Domestic Violence
Battery or corporal injury on a spouse
Domestic Violence occurs when one person strikes another without their consent and the two people are married, in a dating relationship or otherwise romantically involved.
Domestic battery is defined in Penal Code section 243(e)(1) as a battery committed against a spouse, a former spouse, a person who is the parent of the Defendant’s child, a fiancé(e) or former fiancé(e), a person with whom the Defendant has or used to have a dating relationship, or a person with whom the Defendant lives with or has lived with.
An actual or visible injury is not required for domestic battery to take place. A simple grabbing of the arm or pulling on another’s shirt in an offensive manner without their consent may be enough for the Prosecutor to charge you with this crime.
The Penal Code also criminalizes domestic violence under Section 273.5 when an actual injury takes place. This offense is committed if you willfully inflict a bodily injury on your current or former spouse, someone with whom you live or lived with, or the parent of your child.
California Penal Code 273.5 is much more serious than Penal Code 243(e)(1). This offense compared to spousal battery requires a “traumatic injury” to the victim caused by physical force. For example, a scratch, a bruise, or a black eye.
A common defense in many domestic violence cases is self-defense. An alleged victim may experience an injury because the defendant was defending him or herself against impending harm. A defendant may be justified in using physical force toward the victim, if the defendant reasonably believed that such force was necessary to protect against the victim’s own use of unlawful force.
The crime of corporal injury on a spouse is a wobbler offense. The degree of injury to the victim will decide if a case is charged as a misdemeanor or a felony. Additionally, even if the alleged victim does not wish to press charges, the government may still pursue prosecution.
If charged as a misdemeanor, you may face up to one year in jail. You may also receive up to three years of probation, a restraining order, a 52-week domestic violence course, community service, payments to the victim and domestic violence organizations, and other fines and fees.
If charged as a felony, you may face up to four years in prison, in addition to the above-mentioned penalties of a restraining order, a 52-week domestic violence course, community service, payments to the victim and domestic violence organizations, and other fines and fees.
An experienced defense attorney can keep you from doing the 52-week domestic violence class by negotiating a non-domestic violence charge with the District Attorney, such as disturbing the peace or assault.
Child abuse
Penal Code section 273d outlines the crime of inflicting physical punishment on a child.
As a parent, you are allowed to discipline your child by physical force. However, if that force becomes excessive, you can be prosecuted for a crime. Hitting your child with a wooden spoon is not against the law but if it leads to bruises or swelling then you may be charged with child abuse.
The Prosecutor will have to prove that you intentionally inflicted an unreasonable punishment on your child, which caused a traumatic injury.
One can defend against a child abuse charge if the child is lying about what happened or if the child’s injury happened by accident or if it is something that actually happened prior to the current incident such as a sibling quarrel.
Child abuse is a wobbler offense and can be charged either as a misdemeanor or a felony. A misdemeanor conviction can result in up to one year in jail whereas a felony conviction can carry up to six years in prison. Additional years can be added to one’s sentence if the Defendant has a recent prior child abuse conviction. In addition to custody time, a defendant will face probation, a protective order, counseling or parenting classes, and fines and fees. A child abuse conviction can also keep you from obtaining certain professional licenses and may impact future employment in teaching, child care, or nursing.
Child endangerment
Penal code section 273a defines child endangerment as putting a child in harm’s way, either physical or psychological. Even if the child was not hurt, you can still be convicted of this crime.
Leaving a child unattended in a hot car or not feeding the child adequately or leaving them in the hands of a babysitter who is intoxicated may all qualify as child endangerment under the law.
Depending on the severity of the offense, child endangerment can be classified as either a misdemeanor or felony. A misdemeanor conviction carries up to one year in jail along with fines and four years of informal probation. If injuries are more serious, a felony charge may be filed, which has more serious consequences. A prison sentence of up to six years may be imposed, up to $10,000 in fines, and four years of formal probation.
Child neglect
If a parent willfully withholds the basic necessities of food, shelter, clothing, or medical care from a child, the parent may be prosecuted for child neglect under Penal Code section 270.
A prosecutor would need to establish that the parent had no lawful excuse for failing to provide these necessities. A successful defense may be established, if a parent can prove that he or she does not earn enough to provide for the child and has done all that is reasonable to do so. Being divorced or not having legal custody do not excuse the parent from being criminally charged for this crime.
Child neglect is typically charged as a misdemeanor and carries up to one year in jail and up to a $2,000 fine.
Criminal threats
A criminal threat is laid out in Penal Code section 422 as when a person willfully communicates a threat to another person that would result in death or great bodily injury. The threat can be conveyed verbally, in writing, or through electronic communication such as text, e-mail, or social media.
It is not necessary for the threat to be directly expressed to the victim. A threat made to a person’s immediate family, such as their parents, children, or siblings, will constitute a criminal threat under the law. Additionally, a threat made to a third party that then relays this threat to the intended victim also constitutes a criminal threat.
To prove this charge, the Prosecutor must show that you willfully made a threat (verbal, written, electronic) to seriously injure or kill someone and intended this to be taken as a threat even if you did not intend to carry it out. The threat must convey an immediate possibility of being carried out and put the alleged victim in a state of reasonably sustained regarding his/her immediate safety or that of his/her family.
An experienced criminal defense attorney can help you successfully defend against this charge. A common defense is to argue that the threat is vague and unclear. For instance, saying “someone should hurt you” doesn’t clarify who the “someone” is and therefore doesn’t qualify as a criminal threat.
Another defense is when the threatened person replies back “I’m not afraid of you” because it shows that the alleged victim hasn’t been put in a state of fear.
When the threat is impossible to accomplish, one can also argue that there was no criminal threat under the law. For example, threatening to bomb someone’s car when they don’t own a vehicle doesn’t constitute a criminal threat. Additionally, a threat that cannot immediately be carried out is also not a crime, like where someone threatens to destroy your house with a convoy of tanks in one hour. Surely, it is not possible for someone to gather tanks within an hour.
Criminal threats can be filed as a misdemeanor or felony depending on the circumstances of the case. For a misdemeanor charge, you can receive up to 1 year in jail and a fine of up to $1,000. A felony charge carries up to a 3 years prison sentence and a fine of up to $10,000.
Stalking
California Penal Code Section 646.9 defines stalking as persistent harassing behavior involving a credible threat that places the alleged victim in fear of his or her safety or that of his or her immediate family’s safety.
If a man met a lady at a certain bar and then followed her home after she left, he would not be charged with stalking since his behavior took place only once. However, if the man got the woman’s phone number, then started sending her text messages harassing her and staying out and about her neighborhood, he could then be charged with stalking as long as the woman was placed in fear.
You can also be charged with stalking if your behavior violates a court order.
An experienced criminal defense attorney can help you fight a stalking charge by possibly arguing that there was no credible threat or that your behavior did not rise to the level of harassment or that your conduct was not “willful” or “malicious.”
Some conduct that may seem as stalking behavior could be protected under the First Amendment of the United States Constitution. This includes public demonstrations and labor picketing.
Stalking is considered a "wobbler" offense which can be filed by the prosecution as either a misdemeanor or a felony, depending on the severity and the exact circumstances of the alleged stalking behavior and the defendant’s criminal history. A misdemeanor conviction carries up to one year in county jail along with court fines, whereas a felony conviction carries a potential five-year prison sentence. If the defendant in question has previous stalking convictions or if the party is accused of a violation regarding a court issued protective order, the offense turns automatically into a felony.
Violation of a Restraining Order
Section 273.6 of the Penal Code makes it unlawful to intentionally violate the conditions of a valid restraining order. In order to prove this charge, the Prosecutor must show that the restraining order was legal, you had knowledge of it and that you intentionally violated it.
Some common defenses that an attorney may argue include: improper service, lack of knowledge of the restraining order, unintentional violation of the order, or an invalid or illegal restraining order.
Violation of a restraining order is a misdemeanor offense and carries up to one year in county jail and a fine of up to $1,000. Additionally, the judge can also order domestic violence classes, anger management courses, substance abuse counseling, a donation to a battered women’s shelter, and/or restitution to the victim. If there is harm to the victim, a minimum sentence of 30 days in County jail is also imposed.
A second violation of a restraining order is considered a “wobbler” offense and can be filed as a felony, which has a maximum prison sentence of three years and a maximum fine of $10,000.
Contact a Domestic Violence Attorney Near Me
If you or someone you know has been accused of domestic violence or any of its related charges mentioned above, please call us immediately at 714-887-4810 to assess your pending charges. Darwish Law understands these types of cases can be sensitive in nature and we will our confidentially approach your case with the time and care that it needs.