© 2019 The Law Group of Thomas M. Spivack, PC 

Nothing in this publication or website, testimonials, reviews or endorsements, should be construed as a guarantee, warranty or prediction of the outcome of your case. This

website is not a  substitute for legal advice and does not, in any way, establish an

attorney-client relationship between you and The Law Group of Thomas M. Spivack, PC.

EARLY INTERVENTION MAY PREVENT THE FILING

OF A DOMESTIC VIOLENCE CASE

​IT IS IN YOUR BEST INTEREST TO HAVE US CONTACT

THE PROSECUTOR OR DISTRICT ATTORNEY EARLY

We strive to contact the prosecutor or district attorney's office early. In such cases, the filing deputy may be persuaded to schedule an office conference to discuss the matter between the parties. This may result in a resolution of the matter early where the case may not be filed or deferred depending on the terms and conditions negotiated in such conferences

EARLY INTERVENTION IS KEY

Don't get locked in by someone else's perspective of the situation

Often we see prosecutors or detectives with a narrow view of the case or only know a one-sided point of view from the victim. They don't always know the whole context of what happened. The earlier you present your point of view and make your perspective known to law enforcement, detectives, prosecutors and district attorneys, the better. The situation may not be as clear cut as the victim claims. You are thus better protected against making a mistake by failing to speak at an opportune time or mis-speaking 

PROBABLE CAUSE & DOMESTIC VIOLENCE

  • Probable cause in domestic violence cases can occur where one party simply states that there was an unwanted touching of any kind.  Often, this is sufficient to trigger arrest

  • California is a mandatory arrest state when it comes to domestic violence

  • Arresting officers must arrest you if probable cause exists

DOMESTIC VIOLENCE CHARGES & PENALTIES

  • Battery between intimate parties where there is willful and unlawful use of force or violence against the person of another (unlawful or unauthorized touching) is prosecuted under California Penal Code 243(e). This is a misdemeanor domestic violence charge less serious than California Penal Code 273.5 with a maximum penalty of a year in county jail and no prison time

  • Battery between intimate parties where there is violence involving bodily or traumatic injury however slight can be prosecuted as a felony under California Penal Code 273.5

  • Criminal threats are prosecuted under California Penal Code 422

  • Conviction of domestic violence can result in jail or a prison and significant fines

  • Mitigating and aggravating circumstances may impact sentencing, fines and penalties

  • Domestic violence charges under California Penal Code 273.5 and California Penal Code 422 can be charged as either a misdemeanor or a felony often depending on the seriousness of domestic violence charge and/or the accused person's criminal history.

  • Misdemeanor Domestic Violence Penalties

    • Up to one year in county jail

    • Fine up to $6,000

    • Summary or Informal Probation

    • Restraining order keeping you away from the victim for up to 10 years

  • Felony Domestic Violence Penalties

    • Up to 4 years in state prison

    • Fine up to $6,000

    • Formal Probation

    • Restraining order keeping you away from the victim for up to 10 years

  • Other consequences of domestic violence may include: losing the right to return home or see your children, mandatory counseling, appearance of the conviction on criminal background and employment checks, being put on parole or probation, and/or a 10 year or lifetime weapons ban

  • We have been successful in reducing some domestic violence cases to Disturbing the Peace under California Penal Code 415, a misdemeanor which is not considered a violent crime or a crime involving moral turpitude. It is not necessarily a deportable violation nor impacts gun rights

  • Enhancements. If an offender has been previously convicted on misdemeanor or felony domestic violence charges or other violent offenses, there can be even more serious sentencing

    • Prior convictions for domestic violence enhance the sentence. If you've been convicted of domestic battery within 7 years of a domestic violence conviction, your fine increases.

    • Other violent offenses will also increase a felony conviction and prison time up to 5 years time and include:

      • Assault with a deadly weapon

      • Simple assault

      • Aggravated assault or battery

      • Sexual battery

  • Great Bodily Injury Enhancement. If the injuries are serious enough to fit the legal definition of "great bodily injury," there can be an extra 3 to 5 years in prison for a felony conviction. These are some injuries considered "great bodily injury" by the law:

    • Broken bones

    • Severe scars or disfigurement

    • Severe concussion

    • Second degree burns (or worse)

    • Severe bruising and swelling

    • Knife wounds

    • Gunshot wounds

    • Loss of a body part or internal organ

    • Damage to internal organs

  • Related Charges

    • ​California Penal Code 273a- Child Endangerment. If there is an allegation that a child was present or involved in the domestic violence dispute, you may be charged with Child Endangerment which can be a misdemeanor or felony. The Department of Children and Family Services [DCFS] CAN TAKE YOUR CHILD AWAY.  Any statements you make to DCFS can be used against you in your criminal case. Don’t talk to them, talk to an attorney!

    • California Penal Code 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 and can result in prison time up to 4 years

We are tough and experienced with the skills to pursue

the best possible outcome whenever possible - sometimes a dismissal or reduction of charges - depending on the facts and evidence of each particular case

POSSIBLE ​DEFENSES IN DOMESTIC VIOLENCE CASES

Self-defense

  • You acted or threatened to act violently in order to protect yourself because you had reasonable belief that you were in imminent danger of being injured by another person

  • You had reasonable belief that you could only defend yourself by using physical force

  • You didn't use any more force than what was needed to defend yourself - you acted reasonably

False Accusations: Sometimes angry intimate partners make false accusations 

Consent: The other partner consented to the violence

Lack of Proof:

  • No visible injuries. No injuries that corroborate the victim's side of the story

  • No alleged victim testimony. A person who recants or changes their testimony or charge of abuse

  • Lack of third party witness testimony

  • Some domestic violence victims refuse to testify. A reluctant accuser or witness will often impact the evaluation of a case as to its strength or weakness. This may induce a better offer for the accused

Lack of Willful Intent: If you didn't intend to harm your partner, in some instances, you may not have committed domestic violence.

READY TO DEFEND YOUR RIGHTS

HELPING TO GET YOU BACK ON TRACK

WHAT YOU NEED TO KNOW ABOUT DOMESTIC VIOLENCE CHARGES

1.  You can be charged even if the accuser doesn’t press charges

Even if the accuser informs law enforcement they don’t want to press charges, want to drop the charges, or say they never said they were battered, they are considered a "recanting victim.” Law enforcement will claim they are making up a new story to protect the person charged and THE CASE MOST OFTEN WILL PROCEED FORWARD.

2. Sometimes a recanting or reluctant witness in these cases can be helpful

A reluctant accuser means the case may be seen as weak or hard to prove and help create a better outcome for the person accused. Even if the accuser is forced to come to court through a subpoena, he or she can refuse to testify generally without fear of being jailed under California Civil Code 1219 which protects victims of domestic violence from being jailed for contempt for refusal to testify. A reluctant accuser or witness makes it harder to prove a case against the accused because they may testify to things inconsistent with what was told law enforcement and this can compromise their credibility.

3. Once a case is filed, the judge will issue a restraining order preventing you from contacting the accuser A restraining order prevents you from having any contact, in person, telephonic or through third persons, with the accuser in the case. There can be “no contact.” This can be difficult and challenging if you live with the accuser as you will have to find a new place to live while still paying rent for the accuser’s residence. If you have children together usually you won't be able to speak or see them as they are usually covered by the order as well. You cannot speak to the accuser about your case or your defense.

4. California Penal Code 273.5 can sometimes be reduced to a misdemeanor

When someone is arrested for domestic violence, they are almost always arrested for a felony. But it does not always stay a felony depending on the facts and evidence of the case. A criminal defense attorney can seek a reduction under California Penal Code 17(b)(5) to a misdemeanor. This is discretionary with the court that often considers:

  • Criminal record?

  • First time charged with domestic violence?

  • Significant or type of injuries?

  • Mitigating circumstances - character letters?

  • Reputation in community?

 

5. Bail. California Penal Code 273.5 

Sometimes an attorney can get a defendant charged out on an "OR" (Own Recognizance) release without bail or a reduced bail. No case is the same but a court often considers whether a defendant is a flight risk or a potential danger to the community.

6. Losing gun rights

In California, all felonies and certain misdemeanors will result in the loss of your right to own guns. A conviction of California Penal Code 273.5 or California Penal Code 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. 

7.  Immigration. California Penal Code 273.5 is a deportable offense

Domestic Violence Petition for Dismissal or "Expungement"

   Penal Code 1203.4

  1. A conviction under California Penal Code 273.5 may be dismissed/expunged if you were convicted of misdemeanor domestic violence or didn't serve any state prison time for your conviction

  2. California Penal Code 1203.4 allows you to petition the court to dismiss a misdemeanor conviction of corporal domestic violence

  3. A dismissal/expungement does NOT completely clear your conviction record but often keeps the conviction from appearing on public databases used for criminal background checks, etc.

  4. Your record will still be accessible to law enforcement, court personnel, and any agency considering you for public employment

You may be eligible to petition for a dismissal if you:

  • Completed all conditions of your sentence and probation

  • Have not committed another felony after this conviction

  • Have no criminal charges pending

  • Did not violate probation after a domestic violence conviction. Even some probation violations may not prevent a dismissal if not related to a serious misdemeanor or felony offense - at the court's discretion