Domestic violence is an act of violence or abuse committed against an intimate partner. Violence occurs when an offender recklessly or intentionally uses physical force or threatens to use physical force against an intimate partner. Domestic violence crimes may range from battery, threat, abuse, or neglect. Under California criminal law, domestic violence is a wobbler and can be either a misdemeanor or a felony depending on the facts surrounding the offense. We at the Orange County Criminal Defense Attorney Law Firm handles all domestic violence cases for alleged offenders, so contact us for legal help.
Forms of Domestic Violence
Under California law, a violence act qualifies as domestic violence if it is against an intimate partner. According to California domestic violence law, an intimate partner may include a current or former spouse, a fiancée (either current or former), and a current or former legal/registered domestic partner. Intimate partner may also include cohabitant or a live-in romantic partner either former or minor, someone the alleged offender is dating or has dated in the past, or a person with whom the alleged offender has a child. The common forms of domestic violence include:
Corporal Injury to an Intimate Person
A corporal injury refers to any bodily injury that may result from the willful act of a person against his/her intimate partner. Under California Penal Code 273.5, the law prohibits inflicting any form of corporal injury on a partner even if the injury is slight. Corporal injury is a felony offense and may attract felony charges, including a sentence in a county jail or state prison depending on the nature of the offense.
Unlike the corporal injury (Penal Code 273.5) that requires a physical injury to be present for an offender to face charges, a physical injury is not important as a proof of domestic battery. The California Penal Code 243 (e) (1) defines domestic battery as the infliction of force or violence on an intimate partner. The offense is a misdemeanor and may attract fines of up to $2000 and a sentence of up to one year in county jail.
Under the California Penal Code 422-criminal threats, it is an offense to threaten a partner with serious harm. It is illegal to threaten your partner to cause significant and sustainable fear in him/her. To prove that you are guilty of the criminal threat offense, a prosecutor has to prove that you willfully and intentionally threatened to cause serious harm or kill your partner. The prosecutor also has to prove that your statement, verbal, written, or communicated electronically was meant to be a threat to the other person. The prosecutor may also assert that the threat portrayed a possibility of immediate execution. A proof that the victim of the threat feared for his/her safety for the safety of his/her immediate family after receiving the threat is also necessary.
To commit the offense of criminal threat, you do not have to address the victim directly. Also, you do not have to execute the said threat to be liable; you are liable for just communicating the threat to the victim.
There are many ways of conveying a criminal threat. Other than verbal communication, the electronic conveyance of criminal threats is also common. Electronic communication may be via the telephone, short texts, video recorder, fax, or email.
To be guilty of criminal threat under California law, the victim must suffer reasonable and sustainable fear after receiving the threat. Reasonable fear refers to significant fear while sustainable refers to the fear that lasts a while after the victim receives the threat.
The California Penal Code 601 PC outlines the crime of aggravated trespass, also commonly known as felony trespass. After issuing a threat and causing fear to a victim, you may be guilty of aggravated trespass in two ways:
- Within thirty days after making the threat, you illegally enter the property of the victim or a neighboring property without a justifiable purpose, intending to execute the threat
- Within thirty days of making the threat, you visit the workplace of the threatened person, and you make unlawful attempts to locate the person within the workplace without a justified purpose and to execute the threat
For you to face felony trespass charges, the prosecutor has to prove the three elements of felony trespass. To start with, you must have made a threat to the victim; your intention of making the threat was to instill reasonable fear in the victim making him/her fear for their safety of the safety of their family or friends. The prosecutor must also prove that you illegally accessed the victim's workplace or residence within thirty days after making the threat.
Under California Penal Code 646.9 PC, you may be guilty of stalking if you follow, harass, or make threats to your intimate partner to instill fear in the victim. The first element of stalking is willingly, maliciously, and repeatedly following an intimate partner or former partner or willfully harassing them. The second element of stalking involves making threats against the stalked partner, and the third element entails intentionally seeking to cause fear in the victim of stalking.
It may be hard to define stalking since there is no standard behavior that qualifies as stalking. Some of the behaviors that are commonly associated with stalking include constantly following a partner or often bumping into them albeit accidentally. Stalking may also be electronic, including making numerous phone calls or sending many texts or emails to a victim. Online stalking via emails or social media is known as cyberstalking.
You may also be guilty of stalking if you gather too much information about the victim. You may gather information through making inquiries from the victim's friends or co-workers, conducting online searches on the victim, or accessing the victim's public record to gather information about the victim. Information gathered may include the places that the victim commonly frequents and his/her interests, including likes and dislikes.
Constantly sending unwanted gifts and pleasantries to a person may be a form of stalking as long as the person is not interested in the gifts. You may be guilty of stalking if you repeatedly drive to the target person's home and if you destroy the belongings of the person, including pets.
As long as you stalk a current or former intimate partner, you will be guilty of intimate partner stalking, which is a common offense address under California domestic violence.
Under California law, stalking is a wobbler meaning that if found guilty of stalking, you may either face a misdemeanor or felony penalties. Whether a stalking case is a misdemeanor or a felony will depend on your credit history and on the facts that surround your case.
You may automatically face felony charges for a stalking offense if you violate a restraining/protective order issued by the court. If you had previously faced stalking charges even if you stalked a difference person, you might automatically face felony-stalking charges.
There are some aggravating factors in California stalking cases. You might face enhanced penalties if you caused the stalked person great bodily harm. You may also face aggravated stalking charges if you were armed at the time of stalking.
Domestic Violence Related Offenses
In addition to the common forms of domestic violence, a person may carry out some illegal acts in an attempt to revenge after a romantic relationship gone sour. Some of the common revenge offenses include:
Revenge Porn- California Penal Code 647 (j) (4) PC
Commonly known as nonconsensual pornography, the revenge porn offense was added to the California law in 2013. The revenge porn offense is closely related to the California crime of sexual invasion. Sexual invasion involves recording sexual images of another person without their knowledge or consent. With revenge porn, the victim is initially aware and consents to have his/her sexual images or videos recorded. The victim agrees to the recording upon consenting with the offender that the images of videos will remain private.
After breaking up or in cases of domestic violence, it is common for one partner to share sexual images of the other intimate partner usually on the internet. Revenge porn is a relatively new crime common in romantic relationships gone sour.
For example, after breaking up with your cohabitant, you share on the nude internet pictures of them or videos of them engaging in sexual acts. The pictures and the videos were meant for you, not for public display. In this circumstance, you would be guilty of revenge porn for sharing sexual images or videos of another person without their consent.
To be guilty of this crime, you must have in your possession an intimate or nude image or video of the victim. The prosecutor must prove that you intentionally shared the victim's intimate images without their consent. At the time of sharing the images or videos, you must have been aware that your actions would cause great distress to the victim, and your actions did cause great distress to the victim. Under California law, revenge porn is a misdemeanor.
Posting Harmful Information on the Internet
Under the California Penal Code 653.2 PC, it is illegal to post harmful information about another person, including an intimate partner on the internet. Also known as indirect electronic harassment, the offense entails posting harmful information on the internet that may incite other people or third parties to commit harm to the victim. The elements of Penal Code 653.2 PC include:
- Using an electronic device to share unsuitable information about another person
- Distributing information about another person without their consent
- The intention of distributing harmful information was to cause the victim harm or harassment. The information shared was aimed at inciting other people to harass the victim.
For example, after breaking up with your boyfriend/girlfriend, you post a picture of him/her and the places he/she mostly frequent. In your post, you complain about how the person has hurt you and say that whoever sees them should help you teach them a lesson. This action would make you guilty of sharing harmful information. From your post, it is clear that you would be inciting other people to harm your romantic partner.
Disconnecting/Damaging the Telephone or Utility Lines
When executing domestic violence, you may fear that the offender may raise the alarm and expose you. This may prompt you to disconnect or damage telephone or utility lines to make it hard for the victim to communicate. Under California Penal Code 591 PC, it is unlawful to vandalize communication lines maliciously to prevent a person from communicating, especially in cases of violence.
For example, when Peter is beating his wife, the wife grabs the phone and attempts to call her friend. In anger, Peter grabs the phone from his wife, bangs on the ground, destroying it and making his wife unable to communicate. In this case, in addition to facing domestic violence charges, Peter would also face charges under Penal Code 591 PC for destroying the telephone and preventing the victim from seeking help.
Consequences for Domestic Violence
A conviction for domestic violence in California may result in a wide range of consequences. Other than incarceration and fines, you may be required to serve mandatory jail time. In most, domestic violence offenses attract a minimum of thirty days of mandatory jail time. In some instances, the judge may recommend probation instead of jail time. You are likely to serve probation for a first-time offense of domestic violence. You may also serve probation instead of jail time if the victim of domestic violence did not suffer significant bodily injury. You may serve probation for a misdemeanor domestic violence offense; a felony offense automatically calls for jail time. Some of the additional consequences for domestic violence include:
Payment of Domestic Violence Fund and Restitution
Restitution refers to compensation paid by a domestic violence offender to the victim of domestic violence. Restitution covers all the costs and the losses that a victim may have incurred because of the violence. Restitution may cover the medical costs the victim may have incurred when seeking treatment for the injuries sustained after violence. The offender may also compensate the victim for any damages on the victim's property.
Most domestic violence victims undergo counseling due to the trauma that comes with experiencing violence; counseling fees are part of restitution. Restitution may also cover lost wages as the victim may spend some time out of work after experiencing domestic violence. Under California law, apart from paying restitution, the person may pay an additional $500 to fund domestic violence programs.
Domestic violence is a major crime in California, and after committing the offense, the conviction will go on your permanent criminal record. Your conviction for domestic violence will always appear whenever anyone conducts a background check on you. This could be detrimental as it may affect your chances of landing a job. A bad criminal record may also hinder you from accessing benefits such as housing and from gaining any form of state licensing.
The court may recommend a batterer's program for one year. You will be required to attend a one-year program that mainly entails treatment and counseling. The program may be mandatory irrespective of whether you face misdemeanor charges or felony charges.
Loss of Child Custody Rights
After a domestic violence offense, you may lose all your child custody rights, although you may get some visitation rights. When deciding child custody rights, the judge may consider domestic violence charges in the past five years. Therefore, if you have a recent domestic violence conviction on your record, you may lose all your chances of gaining custody.
The victim of domestic violence may apply for an emergency protective order immediately after experiencing violence. The victim can obtain a restraining order either from a civil or criminal court. A victim does not have to suffer physical injuries to get a restraining order. A victim can secure a restraining order as long as there is an abuse or a threat of violence/abuse against them or their minor child. The victim also has to prove that the alleged abuser is an intimate partner.
It is a crime under California law to violate a restraining order. If you violate a restraining order, you may argue that you did not know the order exists. However, this would be a weak defense as immediately after a victim secures a restraining order, the alleged abuser receives a notification.
Loss of your Right to Own a Gun
After a conviction for domestic violence in California, you will lose all your rights to own a firearm even if you are a licensed gun holder. The detrimental part is that there is no way in which you can recover your lost rights to own a firearm after a domestic violence conviction. For a misdemeanor case of domestic violence, you may lose your gun rights for up to ten years. For a case of corporal injury on an intimate partner, you may face a lifetime ban to own a gun. For felony domestic violence conviction, you lose your gun rights for a lifetime. The only way you can regain your rights to own a gun is through a presidential pardon. However, such pardons are very rare, especially for cases that involve violence.
Under the US immigration law, cases of domestic violence count as a crime involving moral turpitude or an aggravated felony offense. If a non-US citizen faces a conviction for domestic violence, he/she may face deportation from the United States and back to their country of origin. A domestic violence conviction may lead to inadmissibility into the US, including losing the ability to apply for a green card. If you are a non-citizen and you face domestic violence charges, it would be wise to contact a criminal defense attorney to represent you to avoid detrimental immigration consequences.
Possible Defenses for Domestic Violence Charges
With the help of a criminal defense attorney, you can adopt various legal defense strategies after a domestic violence conviction. For instance, your attorney can assert that a victim suffered injury because of an accident. You may also assert that you did not inflict injuries on the victim. You may defend yourself by outlining that you were acting in self-defense against the alleged victim. You could also defend yourself by asserting that the alleged victim is accusing you of domestic violence due to jealousy or revenge. A victim may also falsely accuse you of domestic violence to gain an advantage in a child custody case or divorce case.
Your attorney can also seek a plea bargain or pre-trial diversion, as explained below:
Your attorney may seek a pre-trial diversion for your domestic violence case, which is also known as deferred entry of judgment. If you secure a pre-trial diversion, your domestic violence charges may be dismissed and will cease to exist after completing a batterer's program, for instance. Several factors determine a defendant's eligibility for pre-trial diversion, and they include where the defendant resides, their specific charges, and their criminal history.
With the assistance of a criminal defense attorney, you may seek a plea bargain for a reduction of your domestic violence charges to lesser charges. By pleading guilty to a lesser offense, you can avoid the stigma that comes with domestic violence, and you can avoid the detrimental charges that come with domestic violence. You may plead guilty to lesser charges such as disturbing the peace or criminal trespass. Pleading guilty to lesser charges may have some advantages, such as being able to retain your gun, retaining your child custody rights, and avoiding detrimental immigration consequences like deportation or inadmissibility into the United States.
Contact an Orange County Criminal Defense Attorney Near Me
If you are facing charges of domestic violence out of Orange County, please reach the Orange County Criminal Defense Attorney Law Firm at 714-740-7171 so that we can explore possible legal options. Our attorneys work 24/7 and are ready to evaluate your case. Call us today!