Domestic Violence Defined
Violence, or the threat of violence, directed at an “intimate partner” or family member is, under California law, domestic violence. The California legislature has declared that domestic violence crimes are particularly egregious and shall be subject to enhanced punishment and penalties.
An “intimate partner” includes a current or former; sexual partner, spouse (including registered domestic partner), fiance (fiancee), or cohabitant. It also includes someone with whom you have had a child. A “family member” includes a child, brother, sister, parent, grandparent, or any person related to you by blood or marriage within the second degree. This includes half brothers and sisters, step brothers and sisters, aunts, uncles, nephews, and nieces.
Common domestic violence charges include:
- Penal Code 243(e)(1) Domestic Battery
- Penal Code 273.5 Inflicting corporal Injury
- Penal Code 273d Child Abuse
- Penal Code 273a Child Endangerment
- Penal Code 270 Child Neglect
- Penal Code 368 Elder Abuse
- Penal Code 422 Criminal Threats
- Penal Code 646.9 Stalking
- Penal Code 591 Damage To Telephone Line
- Penal Code 601 Aggravated Trespass
- Penal Code 647(j)(4) Revenge Porn
- Penal Code 653.2 Posting Harmful Information
Punishment For Domestic Violence
Misdemeanor domestic violence is punishable by up to one year in the Orange County jail. Felony domestic violence is punishable by a period of years in the California prison. Although three years is typical, the maximum prison sentence depends on the charge and the severity of injury. Other penalties include:
- Mandatory minimum jail time
- Domestic violence conviction on your record
- Mandatory completion of one-year batterer’s treatment program
- Up to five years of formal probation
- Loss of custody rights
- Protective order (restraining order) prohibiting ANY contact with the protected person for up to ten years
- Restitution to the victim
- Court fines/fees
- Loss of right to own firearms
- Deportation (non-citizens)
Defending Domestic Violence Charges
Under California law, everyone has the right to use reasonable force to protect themselves from any unlawful touching. Even if you are much bigger and stronger than the person assaulting you, you still have the right to use reasonable force to stop or prevent an imminent assault.
Example #1: Don, a 250 pound man, is married to Veronica, a 100 pound woman. During an argument, Veronica continued to poke Don in the chest with her finger. Don told her to stop but she continued poking and pushing him. Don grabbed Veronica’s arms and held her down to prevent her from poking and pushing him. As a result, Veronica has bruises on her arms. Veronica’s screams resulted in the police responding.
Despite the bruises on Veronica and no injury to Don, Don is NOT guilty of domestic violence. Even though Veronica’s pokes could not possibly injure Don, they are an assault all the same. In fact, Don could bring charges against Veronica if he chooses to do so.
Example #2: Don and Veronica have an argument about their finances. Don attempts to leave their apartment but Veronica stands in his way, blocking the door. Despite Don’s request for her to move, Veronica refuses to move, blocking Don’s way out. Don attempts to physically move Veronica but Veronica fights back. Don pushes her out of the way and she falls to the floor and strikes her head on a table, resulting in a gash to her head.
Don is NOT guilty of domestic violence. Don is entitled to use reasonable force to overcome the unlawful restraint of his liberty. Veronica is guilty of false imprisonment (Penal Code 236). Don can bring charges against Veronica if he chooses to do so.
Defense Of Others
California law bestows upon everyone the right to use force to defend another from unlawful assault.
Example: Rick and Julie are married with a 12-year-old child. Rick became angry when the child lied about finishing his homework. Rick picked up a wooden hanger and began to strike the child with it. Julie intervened and jumped on Rick to stop him, scratching him in the process. Julie is NOT guilty of domestic violence because the law allows her to stop Rick’s unlawful assault on his child.
Defense Of Property
Every person has the legal right to use reasonable force to protect their property.
Example #1: During an argument, Lisa becomes enraged at her husband David’s flirting with other women. Lisa begins breaking David’s cherished items, including certain sports memorabilia. David restrains Lisa and holds her down until she agrees to stop the destruction. Lisa calls the police and shows them the bruises on her arms.
David is NOT guilty of domestic violence. David has the right to use reasonable force to protect his property. David can bring charges against Lisa for vandalism is he chooses to do so.
Example #2: Lisa wants to have a discussion with her husband David. David is not interested and goes to get his car keys so he can leave. Lisa grabs his car keys and will not relinquish them. David grabs Lisa and restrains her while he pries the keys from her hand.
David is NOT guilty of domestic violence. He has the right to use reasonable force to retrieve his property. David can bring charges against Lisa for false imprisonment if he chooses to do so.
Example: John and Sue are watching TV on their couch. Sue does not like what John is watching and they argue about it. Sue reaches over John to get the remote on the table next to him. Her elbow inadvertently strikes john. This touching was not willful because it was no done on purpose.
False accusations of domestic violence are all too common in situations where one person hopes to gain an advantage over the other in divorce or custody proceedings or for revenge. This ulterior motive is almost never explored by the police when they make an arrest. However, a skilled domestic violence attorney can bring this motive to light and expose the false claim of domestic violence.
Plea Bargaining Strategies
An experienced and skilled domestic violence attorney can find and expose any weakness in a domestic violence case. When confronted with a “weakness” in a case, the District Attorney (“DA”) may be willing to reduce the charge to something other than domestic violence, such as simple assault (Penal Code 240/242), disturbing the peace (Penal Code 415), or trespass (Penal Code 602).
If your domestic violence lawyer can negotiate a deal that does not contain a domestic violence charge, you can avoid the mandatory terms of a domestic violence conviction including; jail time, a protective order (restraining order), loss of gun rights, attending a year-long batterer’s treatment program, and deportation (non-citizen). Moreover, you can avoid a domestic violence conviction on your record.
Attorney Stopyro’s favorite settlement alternative is something called “deferred entry of judgment” (“DEJ”). Under the terms of DEJ, if our client completes a short class and has no new law violations for three months, the case is completely dismissed with no conviction on your record.
Free Telephonic Consultation With An Experienced Domestic Violence Attorney
The Law Office of EJ Stopyro offers a free, no-obligation telephonic consultation and case review. Call us today at (949) 278-6353 today. EJ will be happy to evaluate your case and explore your options.