According to National Intimate Partner and Sexual Violence Survey (NIPSV) by the Center for Disease Control (CDC), 36.5% of women and 28.5% of men from the United States have experienced some type of domestic violence by an intimate partner. The Law treats a person's action and behavior that causes harm or fear as domestic violence.
Due to the prevalence of domestic violence in California, the DA is very keen on prosecuting anyone charged with domestic violence. Therefore, it is critical to seek the help of a criminal defense attorney immediately if you have been accused of any domestic violence crime. At the Los Angeles Criminal Defense Attorney Firm, our attorney will take a look at the facts of your case and determine the most viable defenses. You don't have to worry about the charges brought against you when our attorney is representing you. He/she will challenge the allegations by the prosecutor and have your charges dropped, or your sentence lessened.
Domestic violence according to the Law
According to California Penal Code 13700, domestic violence is any abuse directed towards an intimate partner. An intimate partner, in this sense is:
- A current or former partner
- A current or former fiance/fiancee
- A mother/father of your child/children
- A man or woman that you live with
- A person who is a current or a former registered domestic partner
- A current or former cohabitant
Types of Domestic Violence Crimes
Domestic battery is a type of domestic abuse, which is inflicted on an intimate partner. It is also known as spousal battery.
According to California penal code243(e)(1), PC domestic battery is the intentional infliction of harm or injury on an intimate partner.
An action can be a domestic battery without any injuries on the victim. The prosecutor has to prove that there was the use of force or violence against the victim.
Elements of Domestic Battery according to penal code 243(e)
- You deliberately made contact with the person.
- You used violence or some degree of force to make contact.
- The person you forcefully touched is/was an intimate partner.
Domestic battery is a severe offense with hefty penalties. In California, domestic battery is charged as a misdemeanor with a jail term of one year, a $2,000 fine and probation.
According to California penal code273.5(a), corporal injury refers to injuries inflicted on a spouse that results in a traumatic condition.
Corporal injury is an example of domestic violence crimes. It's similar to a domestic battery; the only difference is that in corporal injury, there must be visible injuries on the victim.
For you to get a corporal injury, the following elements should be present:
- The victim is a current or former spouse with whom you had a sexual relationship
- You deliberately choose to inflict injuries on the spouse
- The victim suffered a traumatic condition from the pain and injuries inflicted on his/her body
In California, corporal injury is categorized as a wobbler offense. Wobbler offenses are crimes that are either a misdemeanor or a felony. Therefore, if you get convicted for a misdemeanor charge, you will get a jail term of up to one year and a $6,000 fines. As a felony charge, you will get a jail term of up to four years and $6,000 fine.
Even though the United State constitution allows for free speech, it is illegal to use the privilege to issue threats to a person. A criminal threat is a type of domestic violence that has psychological repercussions on the victim.
According to California statute 422PC, it is an offense to willfully issue threats of committing a crime that will cause injuries and death to a person. The statue further adds that even if the aggressor does not intend to act upon his/her words, actions are still considered criminal threats.
Criminal threats can be in any form. It can be verbal or through writing or an electronic means such as a text message or an email.
Elements of a Criminal Threat
For you to get charged with a criminal threat offense, the following elements must be well established:
- You deliberately made comments about causing injuries or kill the victim. It is illegal to abuse your constitutional rights by making comments/statements that are meant to threaten a person's life. Even if there is no action after the threat, the Law still considers the remarks as a criminal threat.
- You made the threats using writing, electronic means, or verbally. For a crime to be a criminal threat, there must be evidence to prove it. The evidence can be an email message/text message, writing on a piece of object and verbal statements made towards another person.
- You intended the victim to understand your comments as a threat. If you issue a threat to a person, the victim will get the message that you intend to harm them. If you were in a serious argument with the victim, then followed in issuing statements against their well-being, then that can be considered a criminal threat.
- The victim was fearful of his/her life because of the threats you made. A criminal threat should show that the statements made against the victim brought them to fear about their safety.
- You were very clear about the threats. The comments were specific, and it communicated a firm intention to hurt the victim. A criminal threat should be unconditional and specific about the crime intended and the particular person or group you intended to harm.
- Because of the threats made, there was a reasonable form of fear. For an action to be a criminal threat, the prosecutor must show that the victim was indeed fearful about his/her safety and that the fear was reasonable.
Penalties for Criminal Threats
Criminal threats is a severe offense in California with serious penalties. It is either a misdemeanor or felony charge since it's a wobbler offense. If convicted for a misdemeanor charge, you will get a jail term of up to one year and $1,000 fine. As a felony, you will get a jail term of up to three years and a fine of $10,000.
Child abuse refers to any form of cruelty inflicted on a minor. Child abuse can be sexual, physical, emotional, or psychological.
The California penal code 273d defines child abuse as any form of injury inflicted on a minor and injuries the result in a traumatic condition. Child abuse is also known as a corporal injury on a child.
Elements of Child Abuse
In a trial, the prosecutor has to prove the following elements:
- Intent - The Accused willfully inflicted injuries on the minor
- Traumatic Condition - The wounds inflicted on the child resulted in a traumatic condition
- Malice - The accused acted out of rage or hatred that caused harm to the child
Even though prior convictions are prejudicial when used as evidence in court, there is an exception when it comes to crimes against minors. Therefore, if the accused has previous convictions, the prosecutor will use that as evidence in court to show that the accused tends to harm children.
The prosecutor can also use prior convictions of domestic violence to show proof of child abuse in a criminal trial. Prior convictions will work if:
- the child belongs to the abuser
- a child close to the defendant who resides in the same home as the defendant
- Prior acts are meant to serve as evidence against a defendant and not as proof that the defendant is guilty
Penalties for Child Abuse
Child abuse in California is a wobbler offense. If convicted for a misdemeanor, an accused will get a jail term of up to one year with a fine of $6,000. As a felony, a defendant will get a maximum jail term of up to 6 years and an additional four years if the accused has prior convictions. Also, an accused will get a fine of $6,000.
Under California Penal Code 273(a) Child endangerment refers to a caregiver’s actions or omissions that cause harm or exposes a child to danger. The harm caused can affect the child’s emotions and psychology. Unlike child abuse, an accused gets punished for the creation of a possibility of danger.
Elements of Child Endangerment
- Deliberate actions that could put a child in danger
- Allowing a child to suffer from preventable pain or suffering
- Allowing a child to be out in a dangerous situation
Penalties for Child Endangerment
Child endangerment in California is a wobbler offense. Moreover, the crime depends on whether the actions or omission would cause significant bodily injury or death. If you get convicted for a misdemeanor child endangerment, you will get a jail term of up to one year and $1,000 fine. For a felony conviction, you will get up to six years of jail term and a fine of up to $10,000.
Elder abuse is a severe offense in California. It can be charged as a wobbler offense, meaning an accused can face a misdemeanor charge or a felony charge.
Under penal code 368, elder abuse is the act or omissions against a person of the age of 65 and above that causes harm or puts them in harm’s way.
California statute describes elder abuse with the following elements: physical abuse, which involves inflicting injuries on an elder. Financial abuse refers to action meant to steal from the elder through fraud, acts that result in emotional or mental harm.
Penalties for Elder Abuse
Elder abuse is charged as either a felony or a misdemeanor offense depending on the specifics of the case.
If convicted for a misdemeanor, an accused will receive:
- A fine of $6000 and if there are prior convictions you will get a $10,000 fine
- A jail term one year with probation
- A victim will get restitution
As a felony charge, an accused will get: a jail term of up to seven years with probation, a $10000 fine, restitution to the victim, and possible counseling.
Violation of Restraining Order
Breach of a restraining order, which is also known as protective order is a criminal offense according to California Penal Code 273.6 PC.
A restraining order protects someone from specific actions. The actions include harassment, stalking, threats, etc. the order will bar the aggressor from making contact with the victim by any of the following means:
- Phone calls and text messages, email, fax, personal communication, or any other type of electronic message, social media contacts, and any form of surveillance on the victim.
- When you intentionally go against the orders issued by a judge, then you will be charged with violation of a restraining order.
Different Types of Restraining Order Issued by a Judge in California
- Elder Abuse Restraining Order
This type of restraining order is issued to protect elders or any older person who is unable to care for themselves from harm.
- Domestic Abuse Protective Order
The domestic abuse restraining order is meant to protect someone from actions that can be considered as domestic violence.
- Workplace Restraining Order
The restraining order is meant to protect an employee from harm in the workplace.
- Civil Harassment Protective Order
This type of restraining order is meant to protect people who are not in any intimate relationship.
Levels of Protection on the Restraining Orders
Emergency Protective Order
This type of restraining order is commonly issued for victims of spousal abuse and in emergencies.
The protective order is issued by an on-call judged when a police request for it in an emergency.
The order can last for seven days.
Temporary Restraining Order
This order is issued for a person who is a victim of harassment or when the emergency order expires.
The order lasts for up to three weeks. After the expiry, there will be a hearing to decide whether a permanent injunction should be issued
Permanent Restraining Order
A permanent restraining order is issued when the judge determines that a victim needs more protection against the accused.
A permanent restraining order can last for up to three years with the possible addition of time if there is a need.
Violation of restraining order will result in hefty penalties which include a jail term of one year and $1,000 fine if convicted as a misdemeanor. As a felony conviction, you will get a $10,000 fine with a maximum jail term of up to three years.
What the prosecutor has to Prove
For a conviction, a prosecutor has to prove that: you knowingly violated the restraining order, you were aware of the restraining order issued against you, and the judge issued a restraining order.
Damaging phone lines
Damaging phone lines is a criminal offense, according to the California Penal Code 591 PC. The malicious actions involve disconnecting, removing, or obstructing wires connected to a telephone or cable.
Depending on the specifics of the case, damaging phone lines can be charged as either a misdemeanor or a felony.
As a misdemeanor, if you get a conviction, you will get a jail term of one year and $1,000 fine
As a felony, you will get a jail term of up to three years and a fine of $10,000
What the prosecutor Has to Prove in a Domestic Violence
For a conviction, the prosecutor has to prove the following elements beyond a reasonable doubt.
A Criminal Intent
The prosecutor must provide evidence that you had a motive for committing the crime
The prosecutor must show that you indeed harmed the victim.
The Concurrence of a Criminal Act and Intent
The prosecutor must show that you had the motive of committing domestic violence, and you chose to act upon those intentions.
The prosecutor will check for your prior convictions to prove the tendency of committing domestic violence crime, he/she will work to convince the jury of your history in order to get a guilty verdict.
If you have a felony conviction on your record, the prosecutor will use that to his/her advantage. He will convince the jury that you have the capability of committing a serious crime.
Common Defenses in a Domestic Violence Charge
In a trial, your defense attorney will use the following defenses to argue your case:
A child may make false accusations against a partner in a bid to get back at him/her for something. Your defense attorney will investigate the matter and argue the facts for you in court. The investigator will go through the child's life and all the family members looking for exculpatory.
In some cases, someone may fabricate stories in order to get back at the accused for whatever reason.
Your defense attorney will try to find whether the injuries on the victim are similar to the crime report. Moreover, whether your version of the story is consistent with the crime report.
If you claim that you didn't do it, your defense attorney will investigate whether the claims are true.
He/she will try to find where you were when the crime happened. Whether or not you were near the crime scene. He/she will also look at the evidence to see whether ties to you.
If you are not at the crime scene tied to any evidence at the scene, your attorney will establish a credible alibi for your defense.
A Reasonable Motive
An accused may argue that the actions were justified. In the case of child abuse, an accused can argue that he/she was reasonably disciplining the child. In California, it is legal to reasonably use corporal punishment as a way a disciplining the child. Your defense attorney will argue the facts proving that you were indeed acting reasonably.
The Actions or Omissions Were Not Willful
The prosecutor must prove that the defendant's actions were willful or with criminal negligence. The prosecutor must prove this beyond a reasonable doubt; otherwise, the case would be dismissed. Therefore, your defense attorney may argue that there is not enough evidence to show a willful act in the charges brought against you.
The Abuse was an Accident
For the defense to use this argument, you will have to agree that you caused harm to the victim, but the act was unintentional. Your defense attorney will investigate the claims to see whether your version of the story is consistent with the crime report.
Your defense attorney will argue that you were defending yourself from the victim’s actions. Your defense attorney will compare the crime report to your version of the story; he will try to find out whether the victim tried to use violence, which resulted in you defending yourself. He/she will try to find whether there were any witnesses that you were acting in self-defense
Lack of Enough Evidence to Prove Beyond Reasonable Doubt
Your prosecutor will investigate the prosecutor's evidence to determine whether the charges are backed by concrete evidence; he will try to find any incriminating evidence at the scene of crime such as fingerprints or DNA.
If it was a case of self-defense, your defense attorney will try to find any defensive wounds which will provide consistency to the story.
He/she will confirm whether the police report has any evidence of damaged property, which would prove a sign of a struggle.
Error in the Police Procedure
An error by police during investigations is one of the major reasons that lead to the dropping of charges in a domestic violence case.
Your defense attorney will try to find out whether the police acted in any way that could be deemed misconduct. He/she will argue that during the arrest, the police did not follow the Law by not reading you the Miranda rights or failed to question a witness or collect evidence at the scene.
He/she will try to find whether there was probable cause to arrest you or deny you the right to call an attorney.
The accusations brought against you might have been from mistaken identity. For instance, in elder abuse cases, since most elder abuse cases happen in old people’s homes, a person may not be able to know what really happened or who exactly is responsible. If there are no witnesses testimonies or CCTV footage to tie you to the scene, then your defense attorney could use this as a defense.
Find a Los Angeles Criminal Attorney Near Me
Your defense attorney should be skilled and knowledgeable about the California domestic violence laws in order to represent you. Our attorneys at the Los Angeles Defense Attorney Law firm will provide you with the best representation to have your charges dropped, or sentence reduced.
Call us now at 310-933-9439, if you have been arrested or charged with domestic violence.