Under California law, Penal Code 13700, domestic violence entails committing abuse against a current or former intimate partner. You can be guilty of abuse if you recklessly and intentionally use or threaten to use physical power against your partner. A domestic partner may include your current or your past spouse, cohabitant, fiancé, the mother or father of your child or a person you have had a serious romantic relationship with in the past. Domestic violence is a serious criminal offense in California with adverse consequences. At the Orange County Criminal Lawyer, we handle all forms of domestic violence cases for both victims and defendants.
Domestic Violence Under California Law
Other than your intimate partner, the California Family Code has additional persons who may encounter domestic violence. They include persons related to the defendant by blood or by marriage (affinity) including the defendant's child or children, siblings, stepbrothers and stepsisters, grandparents, and aunties among other relatives.
Under California law, domestic violence is a wobbler offense meaning it can be either a misdemeanor offense or a felony offense. Whether a domestic violence offense is a felony or a misdemeanor depends on several factors, including the nature of the violence, the injuries sustained by the victim, and the credit history of the defendant.
Common Types of Domestic Violence
California law outlines a wide range of domestic violence crimes. It is important to note that violence is not limited to the infliction of physical harm. Domestic violence may also be emotional, comprising of acts such as threats and emotional harassment. The most common forms of domestic violence include:
You can be guilty of domestic violence under California Penal Code 273.5 for inflicting corporal injury resulting in even the slightest injury on your partner. Corporal injury on an intimate partner is a felony offense. The applicable consequences include imprisonment in a county jail for a period of 1 year to 4 years.
Reasonable spankings are allowable by the law; however, any cruel punishment or punishment that inflicts injury on a child is a form of child abuse. The California Penal Code 273 d defines child abuse as willfully inflicting cruel or corporal punishment or an injury that leads to traumatic conditions on a minor under the age of 18 years. Corporal punishment is physical infliction of bodily harm. As outlined by California law, a traumatic condition refers to a minor or serious bodily injury, which results from the application of physical force on a minor below the age of 18 years. To be guilty of child abuse, you must have inflicted bodily harm willfully. If you hurt a child by accident, you cannot face child abuse charges.
Some of the actions that qualify as child abuse in California include hitting, kicking, punching, pushing, burning, or choking a child, among others. It is also unlawful to throw objects at a child or to throw a child.
In some instances, spanking a child may not be a form of abuse as long as the court establishes that you spanked the child for disciplinary purposes. You are not guilty of child abuse if the spanking is not excessive. The standards apply to both spankings using an object or using a bare hand.
If you have prior acts of child abuse, you may face some additional charges for repeating the offense. The California general rule of evidence is against the use of prior convictions to convict a defendant. However, cases involving minors are an exception. Prior convictions of child abuse may be considered to prove that you tend to abuse children.
An offense under Penal Code 273d PC is either a misdemeanor or a felony, and the applicable charges depend on the defendant's criminal history and the nature of the offense. In most instances, a first child abuse offense is a misdemeanor. However, a first offense may be a felony if the abuse was cruel, the child suffered serious injuries, or the defendant is a repeat child abuser.
If you willfully expose a minor to suffering, pain, or danger, you may be guilty of child endangerment under the California Penal Code 273a. Most people confuse the California Penal Code 273a with the Penal Code 273 d that entails child abuse. However, child abuse law punishes people who inflict harm on a child while the law regarding child endangerment punishes the exposure of a child to harm or to suffer even if the child does not suffer actual pain or suffering.
You may face child endangerment charges for willfully causing or permitting a child to undergo an undeserved physical pain or mental suffering. You may also face charges for willfully allowing a child to suffer injury or allowing a child to face a dangerous situation.
You may commit a child endangerment offense without even realizing it. For example, you may face charges for allowing a child to access a dangerous weapon that may harm him or her. You may also face charges for failing to seek the necessary medical care for an ailing child. You may face child endangerment charges for leaving a minor with a violent babysitter who may inflict harm on the minor. It is also unlawful to tattoo a minor as stated by the California Penal Code 653.
If your behavior did not expose the child to great bodily harm or death, you might face misdemeanor charges. Under Penal Code 273a, consequences for a misdemeanor offense include up to six months in a county and a fine of up to $1,000. Consequences may also comprise of misdemeanor probation with conditions such as protective order preventing the defendant from going close to the victim of domestic violence. You may also have to undergo a one-year court-approved child abusers' treatment and counseling program.
If you were under the influence of drugs or alcohol at the time you committed the child endangerment offense, you might face additional charges. The court may require you to abstain from alcohol and drugs while on probation, and you may be subject to random drug testing. If you comply with all the terms of probation in the first one or two years of probation, you may earn an early termination of probation by the court.
For a felony offense under California Penal Code 273a, the applicable penalties may include a longer imprisonment period of either two, 4, or 6 years. Additional consequences may include hefty fines of up to $10,000. Instead of jail time, the judge may sentence you for up to four years of felony probation.
Under the California Three Strikes Law, a felony offense under Penal Code 273a may cause you a strike on your criminal record, especially if a child suffers great bodily injury or death. If you reach up to three strikes on your record, you may earn up to 25 years or life imprisonment.
Physical abuse or inflicting unjustifiable pain or suffering on a person above the age of 65 years may make you guilty of elder abuse under the California Penal Code 368 PC. Emotional abuse also qualifies as abuse, especially if you ridicule or isolate an older adult. Financial abuse or penalty against an adult is also punishable by the law. It is illegal to neglect or endanger an adult by placing him/her in a situation that endangers his/her health and wellbeing.
Some of the specific examples of elder abuse, including sexual molestation of an elder, denying an ailing elder his/her medication, or taking an elder's money without their permission. Abuse of an elder is either a misdemeanor or felony offense depending on the circumstances surrounding the offense.
For a misdemeanor elder abuse conviction under California Penal Code 368 PC, the court may subject you to summary probation. Other consequences may include imprisonment of up to one year in county jail. You may pay fines of up to $6,000 for a first elder abuse offense; for a second or subsequent offense, you may pay a fine of up to $10,000. Other consequences include restitution of the victim and mandatory counseling programs.
For a felony elder abuse offense, you may spend between two and four years in state prison. If the victim of abuse suffers great bodily injury or dies, you may have some additional three to seven years of imprisonment. Under the California Three Strikes Law, abusing an elder may earn you a strike on your criminal record. If you get three strikes on your criminal record, you spend up to 25 years in prison. Additional consequences may include fines of up to $10,000, formal probation, and restitution of the victim.
Child Neglect and Failure to Provide Care
Under the California Penal Code 270 PC, child neglect and failing to provide care is a crime under domestic violence. As a parent of a minor child, if you purposely fail to offer basic needs such as food, clothing, medical care, and shelter among other need to a child, you may be guilty of child neglect. The law does not only apply to biological parents of a child but may also include adoptive parents and foster parents.
Child neglect is a misdemeanor and may be punishable by imprisonment not exceeding one year in county jail and fines of up to $2000 or both imprisonment and fines.
It is important to note that the California Penal Code 270 PC applies to unborn children as well. An unborn child's parents must provide for all the needs of their unborn child.
Under California Penal Code 601, the crime of aggravated trespass is common under domestic violence. You may be guilty of aggravated trespass if you threaten your intimate partner or family member and then access the individual’s home or place of work to execute the threat. Aggravated trespass is a wobbler offense and may attract misdemeanor or felony charges.
Damaging a Telephone Line
It is illegal to cut or damage a telephone line as outlined by the California Penal Code 591. For example, a domestic abuser may damage a telephone line to prevent the victim of domestic violence from calling for help.
For example, when beating his wife, Michael's wife grabs the phone and attempts to call 911. Michael forcefully takes the phone from his wife and throws it on the floor, breaking it into pieces. On top of being guilty of domestic violence, Michael may face additional charges under Penal Code 591 for damaging a telephone line.
Under the California Penal Code 647(j) (4) you may be guilty of revenge porn offense if you distribute sexual photos or videos of an ex-lover or an ex-spouse on the internet with an intentional of inflicting emotional distress on the person. Revenge porn is a relatively new crime but one that is becoming very popular as a form of cyber harassment.
You are guilty under Penal Code 647(j)(4) as long as you post sexual photos or videos of your current or former intimate partner on the internet without their consent. As long as the victim suffers emotional distress due to your actions of exposing their private sexual photos, you are guilty of revenge porn. Most people indulge in revenge porn after a relationship or a marriage turns sour.
Posting Harmful Information on the Internet
Under the California Penal Code 653.2 PC, it is illegal to post or email harmful information about a person on the internet with the intention of influencing other people, inciting them to inflict harm on the person. For example, after breaking up with his girlfriend, Peter posts a photo of her on the internet and mentions the places she usually visits. He then concludes by outlining how the girlfriend hurt him and that anyone who sees her, should teach her a lesson. Peter may be guilty under Penal Code 647(j)(4) as his post may cause people to inflict harm on his former girlfriend.
The crime of posting harmful information on the internet also goes by the name of indirect electronic harassment. For this offense, you may face imprisonment of up to one year in county jail and a fine of up to $1,000.
Under the California Penal Code 422, you may be guilty of a criminal threat if you threaten to harm or kill another person making the person suffer fear and worry about his/her safety and the safety of his/her immediate family. To be guilty of criminal threats offense, your threat must have been specific; you may have communicated the threat verbally, in writing, or electronically. As long as you issue a threat, you may be guilty even if you are not capable of carrying out the threat, and even if you do not intend to execute the threat.
Examples of criminal threats may include threatening to kill your intimate partner while holding a weapon. After breaking up with your intimate partner, you may threaten him/her to watch their back; this may qualify as a threat even if you do not intend to harm your ex-lover.
Even after making a threat, you may fight criminal threat charges if the threat was not specific but vague. You may also argue that the recipient of the threat could not possibly have feared for his safety or the safety of his/her loved ones after receiving the threat. You may also fight threat charges if you made a threatening gesture but did not communicate the threat verbally, either electronically, or in writing.
A criminal threat is a wobbler offense that may attract misdemeanor or felony charges depending on the circumstances of the case and the criminal history of the defendant. A misdemeanor may attract up to one year in a county jail while a felony charge may attract up to three years in state prison and fines of up to $10,000. You may face an additional one year in state prison if you use a deadly weapon to communicate your threat. The penalties apply to every threat you make. For example, you make threats against different people on different occasions and under different objectives; you will face separate charges for each separate offense.
A felony charge of criminal threats earns you a strike under the California Three Strikes Law. You may face a double sentence if you have a prior strike on your criminal record. If you get a third strike, you may have to serve a mandatory sentence of 25 years.
A criminal threat is a crime of moral turpitude; moral turpitude offenses are offensive and detestable by other people. The conviction may affect your professional licenses and subject you to professional disciplining. Legal immigrants and aliens may face deportation after a criminal threat conviction.
If you repeatedly follow, harass, or threaten your current or former intimate partner or another member of your family making them fear for their safety, you may be guilty of stalking under California Penal Code 646.9. Some examples of stalking may include repeatedly sending messages to your ex-lover threatening to make their life a living hell. You may also be guilty of stalking if you keep sending flowers to an acquaintance or an ex-lover threatening them to go out on a date with you. Stalking may also entail following a person in whom you have a romantic interest.
Studies indicate that strangers rarely stalk people. Instead, ex-lovers, spouses, and former romantic partners stalk the majority of people. Most victims of stalking are female, and only around 20% of victims are male.
Other than following a person, stalking may involve gathering information about a person. For instance, you may be guilty of stalking if you gather a person's information from various sources, including family and friends, running online searches, and accessing public records. Stalking may also entail sending unwanted gifts to your partner. Repeatedly visiting a person's residence and or repeatedly driving past their premises may qualify as stalking.
Stalking is a wobbler offense under California law. If you defy a court issue protective order and you stalk your current or former intimate partner, you may face felony-stalking charges. You may also attract felony charges if you face repeat stalking charges.
Aggravating factors in stalking cases may increase your penalties. For instance, you may receive an additional and consecutive three to five years imprisonment if your stalking offense inflicts great bodily injury on the victim. You may also face extra charges if you were armed at the time of committing the stalking offense.
Common Legal Defenses for Domestic Violence
If you are facing domestic violence charges, you do not have to agree to all the accusations against you. With the help of a lawyer, you can challenge the prosecutor by coming up with legal defenses. How can you legally defend yourself against a domestic violence offense?
- You may argue that you did not intentionally inflict injury on the victim, but the victim suffered injuries by an accident
- You may also state that you were acting in self-defense or you were defending another person as you believed that you or another person was in danger
- You may also outline that you were falsely accused. False accusations of domestic violence are very common, especially where one partner is seeking a favorable outcome in a child custody case or a divorce case.
- Your lawyer may help negotiate for a plea bargain. For instance, you may have your domestic violence charges reduced to criminal trespass under Penal Code 602 or disturbing the peace under Penal Code 415. A plea bargain is beneficial as you may avoid the harsh penalties that accompany domestic violence charges including losing the right to possess a gun, losing your child custody rights, and risk of deportation if you are a non-citizen. The plea bargain also helps you escape the stigma that surrounds domestic violence offenses.
- Your lawyer may also fight for a DEJ (deferred entry of judgment) or a pre-trial diversion. In the case of pre-trial diversion, after you complete a batterers program as required by the law, the court may dismiss your domestic violence charges. However, not every defendant qualifies for pre-trial diversion. Qualification for pre-trial diversion may depend on several factors such as the specific domestic violence charges and the criminal history of the defendant, among other factors.
Contact an Orange County Criminal Lawyer Near Me
Domestic violence charges have detrimental consequences including imprisonment, loss of child custody rights, inability to own a gun, restitution to the victim, and the possibility of deportation if the defendant is a non-citizen. If you are facing domestic violence charges, the Orange County Criminal Lawyer can help you develop a good defense strategy to have your charges reduced or dismissed altogether. Contact us at 714-262-4833 and speak to one of our lawyers!