Articles Posted in Domestic Violence

A City Attorney Hearing is a good option to help dismiss potential charges against a person who is being charged with Domestic Violence. When a person has been arrested for having potentially committed a criminal offense, it is only an arrest, they have not yet been convicted or formally charged. The arresting officer will prepare a report on the arrest and the probable cause under which he arrested the person. Prosecutors will then review the report and determine if there is adequate evidence to take the matter to court and file formal charges. This is where a City Attorney Hearing can be very beneficial to a person being charged with Domestic Violence.

A City Attorney hearing is a hearing in which a person who may be charged appears at the prosecutors office to discuss the potential charges. Oftentimes the facts are unclear, or there is more information that needs to be sought for a prosecutor to make a determination on charges .Both the person potentially being charged and the victim will appear before the Prosecutor and will tell their side of the story. This will allow the Prosecutor to gather more information to help aid in making a determination of whether domestic violence charges should be filed.

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A person can be charged under California Penal Code §273.5 a person can be charged with domestic violence. Domestic violence is defined as when a person “who willfully inflicts corporal injury resulting in a traumatic condition”. The action must be taken against the offender’s spouse or former spouse, cohabitant or former cohabitant, fiancé or fiancée, or someone the person has an engagement with or is or was dating.

There has to be a relationship between the two people otherwise, it is not considered domestic violence. It used to be that a person who alleged domestic violence would file charges, and then if chose to do so, could withdraw their allegations. However, once domestic violence is suspected, or a person has been arrested, you cannot chose to withdraw charges. Only the District Attorney, or City Attorney’s office can dismiss the charges.

Therefore, it is important to consult with a Los Angeles Criminal Defense attorney is you have been charged with domestic violence. There are available defenses and it is important to discuss all possible arguments available to you. Furthermore, a conviction of domestic violence can have significant consequences to a dissolution or family law case, and can also have an impact on an immigration case. A person who is found guilty of domestic violence can be facing up to four years in prison, or up to one year in county jail. In addition, they can face a fine up to six thousand dollars, or both a fine and imprisonment.

California Penal Code §273.5 makes it unlawful to inflict corporal bodily injury against someone with which the offender has a familial relationship with the alleged victim. Unlike domestic violence battery, an injury has to occur for a person to be charged under California Penal Code §273.5. If there has been no injury, simple the use of force of violence, the charge would be under California Penal Code § 243 (e)(1).

Under California Penal code §273.5, any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim with whom they have a relationship as defined in this code section shall be guilty of a felony.

The key under this code section is that the person must willfully, have inflicted an actual injury on the alleged victim for it to qualify as domestic violence. In addition, the person being charged with the offense and the victim must have one of the following relationships:

A criminal case is heard in criminal court before a criminal Judge. A family law case is heard before a civil judge in family law or civil court. However, the two may still have significant effects on each other. Family code §4320 (m) gives family law Judges the authority to consider any domestic violence and related cases as a factor in determining spousal support.

A party may lose their right to spousal support if the Judge believes there has been domestic violence. There must be documented domestic violence, not just an accusation. In many cases, the judge may also consider arrests. It does not have to be a conviction.

Let’s consider an example. Let’s say that Harry has been arrested and charged under California Penal Code §273.5, Corporal injury on a spouse. Harry and his wife, Wendy got into a fight with one night and Harry pushed Wendy. Wendy ended up falling on the floor and hurting herself. She called the cops and the result was that cops came and arrested Harry charging him with domestic violence. Harry appears before a criminal judge and accepts a plea bargain. He pleads guilty to a disturbing the peace and the charges of domestic violence are dropped against him.

One of the strongest pieces of evidence used in Domestic Violence cases is personal testimony. When a person who witnesses the whole incident, or even the victim chooses to testify, it makes the case a lot stronger. Other evidence such as a declaration, or police report may also be presented as evidence but when a person testifies as to the incident and actions of the accused, it gives the case more support.

Despite it being excellent evidence, the common problem in illicit testimony is the unavailable witness. A witness is considered unavailable when they refuse to testify. The are several reasons that will cause a witness to deny testifying.

A witness will not testify if they can assert a privilege. This means that because of law, and to protects a person’s interests, there are certain kinds of communications that are privileged. Much of the conversations between attorneys and their clients are privileged and will be held in confidence, as are communications between a Therapist and their patient. Additionally, a spouse will not be asked to testify against their own spouse because of spousal privilege. This is a common obstacle in domestic violence cases. A spouse cannot be made to testify against their spouse, to protect the sanctity and privacy of marriage. For example, Husband hits Wife and wife has filed charges against her husband. She cannot be made to take the stand when the case is being heard and give testimony against the husband, unless she chooses to do so. It is her right to waive the privilege and testify.

Domestic violence charges under the California Penal Code are generally wobblers. Wobblers are statutes that do not define whether a certain charge will be a felony of a misdemeanor, instead the District or City attorney may charge it as they see fit based on the specific facts of the case.

The domestic violence laws did not used to be as strict as they are currently. Over time the Courts have taken a much harsher stance on potential consequences starting the O.J. Simpson trial in 1995. After the trial involved spouse on spouse injury, the Courts took a firmer perspective on the concept of domestic violence.

The most minor injury may now be charged as misdemeanor or possibly even a felony to demonstrate that the Courts are taking a no nonsense approach to domestic violence charges. The relationship that defines a domestic one under the applicable penal code statutes represents relationships of trust and intimacy. It is directed towards a person that is in a vulnerable position with the person being charged.

California Penal Code § 242 defines a Battery as a willful and unlawful use of force by one person against another. California Penal Code § 243(e)(1) adds certain situations in which the battery will be enhanced and will yield a harsher range of potential consequences.

One of the circumstances in which a battery charge would be enhanced is if it is against a person that section defines as a domestic relationship. A domestic battery includes a varying form of relationships, much more than domestic violence as it is defined under California Penal Code §273.5. The court’s take domestic relationships very seriously, as it is a relationship based on trust and vulnerability. When the person being charged is accused of injuring a person in which they share a domestic relationship, the court will consider the factors very carefully and if sentenced, it will be a higher penalty than battery under CPC §242.

One relationship the Court will hold as needing special protection is between spouses. The statute also includes a former spouse. The person must be the current spouse. The domestic battery statute, also includes a cohabitant. A cohabitant can be anyone a person is residing with. This could be a family member, a roommate or a friend. If injury is caused to a person that lives with the person being charged, it is likely it will be a domestic battery charge.

Many of our clients ask what the difference is between general crimes and domestic violence crimes. For example, why a case will be an assault, and why it in certain situations it will be a domestic violence charge. The courts take domestic violence charges very seriously because the injury or harm is coming from a person that they believe is someone they are close to, they trust, and in certain situations are vulnerable and intimate with.

When a corporal injury is caused against a person and it is deemed as domestic violence, it will be charged under California Penal Code §273.5. Under the relevant code section, there is a list of certain relationships that will determine whether a charge will be filed under domestic violence or otherwise.

The first is that the person being charged and the person injured are married. If your husband, or your wife is the one that causes injury, then it will be domestic violence. It can also be a former spouse, someone from whom you are currently separated, or who you have been divorced from.

On April 16, 2011 actor Nicholas Cage was arrested for a domestic violence and disturbing the peace charge in New Orleans. Cage was heavily intoxicated and got into an argument with his wife of six years in a tattoo parlor. The argument got violent and witnesses report that the actor pushed his wife several times. He continued the argument onto the street and refused to cooperate with officers on the scene. The officers were obliged to hand cuff him and charge him with disturbing the peace, as well as domestic abuse.

Domestic violence in California is usually charged under two sections of the Penal Code, §243 (e)(1) and §273.5. California Penal Code §243 (e)(1) charged battery against a spouse and §273.5 is corporal injury to a spouse. There is a valid domestic battery charge when a person inflicts force or violence on a partner. This partner can be a current, former or future spouse, someone a person lives with, the parent of their child, or even someone a person is dating. §273.5 is a more serious charge. It involves inflicting bodily injury on a partner, including the parent of a person’s child, current of former spouse, and someone with whom they have lived, or do live.

In order for Prosecution to establish a case under California Penal Code §273.5, they must prove that there was an infliction of bodily injury to a partner as described above, that there was a willful infliction of injury and it resulted in a traumatic condition. To establish a case for Domestic Battery, the Prosecution must prove that there was a willful infliction of force or violence upon a partner as described above. Domestic battery is the lesser offense for domestic violence. It is usually filed as a misdemeanor and a person can be convicted of domestic battery even if they did not physically injure their partner.

There are two types of charges involving a spouse in domestic violence. One is charged as a felony domestic violence and involves bodily injury resulting a traumatic condition (California Penal Code 273.5), and the other is a misdemeanor battery against a spouse (California Penal Code 243(e)(1)).

The final sentence for your case will fall along a spectrum that has been established by legislation. This range will differ based on the Penal Code section under which you have been charged, along with varying factors that comprise your background and the facts of your case. A person charged under California Penal Code 273.5, a felony, may be sentenced anywhere up to a year in county jail, 2 – 4 years in state prison and/or a fine of up to $6,000. In contrast, those charged under CPC 243(e)(1), a misdemeanor, may be charged with up to a year in prison and/or a fine not to exceed $2,000.

Potential consequences for your case will depend on several different factors. Prosecution will consider you criminal background, relationship history as well as the specific facts of your case before proposing a final sentence to the Judge. There is a great amount of subjectivity open to argument and debate. An experienced Los Angeles Criminal Defense attorney has developed a solid reputation among the prosecutors and Judges in Los Angeles. It is through this knowledge that they are able to prepare a influential argument that will ensure your final sentence falls along the lower end of the spectrum and helps you avoid serving and jail time!