Domestic Violence

“Domestic Violence” is the threat or use of physical force against an individual with whom you have had an “intimate relationship.” This individual could be a current spouse, a former spouse, a cohabitant, a current girlfriend, or a former girlfriend.  The seriousness of the victim’s injuries and your criminal record determine the exact type of offense charged and the accompanying penalties.  The more serious the injuries, the more grave the charge, and the heavier the penalties.  

CATEGORIES OF DOMESTIC VIOLENCE AND RELATED OFFENSES

Domestic violence offenses normally fall into the following categories:

Corporal Injury to a spouse or cohabitant under penal code section 273.5

Under Penal Code section 273.5, it is unlawful to inflict “corporal injury” upon an intimate partner—i.e., a current spouse, former spouse, or cohabitant.  For the prosecutor to prove you guilty of the above offense, she must establish beyond a reasonable doubt that you caused actual physical injury upon the person of the alleged victim.  “Physical injury” need not be a traumatic or severe injury.  For example, a simple bruise can suffice as physical injury.

  • Penalties for Penal Code 273.5

Penal code section 273.5 is a “wobbler,” meaning that it could be charged either as a misdemeanor or a felony.  The individual facts of the case, the severity of the injuries involved, and your criminal record will determine whether the prosecution will charge a felony or misdemeanor or whether your attorney can successfully reduce an already filed felony to a misdemeanor.  The applicable penalties for a misdemeanor 273.5 are up to one year in county jail, up to $6,000.00 fine, and informal summary probation.  A felony 273.5 carries a maximum penalty of 2, 3, or 4 years in state prison, a maximum fine of $6,000, and felony probation.  A misdemeanor or felony conviction under 273.5 will also subject you to a protective order disallowing any contact between you and the alleged victim. 

Exactly what penalty you will receive for a conviction under 273.5 depends not just on the specifics of the case and the severity and nature of the injuries involved but also on your criminal history.  If in the past 7 years you have suffered a prior conviction for domestic battery under penal code section 243(e)(1), the maximum applicable fine increases to $10,000.  You will also be vulnerable to a higher maximum prison sentence of 5 years if you have suffered a conviction for any of the following offenses in the past seven years: simply battery, aggravated battery, sexual assault battery, and assault with a deadly weapon. Your “vulnerability” to a higher fine or incarceration term does not mean that the prosecution will impose the maximum punishment on you.  It does, however, mean that the stakes are higher for you, which then heightens the importance of zealous advocacy on your behalf.

Great bodily injury sentence enhancement

An insidious punishment enhancer is the great bodily injury sentence enhancement under California’s “great bodily injury” sentencing law.  This enhancement subjects you to an additional 3 to 5 years of state prison, and only applies if the victim’s injuries are “significant” or “substantial.”  Whether an injury is “significant” or “substantial” can sometimes be a matter of interpretation.  In most cases, however, medical records can establish the extent and severity of the injuries.  And if there are no medical records, or if the alleged victim never sought medical attention, then his or her injuries arguably were not significant or substantial.  It is therefore crucial that your attorney does not simply rely on the prosecution’s assessment of the victim’s injuries.  Your attorney should investigate whether the victim sought medical attention and, if so, what type of treatment he or she received. 

  • Defenses for Penal Code section 273.5

You acted in Self-defense:  Many accusations under penal code section 273.5 arise from a heated argument that then escalates to physical confrontation or violence.  Often the alleged “victim” is the aggressor and the accused reacts in self-defense.  If your partner physically attached you and you used force reasonably necessary to prevent imminent bodily harm upon yourself, then you legitimately acted in self-defense and therefore are not guilty of a 273.5.

You were engaged in Mutual combat: In many domestic violence cases there are no “aggressors” and “aggressees.”  In other words, both parties engage in physical confrontation, and both are aggressors.  We term this situation “mutual combat.”   Mutual combat is not a perfect defense to a 273.5.  It is, however, a mitigating factor.  If the so-called victim also inflicted injury on you, your attorney can negotiate a better disposition on your behalf.

You did not willfully or intentionally cause the injury: For you to be convicted of a 273.5, the prosecution must prove that you intentionally or willfully struck your partner or caused the corporal injury upon his or her person.   If the injuries on your partner were caused by you but inadvertently or accidentally so, then you have a perfect defense to a 273.5.

You were falsely accused:  Intimate relationships are at times precarious and volatile.  As such, they are vulnerable to impulsive actions and spur of the moment accusations.  Out of anger, frustration, jealousy, vindictiveness, or a desire for control, your intimate partner may falsely accuse you of acts you never committed.  A skilled criminal defense attorney will seek to divulge these false accusations and the motives behind them.

Aggravated Battery under Penal Code Section 243(d)

If your intimate partner suffered a serious bodily injury, then you can be charged with aggravated battery under penal code section 243(d).  “Serious bodily injury” under this penal code section is not the same as “great bodily injury” under California’s great bodily injury sentencing law.  “Serious bodily” injury necessarily includes impairment such as a broken bone, a concussion, or disfigurement.

  • Penalties for Penal Code section 243(d)

Aggravated battery is a wobbler, which means that it is prosecuted as either a felony or a misdemeanor depending on the severity of the injury, the specifics of the case, and your criminal record. Penalties for a misdemeanor 243(d) conviction include informal probation and up to one year in county jail. A felony 243(d) conviction subjects you to a 2, 3, or 4 year state prison.

  • Defenses for Penal Code section 243(d)

Common defenses for this offense include self-defense, false accusations, lack of willfulness or intent, as well as mutual combat as a mitigating factor.

Inflicting force or violence on an intimate partner under Penal Code section 243(e)(1)

Under penal code section 243(e)(1), it is a misdemeanor to inflict force or violence on an intimate partner.  This code section does not require actual or visible injuries.  The allegation that you used any degree of force or violence upon your partner is enough to trigger prosecution under this code section.  Common examples of a 243(e)(1) offense include pushing an intimate partner, throwing an object at an intimate partner, pulling an intimate partner’s hair, or squeezing tightly an intimate partner’s arm.

  • Penalties for Penal Code section 243(e)(1)

Because it is charged as a misdemeanor, penal code section 243(e)(1) carries a penalty of up to one year in county jail, a maximum fine of $2,000, informal probation, a one year batter’s treatment program, and restitution to the victim for any reasonable expenses that he or she occurred as a result of the alleged harm inflicted by you.  Depending on the specific circumstances of your case, a judge may also issue a protective order prohibiting you from having any contact with your intimate partner during the litigation process or throughout your informal probation period.  If you suffer two convictions for a 243(e)(1), you will be subject to a minimum 48 hours of county jail.  You may be exempt from this requirement if your attorney can convince the court that for legitimate reasons, what is termed as “good cause,” you cannot be incarcerated for even that short of a time.

  • Defenses for Penal Code section 243(e)(1)

Common defenses for a 243(e)(1) offense include self-defense, mutual combat, lack of willfulness or intent, and false accusations. 

CHARGES ALTERNATIVE TO DOMESTIC VIOLENCE OFFENSES

Depending on the particular facts of your case, your attorney can suggest any of the following less serious charges as an alternative to a charge of domestic violence:

Disturbing the Peace under Penal Code section 415

Disturbing the Peace under Penal Code section 415 is a low-level misdemeanor that your attorney can seek as an alternative to a more serious domestic battery charge.  Under penal Code section 415, it is a misdemeanor to fight someone in public, engage in acts that disturb others, or use inflammatory “fighting” words in public.  A conviction under disturbing the peace shields you from the stigma, penalties, and possible immigration consequences of a domestic battery charge.  Depending on the particular circumstances of your case, a prosecutor may agree to reduce your domestic battery charge to a 415 disturbing the peace as part of a plea bargain agreement.

Simple Trespass under Penal Code section 602

Under Penal Code section 602, it is a misdemeanor or, depending on the particulars of the case, an infraction to remain on a somebody else’s property without permission or the right to do so.  This charge is an excellent alternative to a domestic battery charge, as it too does not carry the stigma, penalties, and possible immigration consequences of a domestic battery charge.

Aggravated trespass under Penal Code section 601

Aggravated trespass under Penal Code section 601 is sometimes charged in domestic violence cases.  To prove you guilty of this offense, the prosecutor must establish that you a) made a credible threat to inflict bodily injury upon your intimate partner and b) within 30 days of making that threat, you entered your intimate partner’s residence or workplace with the intent of acting upon your threat.  If the home or workplace that you allegedly entered is also your place of work or residence, then you cannot be found guilty of this offense. 

Aggravated trespass is charged as a felony or misdemeanor depending on the particular facts of your case.  Even as a felony, aggravated trespass is a desirable alternative to a felony domestic battery charge because it does not carry the stigma, penalties, and possible immigration consequences of the latter.

Damaging a telephone wire under Penal Code section 591

Penal Code section 591 PC makes it unlawful to maliciously disconnect, remove, damage, or obstruct wires for a telephone, cable or electrical service, or any equipment connected to those wires.  This offense is a wobbler.  Even as a felony, however, it is a better alternative to a felony domestic battery as it too does not carry the stigma, penalties, and immigration consequences of the latter.

THE STAGES OF A DOMESTIC VIOLENCE PROSECUTION

Police Response: Almost all domestic violence cases start with an alleged victim’s 911 call for help or a neighbor’s, friend’s, or passersby’s 911 call on behalf of an alleged victim.  Police officers who respond to the domestic disturbance should talk to both parties and any and all witnesses involved, investigate whether either party was the aggressor, carefully assess all injuries, determine if the situation was simply a heated argument or an incident of domestic violence, and then decide which of the parties should be arrested or cited for domestic battery.  Unfortunately, this desired process of investigation and fact finding does not always transpire.  Often, responding officers prematurely conclude that the 911 call involves a case of domestic battery when all that transpired may have been just a routine heated argument between intimate partners. By the time they respond to the location of the incident, these officers already may have preconceived notions of how the incident transpired and who was the main culprit.  These premature determinations or even suspicions are dangerous because they preclude a thorough and impartial investigation and ultimately lead to incomplete fact-finding and thus erroneous conclusions by the officer.  A skilled defense attorney carefully assesses the circumstances in which a domestic battery investigation took place.  Factors such as how many officers responded to a domestic disturbance, which officer interviewed which party, how said interview was memorialized, and whether there are any discrepancies between the contents of a police report and a reported witness’ statements are crucial in identifying any flaws or holes in the investigation that a skilled defense attorney can then use to obtain a more favorable disposition for her client.

Arrest:  Whoever the officers determine to be the aggressor is normally the person who is arrested and taken into custody.  Sometimes, because of hasty and incomplete policing, a victim becomes designated as the aggressor and subsequently arrested and charged.  The investigating officer memorializes his findings in a police report where he also makes a recommendation for a felony or misdemeanor charge, depending on the specific circumstances and severity of the injuries involved.  If the police recommendation is for a misdemeanor, then the arrested person is normally given a citation, released, and told to appear in court at a later date.  If the recommendation is for a felony, then the arrested individual will either be released after posting bail or remain in custody until he or she can be seen by a judge.

Pre-filing Stage:  The time between the arrest and the formal filing of a complaint is the pre-filing stage.  In this period, investigating officers complete their investigations and interviews of any potential witnesses, and memorialize their findings in a police report which is then submitted to the prosecuting agency—i.e., the city attorney or district attorney’s office.  Usually, there is a lapse of time between the arrest and the submission of a report to the prosecuting agency.  It is crucial that you hire an attorney in this interim.  Your attorney can conduct her own independent investigation of the facts and accomplish a more complete picture of what transpired.  Depending on what your attorney discovers in her independent fact-finding on your behalf, she can seek to preclude the filing of formal charges by convincing the investigating officer that the case should not proceedto criminal prosecution.  This specific outcome is not common, as police officers are not always receptive to a defense attorney’s recommendations.  Nonetheless, your attorney’s thorough fact-finding and the immediate mounting of a defense can define the trajectory and outcome of your particular case. 

Complaint/Charging document:  After the arrest, a police report is submitted to the prosecutor’s office.  The filing deputy prosecutor reviews this report and decides what charges, if any, should be filed.  This is also an important time for your attorney to contact the assigned prosecutor in your case.  The independent investigations that your attorney has conducted might preclude formal charges or help in negotiating a better disposition on your behalf. 

City Attorney Hearings:

An alternative to a misdemeanor prosecution is the city attorney hearing.  Conducted at the local office of the city attorney, this hearing is essentially an informal meeting between a hearing officer, the defendant, and the alleged victim. A city attorney hearing normally occurs when the city attorney has determined that there is insufficient evidence for prosecution or that the matter would be best resolved through an informal intervention. The purpose of the meeting is therefore to determine an alternative settlement to a criminal case.  If after listening to both sides the hearing officer determines that the parties have reached an understanding and are committed to solutions and strategies to prevent a future domestic dispute, then the case is dismissed.  If the hearing officer determines that no such settlement is possible, then he or she might recommend that the case proceed to criminal prosecution or remain open for one year. 

A city attorney hearing is an excellent opportunity for your criminal defense attorney to prevent your case from proceeding to formal prosecution.  Your attorney should prepare you and your witnesses for the hearing, articulate and assert your defenses, and gather and present any and all mitigating factors on your behalf.

The Arraignment:  The arraignment is your first court appearance after you are formally charged. At your arraignment, you are advised of your constitutional rights, a copy of the complaint and police report is provided to your attorney, and you are asked to enter a plea of guilty or not guilty.  Unless your attorney and the prosecution have already reached a plea agreement, you enter a plea of not guilty.  The judge then determines whether bail should be set and if so for what amount.  The determination of whether bail should be set depends on your criminal history and the severity of the victim’s injuries.  The determination of how much bail should be set depends on these same factors in addition to the exact amount of presumptive bail set for the offense or offenses with which you have been charged.  Your attorney can ask for a separate bail review hearing where she can present mitigating factors to either convince the judge to release you on your own recognizance or otherwise keep bail at the presumptive bail amount.

At your arraignment, a judge will also likely issue a protective order prohibiting you from any contact with the alleged victim while the case is pending.  This “no contact” order often creates difficulties for couples who have children in common or who cohabit.  Your attorney can request a “peaceful contact” order that would only prohibit any and all negative—e.g., harassment—contact with the alleged victim.  Whether the judge agrees to issue you a peaceful contact order instead of a no-contact order depends on the particulars of your case and the exigencies involved.

Pretrial Conference: The pretrial conference, which consists of a series of pretrial hearings, is the period in which you attorney can begin formal negotiations with the prosecution on your behalf and to also seek to lift a “no contact” order.  During pretrial hearings, your attorney can present arguments and facts to accomplish a dismissal or reduction of the charges.  It is crucial that your attorney has already begun mounting a defense at this stage of the proceedings.  The more prepared and equipped the attorney the higher the chances of a favorable disposition on your behalf.

If your attorney and the prosecutor can reach a disposition, the case will end at the pretrial stage.  Otherwise, the case will proceed to trial.

Pretrial motions: Once a case is set for trial, your attorney can raise legal arguments regarding the admissibility of certain evidence at trial. These motions, commonly referred to as pretrial motions, seek to suppress evidence such as the alleged victim’s 911 call and statements to the police.

Trial:  The trial, normally conducted before a jury of your peers, is an opportunity for your attorney and the prosecution to present their case.  If the prosecution is unable to prove their case against you beyond a reasonable doubt, you will be exonerated and the case will be dismissed.  If there is a finding of guilt beyond a reasonable doubt, you will be convicted of the charges.  At that point, you attorney will have to negotiate with both the judge and the prosecution for the lowest possible penalty or penalties applicable to the charges of which you were convicted.

A RECANTING VICTIM

Who is a recanting victim?  An alleged victim’s statements to the police serves as evidence to charge and prosecute the attacker.  A recanting victim is a victim who later alters her story or altogether withdraws her statements to the police.

Why do victims of domestic violence recant? There is no set reason why alleged victims of domestic violence later recant their statements against their alleged attacker.   Fear of more violence if charges are pressed, financial or emotional dependence on the alleged aggressor, or guilt are some conventionally recognized reasons why alleged victims of domestic violence later recant.  Recanting can also occur when a victim realizes that he or she overreacted or provided exaggerated or falsified statements to the police.

Can the prosecution move forward in the case of a recanting victim? In most domestic violence cases, even if the victim recants her testimony against the accused or refuses to press charges, the prosecution will proceed forward with pressing charges.  Even if the victim is unavailable or refuses to testify at trial, the prosecution will rely the police report, photographs of injuries or property damage, medical reports, 911 calls, and eyewitness accounts to attempt to secure a conviction.  Your attorney must then file pretrial motions to exclude, on evidentiary grounds, these forms of evidence from trial.

How can your attorney use a recanting victim to your advantage? While a recanting victim does not preclude a prosecution of domestic violence, recanted statements can pose a substantive challenge to the prosecution.  Depending on the specific facts recanted, the manner in which they were recanted, and at what stage in the criminal process they were recanted, recanting can indicate that an alleged victim is unsure of his or her testimony, has a propensity for falsifying or exaggerating information, and is overall an unreliable witness for the prosecution.  Your attorney can therefore use an alleged victim’s recanting as leverage in negotiation proceedings or, if the case proceeds to trial, as a means to discredit the alleged victim’s credibility before the jury.

HOW THE LAW OFFICE OF NEGIN YAMINI CAN ASSIST YOU IN YOUR DOMESTIC VIOLENCE CASE

Success Case:  In People v. Ronnie R., Case. No 3CA06241, the defendant, MR. R, was charged with corporal injury to a spouse (PC 273.5).  Mr. R’s wife, the alleged victim, called 911 claiming that MR. R tried to kill and choke her.  The responding officers interviewed the alleged victim as well as the couple’s minor daughter.  According to the police report, the couple’s minor daughter stated that her father kicked her mother in the stomach, held her down, and attempted to choke her.  Mr. R. hired Negin Yamini when charges were formally filed against him.  Negin immediately had the couple’s daughter and the alleged victim interviewed by a defense investigator who elicited information from both individuals that was entirely inconsistent with what was memorialized in the police report.  Negin presented this inconsistency to the prosecution and relentlessly pushed for dismissal of the charges.  Though the prosecutor refused to dismiss the charges, she ultimately agreed to reduce them to a 415 (disturbing the peace)  misdemeanor upon completion of certain terms and conditions.  Mr. R. successfully completed the terms of this agreement and was sentenced to a misdemeanor 415.

Negin’s strategy:  Negin firmly believes that a defense attorney’s zealous advocacy begins the moment police officers respond to a disturbance call.  Negin begins to mount a rigorous defense by conducting her own independent investigation of the particular circumstances of the case.  For example, she recruits a defense investigator to interview the alleged victim and any other witnesses.  Negin then gathers any and all favorable facts to present to the investigating officer with the goal of convincing him or her from formally recommending the case for prosecution to the city attorney or district attorney’s office.  If charges are formally filed, Negin meticulously brings to light any and all weaknesses in the prosecution’s case and any and all mitigating factors relating to your history or that of the alleged victim. 

In Negin’s experience, not all domestic violence cases have a discernible villain and victim. An alleged victim may make a false accusation of domestic battery out of a myriad of self-serving motives; the allegation may have arisen out of mutual combat; or the accused person may have even acted in self-defense during a confrontation.  Whatever the situation, Negin Yamini will thoroughly investigate the facts in support of your side of the story, in order to either negotiate a reduction in the charge(s) and penalties, or to prepare a compelling case for trial.

If you have been charged with a domestic violence criminal offense, contact Attorney Negin Yamini at 310-740-1202 for a free consultation today.

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