In Orange County, law enforcement officers have no choice other than to take a person into custody if the officers have a suspicion that domestic violence has happened. If you have been charged with a crime of domestic violence, it is very important for you to get skilled representation from an experienced criminal defense attorney like Robert J. Hickey. We are the leading criminal defense law firm in Orange County, and we are ready and able to fight for your rights. Mr. Hickey has represented thousands of people who have been accused of crimes over his long criminal career.
Domestic violence laws frequently change
The laws that concern acts or alleged acts of domestic violence frequently change, and the laws have become stiffer over the years. It is important that you get help from a criminal defense attorney in order to try to get the best outcome and protect your rights. Most cases involving allegations of domestic violence are not straightforward or simple, and there are often questions of fact that will necessitate further investigation. Because responding officers do not have the additional time and resources they need when they are on the scene to determine who is telling the truth, they will normally take someone to jail and let it be sorted out later.
What is enough to be charged with domestic violence?
All that is required for the police to charge you with domestic violence is an argument combined with a slight physical contact. State legislators have been exposed to propaganda, leading them to believe that every domestic violence incident is one that could eventually escalate into a murder. That is simply untrue. In a majority of cases, people get angry or they have been drinking and a minor altercation results. Even without the intervention of police, a majority of people in these situations would have worked through them on their own.
In some cases, a person will falsely report his or her significant other to law enforcement officers because the person is mad and wants the significant other to get into trouble. In other cases, police may exaggerate what they observed or what was said when they write their reports. Many domestic violence cases actually involved mutual combat, but only one person is charged when the police arrive. In many cases, people are acting in the heat of passion when they get the police involved. Afterward, they may want to move past the incident together. Once the prosecutor files domestic violence charges, the victim will not be able to simply dismiss them. Often, the prosecuting attorney will proceed with the case even in situations in which the victim has said that he or she does not want to prosecute.
Seriousness of domestic violence charges.
California prosecutors have prosecutorial discretion when they are charging acts of domestic violence and are able to file them as either misdemeanors or felonies. Because the prosecutor is given discretion regarding the level of severity of the charged offense, domestic violence is known as a wobbler offense. Prosecutors are supposed to base their decisions on several factors, including the person’s criminal history and the severity of the injuries. If the accused person has no criminal history and the injuries are either non-existent or very slight, the prosecutor is likely to charge him or her with a misdemeanor. If the person has prior criminal convictions or the injuries are severe, then felony charges are likely to be filed by the prosecutor.
If you are convicted of felony domestic violence, you may receive a substantial jail or prison sentence. You may also be fined, ordered to attend counseling and have to pay restitution to the victim. The judge may also issue a restraining order that will prevent you from having either indirect or direct contact with your victim, including through third parties, via social media, emails or text messages. Finally, if the victim in your case suffered a serious bodily injury, a conviction will count as a strike under the state’s three-strikes law in order to enhance potential penalties in the future.
Domestic violence statutes in California
There are multiple statutes that criminalize acts of domestic violence in the state. Here is a list and short description of what each one requires that the prosecutor proves.
Penal Code § 136.1(b)(1)
This statute criminalizes dissuading witnesses from reporting crimes, and it may be charged as a misdemeanor or a felony. For the misdemeanor, you could face up to a year in the county jail. If you are charged with a felony, you could face anywhere from 16 months to 3 years in state prison. In order for you to be convicted, the prosecutor needs to prove that you tried to keep either the victim or another witness from reporting what happened to the police. This includes asking people not to show up in court after your case has been filed.
Penal Code § 240-241(a)
This statute criminalizes simple assault, a misdemeanor offense. If you are convicted, you could be sentenced to serve up to a year in jail. To secure a conviction, the prosecutor must be able to prove that you tried to commit a violent injury to someone else at a time when you had the ability to cause harm. This may be charged if you swung at and missed your victim.
Penal Code § 242-243(e)(1)
Misdemeanor battery is criminalized under this statute. If you are convicted of battery, you could be sentenced to serve up to one year in jail. The prosecutor will need to prove that you used violence or force upon another person, and the force required is very minimal. Simply pushing your significant other away from you is enough for you to be charged with this offense.
Penal Code § 273.5(a)
This offense, corporal injury to your spouse, partner, fiance, girlfriend, parent of your child or cohabitant, is a wobbler offense. If you are convicted of a felony, you could face a prison sentence ranging from 2 to 4 years. If you are convicted of a misdemeanor, you could face up to one year in jail. In order to secure a conviction, the prosecutor will be required to prove that you inflicted trauma willfully on a person with whom you had one of the previously described relationships. The injury does not have to be a serious one.
Penal Code § 273.6(a)
This statute criminalizes acts that are in violation of an order issued by a judge. This is commonly charged when a person contacts his or her alleged victim in violation of a restraining order, and it may be charged as a felony punishable by 16 months to 3 years in prison. First offenses are charged as misdemeanors and are punishable by up to 1 year in the county jail.
Penal Code § 422
This statute criminalizes making criminal threats, and it can be filed as a misdemeanor or a felony offense. If the prosecutor chooses to file it as a felony, you could face between 16 months and 3 years in prison if you are convicted. The prosecutor will be required to prove that you unlawfully and willfully threatened another person with committing a crime against him or her that would have resulted in serious bodily injury or death. The prosecutor also must prove that you intended for the person to take your statement as a threat.
Penal Code § 591
This statute criminalizing damaging a cable or telephone line, and it may be charged as a misdemeanor carrying up to 1 year in jail or as a felony carrying between 16 months and 3 years in prison. In order to win a conviction, the prosecutor will be required to prove that you damaged or removed a phone or its attached wire as an act of malice. Examples include ripping a phone out of your alleged victim’s hand and smashing it in reaction to his or her saying he or she was calling the police.
Penal Code § 653m(a)
This statute criminalizes making annoying phone calls. It is a misdemeanor-level offense that carries up to 6 months in county jail if you are convicted. To secure a conviction, the prosecutor will be required to prove that you used electronic means, including text messages, social media or phone calls in which you threatened to cause injury to your alleged victim’s person or property.
Contact an attorney for help
No matter what domestic violence charges you are facing, it is very important for you to get help from an experienced criminal defense lawyer. Robert J. Hickey understands how these types of cases work and the types of defenses that may be available to you. Often, he is able to negotiate in order to secure agreements for no prison or jail time. In some cases, Mr. Hickey is able to win dismissal of the charges. To learn more about your own case and how we might be able to help you, call us today to schedule your appointment.