DOMESTIC VIOLENCE

Often times a domestic dispute can result in a criminal charge.  Even if the reporting party does not want charges to be pressed, once Police are called out to your home for a domestic violence incident- someone is leaving with them in handcuffs.  It is very common for domestic violence victims to decide that they no longer want to press charges after they have initially made a criminal complaint.  This will not stop the criminal prosecution because this a very common scenario in which the prosecuting attorneys are prepared to overcome.  If the victim witness does not appear in court, despite being issued a subpoena, or court order to appear, that victim witness becomes an "unavailable witness" and this would allow hearsay evidence to be admitted in court . That means, the investigating Officer could testify as to what the victim witness told him or her on the date of the incident.  Other evidence is also used in this type of case, such as medical records, 911 calls as well as the testimony of a domestic violence expert who would talk to the Judge and Jury about the reasons why domestic violence victims do not assist in prosecuting the defendants or why it is common for domestic violence victims to change or withdraw their original statements.  

At the time of the arrest for a domestic violence charge, the defendant will be issued a stay away order from the victim.  This means, that the defendant is not to have any contact with the victim.  Generally this is a temporary order that will lapse if no charges are brought by the District Attorney.  However, if charges are brought by the District Attorney a new order will be issued at the first court date.  Many times, the victim does not want this stay away order.  In most counties of the San Francisco Bay area, the victim of domestic violence will have to take a class or meet with a victim's advocate before the Judge will agree to lift the stay away order or modify it to a peaceful contact order or a no harassment order.  There are some circumstances in which even if a victim takes the class, the Judge will still not lift the order while the criminal case is pending.  If there is a stay away order in place, it is the obligation of the defendant to make sure the order is complied with- that means, even if the victim is trying to contact you, you must not respond.  If the order is violated, then the defendant could be charged with an additional misdemeanor for violating the court order.


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A domestic violence charge can be either a felony or a misdemeanor, depending on the circumstances and the injuries.  

The California Penal Code defines Domestic Violence with the following description:

"Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony."

"Inflicting corporal injury" under Penal Code 273.5 means a willful use of violent force. Such as hitting, punching, kicking, slapping or pushing. By willful, the statute means that the force must be done deliberately, as opposed to accidentally. 

A violation PC 273.5 requires some kind of bodily injury to a person with whom the defendant currently has, or previously had, a domestic relationship.  

Penal Code 273.5 PC requires that the defendant produce a traumatic condition for the victim. This means "a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." The key is that there must be some visible injury on the person's body. The injury could range from a minor scratch, redness, swelling or bruising to a very serious injury. 

Only a very slight injury is necessary to make a Penal Code 273.5 PC case. If no injuries can be observed, the prosecutor can still file charges under Penal Code 243(e)(1). This a similar California domestic violence statute, but one that does not require a visible injury. On the other hand, if a very serious injury is sustained, the prosecutor can file a 273.5 PC charge along with a "great bodily injury" enhancement. This makes the case more serious, and the potential jail or prison time much longer.

Domestic Violence CDC poster

There are many different codes that a domestic violence case can be charged under, here are just a few:

CA Penal Code 242 PC242): Battery - any willful or unlawful use of force or violence upon the person of another.
CA Penal Code 243 (e) PC 243(e): Battery against a spouse, cohabitant, parent of the defendant's children etc.
CA Penal Code 240 PC240: Assault - an unlawful attempt, coupled with a present ability to commit a violent injury etc.
CA Penal Code 136.1 PC136.1: intimidation of victims and witnesses.