Domestic violence refers to abuse committed against those with whom we are related or have an intimate relationship. As an experienced Orange County domestic violence defense lawyer, I know that there are specific categories of persons who are protected under the domestic violence statutes in California. Under Family Code section 6211, a person can be charged with the specific crime of domestic violence if he or she abused any of the following persons:
- A person to whom the alleged offender is or was married to;
- A person with whom the alleged offender regularly lives in the same household or regularly lived with in the same household the past;
- A person with whom the alleged offender is or was in a dating or engagement relationship;
- A person with whom the alleged offender has had a child;
- A person who is a child of the alleged offender;
- A person who is related to the alleged offender within the second degree (this could be the alleged offender's mother, father, grandparent, sibling, first cousin, niece, or nephew.)
Abuse under the domestic violence laws is set forth in Family Code section 6203 to mean:
- Intentionally or recklessly causing or attempting to cause bodily injury to any of the above listed persons;
- Sexual assault on any of the above listed persons;
- Purposefully putting any of the above listed persons in reasonable fear of serious bodily injury to themselves or to another;
- Violating a protective order that protects any of the above listed persons.
Even a simple argument can escalate to a domestic violence charge. Although typically, domestic violence occurs between a husband and wife or boyfriend and girlfriend, domestic violence can be charged against roommates or even a person with whom the offender has had only several dates.
Most often the police, in responding to a domestic violence call, will give the accuser the benefit of the doubt—even when there is no evidence that the abuse actually occurred. A call to the police on a domestic violence allegation will often result in the alleged offender being arrested, an emergency protective order being put into place with a later court hearing on a restraining order against the offender, and depending on the circumstances, a misdemeanor or felony charge against the alleged offender.
Prosecutors aggressively act on domestic violence allegations. Even when the allegations are apparently fabricated, charges are often filed. Prosecutors usually will not dismiss the charges even when the person who made the allegations asks the prosecutor to drop the charges. It is unfortunate but true that sometimes allegations of domestic violence are used to manipulate the system. For example, it is not unheard of in a bitter divorce for one spouse to allege domestic violence against the other so that a restraining order is issued effectively kicking the alleged offender out of the house.
That is not to say that oftentimes the abuse actually did occur, even when it doesn't seem like abuse. For example, in the heat of an argument between a husband and wife, the husband may take out his aggression on the bedroom door rather than on his wife and punch a hole in the door. Even though he consciously avoided hitting his wife, a domestic violence charge could still be filed because his act against the bedroom door could put his wife in reasonable fear of serious bodily injury. In other words, she could reasonably fear that he could do the same thing to her body as he did to the bedroom door.
Even someone who believes he or she is innocent of the charges must take steps immediately to defend against these charges. The first step anyone facing such charges should take is to call an experienced Orange County domestic violence defense attorney; it is essential to have an experienced attorney to represent you and protect your rights. I have many years experience defending domestic abuse cases and I will vigorously defend your rights against domestic violence charges to the full extent of the law. Contact me at any time to set up a confidential consultation with a domestic violence defense attorney in Orange County without charge. I will work with you and your family to provide a fee structure that best suits your circumstances.
People accused of domestic violence are usually charged with one of the following misdemeanor or felony crimes:
- restraining order violations
- sexual assault / rape
- criminal threats
- false imprisonment
- child endangerment
- child abuse
- elder abuse
In addition to charges one might face for the crime committed against a person protected under the domestic violence statute, there are also specific sections in the penal code that punish acts of domestic violence. These are:Penal Code section 243(e)(1)
This section specifically punishes battery against a current or former intimate partner, whether it is a spouse or any other person with whom the alleged offender is or has been intimate. "A battery is any willful and unlawful use of force or violence upon the person of another." (Penal Code section 242.) Note that the definition of battery does not require any visible evidence, such as bruises or cuts. It is a misdemeanor violation with a possible sentence of up to one year in county jail and/or probation and fines. Someone convicted under this section will also be ordered to complete a batterer's treatment program and/or counseling.Penal Code section 273.5
This section punishes corporal injury against a current or former spouse or cohabitant or one with whom the offender is or was dating or engaged to be married or the other parent of the alleged offender's child. Corporal injury results when a wound or an external or internal injury is inflicted on another. Even the slightest physical aggression against another, say for example grabbing the wrists of someone to the extent that it leaves a mark, can trigger this charge.
A conviction under this section is a felony and carries a sentence of imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by fines or by both that fine and imprisonment. Second offense convictions (within the past seven years) are punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and fines. Under the statute the court may also issue an order restraining the offender from any contact with the victim for up to ten years.Penal Code section 273d
This section punishes corporal punishment or injury to a child. While it is always illegal to inflict any corporal punishment on an adult, California allows a parent to physically hit a child as long as it is not cruel and inhuman and does not cause the child to suffer a traumatic physical condition. Although these conditions are not clearly defined under the statute, and the law on child abuse is evolving, charges under section 273d most often occur when there are visible and traumatic injuries to the child. "Traumatic" can mean a minor injury such as a scratch or a bruise.
Violation of section 273d is a felony punishable by imprisonment for two, four, or six years, or in a county jail for not more than one year and fines or both. Someone who has been previously convicted within the prior ten years of child abuse faces a sentence enhancement of four years imprisonment on top of the sentence received. If probation is granted, the mandatory minimum term is 36 months.
In addition to whatever sentence is ordered, the convicted child offender will often be ordered to a child abuse offender program and/or counseling and the court may also issue a criminal protective order protecting the victim from further acts of violence or threats, or possibly a residence exclusion or stay-away order. Consult a domestic violence defense lawyer in Orange County if you are seeking to avoid or mitigate these penalties.Penal Code section 368
This section protects those over 65 years of age from abuse. Elder abuse is fully discussed on this website under the section entitled "Elder Abuse Defense."