Domestic battery in Los Angeles is a violation of the California Penal Code Section 273.5 PC. Depending on the circumstances of the case, the charge can either be filed as a felony or a misdemeanor. With the help of the LA Criminal Defense Attorney, your charges can possibly be dropped or reduced.
Foundations of a Domestic Battery
A victim’s attorney has to prove beyond a reasonable doubt that the defendant touched the victim in an injurious and belligerent manner. Under the Penal Code 234 (e) (1) PC, the physical contact must not necessarily leave a person with a mark or cause permanent injuries. Actions such as a slight propel or shoving are sufficient to instigate criminal charges of domestic battery. It is important to note that as long as the accused did not touch you or threaten you with a weapon, then no charges can be brought against him or her. Verbal threats and engagements, thus, cannot qualify as charges for domestic battery. Verbal coercion can only be filed as criminal threats under Penal Code 422 PC. Criminal threats are repeatedly treated as potential felony charges.
Prosecution relies on the victims’ testimonial explanation. Besides the victim, there could be other witnesses present at the time of the event. You can also take photographic evidence of the injuries sustained, things destroyed during the engagement, etc. There are cases where victims choose not to press charges, it could be to protect the perpetrator. Now, in such a case, the court has the leeway of continuing with the charges. This is regardless of whether the victim chooses to join forces or not. In such a case then, the victim will be summoned to court to testify on the facts of the case.
An Illustration of The Domestic Violence Arrest and Investigation Process
A domestic violence case begins when a person calls the police for help. One or two officers are dispatched to your place of residence to ascertain the nature of the situation. Protocol dictates that the officers should separate the two involved parties so as to collect unbiased statements from each. At this juncture, the law stipulates that a domestic battery call must lead to the arrest of at least one of the parties or both if need be. Per se, the police have to accurately assess the aggressor and arrest the person accordingly. Additionally, the police force has to look for injuries and damages no matter how slight they may be.
There are cases where the person who made the 911 call ends up being the real perpetrator who gets arrested. If you are the victim, the officers have to establish if you need an emergency protective order at the time and if you would wish to press charges. However, even if you do not wish to press charges, the officers are obliged to proceed with the arrest anyway. In order for the arrested person to be released after being taken to jail, he or she has to post a bail amount specified by the court. Depending on whether the children were present, a copy of the arrest report should be forwarded to the Department of Public Social Services. The department will then proceed in commencing an investigation into the matter to ascertain the safety of the children in the respective home.
After an arrest, it is prudent to secure the services of a criminal defense attorney who will help you through the investigations. Once the culprit is arrested, the relevant police agency will assign a detective to the case to launch investigations. In most circumstances, the detective will follow up with the victim, witnesses, and the defendant as well. The suspect can only present evidence to the detective through his or her attorney. The report of the detective is what provides the basis of whether the terms of the case are strong enough for prosecution. In the report, the detective should recommend what charges the culprit should face and whether the case should be treated as one of felony or misdemeanor. For the prosecution, the report from the detective should not be the only report they rely on. The tribunal should also carry out its own investigation to determine what charges to file and prosecute if any.
The initial court appearance by the defendant is what is called an arraignment. At the arraignment, you are made aware of the charges brought against you. In turn, you are allowed to plead your case as either guilty or innocent. Regardless of whether the case is a misdemeanor or a felony, you have to personally appear to court for the arraignment. While the charges are pending, the court will issue you with a protective/restraining order. With a restraining order, you are not allowed to come anywhere near the plaintiff. There is an exemption, however. The court can issue a ‘level one’ protective order allowing for only a peaceful kind of contact between you and the victim. Moreover, if the victim indicates that he or she wants contact with the defendant, the court is at liberty to amend the terms of the restraining order.
It is important to be prepared for a number of pre-trials during the term of the court proceedings. It is at the pre-trials that representatives from both sides exchange discoveries in an attempt to win the case. If the parties cannot settle the case amicably, then the court proceedings advances to the trial stage. At the trial stage, the prosecution needs to prove the case beyond any reasonable doubt. Both parties place their facts on the table, present evidence and question the witnesses as much as they need to. Afterward, the jury is at liberty to rule the case declaring the defendant as either guilty or innocent.
Felony vs. Misdemeanor Domestic Battery
Significant differences exist between a domestic battery felony and a misdemeanor. However, there are times when what started as a felony gets considerably reduced to a misdemeanor.
A felony is a serious level of criminal battery offense. It is one that causes the severe injury of another person. When convicted of a felony, you are sentenced to serve time in a prison facility for a minimum of one year and beyond in Los Angeles, California. You can also be placed on probation for a specified period of time. A felony conviction comes with far greater consequences among them being the loss of voting rights, loss of employment and housing opportunities.
A misdemeanor, on the other hand, involves crimes that require a sentence for a period of up to one-year maximum in jail. Under the Penal Code Section 17 (b) PC, there are certain felonies that are reflected as wobblers. A wobbler offense can either be considered as a felony or misdemeanor.
Reduced Charges for Domestic Battery
As a case progresses in court, it is possible for the defendant to plead negotiations for a reduced charge of the crime. The benefit of pleading a reduced charge is that it helps the defendant to do away with the stigma associated with a domestic violence conviction. Additionally, a reduced charge will help you cut off some indemnity/collateral consequences as well. Indemnity consequences, in this case, could include professional license suspension or revocation among others. Conversely, for the court to grant you a plea for reducing charges one of the following conditions have to be certified.
- Inability to prove the case in a court of law
- Reconciliation between the defendant and the victim. This means that you and the other party agree to do away with the charges altogether
- The victims’ unwillingness to testify against the accused or if the victim is unavailable
- If the facts of the case are rather weak and do not hold much water
- The defendants’ claims as a case of self-defense
When pleading a case for reduced charges in court, there are claims that you can advocate for that are necessarily not crimes of violence. Firstly, you can plead the case of disturbing the peace which is a violation of Penal Code 415 PC. Secondly, you can plead a case for trespassing, a violation of Penal Code 602 PC. Even if the charges are reduced, it does not mean that you are exempt from certain binding provisions for pronouncing judgment. There has to be minimum probation of 36 months, a minimum of 500 dollars fine, getting a protective order and completing the batterers’ program.
Domestic Battery Conviction Penalties
After a domestic battery conviction, you are required by the law to complete a counseling program of 52 weeks. The aim of the program is to correct and address the underlying issues that led you to violence. This program is a vital requirement for any domestic violence sentencing. When you fail to faithfully finish the program, you shall be in violation of the probation set by the court. This class is especially recommended if the victims of the domestic battery crime are they who are listed in the California Family Code Section 6211 FC. Them listed under the family code include spouses (both current and former), cohabitants either existing or previous, children and other close relatives. The class can only be conducted through a person approved by the county. You have to occasionally submit proof of progress from the overseer of the program.
Domestic violence that involves the use of firearms will cause you to be charged with assault with a deadly weapon. In most circumstances, such a charge is treated as a felony. Additionally, it can cause you to incur additional penalties, more specifically a strike under the Three Strike Law. For criminal charges to be instigated, you do not need to have fired the gun. The mere pointing of a loaded gun at another person is a good enough reason for domestic violence charges. Nonetheless, if the gun was not loaded, you will be charged with brandishing a weapon and thus violating Penal Code 417 PC. Pellet or bb guns do not qualify as firearms. The weapon in question has to be one that causes explosion or combustion.
Now, the penalty for domestic violence with a firearm is that you have to surrender all firearms in your possession. Moreover, you will not be allowed to own a firearm in the near future. Reason being, firearm licensing boards have to carry out a background check on you before registering any weapon in your name. During the background search, they will most likely bump into your criminal records. Chances are that, out of what the board finds in your record, you will be barred from possessing a weapon ever.
Deportation for Non-citizens
Under the California state laws, domestic battery is a strong crime charge for moral turpitude. Given the degree of seriousness, you can be deported and excluded from any future admission as a citizen of the United States.
First-time vs. Prior Convictions
A person who has prior domestic battery convictions faces more severe penalties. When officers respond to a domestic violence call, they have to run both parties in the law enforcement databases. This is so as to determine whether they have had prior convictions on the same matter. If the victim in the current case was the same in the previous, officers should seek to establish why there was a violation of the restraining order. Regardless of whether there was physical contact or not, you will be arrested for violating the restraining order. As such, as a person with prior convictions, you are held at higher standards than first-time convicts. Additionally, if you violate your terms of probation, you will be arrested and held without the option of posting bail.
For prosecutors, if the defendant has had previous domestic violence charges, the current case is treated as a felony. Not to say that cases of culprits who get convicted for the first time cannot be treated as felonies. If the facts of the case involve gross misconduct as to cause grave harm and injury to the victim, then the case is treated as a felony. During the jury sentencing, the previous record of an individual does play an imperative role in determining the kind of charge to give. For a first time convict though, the terms of the probation might lean more on correcting the behavior rather than punishing the accused.
Domestic Battery against Family Members
Most people think that domestic violence only qualifies in the case of people who are engaged in romantic relationships. That is not the truth entirely. Domestic violence is also inclusive of battery charges to parents, children, brother, sister and close family relatives. In as much as they may be treated differently, they are cases of domestic violence as well. For instance, when a victim is an elderly person, the charge will be that of elder abuse. In the case of a child, it will be considered child abuse or child endangerment according to California Penal Code 273a PC. Prosecutors frequently face many challenges in instigating proceedings of domestic violence against family members. This is because most families end up reconciling. In the long run, it becomes impossible to prosecute such cases.
Restitution for Domestic Battery Victim
Any time there are damages in a domestic violence case, the court can issue restitution as compensatory awards for the damages sustained. As a matter of fact, it is a mandatory probation requirement that you pay the restitution amount declared to the plaintiff. Part of the fines that are imposed by the State of California on every crime conviction goes to the California Victim Compensation Board. The funds that are accumulated aid in serving the victims of domestic abuse such as children and elders. It is essential to note that this funding is different from the restitution that the court sets for the defendant. So regardless of whether the victim is paid by the compensation board, restitution has to be given to him/her. The money paid by the board will in most times help in expenses such as medical bills, funeral expenses, relocation and the loss of income among others.
Upon a restitution request, the court sets a date for the restitution hearing. The victim firstly presents the restitution request to the prosecutor. The prosecutor then communicates the same to you and your respective council members. If you do not agree with the request, there is a provision to challenge the same through a restitution hearing. In many cases, it is your insurance company that pays the restitution amount. Before the award is set, the victim presents evidence of the damages after which the judge cross-examines the same and decides whether to issue the award or not. If you cannot pay the whole amount all at once, you are allowed to remit monthly installments. Additionally, the court can hold a hearing to gauge how much you are able to pay. To this regard, you are required to provide evidence of your financial position. This will help in determining how much money you should be sending on a monthly basis.
In a situation where you fail to finish paying the restitution amount by the end of the probation period, the court has two options. Firstly, the court can choose to extend the period of probation. Secondly, the court can choose to convert the remaining restitution amount to a civil judgment. The upshot of the second option is that the civil decree can affect your credit rating. This will limit your ability to obtain loans in the future or purchase vehicles and property. On the other hand, if you completely fail to pay the restitution amount that counts for a violation of your probation. Just like with any other violation, it comes with added penalties. There is an exemption, however. What if the default is not willful? If you are genuinely not in a position to pay the amount, it will not be counted as a violation of your probation.
A Brief Overview of The Difficulties in Prosecuting Domestic Battery Cases
Reluctant or Disobliging Victims
At many times, domestic violence cases stem from a caring and loving romantic relationship. As such, sometimes fights ensue between couples and these fights may escalate out of control. Just like we established earlier, every time there is a domestic violence call, the police officers have to ensure that there is an arrest. An arrest automatically means that there will be a criminal filing in court. Most times the victim may want to drop the charges for a number of reasons. It could be because they have reconciled and do not want to proceed with the charges. The only limitation is that prosecutors will not drop the charges just because the victim no longer wants to proceed with the case. The district attorney has to look at the facts of the case before deciding on the next cause of action.
It is rather difficult to work with an uncooperative victim because of the unpredictable nature of his or her actions. For instance, they may fail to appear in court when summoned to frustrate the court proceedings. Still, if the victim fails to appear even after having been summoned, a warrant of arrest is issued for being in contempt of a court order. On the other hand, you should understand that disheartening, deterring or threatening a witness is a criminal offense under the California Penal Code 136.1 PC. Engaging in such an offense will only add to your penalties as the defendant.
Untrustworthy or Deceitful Witnesses
Even if the prosecution has victims who are cooperating, having deceitful witnesses makes the case shaky. Especially if there is a contentious child custody or divorce case, the victim may want to tarnish the defendant’s name. On the other hand, a defendant may claim that the battery was out of self-defense which might not necessarily be the case. It takes an experienced attorney who can read in between the lines to uncover the truth of the matter.
If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.