Domestic Violence Cases
In Sacramento County, and most jurisdictions, domestic violence cases (DV) are a top priority. If law enforcement is called to the scene of an alleged crime, and if they find evidence of even the small injury, you could be arrested for a felony violation of Penal Code Section 273.5. Law enforcement don’t have a lot of discretion, and if the District Attorney’s Office believes they have a provable case, it won’t matter if the complaining party – the alleged victim – wishes to have the charges dropped.
If law enforcement arrests you on suspicion of committing domestic violence, regardless of the scope or nature of the injuries, you’ll almost surely be arrested on felony charges and will have to pay a felony level bail to get out of jail, or wait to be arraigned by a judge.
If you are arrested on a domestic violence charge and you have any firearms in your home, those firearms will be seized. You’ll receive some paperwork which you’ll need to retain in order to get your firearms returned to you later after the case is resolved. But, even if your case resolves as a misdemeanor, you may lose your rights to own or possess firearms.
Battery vs. Injury-related Domestic Violence Cases – Penal Code Section 273.5
Penal Code Section 273.5 is a “wobbler”, meaning it can be charged, or can resolve in a verdict or plea to a felony or a misdemeanor. PC section 273.5 requires proof that the injury was willfully, or intentionally inflicted.
There are many factors that affect the outcome of a DV case: the defendant’s criminal history, the seriousness of the injuries, any history involving calls to law enforcement involving the defendant and a spouse, former spouse, cohabitating couples and former cohabitating couples: the statements or observations of witnesses, and other evidence.
Battery charges are not what their name implies. Domestic Violence Battery charges – PC section 243(e)(1) are less serious than injury-related PC section 273.5 charges because they do not require proof of injury. Battery is simply an unwanted or offensive touching.
In some cases, the DA won’t have enough to prove a PC section 273.5 charge. They have to prove an injury was willfully, or intentionally inflicted. There may be witnesses for the Defense that raise doubt about the cause of the injury, or other proof issues may arise. However, before setting a case for trial, which will cost the defendant more money, time, energy, emotion, and higher risk, I always try negotiating for a dismissal of the charges, or a reduction of the charges to a simple battery, rather than the more serious injury-related charge, which always results in a lighter sentence.
PC section 243(e)(1) charges are always misdemeanors.
Sentencing in DV cases ranges from state prison commitments, to time served with no further jail time. In most DV cases, if convicted, the court will order the defendant to attend and complete a 52-week Batterers Treatment Program.
Domestic Violence Case Defenses
Most people who have gone through a bad breakup or divorce know how disagreements, resentment, and anger can lead to false accusations. If you are Wrongfully Accused, it’s even more important to retain an experienced attorney to help you get the charges dismissed.
While I strongly recommend my clients refrain from speaking with any prospective witnesses about the case, it is important to make a journal of what you remember about the what happened, what lead up to the arrest, any history or events that may help prove your innocence, and to make a list of potential witnesses (with personal knowledge of the events, or other incidents that lead up to the current arrest), and the contact information of all potential witnesses. In DV cases, I usually recommend and order my investigator to talk with and document witness statements as soon as possible.
If you were acting in Self-Defense, it may be a complete defense to the charges. In some cases there are contradictory statements, things in the arrest report that don’t add up, witnesses who shed light on what really happened or who have witnessed other incidents where the alleged victim was the aggressor. It’s important to work on the case first before negotiating for a dismissal of charges.
If the charges are a result of an accident and not intentional, it may be possible to get your charges dismissed. But, as with any other defenses, I believe it’s important to review all the evidence, get statements from witnesses, discuss the case and advise my client first, before presenting any arguments to get the charges dismissed.
Expunging Prior Convictions – Penal Code section 1203.4
Obtaining a Penal Code section 1203.4 “expungement” provides some relief to those convicted of crimes. While it’s possible to request an early termination of probation (PC section 1203.3), the defendant must have completed all the terms of the probation, and the defense will need to provide a good reason for a judge to do so. Examples include: the probation is prohibiting the defendant from getting a job, getting a better job, or restricting the defendant’s travel.
However, if the defendant completed all the terms of probation, had no violations of probation, and probation has terminated or expired, a judge must grant the motion.
In felony cases involving “wobbler” offenses, I file a PC section 17(b) and a PC section 1203.4 motion at the same time, and try to convince the judge to reduce the charges to a misdemeanor before expunging the conviction(s).
With some exceptions, effective January 1, 2014, California Labor Code Section 432.7 prohibits public and private sector employers from inquiring into criminal records that have been expunged, sealed or dismissed. Employers are exempt from these requirements in the following circumstances: (1) the prospective employer is required by law to obtain that information; (2) the job position requires the applicant to posses or use a firearm in the course of his/her employment; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that crime has been judicially dismissed, expunged or sealed; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime. A similar provision in Labor Code Section 432.8 prohibits asking a job applicant or employee about convictions for minor marijuana offenses that are more than two years old.
Beginning on July 1, 2014, public sector employers are prohibited from requesting criminal conviction information on the initial employment application. Criminal history information can still be requested on the initial application for law enforcement positions, positions working with children, the elderly or disabled or other sensitive positions. Public sector employers are prohibited from obtaining criminal history information until the employer has determined the applicant meets the minimum qualifications for the position, thus affecting only when, not whether, these employers may consider criminal conviction history.
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