury on an intimate partner.
The biggest difference between intentional infliction of corporal injury and domestic/spousal battery is that intentional infliction of corporal injury requires there be complaints of significant pain or visible injuries.
In California Law, Penal Code 273.5 is considered a wobbler.
Legal Definition of a “Wobbler”in California Law
“Wobbler”is frequently used with regards to penalties, punishment and sentencing associated with California crimes.
California law defines”wobbler”as offense prosecutors can elect to file as a felony or a misdemeanor depending on your criminal history and the specific facts of the case.
Why Classification as a Wobbler is Important
When you are convicted of a felony there are certain rights and privileges that are revoked. As long as your offense remains a misdemeanor, you will be able to preserve some of these rights (the right to own or possess firearms under Penal Code 29800 PC California’s felon with a firearm law).
In the unfortunate event, you are charged with a felony wobbler, you can later petition to have your felony conviction reduced to a misdemeanor. There is no relief for “straight felonies.” Those are felonies that are not classified as wobblers.
If you have been charged with a wobbler, our team of experienced California criminal defense attorneys know the best effective arguments for convincing judges and prosecutors to minimize the potential penalties by charging you with a misdemeanor instead of a felony.
This means that depending on the the circumstances of the case and the defendant’s criminal history, the charges may be a misdemeanor or a felony.
Legal definition of a “Felony”in California Law
Unlawful acts are placed into three different categories by California law, felonies, misdemeanors, and infractions. Felonies being the most serious.
In some cases, a felony conviction can be punished by death. A felony is an offense with a maximum sentence (whether in state prison or in county jail) of more then one (1) year.
In California if you get convicted of a felony you may be ordered to pay fines up to $10,000 in addition to or instead of imprisonment.
People convicted of felonies may be alternatively sentenced to California formal (felony) probation. If felony probation is granted, you will serve - at most, one (1) year in county jail.
California felony convictions come with serious collateral consequences. These include, among others, disclosure of the conviction if asked on a job application and for 10 years you may not own a gun in California.
In our law firm we have former prosecutors and cops. We have seen it in first hand what affect a felony conviction has on someone’s life.
This is a felony that can only be charged and sentenced as a felony. A straight felony cannot be reduced to a misdemeanor.
Punishment for Felony Offenses
Felonies are usually punished by imprisonment. Your imprisonment will be classified as a low term, middle term or high term.
Most of the time you will receive a middle term imprisonment unless there are factors in mitigation or aggravation of the California felony crime.
You can be sentenced to a high term imprisonment if there are aggravated factors such as “the crime involved extreme violence”or you “used a weapon.”
The judge might decide the low term is more appropriate if there are mitigating factors such as your participation in the crime was minimal.
Many criminal statues set forth all three possible terms. They also state whether the imprisonment be served in county jail or California state prison.
Collateral Consequences of a California Felony Conviction
There are numerous collateral consequences that a California felony conviction carries.
These are some of the important ones:
- If asked you must disclose your felony conviction on job applications
- You may not possess or own a gun sometimes for 10 years and other times for life
- If the felony was a sex crime, you will be required to register as a California sex offender under Megan’s Law
- Under California’s “three strike law” your offense may count as a strike
Expunging a California Felony
It may be possible to get your California felony expunged, as long as you were not sentenced to California state prison, convicted of certain sex offenses or any violent crimes.
Your civil rights don’t end once you have been convicted of a felony in California. We have skilled attorneys that know several ways to help you be relieved of the stigma and restrictions that come with a California felony conviction.
Willful infliction of corporal injury is a more serious offense than domestic battery. In some instances, it makes more sense to plead guilty to domestic battery charges so that you can avoid a charge of Penal Code 273.5.
4.2 Penal Code 243(d) Aggravated Battery
Domestic battery is closely associated with Penal Code 243(d) aggravated battery. The difference between aggravated battery and domestic battery are:
- For aggravated battery, the victim must have endured serious bodily injury;
- The victim can be anyone - not just an intimate partner.
Penal Code 243(d) aggravated battery is also considered a wobbler in California law. The potential punishment if the offense is charged as a felony may include two (2), three (3) or four (4) years in prison.
In some cases of domestic violence, the District Attorney may try to charge you with aggravated battery if they think they can prove you caused injury to the accuser.
4.3 Penal Code 368 Elder Abuse
California’s Elder Abuse Laws Penal Code 368 PC
Per Penal Code 368 PC California’s elder abuse statue,“elder abuse”can be any of the following and it is directed at anyone who is sixty-five (65) years of age or older:
- Infliction of inexcusable pain or injury on a senior victim (physical abuse).
- Emotional abuse (most of the time seen in the form of mental suffering through ridicule or isolation).
- Endangerment and neglect (willfully placing the dependent or elder adult in a known situation where her/his safety and health is endangered).
- Senior fraud and elder abuse also known as financial exploitation.
Under Penal Code 368 it’s the the prosecutor’s choice and also depending on the defendant’s criminal history and the facts of the case to determine if the case will be either prosecuted as felony or a misdemeanor.
If the case is prosecuted as a felony the defendant may be be looking at two (2) to four (4) years in state prison. If the case is prosecuted as a misdemeanor, potential penalties include up to one (1) year in county jail and could also be fined thousands of dollars.
It is a crime to willfully or negligently inflict inexcusable physical pain and/or mental suffering on a person 65 years of age or older.
If the defendant's actions meet the criteria of domestic battery, but the victim is 65 years of age or older, the prosecutor may elect to file elder abuse charges.
California elder abuse laws have more serious penalties than PC 243(e)(1). Elder abuse is a wobbler. If charged as a felony there is a potential prison sentence of two (2), three (3) or four (4) years plus a fine of up to six thousand dollars $6,000.
If the victim suffers great bodily injury or death, the prison sentence could potentially increase to five (5) or seven (7) years.
The Legal Definition of Great Bodily Injury/Harm California Penal Code 12022.7
“Great bodily injury”(GBI) is a legal term that basically means what is says, “great”bodily injury.
Injuries that are significant and substantial fall under this category. Insignificant or even moderate injuries do not fall under this category.
Great bodily injury refers to physical injuries. Brain damage and paralysis are some examples of major trauma which fall into the great bodily injury. Also, it is important to understand the injury doesn’t have to be permanent or as severe as the two that were mentioned above.
In most situations GBI is determined on a case-by-case basis. These are some of the factors prosecutors, judges and/or juries consider when looking at GBI (but are not limited to):
- Seriousness of the injury
- The resulting pain
- What type of medical care was required
4.4 Penal Code 415 Disturbing the Peace
California “disturbing the peace”laws - Penal Code 415 PC - it is a crime to:
California Penal Code 415 PC Disturbing the Peace
California Penal Code 415 PC describes the crime commonly as “disturbing the peace”or “breaching the peace.” “Disturbing the peace”can be violated by:
- While in a public place unlawfully fighting or challenging another person to fight
- If you are willfully and maliciously disturbing another person with loud and unreasonable noise
- If you use offensive words in a public place which are likely to start immediate reaction out of another person
This is some behavior that might violate California’s “disturbing the peace”statue:
- Starting a fight at a bar with another person
- After having an argument with your neighbors, you turn your outdoor speakers in their direction, turning up the music loud with a goal to disturb them
Penal Code 415 PC “disturbing the peace”is an offense which can be prosecuted as either a misdemeanor or as less serious, an infraction.
These are some of the maximum penalties you could face:
- Ninety (90) days in county jail
- You can be fined up to four hundred ($400) dollars
- You could also be fined and spend time in county jail
- Fight in public
- Make noise that disturbs others
- Direct “provoking fighting words”towards another person in public
Penal Code 415 disturbing the peace is a misdemeanor. In some cases, disturbing the peace may be considered an infraction.
Legal Definition of an Infraction in California Law
In the California criminal justice system, crimes are classified into three categories:
- Felonies are the most serious. They are punishable by imprisonment in state prison or sometimes even by death.
- Misdemeanors which are punishable by a maximum time of one year in county jail.
- Infractions which include many traffic and moving violations and sometimes a few other criminal offenses.
A maximum punishment for an infraction is a fine of $250. Infractions do not subject an offender to incarceration or to be placed on probation per California’s probation laws. Some of the common examples of infractions are speeding (22350 VC) and unsafe left or u turn (21801 VC).
If convicted of this offense you may serve a maximum of ninety (90) days in jail.
Most times the prosecutor will “reduce”the charges from domestic battery to disturbing the peace as part of a plea bargain agreement. Often times defendants appreciate this arrangement, because PC 415 does not carry the penalties, stigma or immigration consequences of a domestic violence charge.
Also, there is no criminal record (comparable to a parking ticket) if the charge gets reduced to disturbing the peace infraction.
For questions bout Penal Code 243(e)(1) domestic battery, or to confidentially discuss your case with one of our California criminal defense attorneys, please do not hesitate to contact Law Center.
We have local criminal law offices in and around, San Diego, Orange County and Riverside County.