Recently prosecution of domestic violence cases has been on the rise in California. According to a report by "the California Women's Health survey," 40% of women have faced some type of domestic violence. The majority of these women are young, between the ages of eighteen and twenty-four years.
While its clear instances of domestic violence are a huge problem, there are many cases where untrue charges have been filed against an accused. Mere accusations of domestic violence can cause negative effects on a person’s life, while a conviction could be disastrous.
If you have been accused of domestic violence, contact the Law Offices of Alice Tavoukjian immediately at 626-386-8606 so we can start developing your defense. We serve Los Angeles and San Bernardino Counties.
What is Domestic Violence?
Domestic violence is any abuse, it can be sexual, emotional, or physical, between people who are closely related either by blood or marriage. They could be:
- Spouses — This could be a former spouse or a current spouse
- Cohabitants — This means a person who formerly or currently resides in the household.
- In a dating relationship — This is an individual with whom the alleged offender has had an intimate relationship.
- Co-parents — This is a person the alleged offender has sired a child with, and both take parental responsibilities together while separated.
- Close relatives
What Qualifies for Domestic Violence
Various actions are classified as domestic violence, according to California domestic violence laws. If your actions negatively affect a person’s life or put their life in danger you risk being charged with domestic abuse.
Domestic Violence cases could involve pulling hair, shoving, throwing things, kicking, pushing, preventing someone from freely walking, or even intentionally scaring someone. Some additional acts that can be considered domestic violence are endangerment, psychological trauma, verbal abuse, financial fraud, spiritual abuse, and neglect, even if no bodily harm actually occurred. Causing physical harm to the family’s pet has been found to be a violation of California domestic violence law.
Even situations where there was physical contact during a tense moment between close relatives have been charged as domestic violence, even without any harm caused. Additional actions that can be considered domestic abuse include:
- Sexual assault
- Threats made to others
- Similar behavior such as harassing, stalking, destroying private property, or disturbing another person’s peace
What Causes Domestic Violence?
Although there is no specific cause of domestic violence, there are several common beliefs and attitudes present in most abusers. They include:
- A sense of entitlement
- The belief that they should be in control of their partner
- The belief they can get away with the domestic abuse
Other social forces like media, impunity, sports, family beliefs, and gender role identity all play a part in creating an abuser's attitude.
Domestic Violence Crimes
The following are examples of domestic violence crimes under California law:
- Bodily Injury to a spouse (Penal Code 273.5) — This is also known as cohabitant abuse and is described as intentionally causing a person you are currently or have previously dated a physical injury which causes them to be in a traumatic state.
- Domestic Battery (Penal Code 243(e)1) is described as willfully using violence or force unlawfully on your current or former partner. These charges are commonly filed in response to incidents of domestic violence.
- Child abuse (Penal Code 237(d)) — Parents are permitted to use force to discipline their child, the law prevents the use of excessive force. This requires proof that the accused willfully inflicted cruel or inhuman physical punishment on a child that caused a traumatic physical condition. It is also a requirement that the punishment could not be viewed as reasonable. Child abuse cases often require a separate investigation by the "Department of Child and Family Sevices"( DCFS ) of "child protective services (CPS).
- Child Endangerment (Penal Code 237(a)) —This offense is related to child abuse, however in child endangerment cases, the child does not have to suffer any physical injury. Child endangerment requires that the accused intentionally allowed a child to suffer, allowed the child to be in a position that endangered his or her health, or caused extreme physical pain. This offense can be filed as an additional charge with offenses like spousal abuse or domestic battery which occurred in the child's presence.
- Elder Abuse (Penal Code 368) — Like children, people above the age of sixty-five are offered special protections. Therefore, any offense against them is also charged as elder abuse. This charge can apply if you are charged with theft against an elderly individual or in some way have neglected your responsibilities of looking after an elderly family member. To be convicted the accused must either willfully or negligently subject an elder to unjustifiable pain and suffering that is likely to cause great bodily injury or death.
- Criminal Threats (Penal Code 422) — This domestic violence offense is described as threatening to perform actions that will cause injury or death to your current or former spouse or cohabitant. The threats can be written, verbal, or through electronic communication as long as they are clear and immediate, causing the victim to experience sustained fear. This offense can be charged as a misdemeanor or felony, depending on the fact surrounding the specific case.
- Stalking and Harassment (Penal Code 646.9)— This offense involves willfully and maliciously making repeated contact with the alleged victim in a way that causes them to fear for their safety or the safety of their family.
The Stages of Domestic Violence Prosecution
Police Response, investigation, and arrest
A domestic violence case often starts after an emotional discussion escalates to a 911 call in the midst of a heated argument. In the heat of the moment, it is not unusual for the alleged victim to embellish the circumstances or make completely false accusations.
The initial investigation can potentially lead to an arrest, so it is important for the accused to avoid making any potentially incriminating statements. It can also be helpful to remain courteous and reasonable with police officers during the encounter.
If charges have been filed against you it is not uncommon for a protective order to be placed on the remainder of one’s family or those residing in the same household. If the court’s protective order is violated it can lead to additional charges, so it is important to maintain the required distance and not make contact unless done so by your lawyer.
For all of the above reasons it is important to have a criminal defense attorney involved in your case from the very start.
After the arrest, the first court appearance is the arraignment. At this appearance you will be fully advised of the charges against you. At the arraignment you will also be advised of certain legal rights you possess and be asked to enter a plea. An accused can enter a plea of either “guilty” or “not guilty”, however, a “not guilty” plea is advisable because it can later be changed if a plea bargain is accepted. It is especially important to have a criminal defense attorney to assist in these proceedings and to have available as counsel about what to do at each stage.
What to Provide your Attorney
When counseling with your defense attorney it is best to provide all relevant information, especially anything favorable which may be used in negotiations. This could include any violent history the alleged victim has with you, any false accusations made in the past, psychological illnesses or drug addiction and other similar behaviors which may explain the incident in a different light.
At this point, any additional information that has not yet been shared should be discussed with your attorney to ensure the best possible outcome of your case. The attorney may need to investigate the facts of the case. This could include contacting witnesses who understand the relationship between the accused and the accuser, people who witnessed the alleged crimes, and anyone that may have favorable information about the accused party’s character. If you know of any potential witnesses, sharing their information can be vital to establishing an effective defense.
After your attorney has had the chance to evaluate the case and the evidence against the defendant, she may engage in plea bargain negotiations with the prosecution. A plea bargain is an agreement made between the defendant and the prosecution where the defendant agrees to plead guilty, in exchange for the prosecution’s promise of a reduced charge or other leniency. A prosecutor is under no obligation to offer a plea bargain, and the defendant has no obligation to accept one. However, the attitude of the alleged victim can greatly influence the prosecutions willingness to accept a favorable deal for the defendant.
It is of the upmost importance that you fully understand any offer to plea bargain, specifically whether there is any jail or prison time, if probation will be required, or if there are any other consequences such as those affecting immigration status. Your defense attorney will counsel you through this process.
After the judge sets the date of your trial, your attorney will present motions advocating for or against the admission of various evidence for the trial. Motions are a way of submitting formal requests to the judge, it is possible for effective pretrial motions to resolve an entire case.
If a plea bargain was not offered or accepted, then the case will move forward to trial. At trial the prosecutor’s role is to prove guilt beyond a reasonable doubt, while defense counsel must show that there is a reasonable doubt of the accused’s guilt. It is important to remember the defense attorney does not actually need to prove innocence.
The trial stage may take several days or even weeks while members of the jury hear the evidence and testimony both in favor of and against the defendant. You can expect the arresting officer or officers to testify, as well as the additional law enforcement responsible for investigating the accused’s case. The alleged victim or victims as well as any people present at the scene will also likely be called to testify, the defense attorney will use this to craft an effective defense for the accused.
If a plea agreement was not accepted and the defendant is convicted at trial, there are a number of potential criminal penalties. These include jail time, domestic violence counseling, fines, fees, probation, and the issuance of a more permanent protective order. Additionally, it is likely that the convicted will forfeit his or her Second Amendment rights and be required to turn over all firearms. Where there are children involved there may be custody issues, and more severe cases can involve the Department of Child and Family Services (DCFS) and require that the convicted appear in family court which has additional penalties and punishments.
Domestic Violence Penalties in California
The specifics of each case and whether the violation is charged as a misdemeanor or felony will determine the severity of the penalties faced.
Potential penalties from a misdemeanor charge can include:
- Court fees and fines
- Mandatory counseling
- Community service
- Up to one-year prison sentencing
If convicted and the charges are filed as a felony the above penalties will be increased. This includes a minimum of four-years in state prison which may be increased based on the seriousness of the injuries inflicted.
In addition to these penalties, you also risk some collateral consequences:
- Experiencing trouble finding housing
- Experiencing trouble finding employment
- Losing custody of your children
- Losing the right to own or access a gun
- Inability to pass a criminal background check
- If you are an immigrant, you also risk being deported or inadmissible.
Restraining Orders in Domestic Violence Cases
While you are innocent until proven guilty under the law, California prioritizes the safety of potential victims of domestic violence. Because of this, restraining orders are common in domestic violence cases. A restraining order is an order by the court that prevents you from being within 100 yards of the alleged victim or household as long as the order is active.
Below are the types restraining orders utilized under California law. They include:
- Criminal Protective Order — These are restraining orders that are active for the duration of the trial, and if you are acquitted the order will be revoked.
- Emergency Protective Order — This restraining order gives immediate protection for the first seven days following the alleged attack.
- Temporary Restraining Order — A temporary restraining order can be issued for 20-25 days after the alleged victim requests it and provides sufficient evidence.
- Permanent Restraining Order — This is an order permanently restricting or preventing the accused’s interaction with the alleged victim. Permanent restrictions can only be issued at the victim’s request after sufficient evidence has been presented that the court believes the accused presents a sufficient threat to him or her. These restrictions can last up to five years.
- Civil Harassment Restraining Orders — This is a restraining order meant to protect the alleged victim from assaults, harassment, stalking, or other violent threats. These orders specifically target individuals who are not closely related to the alleged victim.
- Elder Abuse Restraining Orders — These are orders issued to protect the elderly and dependents who have suffered financial abuse, neglect, isolation, or physical abuse.
The Purpose of Restraining Orders
Restraining orders are issued by the court either preventing or mandating some conduct by an individual. A restraining order may require you to:
- Pay certain bills
- Not own or possess a gun
- Pay spousal support
- Pay child support
- Issue back certain property
- Move to a different house
- Not go a certain distance from your work or home
- Not go a certain distance from your children's school
- Not to communicate with certain relatives or children
- Not to sustain significant expenses
Possible Defenses for Domestic Violence
Building a strong defense is the key to successfully defending a domestic violence case. Below are some of the possible defenses that may be open to you. If proven these defenses may get your charges reduced or result in the dismissal of the entire case.
- Self-defense — Most altercations that result in a domestic violence case are two-sided; Proving the purpose of your actions were to defend yourself or others can be an effective defense.
- Innocence — Provide evidence that shows you did not commit the crime. It could be a surveillance video, eyewitness, or alibi.
- Lack of Intent — The prosecutor needs to prove your intent, or motive, beyond a reasonable doubt. Proving that the alleged criminal conduct was unintentional can be an effective defense.
- False allegations — Your attorney may be able to discredit the allegations against the accused by discrediting the alleged victim or any witnesses. This can be done by establishing some proof that the accuser had his or her reasons to accuse you falsely.
Find a Domestic Violence Attorney Near Me
Regardless of whether this is your first offense, or you are a multi-time offender we are committed to providing a strong defense for you. At the Law Offices of Alice Tavoukjian, we are here to listen, investigate your case, and zealously advocate on your behalf.
So, if you or someone you know are facing domestic violence call us now at 626-386-8606 to explore which options are available to you. We serve Alhambra, Pasadena, El Monte, West Covina, and all of Los Angeles and San Bernardino Counties.