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Domestic Violence

Domestic Violence

Domestic Violence cases are aggressively prosecuted in San Diego County and can have devastating consequences. Beginning at your arraignment (first court appearance), the prosecution can request a criminal protective order that requires you to move out of your house.  This can happen even if both your partner and you are against the order!

Domestic violence cases are prosecuted under a wide variety of Penal Statutes.  Some of the common offenses include: 1) Penal Code section 273.5 [spousal or cohabitant], 2) Penal Code section 243(e)(1) [spousal or cohabitant], 3) Penal Code section 270 [child], 4) Penal Code section 273a [child], 5) Penal Code section 368 [elder], etc.  As such, the first step to defending a domestic violence case is to first figure out which penal statute is at issue.

Generally, 2 factors determine how a case is charged: 1) who is the victim, and 2) what is the extent of the injuries.

Spousal Domestic Violence

First, one must understand which victims fit within California’s domestic violence scheme.  Under both Penal Code section 273.5 and Penal Code section 243(e)(1), a victim can be:

  • A spouse
  • A former spouse
  • A cohabitant
  • A former cohabitant
  • A fiancé
  • An ex-fiancé
  • A person that is the father or mother of defendant’s child; or
  • A person who is or used to be in a “dating relationship” with the defendant.

While most of the above categories are self-explanatory, there is sometimes confusion over what constitutes a “dating relationship.”  This question is further answered as “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.”  In other words, a victim does not need to be recognized as “defendant’s boyfriend or girlfriend” before he or she qualifies as someone that shares a “dating relationship” with the defendant.

For example, Donald is married to Wilma.  But Donald is also seeing Vicky, his mistress.  Donald and Vicky both consider their relationship as an “unofficial relationship.”  Nevertheless, if Donald were to commit an act of violence against Vicky, he can be prosecuted under California’s domestic violence statutes.

Next, one must understand how the extent of one’s injuries can factor into the penal violation.

Penal Code section 243(e)(1), commonly referred to as a “battery upon a domestic partner,” is a misdemeanor offense in California.  To prove violation of this statute, the prosecution must prove: 1) a willful and unlawful touching that is harmful or offensive, and 2) the touching was committed against a domestic partner.  Notice that this law does not require the prosecution to prove injury.  This means that one can be guilty of this offense even if the victim suffered no injuries!

Penal Code section 273.5, in contrast, is a “wobbler” under California law.   This means that violation of this statute can be charged either as a misdemeanor or a felony.  Unlike Penal Code section 243(e)(1), the prosecution must prove “corporal injury resulting in a traumatic condition.”  The requirement of a “corporal injury” is what distinguishes Penal Code section 273.5 from Penal Code section 243(e)(1).

Child Domestic Violence

The legal definition of a “child” or “minor” is fairly easy: anyone under the age of 18 qualifies as a “child” or “minor.”  Therefore, the key factor in a domestic violence case where the victim is a minor lies in the conduct of the defendant.

Under Penal Code section 273a, the prosecution must prove: 1) the victim is a minor, and 2) one of the following conducts: (a) defendant inflicted, caused or permitted a child to suffer unjustifiable physical pain or mental suffering, (b) defendant willfully caused or permitted a child in their care to be injured, or (c) defendant willfully caused or permitted a child to be placed in a situation where the child’s health is endangered.  Again, notice how the law does not necessarily require “injury.”  It is sufficient that the child was placed in a dangerous situation, or suffered mental suffering.

Under Penal Code section 270, a parent of a minor who “willfully omits” to provide basic necessities to the minor can be found guilty of a misdemeanor.  Basic necessities include:

  • Clothing
  • Food
  • Shelter
  • Medical care; and/or
  • Other remedial care

Elder Domestic Violence

In domestic violence cases where the victim is an elder, the conduct is often prosecuted under Penal Code section 368.  Under the law, an “elder” is defined as anyone age 65 or older.

In such a prosecution, the prosecutor must prove: 1) the victim is an elder, and 2) one of the following conducts: (a) defendant willfully inflicted, caused, or permitted an elder to suffer unjustifiable physical pain or mental suffering, (b) defendant willfully caused or permitted an elder in their care to be injured, or (c) defendant willfully caused or permitted an elder to be placed in a situation where the elder’s health is endangered.

Consequences of a Domestic Violence Case

Domestic violence cases are extremely serious, and can lead to life-changing consequences.  Some possible consequences include:

  • Custody in jail and/or prison.
  • Loss of voting privileges.
  • Loss of right to possess firearms.
  • Loss of educational and/or occupational opportunities.
  • Deportation and/or loss of immigration status.
  • Probation – formal or summary.
  • Requirement of rehabilitative class – often times for 52 weeks!

Depending on the facts of the case, domestic violence cases can be charged as either misdemeanors and/or felonies. Even relatively minor incidents involving only pushing or shoving or a slap without an injury are routinely prosecuted. At your arraignment (first court appearance), the court can order you to stay away from the victim, even if he or she is your wife, girlfriend, roommate, child, etc.  In many cases, this order effectively forces you to move out of your home!

To make matters worse, domestic violence cases often implicate other groups, which further complicate an already delicate matter.  For example, Child Protective Services often will get involved where a child victim is alleged.  Also, the victim can, independent of the criminal proceeding, pursue a restraining order via family court.  A restraining order can have long-lasting consequences, and because it is technically NOT in the criminal arena, you are not even entitled to the help of a court-appointed counsel!

To put it simply, if you are facing a domestic violence charge, you definitely need help!

Strategies to Defend Domestic Violence Cases

Fortunately, there are many options to defend a domestic violence case.  Generally, we can divide defense strategies into two broad groups: 1) strategies to defend your “innocence,” or 2) strategies to mitigate your damages.  Because every case is different, it is impractical to create an exhaustive list of strategies.  However, here are just a few examples:

  • You acted in self-defense
  • You did not act “willfully”
  • The conduct was not “harmful or offensive”
  • The injury does not qualify as a “corporal injury resulting in traumatic condition”
  • The victim is not a qualified victim (not a child, elder, or someone with whom you are in a “dating relationship”)
  • The complaining victim fabricated the incident
  • You are misidentified as the perpetrator
  • An agreement to reduce the charges
  • An agreement for the charge to be “expunged” at a later date
  • An agreement for you to complete rehabilitative classes in lieu of serving time in custody.

As you can see, the question is not always “whether you are guilty” of the offense.  The reality is that many of us make mistakes, and the law necessarily is flexible to account for the circumstances of every individual case.

In every case, our first priority is to examine the evidence to determine if the prosecutor can prove their case.  If the evidence is up to interpretation, we must send an investigator to interview witnesses so we can prepare to contradict the prosecutor’s account of the facts.  We also must prepare carefully crafted cross-examinations, so we can highlight the witnesses’ inconsistencies.

Even if the evidence points unequivocally to guilt, all hope is not lost.  In this situation, the question becomes: “even if you are guilty, what should be your punishment?”  Here at Criminal Attorneys of Orange County, we believe that none of us should be judged by our worst moments.  While it may be true that a defendant committed a domestic violence offense, this fact alone should not define the defendant.  Our attorneys will interview you about your background, the reasons for your actions, and discuss with you how to properly mitigate your damages.  In other words, we will help you go from “the domestic violence defendant” to “the otherwise outstanding husband who made a one time mistake because of a death in the family.”  By doing so, we can convince the judge and the prosecutor that you are NOT a criminal, and that you deserve a second chance.
For example, Donald committed multiple acts of domestic violence against his girlfriend, and is charged with three felonies.  After gathering a wide collection of documents, including 1) school transcripts, 2) letters of recommendation, 3) proof of a clean record, and 4) victim’s statement indicating willingness to forgive Donald, the judge and prosecutor finally began to view Donald differently.  After all the hard work, Donald is no longer the “domestic violence offender,” but a loving boyfriend who made a one-time mistake.  Because of this, the prosecutor agreed that if Donald completes a 52-week rehabilitative class, Donald would “earn” a misdemeanor and avoid having a felony on his record.  Our efforts at damage mitigation allowed Donald to avoid custody time, and avoid being branded a “convicted felon.”

Again, domestic violence cases are extremely serious and can absolutely upheaval your life.  If you have been arrested for domestic violence or are being investigated, remember: 1) DO NOT make any statements to the police; and 2) EXERCISE your right to speak to an attorney. Domestic violence attorney Thomas Wang can help.

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Thomas Wang
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