California's domestic violence laws addresses violence occurring within a family setting or intimate relationships. The “types of relationships” specified by the California Penal Code in which a person commits an criminal act amounting to domestic violence are as follows:
spouse or former spouse; a married couple
cohabitant or former cohabitant in a home;
a parent with whom the individual has a child;
or a partner in a dating relationship.
It is also not unusual for the crime of child abuse to be charged when children are in the home during a violent incident.
The California Penal Code pursuant to Section 273.5 defines domestic violence when an individual's willful conduct leads to a
"corporal injury resulting in a traumatic condition"
suffered by a person with whom the individual has one of the familial or intimate relationships as specified by the domestic violence laws of California.
“traumatic condition” is defined as any wound or other bodily injury caused by the direct application of physical force. It does not need to be serious—a minor wound or injury will suffice. Any injury, a mark or bruise to a broken bone will qualify as a “traumatic condition.”
Domestic Violence in California is a “wobbler” offense – meaning the prosecutor has discretion to file the charge as either a misdemeanor or a felony violation. Some factors in determining how a charge is filed to include but are not limited to:
The extent and severity of the injuries, and
Any known prior criminal record by the defendant or prior similar conduct, if any.
If convicted of domestic violence, the penalties are as follows:
- Imprisonment for up to one year in county jail or two to four years in state prison, a fine of up to $6,000, or both imprisonment and a fine
- A minimum of three years of probation
- 52 weeks of domestic violence counseling
- Protective order or Restraining order which the court almost always issues on some level, for protection of the victim from physical harm, imminent harm or emotional abuse.
How does a “domestic violence” crime begin?
Generally speaking, one of the parties usually initiates contact with the police by calling 911 in the midst of an argument or as the conduct is occurring or sometimes a neighbor will call if they hear shouting or screaming. Law enforcement will act quickly and precisely in their response and in almost all cases, an arrest is made. Most often, the police will also issue a protective order which mandates that the arrested person stay away from the victim pending filing of the criminal action.
In most circumstances, law enforcement will forward their case to the prosecuting agency to determine what charges will be filed. In almost every instance the prosecutor will file charges whether or not the alleged victim desires prosecution.
In the representation of one of Michele Ferroni’s cases, People v. Brielle H. the facts as summarized were that a neighbor called 911 upon hearing Michele’s client and her husband verbally arguing in the next door apartment. When the police arrived they saw some scratches on the husband’s neck and arrested Michele’s client, wife and mother of their 2 year old, also in the apartment.
At the arraignment stage of this case, Michele was able to get the Judge to allow her client to stay out of custody on her own recognizance over the argument of the prosecutor requesting her client to post a bail of $30,000.00
During an office meeting with the district attorney as arranged by Michele, she presented compelling evidence including but not limited to the examination of the 911 call, background and an additional statement of the alleged victim/husband, her client’s attendance in counseling, and other mitigating factors about the case that led to a Diversion resolution. Diversion meant that Michele’s client’s case was continued for six months to allow her to complete several anger management classes before returning to court for a dismissal of the charges against her.
This case was just one such example of why it is important to enlist the assistance of Michele Ferroni, an experienced, skilled attorney in these types of cases. Law enforcement and prosecutors take domestic violence cases seriously and feel that such conduct can become aggravated and dangerous if not addressed. In fact, most District Attorney offices have a designated prosecution unit and unlimited resources dedicated to dealing with Domestic Violence cases. If you are charged with domestic violence or any other related charges, you want to have a solid, hardworking, knowledgeable attorney like Michele Ferroni on your side.
Defenses to domestic violence
Some of the most common defenses to domestic violence include:
Self-defense or defense of others typically when there is a situation of mutual combat between the parties;
False accusations, which commonly arise in domestic violence cases as a result of rage or a heated argument.
The injury was not caused by a willful act, but rather was an accidental injury.
When facing a violent offense such as domestic violence there are other related offenses that also can potentially be charged such as:
Battery pursuant to 242 of the Penal Code is “any willful and unlawful use of force or violence upon the person of another” and is misdemeanor offense
Battery with “serious bodily injury” pursuant to Penal Code section 243(d) is when a battery is “committed against any person and serious bodily injury is inflicted on the person.”
Domestic Battery, 243(e)(1) (e) (1) occurs when a battery is “committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship.”
Elder abuse pursuant to Penal Code section 368 is physical abuse, emotional abuse, neglect, endangerment or financial exploitation directed at anyone who is sixty-five (65) years of age or older
Child endangerment, Penal Code section 273a
Child abuse, Penal Code section 273d (a) occurs when “any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.”
Violation of a restraining order, Penal Code section 273.6 is an intentional and knowing violation of a protective order.
Unfortunately, the reality of domestic violence charges is that innocent people are arrested. Emotions are running high at the time of the incident and false claims may be alleged or the alleged victim does not want to testify against the accused. The impact on the accused and the family can be daunting. Having a criminal record will have life-long effects while a conviction can also have serious consequences in other domestic cases, like divorce, visitation, child custody, alimony and child support issues. Most immediately, having to take the time to attend weekly counseling, possible jail or community labor can result in potential job loss, career options, your reputation and freedom while the effect of a restraining order can separate and interrupt families.
Getting an experienced criminal defense attorney on board at the earliest possible stage can sometimes affect what charges, if any, will be filed. After gathering the facts and certain mitigating evidence, Michele can often consult with the District Attorney in advance of the court date and convince them to not file charges or offer a diversionary type sentence if charges are brought into court. Because of her steady and reliable relations with the prosecutor, Michele can convey the dynamics of the couple’s relationship and wishes of the victim that create a positive outcome to the case. Having the right attorney on your side can provide direction and options to you in fighting your case. With so much at stake, it is critical to have someone representing your position and defending your rights. Contact Michele at 818.203.8300 immediately.