We have extensive experience in all domestic violence defense practice areas and have a strong track record of winning the best possible outcome for our clients.
G. Cole Casey
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Why You Need Domestic Violence Attorney
Domestic Violence Attorney
Acts of domestic violence are, unfortunately, more common than ever in Orange County, California, and throughout the US - but so also are false accusations of domestic violence, along with extreme exaggerations of what really happened during a recorded or alleged incident. It's easier than ever to accuse someone of domestic violence, and the consequences of a conviction are very severe.
Even when the allegations made against you are completely false, without a good domestic violence defense attorney fighting in your corner, you run great risk of being wrongfully convicted. But by availing yourself of the best possible legal help, you can win even seemingly unwinnable cases.
At Domestic Violence Attorney, we have extensive experience in all domestic violence defense practice areas and have a strong track record of winning the best possible outcome for our clients. We will know how to win your case!
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We can give you a free legal consultation and then attorney G. Cole Casey and others on our team can immediately get started working on your case! We are located in Orange County, CA, and serve the whole of Orange County, Los Angeles, and Southern California.
How Is "Domestic Violence" Defined Under California Law?
Under PC 13700, "domestic violence" is defined as any form of "abuse" committed against an "intimate partner." The use or threat to use physical force to harm an intimate partner is part and parcel of domestic violence, although abuse against children or the elderly and a few other classes of crimes also fit under the general umbrella term "domestic violence."
An intimate partner is defined as a spouse, fiancé, domestic partner, romantic cohabitant, a dating partner, or the father/mother of one's child OR as someone who formerly fit into any of those categories (an "ex.")
Many types of domestic violence are just like other non domestic violence offenses except for the fact of whom the crime was committed against. For example, battery becomes domestic battery if committed against a current or past intimate partner.
As domestic violence charges can affect child custody battles and upon conviction can lead to jail or prison time, victim restitution, restraining orders, forced entry in a batterer's program, loss of gun rights, deportation for immigrants, and the creation of a criminal record that makes it difficult to find a good job or even a good apartment - it is critical that a skilled defense lawyer with specific experience in this practice are handle your case.
Examples of Domestic Violence Crimes In California
There is a wide range of different specific domestic violence crimes under California law. Some of these are misdemeanors and some felonies, but the majority of them are wobblers, which means thy can be charged as either misdemeanor or felony, depending on the details of the incident, the presence and severity of any bodily injury, and any previous criminal record of the defendant.
Although the total number of particular domestic violence violations is very great, we can look at here at least a basic overview of the most commonly charged "DV" allegations:
PC 273.5 covers the infliction of any form of bodily injury, even ever so slight, to another person who is a current or former intimate partner. The cause of the injury would have to be established by the prosecution beyond reasonable doubt as well as the relationship between the two people. This is a felony crime, with penalties ranging from 1 year in county jail to 4 years in state prison.
PC 243 concerns acts of battery when they are directed against an intimate partner as defined by California law. Assault is the attempt to batter, while battery occurs when actual physical contact is made - with or without physical injury inflicted as a result. Domestic battery is a misdemeanor, punishable by up to a year in jail and a $2,000 fine. But, if actual bodily injury occurred, then the felony crime corporal injury DV could also be charged.
PC 273 occurs whenever physical injury is inflicted on a child. It does not make reasonable child discipline illegal, but when children are treated cruelly or abused in the name of discipline or for any other reason, it is a crime. A first and unaggravated offense is generally a misdemeanor, but repeat and aggravated offenses can be felonies and get you up to 3 years in prison.
When someone willfully permits a child to be put into a dangerous situation or to be left in the care of someone else whom he/she knows has a history of child abuse or other violent crimes, that is an act of child endangerment. Normally, this is a misdemeanor, punishable by up to 6 months in jail, but it can become a felony if the child was put at risk of "great bodily injury."
Under PC 270, failing to provide proper care to a child, such as food to eat, clothes to wear, a safe place to live, and a decent education, is the crime of child neglect. The neglect has to be done willfully, rather than simply out of a lack of resources, to constitute child neglect. This is a misdemeanor, punishable by 1 year in jail and a $2,000 fine.
PC 368, elder abuse, occurs whenever someone 65 years old or older is abused physically, emotionally, financially, or through neglect or endangerment. Since they elderly are particularly vulnerable to abuse, the penalties are steeper than for many other instances of abuse. Misdemeanor elder abuse is punishable by a year in jail, while felony elder abuse is punishable by up to 4 years in prison.
PC 422 makes it illegal to issue threats of inflicting bodily harm on another person, or of committing another crime, when those threats are intended to incite fear in another person and were made in a credible manner (not as an off the cuff comment or "just blowing off steam," for example.) PC 422 is a misdemeanor offense in most cases, but it can be a felony in extreme cases.
PC 646.9 is California's anti-stalking law. It prohibits harassment or threatening of another person so that the victim is made to reasonably fear for his or her life, physical well being, or the safety of his or her family. As a misdemeanor, stalking can be punished by up to 1 year of jail time; as a felony, it's punishable by up to 3 years in state prison.
Under PC 591, it is illegal to cut a phone line or damage or destroy a phone line or phone equipment. The reason this law exists is because criminals often damage telephone lines to cut off means of communication so they can complete their crimes before the victim can call the police. Such actions are all too typical of domestic violence crime incidents. This crime can be a misdemeanor or a felony, depending on the circumstances of the case.
Under PC 601, trespassing can become "aggravated trespassing" when an individual first issues some form of criminal threat against another person and then, within thirty days' time, illegally enters the home/work place of the person threatened with intent to commit the act threatened. Aggravated trespass can be either misdemeanor/felony: it depends on the nature of the threats and if any actual harm was done, as well as on the defendant's past criminal record.
Sometimes, after a relationship breaks up, a crime called "revenge porn" is committed to cause stress and embarrassment to one's ex. Nude, porn pictures of the ex are posted online or otherwise distributed for others, usually a large number of people, to see. Revenge porn is banned under PC 647 as a misdemeanor and is punishable by up to 1 year in jail plus a $1,000 fine.
Posting harmful information about someone online as a means of harassment or sending such info via emails and the like is a crime under PC 653. This is like revenge porn except it's not using porn but other types of posts. It is a misdemeanor and can be punished by a $1,000 fine and a year in jail.
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Possible Penalties for Domestic Violence in California
The exact penalties for a domestic violence crime vary, of course, from particular crime to particular crime - and we've mentioned some examples under the dozen types of DV crimes we covered just above.
In general, you can expect jail or prison terms of from one to several years, probation, fines, victim restitution, batterer's counseling or similar programs, the loss of child custody rights, the loss of Second Amendment rights, and a variety of other possible serious consequences upon a conviction.
Here is a little more on the possible sentencing elements and other consequences:
- There are mandatory minimum jail terms in many California counties for domestic violence offenses - often, of 30 days even for a misdemeanor offense.
- Probation is often obtainable for a first offense and where bodily injury caused, if any, is not very severe. Probation is more likely to be granted for misdemeanors than for felonies and it can be revoked at any time if probationary terms are violated.
- Victim restitution in the form of paying for medical expenses of the victim, counseling sessions, lost income, and property damage will be assessed.
- It will also be required to pay into California's domestic violence fund, which pays for various programs designed to deter or help people recover from domestic violence.
- It is almost universally required that even first time offenders and those let out on probation attend a batterer's counseling program for at least 12 months.
- Those convicted of a domestic violence crime will generally lose child custody rights, but that doesn't mean they will necessarily lose visitation rights.
- Gun ownership and possession rights are lost following a domestic violence conviction in California. For misdemeanors, gun rights are lost for 10 years, while for felonies, they are lost for life.
- If a domestic violence crime counts as a "crime of moral turpitude" under federal law or is an "aggravated felony," then it can result in either deportation or loss of admissibility to the US as an immigrant.
- The criminal record created by a domestic violence conviction can make it difficult to find gainful employment since most employers now run background checks on all applicants.
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Common Defense Strategies Against Domestic Violence Charges
There are many possible defense against domestic violence allegations, varying greatly based on the exact charge, the details of the alleged incident, the type of evidence and testimony the prosecution is relying on, and other factors. But here are some of the most common general defense strategies we use with great success at Domestic Violence Attorney:
Acciental Injury
Quite often, an injury allegedly caused by a domestic violence incident may really have occurred as a result of the plaintiff's own carelessness or otherwise have been accidental. It could have been an accident caused unintentionally by the defendant, but an accident cannot count as a crime, no matter how severe the injury.
Injury Not Caused By Defendant
In other cases, an injury may have been caused by someone else, not the defendant; or, they may even have been self-inflicted. It's sad to think someone would injure him or herself in order to blame it on another person, but in child custody battles and divorces, for example, this is not all that uncommon.
Self-Defense
There are times when the alleged victim is actually the perpetrator, when the defendant was attacked or in imminent threat of receiving bodily harm at the hands of the "victim" and simply acted in self defense. It could also be that he/she acted in defense of a child present or of some other person.
False Accusation
Very commonly, false accusation of domestic violence are leveled out of anger, jealously, to win a child custody battle, or for some other reason. In fact, there are probably more fabricated domestic violence claims than for almost any other type of crime. We know how to uncover the truth, cross-examine witnesses, and clear your name.
We always fight first and foremost to win your case outright, but in some instances, where that is not possible, it may be wiser to seek a favorable plea deal. We only negotiate for a plea with your full knowledge and consent. We have well seasoned negotiation skills and know when and how to secure the best possible plea bargain.
Often, a domestic violence crime can get lowered to PC 602 criminal trespass or to PC 415 disturbing the peace in a plea deal. This can result in a much lighter sentence, the ability to avoid loss of gun rights, child custody rights, and immigration benefits, and in greater ability to find a good job post-trial.
Pre-trial diversion programs are also sometimes beneficial to the accused. They can qualify you for deferred entry of judgment which allows you to avoid a conviction on your criminal record in exchange for completing probation, a batterer's program, and certain other requirements. Not everyone qualifies for a diversion program, but if you do, it's much better than a conviction with a "regular sentence".
About Domestic Violence Restraining Orders
California law makes it very easy for alleged domestic violence victims to get an "emergency restraining order," which is also called a protective order. They do not need to show that they have suffered any actual physical harm in order to apply, and they can apply in either civil/criminal court for the order.
The plaintiff does have to prove, however, that he/she is an immediate family member, relative, or intimate partner of the accused and that he/she has suffered abuse and/or threats of abuse. The abuse/threats can be directed against the person filing or against his/her child under the age of 18.
We at Domestic Violence Attorney can work to fight a petition for a restraining order against you, but if an order is put in place, that doesn't mean it has to be permanent either. Also, while a protective order is in place, be sure to abide by it because violating it would be a separate crime in itself.
The Domestic Violence Allegation Process In California
It all begins when the police or 911 receive a domestic violence call, maybe from the alleged victim or maybe from a neighbor. Upon arrival, there is a makeshift interview of the parties and/or witnesses where police try to decide who is the aggressor, what exactly happened, and if anyone needs to be arrested.
Sadly, it's not uncommon for the wrong person to be arrested or for a fake story to be believed and charges pressed. Police simply don't have time to figure it all out on the spot - even if they could, and they choose to err on the side of caution to make sure no one is hurt, or hurt further.
Next, a police report is filled out and a citation and court date issued to the defendant. If arrested for a felony, you may not get out of jail before your arraignment unless you pay bail.
Police will continue to investigate between the arrest and the filing of formal charges in the "pre-filing stage." Witnesses will be interviewed more fully, evidence collected, and a determination made as to whether they have "a good, winnable case." If they think they do, then the D.A. or city attorney will review the complaint and police report and file an official criminal charge.
If it's a misdemeanor allegation against you, then you might be asked to attend a city attorney hearing. At such a hearing, you may have a chance to resolve the matter informally - out of court. It could lead to a dismissal of the charge and/or to a settlement being made that would avoid a full-out criminal investigation and criminal court case. It could also end with the case being kept "on hold" for up to a year or with it being determined that a court battle is necessary after all.
At your first court date in the domestic violence case, called an "arraignment," the complaint against you will be formally presented and you will have the chance to plead "guilty" or "not guilty." If you want to go to court, plead not guilty, while if a plea deal has been worked out, you might want to plead guilty. But you have to understand the plea deal's requirements and consequences before you accept it. Also at the arraignment, the presiding judge will determine whether or not bail will be permitted and, if so, at what it shall be set. Additionally, a determination will be made in regard to establishing a protective order, and if so, what kind.
Next, there will be one or a series of pre-trial conferences that allow further opportunity for a settlement of some kind to be reached. About 95% of the time, domestic violence cases end here, in the pre-trial phase. You want an experienced lawyer arguing and negotiating in your behalf at this point because it can strengthen your case, persuade the prosecution to come to terms, and in general help achieve a more favorable result. Of course, the settlement will only be valid if you choose to agree to it.
If no settlement can be reached, then a trial date will be set. But just before the trial actually occurs, there is the chance for your lawyer to file a pre-trial motion that could help you win your case. It's possible, for example, to get evidence obtained by illegal search and seizure banned from consideration in court with a pretrial motion. Or, there might be a motion filed to allow the alleged victim's history of making false 911 calls to be brought into court. Many times, what happens pre-trial has a big impact on what happens during the trial and how it turns out in the end.
During the trial itself, both sides will present their arguments, evidence, and witnesses. They will try to undermine whatever their opponent is relying on to win the case. It is a true tug of war, but with much more at stake than just games. However, a skilled defense attorney can often win an acquittal, a dismissal, or a reduced charge/sentence even when things seem to be going against you. Remember that the prosecution has the burden to prove all elements of the alleged crime "beyond all reasonable doubt" - and that's a hard burden to meet. An experienced domestic violence crimes defense attorney will know how to counter every move the prosecution makes and even anticipate their next move before they make it.
It's never a good idea to go into a domestic violence case without the assistance of a skilled lawyer. The process is full of legal requirements and "insider's rules" that only a well seasoned lawyer will know about and know how to navigate to your greatest possible benefit.
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