California Penal Code § 273.5(a) lays out with specificity the crime of domestic violence, stating that it is when any person willfully inflict corporal injury resulting in a “traumatic condition” upon a specific group of people. This specific group is defined in California Penal Code § 273.5(b) and includes a number of close, personal relationships. The complete list includes the individual’s spouse or former spouse, fiancé (male) or fiancée (female), cohabitant or former cohabitant, the mother or father of the individual’s child, and any person the individual currently or previously dated or to whom they were engaged.

Most of these terms are in common usage, but what about “cohabitant?” Used in the context of California Penal Code § 273.5(a), a cohabitant is not simply a person that lives with the individual. Under the law, to determine if two people are in cohabitation, the law examines whether or not the two individuals maintain a single residence, consummate the relationship while maintaining the single residence, share financial responsibilities for living expenses, and jointly own property associated with the residence. Other factors that can be examined to determine cohabitation in a domestic violence case include the length of the relationship, any statements by the individuals involved confirming that they are in a domestic partnership of some kind, and the length of the relationship. Essentially, looking at all of these factors and various relationship structures, any person that an individual has lived with and been in an intimate relationship with at some point in time can qualify as an appropriate victim under California Penal Code § 273.5.

Now that we have established the necessary people involved for a charge of domestic violence, another key term to understand when looking at domestic violence in California is “traumatic condition.” To qualify as a traumatic condition, California Penal Code § 273.5(d) states that the inflicted injury must be a “condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force.” The language of California Penal Code § 273.5 is fairly specific in calling out strangulation and suffocation, but is still broad enough to include myriad other injuries, including external bruising, internal bleeding, or even open wounds. The condition does not need to be life-threatening in order to qualify as a traumatic condition. Instead, it only needs to be a natural and probable consequence of the physical force used. The standard here would be if a reasonable person would expect the type of traumatic condition to result from the physical force in question.

A final key element to the crime of domestic violence in California involves the issue of “willfully.” As with many crimes, the legal principle of mens rea is essential for proving a case of domestic violence under the penal code. Literally meaning “guilty mind” in Latin, California criminal law looks to the intent and mental state of the individual in question. For domestic violence, this principle is written directly into the penal code through the use of the term “willfully.” In order to be found guilty of domestic violence, as codified in California Penal Code § 273.5, an individual must be aware of and know that his or her actions will result in the previously defined traumatic condition. The infliction must be done knowingly, deliberately, and intentionally. If the traumatic condition is the result of simply wanton or reckless behavior, then it is lacking the requisite mental state to qualify as domestic violence. However, an important distinction to understand is that the individual need not have intended to break the law. Willfulness only goes to the intentionality of the act itself, not in breaking the law per se.

Now that we have defined fully what constitutes domestic violence under California Penal Code § 273.5, as well as examined all of its moving parts and terms, it is time to examine what happens once an individual has already allegedly committed the offense and enters the criminal justice system. Remember, it is important to bear in mind that the earlier a domestic violence attorney is contacted in the process of dealing with an issue under California Penal Code § 273.5, the better the result is likely to be.

Recalcitrant Victims, Testimony Reversals in Domestic Violence Cases

It is not uncommon, both in California and throughout the rest of the world, for people involved in close, romantic relationships to find themselves in a heated and volatile exchange. In these situations, it is not uncommon in the moment for a loved one to call the police on their partner in order to diffuse the tension, get someone in between them, or because they are extremely upset and angry. Later, when tensions have cooled, often the next week or even the following day or two, the purported victim, who initially went forward with “pressing charges” related to a claim of domestic violence decides that they don’t want to see their loved one go to jail or face domestic violence charges. However, even after they tell the police that they either don’t want to press charges or recant their statements and say that the police invented the domestic violence claims, this will not turn back the clock, so to speak. Once the call has been made, and the individual has been arrested for suspected domestic violence, even the person who set the criminal justice events in motion by calling the police cannot undo what has been done. Again, if an individual is in such a predicament, contacting a domestic violence attorney is crucial.

In these situations, the police and prosecution consider this to be a “recanting victim.” What this means is that the state and its agents will continue to believe the original account and that the alleged victim is simply making up a new story to either protect the individual or because they are being coerced by the individual. Under these circumstances, even though neither the alleged victim nor the individual accused of domestic violence want to proceed with the prosecution of the charges under California Penal Code § 273.5, the prosecution can, and all too often, will, proceed with the case. This is important to keep in mind in the heat of the moment, as there are life-altering consequences once charges have been filed.

However, if the accuser has now changed their story but the prosecution still wants to proceed with the domestic violence case, this is not necessarily a bad thing and can in fact still be quite helpful. The prosecution’s main asset in successfully prosecuting a domestic violence case is usually the alleged victim. Therefore, a reluctant victim means the prosecutor may see their case as weak or hard to prove. This will often lead to a significantly better outcome for the accused individual, and, in fact, can sometimes lead to an outright dismissal of the domestic violence charge.

Technically, if an alleged victim in a domestic violence case refuses to testify, they can still be compelled to appear in court. However, even if they are served with a subpoena and forced to appear, they can still refuse to testify without the fear of being jailed. California Civil Code § 1219 provides protection to victims in domestic violence cases from the usual consequences of refusing to testify, namely being jailed for contempt. But, this does not mean that the individual is out of the woods yet. Given the way that the rules of evidence work, the prosecution can still use the alleged victim’s previously given statements if they are considered “excitable utterances”. This excitable utterances exception will lead to the exclusion of all comments except those made during the actual event itself to law enforcement, oftentimes during an emergency 911 call. Anything that falls outside the “excitable utterance” category is considered “hearsay”, and will not be admissible. However, sometimes these excitable utterance statements can provide enough damning evidence even without the live testimony of the alleged victim.

A reluctant witness can make it harder to prove a domestic violence case against an accused individual because (1) they may not show up to court (2) they may testify to things that are inconsistent with what they told the police and therefore their credibility will be compromised and (3) they may admit that they lied to the police in the first place. However, even if an alleged victim refuses to testify, they will still most likely have to take the stand. While on the stand, if the alleged victim makes comments other than affirming that they will not testify, these new statements can be used to bring in other evidence. For example, if the alleged victim of domestic violence states that they are withdrawing what they said previously or that they had been previously lying about the domestic violence encounter, this will allow the prosecutor to bring into evidence through other witness testimony all previous statements made by the alleged victim that contradict these new statements. Because of the intricate manner in which these rules of evidence interconnect, it is important to have the counsel of a skilled domestic violence attorney.

Protective Orders and Domestic Violence

At the accused individual’s first appearance in court, which is known as the arraignment, the Court will issue what’s called a protective order (restraining order) preventing the individual from any contact, whether in-person, telephonic or through an intermediary, with the alleged victim. In other words, this is an order of “no contact” with the alleged victim.

Given that in many if not most of these instances, because domestic violence necessitates an intimate relationship between the individuals, the two people involved live together, this restraining order inherently places extreme hardship on the accused individual. If the accused and the alleged victim of the domestic violence live together, the accused individual will be forced to find a new place to live while still paying their share of the rent for the shared residence. In addition, if the accused and the alleged victim have children, the protective order will prevent them from seeing each other. Also, in the event that the alleged victim decides they want to change their story, and the accused and the alleged victim decide they want to discuss the case together and coordinate a defense, they will be prevented by law from talking to each other because of the protective order.

What this does mean though is that if the individual has already posted bail, but has not yet gone to the arraignment hearing, they may still be able to talk to the alleged victim. Because the timeline here can get tricky, the accused individual should always consult with a criminal defense attorney beforehand. A violation of a protective order will present further difficulties for the individual, and therefore the guidance offered by a skilled domestic violence attorney is of paramount importance.

Domestic Violence is a “Wobbler” Offense

A “wobbler” is a crime that can be filed either as a misdemeanor or felony in California. When the arrest is for domestic violence, an individual is almost always booked as a felony. However, this does not necessarily mean it will stay a felony. Even if the prosecutor files the domestic violence charge as a felony, a criminal defense attorney can ask the Judge to reduce it pursuant to California Penal Code §17(b)(5) to a misdemeanor because it is a wobbler offense.

The Judge has the power to do this and may consider myriad supporting facts, including but not limited to an individual’s previous criminal record, their previous domestic violence-specific charges, the extent of the injuries, any mitigating circumstances or evidence including good character references, the strength of the case, and the reputation of the individual within the community.

Given all the variables at play when attempting to make a felony into a misdemeanor, it is important to consult with a trained criminal defense attorney concerning the issue of wobblers.

Bail for Domestic Violence

The cost of bail for a domestic violence charge is currently $50,000. This means that a bail company will charge an individual $5,000 to be bailed out of jail. However, on August 28, 2018, Governor Jerry Brown signed into law a bill that eliminates bail for those awaiting trial in California. It has yet to be shown exactly how this will be applied, and at any rate it won’t take effect until 2019. Therefore, as of right now, domestic violence is still abiding by the same bail structure.

As such, $5,000 is a lot of money. This being the case, an individual might want to speak to a criminal defense attorney first, as often times an attorney can get the individual out without having to pay any money. This is known as an OR (Own Recognizance) release. When trying for an OR release, the Judge will consider whether the individual is a flight risk or a potential danger to the community. For the most part, people charged with domestic violence are neither, and therefore they are presumptively eligible for an OR release. However, knowing how this system works is key, therefore hiring a criminal defense attorney to help guide an individual through this process is important.

Early Intervention in Domestic Violence Cases

Despite being a country whose legal system is based around the idea of “innocent until proven guilty,” this is not always the way that everyone views individuals accused of crimes. Many people, including, unfortunately, those in law enforcement and the criminal justice system, view those accused as being guilty until proven innocent. As such, oftentimes, the prosecutors or detectives in a domestic violence case develop a very narrow view of the case. They are only told the point of view of the alleged victim and therefore, inherently, don’t know the whole context of the incident.

Given this, the earlier an individual is able to present their point of view and perspective on an incident, the broader the context becomes for the law enforcement officers and prosecutors involved in the case. This allows the incident to become less black and white. That being said then, the earlier an individual hires a criminal defense attorney, the higher the likelihood of success as they are better able to protect themselves against making a mistake. In addition, they are also able to put their best foot forward in presenting a balanced picture of things. Therefore, the greatest asset an individual has when ensnared in the criminal justice system, whether for domestic violence or any other issue, is their criminal defense attorney.

Related Offenses to Domestic Violence

There are other charges that are related to a charge of domestic violence under California Penal Code § 273.5 that are either charged alongside the domestic violence charge or in its stead. Some of these offenses are great options to try to reduce the charge of domestic violence to as they carry much less stigma, penalties, and life-altering consequences. We will look at some of these additional charges below.

California Penal Code § 243(e)(1) – Domestic Battery

Similar to California Penal Code § 273.5, California Penal Code § 243(e)(1) for domestic battery is also a domestic violence offense, but is considered to be a less serious offense. The difference is that, unlike corporeal injury or cohabitant abuse, domestic battery under California Penal Code § 243(e)(1) has no requirement that the victim actually suffer any injury.

Also, domestic battery is a straight misdemeanor, not a wobbler, which means the maximum penalty is a year in county jail and a fine of up to $2,000, rather than prison time. A felony charge of California Penal Code § 273.5 can be negotiated down to domestic battery under California Penal Code § 243(e)(1) if the case is problematic or weak for the prosecution.

This is also a worthwhile venture if the individual accused is undocumented. As will be discussed below in further detail, California Penal Code §273.5 can have serious consequences for an undocumented individual. If convicted under California Penal Code §273.5, the individual can be deported, in addition to receiving a sentence of no right of re-entry into the country after leaving, no possibility of becoming a U.S. citizen, and no right to apply for a green card or an “adjustment of status.” Therefore, if at all possible, pushing for a reduction in sentencing from §273.5 to §243(e)(1) is essential.

California Penal Code § 273(a) – Child Endangerment

If there is an allegation that a child was present or involved in the domestic violence dispute, an individual can also be charged with Child Endangerment, under California Penal Code § 273(a). For instance, if a wife attacks a husband with a knife and there are kids in the room, the person may have put the children at risk of suffering bodily injury. The charge of California Penal Code § 273(a) would be charged in addition to the California Penal Code § 273.5 charge. California Penal Code § 273(a) is a wobbler that can be charged as a misdemeanor or a felony. However, the determining factor in bumping it up to a felony is usually if the individual puts the child at risk of great bodily injury or death.

NOTE: DCSF CAN TAKE YOUR KIDS AWAY

If a domestic violence incident happens in front of an individual’s children, the Department of Children and Family Services (DCFS) will get involved and attempt to remove the children from the home. Under these circumstances, it is imperative that the individual NOT speak to the DCSF. Not only can they use your statements to remove the children from the individual’s custody, but those same statements can and most likely will be used against the individual in the criminal domestic violence case. The golden rule here, as in with pretty much all interactions with law enforcement of any kind, is do not speak with them if you don’t have to and contact a criminal defense attorney immediately.

California Penal Code § 368 – Elder Abuse

California Penal Code § 368(a) states, “The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.” California Penal Code § 368(b) goes on to say essentially that it is a crime to willfully or negligently impose unjustifiable physical pain or mental suffering on an elderly or dependent adult.

An allegation of domestic violence where the victim is 70 years or older may subject you to additional liability of Elder Abuse under California Penal Code § 368. This is a usually a crime that is charged against people who are taking care of or in charge of older people, such as a caretaker or adult child. Elder abuse is a serious domestic violence crime that can land you in prison for three years if the victim is under 70, and five years if the victim is 70 years of age and older. If the domestic violence offense ultimately leads to the elderly individual’s death, the sentence gets bumped up to five years for under 70 years of age and seven years if the victim is 70 years of age or older.

California Penal Code § 415 – Disturbing the Peace

Under California Penal Code §415, it is a crime to unlawfully fight or challenge to a fight a person in a public place, maliciously and willfully disturb another person by loud and unreasonable noise, and use offensive words in a public place which are inherently likely to provoke an immediate and violent reaction. It is not uncommon for a prosecutor to reduce an original charge of domestic violence to one of disturbing the peace if a plea bargain can be arranged with the defense attorney. This is worthwhile to pursue because unlike domestic violence, disturbing the peace can be either a misdemeanor offense or the even lesser infraction (which is known as a “wobblette”). Furthermore, disturbing the peace carries none of the stigma and baggage associated with domestic violence, nor any of the immigration or employment consequences.

At the Law Offices of Seppi Esfandi, we have been successful is reducing domestic violence cases to this very low misdemeanor or infraction of disturbing the peace. Usually, these are charges when music is being played too loud in public, someone is shouting in the streets, or there is a street or bar fight. Unlike domestic violence, disturbing the peace is not considered a violent crime or one involving moral turpitude. A violation of California Penal Code § 415 for disturbing the peace is not a deportable violation and your gun rights will not be infringed. To ensure the possibility of a reduced offense status, reaching out to a domestic violence attorney early on is crucial.

Defenses to Domestic Violence Charges

The legal defenses associated with domestic violence are not unique to the charge. The defenses that can be employed on behalf of an accused individual track with those used for most violent crime accusations. Below, we will cover the most effective defenses often used by criminal defense attorneys California Penal Code § 273.5

Lack of Proof Beyond a Reasonable Doubt

The greatest hindrance to successful prosecution of a domestic violence case is lacking sufficient proof beyond a reasonable doubt. As discussed above, it is often the case that the person who initially complained to law enforcement changes their mind and says they were, in fact, not abused. Because domestic violence, like many criminal acts, involves a significant level of he said/she said removed from any other witnesses, if the alleged victim who called law enforcement now says that the person never assaulted them, then the alleged victim’s credibility gets thrown into question. Furthermore, the victim sometimes will refuse to show up to court, and will not cooperate in the process of being subpoenaed, for instance by hiding their whereabouts so they cannot be legally served. Even if they are served, are forced to attend court, and take the stand, they do not have to testify. As noted before, California Civil Code § 1219 provides protection to victims of domestic violence from the consequences of refusing to testify. If this is the case, then the prosecution probably cannot prove their case beyond a reasonable doubt and they must either dismiss the case altogether or reduce to a lesser offense.

Even if the accuser is legally subpoenaed, if the prosecution understands them to be reluctant to testify or a reluctant witness, this will affect the prosecutor’s evaluation of the strength of their case, and may induce them to make an offer which is better for the defendant.

Finally, even if the alleged victim of domestic violence is available to testify and is not reluctant, it can still be hard for the prosecution to prove their case beyond a reasonable doubt. There may be no injuries that corroborate the victims’ side of the story, the victim might have a criminal record involving dishonesty or violence which would impeach his or her credibility, or there simply may not be enough objective evidence to convince the judge or jury that the violence occurred in the matter alleged by the victim.

Lack of Willful Intent to Harm

Again, as noted previously, a key element to the crime of domestic violence is that the individual willfully committed the acts that led to the traumatic condition. In order to be found guilty of domestic violence, as codified in California Penal Code § 273.5, an individual must be aware of and know that his or her actions will result in the traumatic condition. The crime of domestic violence, under California Penal Code § 273.5 requires the willful infliction of injury. To use an example to illustrate this point, if during a domestic argument, an individual accidentally bumps into their partner creating an injury, the individual does not possess the willful intention that is a required element under the domestic violence laws.

Self-Defense as a Legal Defense to Domestic Violence

Self-defense can also be used effectively to defend against charges of domestic violence. Self-defense is valid if and only if the individual using it (1) reasonably believed that they or someone else was in imminent danger of bodily harm, (2) reasonably believed that the immediate use of force was necessary for the defense, and (3) the individual did not use any more force than was reasonably necessary to defend against the imminent danger. If an individual can prove all three of these elements, then this is an effective defense to a claim of domestic violence.

On many occasions, when a domestic violence incident happens, the person trying to defend themselves or someone else will be accused of domestic violence. For instance, if an individual’s spouse or loved one is attacking them, and the individual restrains them by grabbing their shoulders or keeps them from hurting the individual by straddling them and holding them down, then the individual is acting in self-defense, even if this force results in a traumatic condition such as a bruise or a cut. This same reasoning applies if restraining the person from hurting someone else. Self-defense is what is known as a complete defense, which means full acquittal if the judge or jury find an individual was acting in self-defense. However, again, the individual must only use reasonable force to protect themselves or another. A good way to think of this is if, for example, someone is trying to hit an individual with an open hand, attacking them back with a hammer would be an unreasonable use of force.

False Accusations

As serious as a crime like domestic violence is, the seriousness of a false accusation of such can be equally detrimental, and not only to the individual falsely accused. False accusations serve to undermine the integrity of the justice system, and they throw a wrench in the progress that has been made for protecting, believing, and advancing the recognition and recovery of real victims. Unfortunately, especially in the context of domestic violence, it is not uncommon to see allegations of domestic violence that have been fabricated because one person is mad at another.

To provide context, here are some real-life examples:

• A wife is angry at her husband because she suspects him of cheating on her after looking through his cell phone. A heated verbal argument ensues where the police are ultimately called. The wife falsely accuses her husband of domestic violence because she is so incensed.
• A husband is trying to get an advantage over his wife in a divorce and child custody battle so he accuses his wife of domestic violence to use as leverage.
• An undocumented person is trying to get legal status in the United States by falsely claiming he has been a victim of domestic violence. A conviction of the falsely accused defendant will get him a U-Visa to be able to legally be in the United States.

Luckily, while these kinds of false accusations are insidious, there are ways to defend against them. A trained criminal defense attorney can subpoena the accuser’s texts, emails, and messages sent through social media accounts to check for ulterior motives or discussions about filing a false claim. In addition, a criminal defense attorney will often conduct interviews with the accuser and their close relations, both personal and professional, as well as run a background check on the accuser and any claimed witnesses to the domestic violence. Through this kind of investigative digging, ulterior motives can often be unearthed. Once this is established, it can be very useful in discrediting the domestic violence claim.

These defenses presented above are crucial to any individual accused of domestic violence, whether it be a misdemeanor or a felony. As will be discussed below, there are significant, life-long consequences if found guilty. Therefore, it is crucial to hire an effective criminal defense attorney who knows how to fight for your rights.

Loss of Rights

In California, a felony conviction, whether involving domestic violence or otherwise, results in a significant loss of rights. A convicted felon will usually see a narrowing of job opportunities as they must always disclose their felon status when applying for jobs. Also, this same information has to be disclosed on all military and governmental questionnaires and loan applications. In addition, a convicted felon will lose their professional license, the right to vote, and the right to possess a firearm.

A conviction of California Penal Code § 273.5(a) or 243(e)(1) will result in the loss of your gun rights. Previously, this loss of gun rights was for an individual’s lifetime if convicted of a felony, or for 10 years if convicted for the misdemeanor offense. However, on August 28, 2018, California lawmakers approved a bill that extended the 10 year to a lifetime ban as well for those convicted of misdemeanor domestic violence.

Consequences on Immigration Status

Unfortunately, domestic violence carries with it severe consequences for non-citizens. California Penal Code § 273.5 is a deportable offense and if the accused individual is not a citizen, then it is imperative that they hire a qualified attorney to help advise them on how to prevent deportation or exclusion from naturalization and citizenship. Deportable crimes are enforced by the Department of Homeland Security and include the following crimes in California: (1) those involving domestic violence (2) those involving “moral turpitude,” (3) those which involve possession or sale of drugs (controlled substances) (4) a list of felonies which are considered “aggravated felonies” and (5) offenses involving guns.

Furthermore, domestic violence also qualifies as an “inadmissible crime,” meaning that it carries with it a no right of re-entry into the country after leaving, no possibility of becoming a U.S. citizen, and no right to apply for a green card or an “adjustment of status.” This means, in short, that the individual would be barred from ever changing their status from illegal to legal immigration status.

Expungement of a Domestic Violence Conviction

Under California Penal Code §1203.4, you are eligible to remove permanently your misdemeanor offense of domestic violence from your record. The main reason to expunge your record is so you can state that you have never been convicted of domestic violence in an application for employment or an application for housing.

Although expungement does not extend to felonies, you can have it reduced to a misdemeanor under California Penal Code §1203.4. If an individual successfully completes probation and is not facing a new offense, they are eligible for their felony to be reduced.

Call LAW MART for a FREE Case Review: 310-894-6440