1. THE PROSECUTOR BRINGS CHARGES EVEN IF THE VICTIM DOESN’T “PRESS CHARGES” OR “DROPS CHARGES”
Many times, in the heat of the moment, a loved one will call the police on their partner in order to diffuse the tension, get someone in between them, or because they are extremely upset and angry. Later, when tensions cool down, often the very next week or two, the “victim” who “pressed charges” decides that they don’t want to see their loved one go to jail or face charges, and they tell the police they don’t want to press charges or they want to drop the charges. This same person who originally called the police may even say that they never told the police they were battered and the police made it up.
Unfortunately, the police consider this a “recanting victim” and believe such a victim is simply making up a new story to protect the defendant because she or he has had a change of heart, or is being influenced by her loved one. Under these circumstances, even though no one wants the prosecution, and children may be involved, THE PROSECUTOR CAN AND MOST OFTEN WILL STILL PROCEED FORWARD WITH THE CASE.
2. A RECANTING OR RELUCTANT WITNESS IN A "DV" CASE CAN BE HELPFUL
If the person who originally accused you of domestic violence is now singing a different tune or simply doesn’t want to go to court, this can be HELPFUL to your case. The prosecution’s star witness in a DV case is usually the victim, and a reluctant victim means the prosecutor may see their case as weak or hard to prove. This often means a better outcome for the person who is being accused, and sometimes dismissal.
Even if the “victim” is forced to come to court through a subpoena, he or she can refuse to testify without the fear of being jailed by the Judge. California Civil Code Section 1219 protects victims of domestic violence from being jailed for contempt for refusal to testify.
A reluctant witness also makes it harder to prove a case against a defendant because (1) she may not show up to court (2) she may testify to things that are inconsistent with what she told the police and therefore her credibility will be compromised and (3) she may admit that she lied to the police in the first place.
3. ONCE A CASE IS FILED, THE JUDGE WILL ISSUE A RESTRAINING ORDER PREVENTING YOU FROM CONTACTING THE VICTIM
At your first appearance at court, called the arraignment, the Court will issue what’s called a protective order, also known as a restraining order, preventing you from having any contact, in person, telephonic or through third persons, with the victim in the case. In other words, you will be ordered to have “no contact” with the victim.
This often leads to extreme difficulties and challenges for the defendant because (1) the Defendant and Victim may live together and the Defendant will be forced to find a new place to live while still paying rent for the Victim’s residence (2) the Defendant and Victim may rear kids together and the protective order prevents them from seeing each other (3) they may want to discuss the case together and coordinate a defense but are prevented by law from talking to each other because of the protective order.
This means that if you have bailed out, but have not gone to your arraignment, you may still be able to talk to the victim. But talk to an attorney to make sure.
4. PENAL CODE SECTION 273.5 IS A WOBBLER, SO IT CAN BE REDUCED TO A MISDEMEANOR
A Wobbler is a crime that can be filed either as a misdemeanor or felony. When someone is arrested for domestic violence, they are almost always arrested for a felony. However, this does not mean it will stay a felony. Even if the prosecutor files it as a felony, a criminal defense attorney can ask the Judge to reduce it pursuant to Penal Code Section 17(b)(5) to a misdemeanor because it is a wobbler. The Judge has the power to do this and may consider the following:
- What is your criminal record?
- Is this your first time being charged with domestic violence?
- How significant were the injuries?
- Are there any mitigating circumstances such as character letters?
- How strong is the case against you?
- What is your reputation in the community?
5. THE BAIL FOR DOMESTIC VIOLENCE CHARGE UNDER PENAL CODE SECTION 273.5 IS $50,000
This means that a bail company will charge you $5,000 to bail out of jail. This is a lot of money and you might want to wait until you speak to an attorney first. Many times an attorney can get the defendant out on an OR (Own Recognizance) release where you don’t have to pay any money. The Judge will consider whether the Defendant is a flight risk or a potential danger to the community. Most people charged with domestic violence are neither and are presumably eligible for an OR release.
6. THERE ARE VARIOUS LEGAL DEFENSES THAT CAN WIN YOUR DOMESTIC VIOLENCE CASE
A. Legal Defense- Lack of Proof Beyond a Reasonable Doubt
Perhaps the greatest obstacle the prosecution has in winning a Domestic Violence case is lack of proof beyond a reasonable doubt. Many times, the person who initially complained to the police officer recants (or changes their mind) and says they were, in fact, not abused. Because domestic violence cases are he said/she said affairs, often without any other witnesses, if the “victim” who called the police now says that the person never assaulted them, then the victim’s credibility now becomes dubious. Furthermore, the victim sometimes will refuse to show up to court, and will not cooperate in the process of being subpoenaed, for instance by hiding their whereabouts so they cannot be legally served. If this is the case, then the prosecution probably cannot prove their case beyond a reasonable doubt and they must dismiss the case or reduce to a lesser offense.
Even if the accuser is legally subpoenaed, if the prosecution understands them to be reluctant to testify or a reluctant witness, this will affect the prosecutor’s evaluation of the strength of their case, and may induce them to make an offer which is better for the defendant.
Finally, even if the victim is available to testify and is not reluctant, it can still be hard for the prosecution to prove their case beyond a reasonable doubt. There may be no injuries that corroborate the victims’ side of the story, the victim might have a criminal record involving dishonest or violence which would impeach his or her credibility, or there simply may not be enough objective evidence to convince the judge or jury that the violence occurred in the matter alleged by the victim.
B. Legal Defense- The Defendant lacked the Willful Intent to Harm
The crime of domestic violence, under PC 273.5 requires the “willful” infliction of injury. That means, unless you intentionally tried to harmed the victim, you will be acquitted of the crime. For instance, if during a domestic argument, you accidentally bumped into your partner creating an injury, you do not possess the willful intention that is a required element under the domestic violence laws.
C. Self Defense as a Legal Defense
On many occasions, when a domestic disturbance happens, the person trying to defend themselves or someone else will be accused of domestic violence. For instance, if your spouse or loved one is attacking you, and you restrain them by grabbing their shoulders or keep them from hurting you by straddling them and holding them down, then you are acting in self-defense, even if you leave a bruise or mark on them. This same reasoning applies if you are restraining the person from hurting someone else. Self-defense a complete defense, which means you will be acquitted if the judge or jury finds you were acting in self-defense. However, you must use reasonable force to protect yourself. For example, if someone trying to hit you with an open hand, attacking them with a hammer would be an unreasonable use of force to defend yourself.
D. You are Falsely Being Accused
At the Law Offices of Seppi Esfandi, we’ve seen many cases where the allegations of domestic violence are simply made up because one person is mad at another. Here are some real, life examples:
- Wife is angry at Husband because she suspects husband of cheating after looking through his cell phone. A heated verbal argument ensues where the police are called. Wife falsely accuses husband of domestic violence because she’s so jealous.
- One spouse is trying to get an advantage over another spouse in a divorce and child custody battle so she accuses the other spouse of domestic violence.
- An undocumented person is trying to get legal status in the United States by falsely claiming she has been a victim of domestic violence. A conviction of the falsely accused defendant will get her a U-Visa to be able to legally be in the United States.
7. EARLY INTERVENTION IS KEY TO WINNING YOUR DOMESTIC VIOLENCE CASE
Often times, the prosecutors or detectives in a domestic violence case have a very narrow view of the case- i.e. they are only told the point of view of the “victim” and don’t know the whole context of what happened. The earlier you can present your point of view, the broader you make this perspective to the detectives, police or prosecutors so it’s not as black and white as the “victim” would like to make it seem. The earlier you hire an attorney, the better you are able to protect yourself against making a mistake with the police, and also to put your best foot forward and present a balanced picture of things, instead of a one-sided picture.
8. OTHER RELATED CHARGES
A. PC 243(e)(1)- Domestic Battery
There are charges that are related domestic violence charge under PC 273.5 and are either charged along with that charge or instead of it. Penal Code 243(e)(1) domestic battery is also a domestic violence offense, but less serious than PC 273.5 The difference is that, unlike corporeal injury or cohabitant abuse, domestic battery under PC 243(e)(1) has no requirement that the victim be injured. Also, domestic battery is a straight misdemeanor, not a wobbler, which means the maximum penalty is a year in county jail, rather than prison time. A felony charge of PC 273.5 can be negotiated down to domestic battery under PC 243(e)(1) if the case is problematic or weak for the prosecution.
B. PC 273a- Child Endangerment
If there is an allegation that a child was present or involved in the domestic violence dispute, you may also be charged with Child Endangerment, under PC 273a. For instance, if a wife attacks a husband with a knife and there are kids in the room, the person may have put the children at risk of suffering bodily injury. The charge of PC 273a would be charged in addition to the 273.5 charge. PC 273a is a wobbler that can be charged as a misdemeanor or a felony.
NOTE: DCSF CAN TAKE YOUR KIDS AWAY
If you your domestic violence incident happens in front of your kids, the DCFS or Department of Children and Family Services will get involved and attempt to remove your kids from your home. Under these circumstances, it is imperative that you DO NOT speak to the DCSF. Not only can they use your statements to take away your kids, those same statement can be used against you in your criminal case. Don’t talk to them, talk to an attorney!
C. PC 368- Elder Abuse
An allegation of domestic violence where the victim is 65 years or older may subject you to additional liability of Elder Abuse under Penal Code Section 368. This is a usually a crime that is charged against people who are taking care of or in charge of older people, such as a caretaker or adult child. Elder abuse is a serious crime that can land you in prison for up to 4 years.
D. PC 415- Disturbing the Peace
At the Law Offices of Seppi Esfandi, we have been successful is reducing domestic violence cases to a very low misdemeanor called the disturbing the peace. Usually, these are charges when music is being played too loud in public, someone is shouting in the streets, or there is a street or bar fight. Unlike domestic violence, disturbing the peace is not considered a violence crime or one involving moral turpitude. A violation of PC 415 for disturbing the peace is not a deportable violation and your gun rights will not be tampered with.
9. LOSING YOUR GUN RIGHTS
In California, all felonies and certain misdemeanors will result in the loss of your right to own guns. A conviction of 273.5 or 243(e)(1) will result in the loss of your gun rights, either for your life-time if it is a felony, or for 10 years if it is a misdemeanor. If you are being charged with a domestic violence and own a gun, call us immediately to protect your right to bear arms.
10. IMMIGRATION CONSEQUENCES
PC 273.5 is a deportable offense and if you are not a citizen, it is imperative you hire a qualified attorney to help advise you to prevent your deportation or exclusion from naturalization and citizenship. Deportable crimes are enforced by the Department of Homeland Security and include the following crimes in California: (1) those involving domestic violence (2) those involving “moral turpitude,” (3) those which involve possession or sale of drugs (controlled substances) (4) a list of felonies which are considered “aggravated felonies” and (5) offenses involving guns.
11. EXPUNGING YOUR DOMESTIC VIOLENCE CONVICTION
Under PC 1203.4, you are eligible to reduce your misdemeanor offense of domestic violence from your record. The main reason to expunge your record is so you can state that you have not been convicted of domestic violence in an application for employment or an application for housing. Although you cannot expunge your felony, you can have it reduced to a misdemeanor under PC 1203.4. If you successfully completed probation and are not facing a new offense, call us to see if your felony can be reduced.
This website is specific to general guidelines pertaining to criminal justice, criminal defense, domestic disputes, sex offender law, violent crimes, white collar crimes, or other legal criminal defense. Any information set forth in this site should not be construed to be formal legal advice nor the formation of a lawyer or attorney client relationship. Any results portrayed here were dependent on the facts of that case and the results will differ from case to case. Please contact a Criminal Defense Attorney, Sex Offender Attorney, Domestic Dispute Lawyer, Violent Crime Attorney, or White Collar Crime Attorney. Nothing herein is intended to nor constitutes a guarantee, warranty or prediction regarding the outcome of your legal matter. Every case is different and outcomes will vary depending on the unique facts and legal issues of your case.