Domestic violence arrests and criminal cases are extremely common. If the police are called to a domestic dispute and determine that probable cause exists that a domestic violence offense has occurred, they are required by mandatory arrest department policies to arrest the person they determine to be the primary aggressor. After arrest, the prosecution can file a charge for domestic battery for even the slightest touching if it was allegedly done in a rude or angry way.
Domestic violence may be charged as a misdemeanor, which carries a maximum penalty of one year or less in the county jail, or as a felony, which could possibly result in a state prison sentence. Some of the possible felony charges are “strike” felonies under California’s Three Strikes Law, further raising the stakes. Common domestic violence charges include battery (Penal Code § 243(e)(1)), battery causing a visible injury or great bodily injury (Penal Code §§ 273.5, 243d), assault with a weapon or force likely to cause great bodily injury (Penal Code § 245(a)(1),(4)), violation of a domestic violence restraining order (Penal Code § 273.6), false imprisonment (California Penal Code § 236), criminal threats (Penal Code § 422), stalking (Penal Code § 646.9), or homicide, attempted or completed (Penal Code §§ 187, 189, 192, 664).
If convicted of a domestic violence charge, a defendant is often placed on supervised probation according to the terms of Penal Code § 1203.097. Under this statute, the defendant must complete an intensive 52-week batterer’s intervention program, pay fines and restitution, abide by a criminal protective order (forbidding contact with the victim or requiring that any future contact be peaceful), and comply with other case-appropriate probation terms, including those related to drug and alcohol use and mental health treatment. Depending on the severity of the allegations, a defendant placed on probation may also be ordered to serve a jail term of up to one year for each charge sustaining a conviction. A defendant convicted of one or more felony charges may face a prison commitment of anywhere from 16 months to several years, either initially or after violating probation.
One particular challenge in defending domestic violence cases is Evidence Code § 1109, which allows the prosecution to bring in past, uncharged allegations of domestic violence against the defendant to prove that he or she committed domestic violence in the present case. Juries often find this type of “bad character evidence” – essentially demonstrating the defendant’s present guilt based on his or her past – to be extremely persuasive.
Another challenge is the common use by the prosecution of an expert regarding intimate partner battering and its effects. Such an expert is offered to assist the jury in deciding whether a victim's conduct (including recanting or minimizing the allegations or otherwise trying to protect the defendant) is actually consistent with how an abused person would act. Such experts can also be used by a defendant to support a claim of self-defense.
Even when charged as misdemeanors, domestic violence cases always carry serious potential consequences. A domestic violence arrest or criminal case can lead to a court order not to contact family members or to continue to live in the home, the loss of employment or a professional license, the loss of child custody, and, for non-citizens, deportation and future exclusion from the country. A domestic violence conviction will further result in supervised probation with demanding and restrictive terms and possibly lengthy incarceration.
As a prosecutor and a defense attorney, I have handled over one hundred domestic violence cases, at both misdemeanor and felony levels. I have tried several domestic violence cases to verdict. I teach an upper-division law school course specifically regarding domestic violence prosecutions. I have a keen understanding of how to analyze and approach domestic violence charges to achieve the best possible results for my clients.
With any domestic violence matter, the stakes are always high. Contact me today for a free confidential consultation regarding your domestic violence matter.