In California, there are two different kinds of domestic violence: misdemeanor and felony. Misdemeanor domestic violence is under Penal Code 243(e)(1), which defines the crime of domestic battery or domestic violence as using force against an intimate partner. It must be willful and unlawful force, such as intentionally smacking or hitting your intimate partner. In California, an intimate partner is a spouse, former spouse, fiancé, dating partner, co-parent, or anybody whom you’ve had a relationship like that with at any time. That means if you hit a former fiancé, that’s still domestic violence, even if you haven’t been together for several years.
I Was Just Arrested in California on Domestic Violence Related Charges. What Exactly Am I Being Charged With?
You can be charged with a variety of things if you’re arrested for domestic violence. There’s misdemeanor domestic violence P.C. 243(e)(1) or felony domestic violence P.C. 273.5. You could even be charged for taking a phone away from somebody while they are trying to call 911 in the middle of an argument. Each of those has different consequences attached.
Are Domestic Violence or Domestic Battery Charges a Felony in California?
You can be charged with felony domestic violence, depending on the level of injury. For minor injuries that leave little to no marks, you’d probably be charged with a misdemeanor. If you hurt your domestic partner in a way that leaves red marks, scratches, or bruising or if you break a bone, then you are likely to be charged with a felony.
Is an Order of Protection or Restraining Order Automatically Put in Place Once Domestic Battery Charges Are Filed in California?
A restraining order is not automatically put in place, but most victims will ask for a criminal protective order. A victim of domestic violence can also go to Family Court and get a domestic violence restraining order. Those are two separate legal processes, two separate court cases that you would have to deal with.
If the Alleged Victim Recants Allegations or Doesn’t Want to File Charges, Will the Charges Automatically Go Away?
Most people think that if the alleged victim changes their story to say it didn’t really happen or says they no longer wish to press charges that the DA has to then dismiss the case. That, however, is not true. The prosecution ultimately has the final say as to what charges are filed and how they are prosecuted. Unfortunately, there are a lot of experts hired by the prosecution who say that it is not uncommon for domestic violence victims to recant their story because they don’t want the person charged, they want their support, they are feeling threatened, or they are remorseful that they called the police. Those experts can still come in and testify as to why the story has been changed or recanted. Therefore, a victim recanting a story doesn’t necessarily mean that the case is going to go away.
What Are the Potential Penalties If Someone Is Convicted of a Domestic Violence Related Charge in California?
For misdemeanor charges, the person could spend up to a year in jail. On a felony level, they’d be looking at two, three, or four years in state prison. There can also be enhancements that increase the length of a sentence, such as personal infliction of grave bodily injury or use of a firearm. Also, under federal law, if you are convicted of misdemeanor or felony domestic violence, you lose your right to own firearms for the rest of your life.
What Strategies Can Be Used to Defend Clients in Domestic Violence Related Cases? Is Self-Defense Ever a Viable Defense?
Self-defense is a viable defense. There are also various defenses involving another current family law case and potential motivations around child custody and alimony. With child custody, one parent might want majority control of the children, and if the alleged domestic violence occurred in front of the children, the family courts can be more inclined to limit the other spouse’s access to the child, which would give the accuser more custody. Or, one spouse might accuse the other of domestic violence because they no longer wish to pay alimony and they know that the family courts will sometimes use domestic violence as a reason to terminate spousal support.
There’s also the fact that people tend to make things up in the heat of an argument. They are really mad and want their partner to go to jail for a night, so they claim they’ve been hit. Under California law, police officers are required to make an arrest whenever there is an allegation of domestic violence.
What Things Do You Advise Your Clients to Refrain From Doing When Facing Domestic Violence Related Charges?
When my clients are facing domestic violence charges, I definitely don’t want them talking about the incident with the alleged victim. It’s always possible that the police could be listening on the other end of the line in case they make some kind of admission over the phone. As a general rule, you don’t want to talk to anybody about any pending criminal matters because doing so makes that person a witness in the case and they may be compelled to testify against you. I also suggest that clients try not to instigate any more disputes or arguments with the alleged victim as it just motivates them more to push the DA for higher penalties.
For more information on Domestic Violence Charges in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (866) 982-3230 today.
Call Now For An Assessment Of Your Needs (866) 982-3230