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Domestic Violence Under The California Penal Code

Domestic Violence Under The California Penal Code

Defining ‘Domestic Violence' In California

California law defines “domestic violence” as any form of abuse committed against your “intimate partner.” This includes intentional or reckless use of physical force against that person or threatening to use force against him or her.[1]

California Law Permits A Range Of Domestic Violence Victims

California law permits a range of domestic violence victims. The Penal Code defines “intimate partner” broadly enough to include the following categories of persons: 1) Your spouse; 2) Your former spouse; 3) Your domestic partner; 4) Your former domestic partner; 5) A person with whom you've had a child; 6) A current live-in romantic partner; 7) A former live-in romantic partner; 8) Someone you date; 9) A person you dated previously.

As far as custody disputes are concerned, the law also permits the following categories of persons to be considered victims of domestic violence: 1) Children; 2) Your brother/half-brother/step-brother; 3) Your sister/half-sister/step-sister; 4) Parents; 5) Grandparents; 6) Your niece; 7) Your nephew; 8) Your uncle; 9) Your aunt; 10) Anyone related to you within the second degree by blood or marriage.

You can find more information in the Domestic Violence Defense Lawyer section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's always guaranteed.

Domestic Violence Penalties In California

Most domestic violence penalties in California involve the possibility of misdemeanor or felony charges, depending on the facts of your case. Thus, they are known as “wobbler”[2] offenses. Prior criminal record and the severity of the victim's injury are factors to be considered in deciding whether to charge a crime as a misdemeanor or a felony act of domestic violence.

Common Domestic Violence Crimes In California

Some of the most common domestic violence crimes in California include:

      i) Corporal Injury Upon A Spouse Or Cohabitant

Corporal Injury Upon A Spouse Or Cohabitant (California Penal Code [CPC] § [Section] 273.5) occurs if you inflict even slight physical injury upon your spouse or intimate cohabitant. If convicted of the offense, you face up to four (4) years in a state prison and/or a fine of up to $10,000 (ten-thousand dollars).[3]

You can find more information in the California Corporal Injury section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – and that is a guarantee.

      ii) Child Abuse

Child Abuse (Section 273d of the California Penal Code) involves inflicting “cruel or inhuman corporal punishment or an injury resulting in a traumatic condition” upon a child. A conviction under this Section, without sentence enhancement, can be punished by up to six (6) years in state prison and/or a fine of up to $6,000 (six-thousand dollars).[4]

You can find more information in the California Child Abuse Attorney section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we guarantee that.

      iii) Domestic Battery

Domestic Battery (CPC §243(e)(1)) is use force or infliction of violence upon an intimate partner. In its felony form, punishment for Domestic Battery can include up to four (4) years in a state prison[5] and/or a fine of as much as $10,000 (ten-thousand dollars).[6]

You can find more information in the California Penal Code 243(e)(1) section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – and we always guarantee it.

      iv) Elder abuse

Elder Abuse law in California (CPC §368) makes it illegal to: 1) Inflict physical abuse; 2) Inflict emotional abuse; 3) Neglect; 4) Endanger; or, 5) Expose an elder person to financial fraud. The law applies to persons aged sixty-five or older. The Elder Abuse law is a “wobbler”[7] punishable by up to four (4) years in state prison and/or a fine of as much as $10,000 (ten-thousand dollars).[8]

You can find more information in the Elder Abuse section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's always guaranteed.

      v) Child Endangerment

Child Endangerment (Section 273a) involves willfully allowing a child in your care to be harmed or allowing her or his safety to be endangered, whether through affirmative act or by neglect. If a child suffers great bodily injury owing to your acts, Section 273a is a “wobbler”[9] punishable by up to six (6) years in a state prison[10] and/or a fine of as much as $10,000 (ten-thousand dollars).[11]

You can find more information in the California Child Endangerment Attorney section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we always guarantee it.

      vi) Child Neglect

Child Neglect (CPC §270) occurs whenever parents to willfully fail to provide necessities for their minor children. “Necessities” include food, shelter, medical care and clothing in California. Penal Code §270 is a “wobbler”[12] punishable by up to a year and a day in a state prison and/or a fine of up to $2,000 (two-thousand dollars).[13]

      vii) Stalking

Stalking law (CPC §646.9) criminalizes harassing or threatening another person. The threat or harassment must cause that person to fear for his or her safety or the safety of family members. As a “wobbler,”[14] Stalking can be punished by up to five (5) years in a state prison[15] and/or a fine of as much as $10,000 (ten-thousand dollars).[16]  

You can find more information in the Stalking section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – and that's guaranteed.

      viii) Criminal Threats

Criminal Threats are made illegal under Section 422 of the Penal Code. Generally, the law criminalizes threatening anyone with serious harm. It is another form of “wobbler.”[17] It may be punished by up to four (4) years in a state prison (including a potential one-year enhancement)[18] and/or a fine of as much as $10,000 (ten-thousand dollars).[19] Furthermore, since Criminal Threats is a form of “serious felony,” conviction counts as a “strike” under California law.[20] If you accrue three “strikes,” you'll serve a minimum of twenty-five (25) years in a state prison.[21]

You can find more information in the Criminal Threats section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call always goes directly to a lawyer – and that is our guarantee.

      ix) Aggravated Trespass

Penal Code §601 criminalizes making an illegal threat and then entering a home or workplace to carry out the threat within thirty days of its making. As a form of “wobbler,”[22] you face up to three (3) years in a state prison and/or a fine of as much as $2,000 (two-thousand dollars) for a conviction under this Section.[23]

You can find more information in the Trespassing Laws section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – and that's a guarantee.

      x) Posting Harmful Information On The Internet (“Cyberstalking”)

Posting Harmful Information On The Internet (CPC §653.2) (also known as “Cyberstalking”) involves making available harmful information about someone else by posting or emailing the material. It is a misdemeanor. You must intend on causing other people to harass that person through or with the posting. If you are convicted, you face up to one (1) year in a county jail and/or a fine of up to $1,000 (one-thousand dollars).[24]

      xi) “Revenge Porn”

“Revenge Porn” (a crime under CPC §647) is actually a form of harassment involving intentional distribution of a sexual image of another person. You must intend on causing emotional distress with the disclosure of the image. “Revenge Porn” is punished with a maximum possible sentence of one (1) year in a county jail and/or a fine of up to $10,000 (ten-thousand dollars).[25]

      xii) Damaging A Telephone Line

Damaging A Telephone Line (CPC §591) occurs whenever anyone intentionally cuts or damages a phone line or telephone related equipment. It's also a “wobbler.”[26] If you're convicted of the felony form, you face up to three (3) years in a state prison and/or a fine of as much as $10,000 (ten-thousand dollars).[27]

Common Defenses Against A Charge Of Domestic Violence In California

Four common defenses against a charge of domestic violence in California are:

You Were Defending Yourself Or Someone Else

Example: Defendant Damian goes to pick up Minor Son from the house of Victim Veronica, his ex-wife. He finds Veronica slapping Minor Son across the face, causing Minor Son to cry. Damian pulls violently on Veronica's arm in an effort to stop her. She interprets this as an act of violence and has him charged under §243. He insists that he had to protect Minor Son from Veronica. Should Damian be convicted?

Conclusion: Damian used physical force against his ex-wife, an “intimate partner” under California law. These are elements of Domestic Battery. But Damian grabbed Veronica after seeing her strike Minor Son. Under the circumstances, he could use as much force as was necessary to protect Minor Son, for only as long as required, which he did. Damian shouldn't be convicted. He was defending someone else.

You've Been Falsely Accused

Example: Defendant Dominic and his ex-boyfriend, Victim Vincent, are in a property dispute. Hoping to create a diversion and take the property once and for all, Vincent contrives a story about Dominic striking Vincent with a golf club. Dominic is arrested and charged under CPC §273.5. Dominic insists that the story is “a frame up.” Should he be convicted, on these facts?  

Conclusion: As the facts make clear, Vincent created a story as part of a strategy to win a property dispute. There is no truth to his allegation. Vincent should be investigated with an eye towards charging him with filing a false police report. Dominic, thus, shouldn't be convicted. He has been falsely accused.

An Accident Produced The Injury/Injuries

Example: Defendant Dee's minor daughter, Victim Vera, seriously burns her arm on the family stove. Teacher sees the burn the next day. Knowing that Dee has a temper, Teacher assumes Dee burned Vera. She has Dee charged under CPC §273d. While she admits that she can get angry, Dee swears that she can't be convicted of Child Abuse. Is she correct, on these facts, or should Dee be convicted? 

Conclusion:Dee's minor daughter was seriously burned in Dee's home. These may be elements of the charge. But the abuse punished under the statute is intentional in nature, even if it involves willful neglect of a child. Vera was not injured owing to Dee's intentional act, nor do the facts suggest that Dee's neglect led to Vera's harm. Therefore, Dee is correct. An accident produced the injury to Vera.

You Weren't The Source Of The Injury/Injuries

Example: Defendant Dennis divides custody of Victim Victor, his minor son, with Ex-Wife. She uses excessive force in punishing Victor and intimidates Victor into silence about hurting him. When Youth Coach sees bruises on Victor's legs, he thus assumes that Dennis is the culprit. Now Dennis is facing a charge under §273d. He insists that he cannot be convicted under the circumstances. Is Dennis correct?

Conclusion:Dennis, as the facts make clear, divides custodial time between himself and Ex-Wife. He is not the only person who has regular access to Victor. Ex-Wife is actually the source of Victor's injuries. She has simply intimidated her son into silence about her abuse. Thus, since Dennis has not hurt Victor, Dennis is correct. He cannot be convicted on these facts. He wasn't the source of Victor's injuries.

Probation In Domestic Violence Cases

Probation, allowing you to serve at least part of your sentence at home, may be granted by a judge under the right circumstances. You're likelier to have probation granted in your case if you are applying for probation from your first conviction and your victim's injuries weren't significant. Thus, you are more likely to receive probation if your case is prosecuted as a misdemeanor.

If probation is granted, you will still be sentenced to a minimum amount of jail time and you'll have to abide by conditions set for you by the court granting the probation. Failure to follow these restrictions may result in your probation being revoked, in which case you'll be made to serve the balance of your sentence in a county jail or a state prison, whichever is applicable to you.

Further Consequences Of Domestic Violence Convictions

While the primary punishments for domestic violence crimes are incarceration and fine, being convicted of domestic violence in California may also result in:

      i) A Mandatory Minimum Term

A mandatory minimum term of thirty (30) days for domestic violence convictions is commonly set by California courts. Minimum terms apply irrespective of whether the charge involved is a misdemeanor or felony. Minimum terms also apply regardless of the defendant's prior record.

      ii) Participation In A Batterers' Program

Participation in a batterers' program is commonly required when someone is convicted of a domestic violence crime in California. Such programs typically last at least a year. Attending batterers' program meetings will likely be required even if you're sentenced to probation.

      iii) Victim Restitution

Victim restitution may be ordered if you're convicted of a domestic violence crime in this state. This can include compensation for medical costs, psychiatric/psychological counseling services, and/or property damage. You will also be made to pay an amount to fund California domestic violence programs.

      iv) Loss Of Child Custody

Loss of child custody occurs frequently when one is convicted of a domestic violence crime. However, while a criminal conviction isn't required for a judge to determine there was domestic violence in any situation, it is not impossible for a convicted person to secure visitation rights.

Domestic Violence Convictions and Gun Rights

Domestic violence convictions in California routinely result in loss of right to ownership and/or possession of a firearm. The gun rights consequences of domestic violence convictions fall broadly into these two categories:

      i) Domestic Violence Misdemeanor Convictions

Domestic violence misdemeanor convictions result in a ten-year ban on owning or possessing firearms, for the most part. However, at least one form of conviction (under CPC §273.5) will produce a lifetime ban. Recall, further, that if your crime qualifies as a misdemeanor form of domestic violence under federal law, you will also be banned from firearms for your lifetime.

      ii) Felony Domestic Violence Convictions

California's “Felon In Possession of a Firearm” law makes it illegal for a person who has been convicted of a felony anywhere to own or possess a firearm. The law creates a lifetime ban.

You can find more information in the Felon In Possession Of A Firearm section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – and that is a guarantee.

Restraining Orders

Restraining orders require that persons stay away from victims of domestic violence. No physical harm is required to obtain them. Restraining orders in domestic violence cases can be granted by both criminal and civil courts.

To secure a restraining order in California, the applicant must prove that: 1) Someone abused or threatened to abuse the victim; or, 2) Someone abused or threatened the applicant's minor child; and, 3) The abuser is an intimate partner or a relative in the first- or second-degree of relationship. If a restraining order is then granted, California law makes it illegal to violate it. However, so long as the victim is not hurt, the charge of violating a restraining order is likely to be a misdemeanor.

You can find more information in the Violating A Restraining Order section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – guaranteed.

Domestic Violence and Plea Bargaining

Plea bargaining is possible in domestic violence cases. Two lesser offenses to which pleas are frequently entered in domestic violence cases are CPC §415[28] (Disturbing the Peace) and CPC §602[29] (Trespass). In addition to substantially less serious penalties, plea bargaining in domestic violence cases can prevent consequences like loss of child custody rights and retention of your right to own and possess a firearm.

Domestic Violence Diversion Programs

Domestic violence diversion programs are also available in domestic violence crime cases. Successful completion of a pretrial diversion program results in dismissal of charges. Factors that'll be considered in deciding whether to grant you diversion program enrollment include: 1) Your criminal history; 2) The specific charge that preceded your application to the program; and, 3) Your residence relative to the victim of the domestic violence.

Immigration and Domestic Violence Convictions

Domestic violence convictions can result in deportation from the United States, denial of a green card, adjustment of your status (from “legal” to “illegal”), and a declaration of your inadmissibility to the US, among other negative consequences.

What Can I Do If I'm Charged With Domestic Violence?

The State of California regards Domestic Violence as a serious offense. If you're charged with Domestic Violence, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Law Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested for, or charged with, Domestic Violence, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact the Kann California Law Group today to schedule your free and confidential consultation.

References

[1] See California Penal Code [CPC] § [Section] 13700.

[2] See “Wobbler Law and Legal Definition” definition at UsLegal.com

[3] See CPC §273.5 (f) (1).

[4] See CPC §273d (a).

[5] See CPC §243 (d).

[6] See CPC §672.

[7] See Endnote 2.

[8] See CPC §368 (e) (1).

[9] See Endnote 2.

[10] See CPC §273a (a).

[11] See Endnote 6.

[12] See Endnote 2.

[13] See CPC §270.

[14] See Endnote 2.

[15] See CPC §646.9 (c).

[16] See Endnote 6.

[17] See Endnote 2.

[18] See CPC §422 (a).

[19] See Endnote 6.

[20] See CPC §1192.7 (c) (38).

[21] See CPC §667 (e) (2) (A) (ii).

[22] See Endnote 2.

[23] See CPC §601 (d).

[24] See CPC §653.2 (a).

[25] See CPC §647 (l) (1).

[26] See Endnote 2.

[27] See CPC §591.

[28] See CPC §415.

[29] See CPC §602 (k).

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