Domestic Violence

Domestic Violence

California law defines domestic violence as any abuse or threat of abuse between individuals who are or have been in an intimate relationship. This includes current or former spouses, domestic partners, cohabitants, dating or formerly dating couples, and parents who share a child. The law encompasses not only physical violence but also psychological abuse, such as threats, harassment, or stalking. Even actions that do not result in visible injuries can be considered domestic violence if they place the victim in reasonable fear of harm. California’s broad definition is designed to protect individuals from various forms of abuse within personal relationships and provides legal mechanisms, such as protective orders, to prevent further harm and ensure the safety of victims.

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California's Domestic Violence Laws

Penal Code 243(e)(1)

This code section deals with domestic battery, the most common charge in domestic violence cases. It involves willfully touching an intimate partner in a harmful or offensive way. No physical injury is required for prosecution. The mere act of force or violence, even if it does not result in visible injury, is sufficient for a charge. Domestic battery under this statute is consistently treated as a misdemeanor.

Penal Code 273.5

This statue addresses the crime of inflicting corporal injury to an intimate partner resulting in a traumatic condition, such as visible injuries, bruises, or internal harm. For an offense under this statute, a visible or traumatic injury is required, though the injury does not need to be severe; it must simply be evident or cause a traumatic condition. This offense can be prosecuted as either a misdemeanor or a felony, depending on the specifics of the case and the defendant's criminal history.

Penal Code 273.6

This statue addresses the crime of violating a domestic violence restraining order.  When a person is arrested on a domestic violence charge the police will often issue an emergency protective order (EPO) to protect the “victim” from the person arrested.  This protective order will generally order the person arrested to have no contact with the “victim” until the order is reviewed by the Court either on a specific date detailed on the Emergency Order, or the first Court date.  Any violation of this emergency order can be charged as a crime under Penal Code Section 273.6 of the Penal Code.  A violation of the restraining order can be charged, even if the underlying domestic violence charge is never filed.  A violation of 273.6 can be charged as a misdemeanor or a felony.  A person arrested on a domestic violation charge would violate the EPO by calling the “victim” from jail to ask that bail be posted.  

Penal Code 422

This statute covers criminal threats. This law makes it illegal to willfully threaten to commit a crime that could result in death or great bodily injury to another person. These threats can be conveyed verbally, in writing, or through electronic communication. For a threat to be considered criminal under this statute, it must be specific and unequivocal, leaving no doubt about its seriousness. The person making the threat must intend for it to be taken as a genuine threat.

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Additionally, the threat must place the victim in sustained and reasonable fear for their own safety or the safety of their immediate family, not just a momentary concern. Even if the person making the threat does not have the immediate ability to carry it out, the key factor is whether a reasonable person would believe the threat could be carried out. Penal Code 422 can be charged as either a misdemeanor or a felony, depending on the case specifics and the defendant's criminal history.

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Understanding Domestic Violence Charges

Domestic violence charges in California can be classified as either misdemeanors or felonies, depending on the severity of the offense and the defendant's criminal history. Prosecutors consider various factors when determining the appropriate charge level.

Misdemeanor vs. Felony Charges

Misdemeanor domestic violence charges typically apply to cases where the harm caused is minimal or there is no visible injury. Resulting penalties may include up to one year in county jail, fines, probation, and mandatory counseling. Felony charges on the other hand are reserved for cases where the victim suffers significant injuries, or if the defendant has prior convictions. Felony domestic violence convictions can lead to heavier penalties, including longer prison sentences (ranging from two to four years in state prison), higher fines, and other long-term consequences, such as losing the right to own firearms and potentially facing a "strike" under California's "Three Strikes" Law.

The Three Strikes Law

The Three Strikes Law in California is a sentencing policy that imposes severe penalties on individuals with prior serious or violent felony convictions. Under this law, if a person is convicted of a serious or violent felony, it is considered their first strike. If they are later convicted of another such felony, the sentence for the second strike is automatically doubled. Upon a third felony violent or serious conviction will subject the individual to a sentence of 25 years to life in prison.   If a domestic violence offense is classified as a serious or violent felony, it could count as a strike under this law. If the defendant has two prior strikes, a third felony conviction could result in a life sentence.

Legal Protections for Victims

In California, most law enforcement agencies have a policy that requires them to arrest one of the parties if there is evidence of domestic violence.  These policies are designed to stop any suspected domestic violence incidents from escalating.  It is important to understand that being arrested for domestic violence does not mean that you will be convicted of a domestic violence offense.

Restraining Orders

As discussed above, if someone is arrested for a domestic violence offense, the police will often issue an Emergency Protective Order.  The “victim” may also apply for a domestic violence restraining order in Court, and can apply for a restraining order even if there is not a police involved incident.  A domestic violence restraining order can order the restrained party to stay away from the protected party, even to have no contact with the protected party, and may also make orders related to who can live in the home, who must move out, and visitation of the children orders.  The Court may issue an emergency protective order,  but there must be a hearing before the court before a permanent restraining order is issued.  

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The party to be restrained must be served with the temporary restraining order or emergency protective order, and that generally will include a notice of hearing on the request for a permanent restraining order.  It is very important for you to appear at a restraining order hearing if you do not want the restraining order issued, or you disagree with some of the terms and conditions suggested in the restraining order.  A restraining order will generally require the restrained party to surrender or sell any firearms they own, and to not possess any firearms while the restraining order is in effect.  

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This can cause individuals to lose their job, if they are required to carry a firearm for work.  Restraining orders can be issued without proof of physical harm to the “victim.”  The Court will listen to both sides and determine if a restraining order is necessary to protect the party seeking protection.  The restraining order can be issued to last months or years, and will remain in effect until changed by the Court.  They can be obtained without proof of physical harm and may be granted by both criminal and civil courts. To secure a restraining order, the applicant must demonstrate that someone has abused or threatened to abuse them or their minor child. The abuser must be an intimate partner or a close relative. The restraining order remains in effect, even if the protected party tells the restraining party that they agree to see or speak to them.

Emergency Protective Orders

Emergency Protective Orders (EPOs) offer immediate protection in crisis situations. Law enforcement officers can request an EPO when responding to a domestic violence incident. These orders are valid for up to seven days and can include various protections, such as requiring the abuser to leave a shared residence or prohibiting contact with the victim. EPOs take precedence over other restraining orders and are enforceable throughout California.

Criminal Protective orders

When a domestic violence charge is filed in Criminal Court, the Court may issue a criminal protective order (CPO), which will often order the defendant to stay away or not have any contact with the alleged victim.  These orders are generally valid as long as the case is pending before the court.  If the case is resolved through a verdict or a plea agreement, the Court may issue a permanent protective order that may last as long as probation or even longer.  CPOs can include no-contact orders, stay-away directives, and firearm restrictions. 

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Legal Defenses in Domestic Violence Cases

Self-defense

In California, individuals have the right to protect themselves from immediate harm. Self-defense is recognized as a legal justification for using reasonable force against an attacker. To establish self-defense, three criteria must be met: immediacy of the threat, proportionality of the response, and reasonableness of the belief in danger. In domestic violence cases, these principles apply but are often scrutinized more closely due to the nature of the relationships involved, and may also be influenced by the strength or size of each party.

False accusations

Sometimes, individuals may falsely claim domestic abuse out of anger, revenge, or to gain an advantage in legal proceedings such as divorce or child custody cases. Defending against false accusations involves gathering evidence that contradicts the accuser's claims.  The challenge is that if one party is willing to lie to the police, they may also be willing to lie in court.

Lack of evidence

The prosecution must present sufficient evidence to prove the defendant's guilt beyond a reasonable doubt. In some instances, there may not be enough proof to substantiate the charges. Defense attorneys may challenge the prosecution's claims by highlighting inconsistencies in police reports, questioning the credibility of witnesses, or demonstrating the absence of physical evidence supporting the allegations. If the evidence is insufficient, the charges may be dismissed or reduced.

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The Role of Law Enforcement and Prosecutors

Law enforcement officers play a crucial role in responding to domestic violence calls, which are considered among the most dangerous situations they face. California law mandates specific training for officers dealing with such incidents. When responding to a domestic violence call, officers must separate the parties involved and gather information about the incident and any history of abuse.

Mandatory arrest policies

California encourages policies that promote arrest when there is reasonable cause to believe a domestic violence offense has occurred. Officers are required to make an arrest if they have probable cause that a felony has been committed, such as corporal injury resulting in a traumatic condition. They may also arrest for misdemeanors committed in their presence, or if they believe someone is injured due to domestic violence in order to avoid the domestic violence continuing (the requirement to arrest someone is often based on the policy of the police agency).

Evidence collection

Officers must collect various forms of evidence at the scene. This includes taking photographs of injuries, gathering medical records, and documenting witness statements. They also seize any firearms or deadly weapons in plain sight. Additionally, officers are required to complete a detailed incident report for all domestic violence cases.  If an Emergency Protective Order is issued the officers are obligated to remove any firearms from the home for safekeeping.

Prosecution process

After an arrest, the case is assigned to a detective who conducts further investigation. The prosecutor then reviews the evidence to determine whether to file charges. During the arraignment, the first court appearance, the defendant is informed of the charges and enters a plea. Prosecutors often request protective orders to ensure the victim's safety during the legal proceedings.  If the “victim” does not want a protective order to be issued, they often have to state that directly to the judge in open court.

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The Impact of Domestic Violence Convictions

A domestic violence conviction in California has far-reaching consequences. It leaves a permanent mark on the criminal record, affecting various aspects of life, including employment opportunities, housing options, and child custody.  A conviction of a crime considered to be domestic violence will require certain terms to be added to any sentence ordered by the Court.  This will include the requirement to attend and complete a 52 week domestic violence program, and a 10 year prohibition for owning or possessing firearms.

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Rehabilitation and Treatment Programs

Batterer's Intervention Programs

Batterer's intervention programs are court-mandated 52-week courses designed to stop domestic violence. These programs focus on issues of power and control, examining gender roles, socialization, and the dynamics of abuse. Offenders attend weekly two-hour, single-gender group sessions that cover topics such as the nature of violence and its effects on children and families.

Anger Management Courses

Anger management courses, lasting 12-26 weeks, help individuals control their anger and use it constructively. These programs teach emotional intelligence, stress management, and communication skills.  They often discuss options that can be used to avoid a violent outburst.  An anger management course may be a good way to demonstrate to the court that the accused is working on getting help, and hopefully that can be used to negotiate a better resolution of the charges.

Substance Abuse Treatment/Alcohol Treatment

If the police reports indicate that the domestic violence incident is alcohol or drug related, the Court may order the defendant to complete a rehabilitation or dual diagnosis program in order to avoid future incidents.  These comprehensive treatment plans often include inpatient or outpatient care, detox services, and therapy sessions tailored to each individual's needs.