If you have been arrested for a domestic violence offense - typically, a felony charge - you absolutely, positively need an attorney who knows the law, who will pursue justice in your case, and who can and will protect your liberty interests in a court of law.  At the MAYO LAW CLINIC we vigorously defend individuals who have been arrested and charged with domestic violence.   CALL US AT (530) 898-8468 TO SCHEDULE YOUR FREE CONSULTATION!

ABOUT DOMESTIC VIOLENCE

California's domestic violence law provides that any person who willfully inflicts upon another 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, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.  Thus, and notwithstanding the felony language of Penal Code (PC) §273.5, a domestic violence charge may be charged as either a felony or a misdemeanor (i.e., it can be what is referred to as a "wobbler"). Since the mid-80s, arrests for domestic violence have risen dramatically in California.  The latest report from the California Attorneys General Office reveals that in 1998, there were some 57,000 felony arrests for domestic violence throughout the State. (See AG's Report on Arrests For Domestic Violence, 1998).  Further, formal marriage is not necessary in order to be charged with this crime, merely living (or formerly living) with another person is all that is required. Lastly, the term traumatic condition means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force. In other words, a mere scratch on your spouse or domestic partner will suffice if the police are intent on arresting you for domestic violence.

In People v. Beasley (2003) 105 CA4th 1078; 130 CR2d 717 (modified on March 3, 2003 with no change in judgment), the Court of Appeals stated, "Penal Code section 273.5, subdivision (a) prohibits inflicting “corporal injury resulting in a traumatic condition” upon on a cohabitant.  PC §273.5(c) defines “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.”  Here, the Court reversed certain of the counts on which defendant stood convicted on the basis that the evidence failed to establish the existence of a "traumatic condition" of the alleged victim.  In this instance, the Court found that there was no evidence of any "brusing" of the victim, hence, no "traumatic condition" was proved.  The Court also struck down the defendant's convictions on several misdemeanor counts based upon the lapse of the one year statute of limitations.

In People v. Salinas* (2003) 106 CA4th 993; 131 CR2d 313 (Order Modifying Opinion March 18, 2003), the Court of Appeals for the 5th District concluded that testimony from an expert witness on battered women's sydrome (BWS) was both relevant and admissible per Evidence Code §1107 (the Expert Witness Testimony on Battered Women's Experiences Section) in a case involving a felony domestic violence charge (PC §273.5(a)) where the victim's testimony at trial was such that it recanted her earlier version of the incident to the police.  That is, BWS testimony was admitted to explain why the victim supposedly recanted her initial report of the incident.   The Court went on to hold that in order for this EC §1107 evidence to come in, the prosecution need not show as a prerequisite that the victim suffered from prior abuse by the defendant.  Thus, in this respect (admissibility of BWS expert testimony w/o a showing of prior abuse of the victim), People v. Salinas, supra, agrees with People v. Williams (2000) 78 CA4th 1118, 93 CR2d 356 and People v. Gadlin (2000) 78 CA4th 587; 92 CR2d 890.  In contrast, however, is People v. Gomez (1999) 72 CA4th 405, 85 CR2d 101, which holds that in order to be relevant and, therefore, admissible at trial, the prosecution need first show that the victim suffered from prior abuse by the defendant.  The Gomez Court relied on the Supreme Court's earlier decision in People v. Humphrey (1996) 13 C4th 1073, 1083-1084 in terms of defining BWS as "a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives."  Editor's Note:  People v. Gomes, supra, involved a three-strikes case which may have tipped the scales in terms of admissibility, since the defendant was sentenced to 25 years to life after his PC §273.5(a) conviction.  Also, in People v. Brown* (2003) (an unpublished opinion by the Second District Court of Appeals - thus, not citable), the Court held that EC §1107 as authorizing the admission of expert testimony on BWS based on a single incident of domestic violence without evidence of other abuse, provided that the testimony is relevant.  According to the Brown Court, EC §1107(a) provides that admissible expert testimony includes "the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence . . . ."  The statute draws no distinction between victims of a single incident of domestic violence and victims of multiple incidents.  The Court held that the BWS expert testimony was "relevant" to explain the victim's subsequent recantation.  On April 9, 2003, the California Supreme Court granted review of People v. Brown, supra, so as to resolve the conflict between the Courts of Appeal on this issue.  On May 21, 2003, the California Supreme Court granted review of People v. Salinas, supra, and held its decision pending its opinion in People v. Brown.

In People v. Hawkins (2003) (5/6/03; 03 C.D.O.S. 3860; ___ CA4th ___), the Court of Appeals held that PC §2933.1 imposes a 15% limitation on the accrual of presentence and worktime credits for those convicted of a crime that is defined as a violent felony in PC §667.5.  Section PC §667.5(c)(8) defines as a violent felony "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in PC §12022.7 . . . ." Here, we conclude that battery with serious bodily injury (PC §243(d)) cannot qualify as a violent felony under subdivision (c)(8) of §667.5, unless the crime was committed under circumstances involving domestic violence.  That is, battery with great bodily injury (GBI) cannot qualify as a violent felony under subdivision (c)(8) of §667.5, unless the crime was committed under circumstances involving domestic violence.  Although other courts have recognized that battery with serious bodily injury is not classified as a violent felony under §667.5(c) (see, e.g., In re Jensen (2001) 92 CA4th 262, 268; People v. Brucker (1983) 148 CA3d 230, 242-243), none has expressly decided whether it may qualify under subdivision (c)(8)'s "catch-all" provision.  In order to answer this question, ". . . we must ascertain the intent of the Legislature so as to effectuate the purpose of the law."   The enhancement may be applied, however, if the crime is committed under circumstances involving domestic violence. (PC 12022.7, former subd. (e), now subds. (e), (g).)  Because the "great bodily injury" contemplated by §12022.7 is substantially the same as the "serious bodily injury" element of PC §243(d) (see, e.g., People v. Beltran (2000) 82 CA4th 693, 696), the §12022.7 enhancement cannot be applied to the crime of battery with serious bodily injury unless it involves domestic violence.  Editor's Note:  The Hawkins Court took exception to the holding in In Re Jose H. (2000) 77 CA4th 1090, where the appellate court affirmed the denial of a motion to strike a §12022.7 enhancement imposed in conjunction with a violation of PC §243(d).  The court accepted the People's justification that the enhancement had been charged "'. . . to qualify and perfect the offense for treatment as a "strike" in the future, . . .'" and noted that the enhancement had not been applied to extend the minor's sentence. (Id. at p. 1096.)  We respectfully disagree with this conclusion.

A misdemeanor conviction with a grant of probation can result in a 3-year informal probationary status, up to one year in county jail, or a fine of up to $6,000, or both fine and jail. Instead of a court fine, the court can order payments be made to a battered women's shelter. PC §1203.097 provides for certain mandatory conditions of probation, including a $200 payment, completion of a batterers treatment counseling program (minimum 1 year program), performance of community service, possible participation in a chemical dependency program (drug counseling and testing), booking in jail within one week of sentencing if not already booked, notice to the victim of the disposition of the case, and the issuance of a criminal court protective order prohibiting further violent acts, threats, stalking, etc., and, if appropriate, a possible stay-away order. With the issuance of a court protective or restraining order, PC §12021 prohibits the possession or ownership of a firearm by the defendant for ten (10) years after conviction. Thus, a term of probation would typically call for immediate gun and ammunition divestiture.

The law provides for enhanced penalties if one has a prior domestic violence conviction. Therefore, any person convicted of violating PC §273.5 within seven (7) years of a previous conviction can be punished by imprisonment in a county jail for not more than one year, (another misdemeanor) or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000), a felony charge. If probation (informal or formal) is granted in a case involving a second conviction within seven (7) years, save and except for good cause, the minimum sentence a person can receive is fifteen (15) days in county jail, plus the payment of fines and assessments, and added counseling. If probation is granted (informal or formal) in a case involving a third conviction within seven (7) years, save and except for good cause, the minimum sentence a person can receive is sixty (60) days in county jail, plus the payment of fines and assessments, and added counseling. A defendant can also be ordered to make payment to a battered women's shelter (up to $5,000.00) as well as restitution to the victim and ordered to perform a certain amount of community service. Of added concern to many is the fact that a domestic violence conviction, a felony, or even a domestic violence related court restraining order, precludes an individual from owning or possessing a gun or ammunition. The State weapons restriction law became effective July 1, 2002. In fact, since October has been dubbed Domestic Violence Awareness month, the California Attorney General recently kicked off a program branded Armed and Prohibited whereby the AG's office, using court records (computer records), coupled with the federal ATF Bureau, have made it a priority to go out and apprehended persons identified as a public threat or a dangerous person who have either a domestic violence conviction and/or a domestic violence related court restraining order against them. Because of the domestic violence conviction or the related court restraining order, these same people are not permitted to either possess or own a gun or any ammunition for a gun. Of course, apprehension and arrest on a weapons charge by the police causes the filing of separate felony charges (either state and/or federal) which, in turn, no doubt triggers a separate probation violation charge for the arrested individual and, thus, the whole court cycle simply starts all over again, however, this time it is much amplified from the original domestic violence charge. The California Attorney General has reported that some forty percent (40%) of these so-called Armed and Prohibited arrests were for persons with a domestic violence conviction and/or a domestic violence related court restraining order.

An alternative to a domestic violence charge can be a courts own informal diversion program. Although some courts frown on this practice, nevertheless, it is a reality for those who are charged with minor (misdemeanor) domestic violence charges. Typically, a party must agree not to re-offend over a period of time, and may be ordered to batterers counseling in the meanwhile. Again, county courts may and do vary on these informal programs, but they do still exist even in light of the California Legislature repealing of the domestic violence diversion law under PC §1000.6 as of January 1, 1996.

As a further alternative to defending a misdemeanor domestic violence charge, may be by way of entering into a civil compromise per PC §1377.  The civil compromise law provides that when the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised.  There are exceptions to civil compromises, particularly, when the charge is in violation of any court order as described in PC §273.6 or §273.65 (violating a court protective order).  There may be some other concerns about reaching a civil compromise, including, but not limited to the fact that the prosecution may oppose such a resolution.  Also, even if a civil compromise was possible, accepting it is always discretionary with the trial court.

RELATED CHARGES - TERRORIST (CRIMINAL) THREATS

Not every domestic violence situation ends up with PC §273.5 charges being filed against the defendant.  In People v. Toledo (2001) 26 C4th 221; 26 P.3d 1051; 109 CR2d 315, the defendant got into a domestic dispute with his wife and INTO an ensuing argument with a neighbor.   The defendant threatened to kill his wife.  He again threatened to kill his wife with a pair of scissors he was holding.  The defendant then made more threats and ultimately threw an iron at his wife and at the neighbor.  The defendant's wife testified that she was not afraid of his threats.  The California Supreme Court held that (1) there was a crime of "attempted criminal threat" in California, defined through the interplay of PC §422 and the statutory provisions relating to attempts - PC §§664 and 21a; and (2) the crime of attempted criminal threat was not constitutionally overbroad on its face or unconstitutional as applied, since it applied only to unprotected speech.  Editor's Note:  Criminal threats (formerly known as "Terrorist Threats") has got to be the most ridiculous law on the books.  The Toledo case also demonstrates how idiotic our California Supreme Court can be.  Here, the defendant admittedly got into an argument with his wife and made some regrettable remarks.  However, this is a domestic dispute, and wives and husbands regularly say nasty things to one another.  Yet, here, defendant ended up with an 11 year prison sentence for having essentially yelled at his wife and at a neighbor - another truly ridiculous waste of taxpayer money.

Civil Liability?  In Navarette v. Holland (2003) (5/22/03; 03 C.D.O.S. 4357; ___ CA 4th ___), the Court of Appeals held that where the plaintiff in the case had been acquitted of spousal abuse charges in a prior criminal proceeding, and then sued his former wife alleging she lied to sheriff's deputies about his conduct, the wife's report to law enforcement officers was absolutely privileged (Civ. Code, §47(b)), and thus the causes of action based on this allegation was barred as a matter of law.    In so concluding, the Court determined it's previous decision in Fenelon v. Superior Court (1990) 223 CA3d 1477 was no longer supported by applicable authority and, therefore, the Court declined to follow it.  The Court reasoned that §47(b) applies to statements made preliminary to, or in preparation for, either civil or criminal proceedings. (See Kashian v. Harriman (2002) 98 CA4th 892, 927; Wise v. Thrifty Payless, Inc. (2000) 83 CA4th 1296, 1303; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 CA4th 777, 781; Passman v. Torkan (1995) 34 CA4th 607, 616-619.)  Thus, the fact that a police report is not itself a judicial or quasi-judicial proceeding does not preclude the application of an absolute privilege.  Once a court concludes that a communication is made for the purpose of instituting a judicial proceeding, the communication is necessarily covered by §47(b)'s absolute privilege.

FEDERAL DOMESTIC VIOLENCE

While domestic violence charges are typically filed in state court, federal law (18 USC §2261) prohibits its own version of domestic violence in the case where interstate travel or foreign commerce are involved in completing the act. That interstate travel or foreign commerce may be undertaken by either the defendant or by the victim, if the defendant caused the victim to travel in interstate commerce or in foreign commerce by means of fraud, duress or coercion. Sentencing upon conviction of a federal domestic violence offense may be from life in prison (in the case of the death of another) to 20 years if permanent disfigurement or life threatening bodily injury to the victim results; and for not more than 10 years, if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense; and for not more than 5 years, in any other case.

Obviously, all domestic violence offenses, whether charged as a felony or as a misdemeanor, are serious accusations and can result in a substantial prison sentence. Therefore, if you have been arrested for a domestic violence offense, you absolutely, positively need an attorney who knows the law, who will pursue justice in your case, and who can and will protect your liberty interests in a court of law. As stated above, at the MAYO LAW CLINIC we vigorously defend individuals who have been arrested for domestic violence. CALL US AT (530) 898-8468 TO SCHEDULE YOUR FREE CONSULTATION!