Vista Domestic Violence Attorney
Domestic violence is a serious crime. In California, even a false allegation can get you arrested because to ensure all victims are protected, police generally assume the “victim” is telling the truth and take action against the “abuser.” They do this by nearly always arresting the person they believe to be the aggressor, even against the alleged victim’s wishes. Because these allegations so frequently result in charges, anyone accused of domestic violence should always contact an experienced Vista domestic violence lawyer as soon as possible.
About California’s Domestic Violence Law
Domestic abuse under California law occurs when one person harms someone they are involved in a romantic or sexual relationship with. While the law protects those living together in a romantic context, even if they have not had sexual intercourse, the law does not cover roommates. Additionally, the romantic or sexual involvement must be genuine and not involve financial gain, so a prostitute cannot be considered an intimate partner under the law. In other words, for someone to be the victim of domestic abuse in California, they must have suffered from the use of violence, threats of violence, stalking or vandalism (even of shared property) by:
- A spouse (either husband or wife)
- The other parent of their child
- A person they were romantically cohabiting (living) with
- A person they were romantically or sexually intimate with
- A former spouse, cohabitant, or another person they were formerly intimate with
While many people envision domestic violence as something a man does to a woman, it can also occur in same-sex relationships. Alternatively, in male/female relationships, the woman can be the abuser and the man can be the victim. If you have been accused of domestic violence by someone you did not have a sexual or intimate relationship with, please discuss the matter with your San Diego domestic violence lawyer, as this may serve as part of your defense in this crime.
During Domestic Violence Arrests
When San Diego police perform a domestic violence well check, they almost always make an arrest. When both parties seem at fault, the police will generally arrest the person whom they believe to be responsible for more of the violence. One thing that frequently surprises people is that police will often put both parties into custody because they believe both people may be guilty of domestic violence and they cannot determine who the aggressor was.
Charges are Often Filed Against the Victim’s Wishes
When someone is arrested for domestic violence, the District Attorney often files charges despite the victim saying they do not want to press charges. Sometimes, the DA still moves forward with the case even if the victim recants their statement. The District Attorney does not need to uncover other witnesses or evidence beyond what police officers recorded in their report during the arrest. Additionally, there do not need to be any substantial injuries, or even any injuries at all.
Is Domestic Violence Charged as a Felony?
It is up to the District Attorney to determine the severity of the charges you will face. When the DA chooses to file corporal injury against a spouse or cohabitant charges, they will also decide whether or not to file the charges as a misdemeanor or felony.
For felony charges, the maximum sentence is four years in prison, whereas a misdemeanor carries no more than a one year jail term. As a top San Diego domestic violence lawyer, I can often convince the prosecutor to file these charges as a misdemeanor rather than a felony. In some cases, I may be able to convince the District Attorney to drop the charges altogether based on the available evidence. In other cases, I may be able to have different charges you may be facing dropped as part of a plea bargain to ensure you serve the minimum sentence possible.
Other Consequences of Domestic Violence Convictions
Aside from fines and prison or jail time, your sentence will likely also include forced participation in mandatory counseling and community service in most cases. Furthermore, you may be issued a domestic violence restraining order to stay away from the victim and permanently lose your right to bear arms. A conviction will also affect your right to serve in the U.S . Military or as a police officer.
If the Victim Doesn’t Want to Press Charges, Will I be Released?
No. Unfortunately, prosecutors often press charges in these cases even if the victim does not want the case to move forward. Always speak with your defense lawyer as soon as you are involved in a domestic violence case —even if you know your partner won’t press charges. Do not speak to the victim on the phone, as this could violate your emergency stay-away order (aka restraining order) and leave you facing even more severe charges.
Domestic Violence Charges Filed in San Diego
Offenses in the “domestic violence” criminal law category include:
- Corporal injury to a spouse or inhabitant (California Penal Code section 273.5)
- Domestic battery (California Penal Code section243(e)(1))
- Making criminal threats
- Aggravated trespassing
- Violating restraining orders
- Domestic violence vandalism
- Threatening phone calls
- Damaging a phone line
Corporal Injury to a Spouse or Cohabitant
Corporal injury to a spouse or cohabitant is one of the two most commonly filed domestic violence charges in San Diego County. This charge occurs when someone injures their intimate partner, even if the injury is only minor. Acts that may fall under this offense include obvious violent behaviors such as kicking, punching and slapping, but can also include things such as throwing an object at someone or restraining someone in a way that causes injury. Corporal injury charges are either a misdemeanor or a felony.
Domestic Battery Charges
The other most commonly filed domestic violence charge in San Diego, domestic battery, is always a misdemeanor, making it a less severe charge than corporal injury. Domestic battery occurs when someone uses force or violence against their partner. If someone was emotionally abusive and threatened to act violently, prosecutors may also file this charge. The victim does not need to be injured.
Making Criminal Threats
Many people accused of hurting or threatening their partner are also charged with making criminal threats. This crime occurs when someone threatens to commit a crime likely to result in significant bodily injury or death and causes the victim to fear for their safety. Criminal threats can be either a misdemeanor or felony. As a felony, the offense is punishable by up to four years in prison and will result in a strike being added to your record.
Stalking Charges in California
Many people facing domestic violence charges are also brought up on stalking charges. Stalking occurs when someone harasses or threatens another person until the victim fears for their safety or the safety of their family. Stalking can be a misdemeanor or felony, and as a felony, it is punishable by up to three years in prison.
When someone takes stalking or criminal threats to another level and makes a criminal threat and then trespasses within 30 days into that person’s home or workplace with the intent to carry the threat out, they have committed aggravated trespass. This crime is punishable by up to three years in prison.
Restraining Order Violations
Suppose a victim already has a stay-away order when the aggressor commits domestic violence. In that case, the suspect may also be charged with violating a restraining order, a misdemeanor punishable by up to one year in jail. There are many defenses to violating a stay order, including doing so accidentally. If you have been accused of violating a restraining order, do not talk to the police until you have a domestic violence defense attorney present.
Vandalism and Domestic Violence
While it’s legal to destroy your own property when angry, damaging communal property, property of your intimate partner or any other person’s property is not legal and is considered vandalism. Even if the victim suffered no physical harm, prosecutors may file domestic battery charges if you damaged communal property. While domestic violence vandalism charges are similar to other vandalism charges, it’s worth noting that because they occur between domestic partners, there are mandatory penalties.
When the value of the damaged property is less than $400, the charge will be a misdemeanor, otherwise it may be filed as a felony or misdemeanor. The minimum penalties for misdemeanor domestic violence vandalism charges include a 3 year probationary period, fines, community service, a year-long batterer’s class, and a restraining order. Additionally, those convicted must pay restitution for the damages resulting from their actions. As a felony, this offense is punishable by up to three years imprisonment.
To secure a conviction for this charge, the prosecution must prove that the victim was at least a partial owner of the property and that you intentionally damaged it. If your domestic violence attorney can show you accidentally damaged your partner’s possessions or that the destroyed items were yours, you aren’t guilty of domestic violence vandalism.
Child Abuse or Endangerment
While not technically domestic violence because the victims are children and not intimate partners, child abuse and endangerment are charges regularly filed against those accused of domestic violence. In child abuse cases where the defendant has a prior domestic battery or corporal injury charge, prosecutors often use this fact as evidence that the defendant has a violent nature and is, therefore, guilty.
Child abuse can result in a prison sentence of up to three years, whereas child endangerment is usually a misdemeanor punishable by up to six months in jail. When child endangerment places the child at risk of substantial bodily injury, it may be a felony or misdemeanor. As a felony, it can carry a sentence of up to six years in prison. Always work with a top domestic violence attorney in San Diego County if you have been accused of harming your children or those of others, such as a spouse or girlfriend/boyfriend.
About Restraining Orders in San Diego
Criminal protective orders, sometimes referred to as a stay away or restraining order, are almost always a part of the domestic violence criminal process. Police typically issue an emergency stay-away order when they make an arrest, but this order only lasts 7 days. After that, it is up to the victim to file for a temporary Criminal Protective Order after that point. Sometimes, the court may even impose a criminal protective order against the victim’s wishes. If the victim does not appear to advocate against it at the arraignment, the court will automatically issue a restraining order on their behalf.
You cannot fight the temporary protective order because it is issued solely at the victim’s request, but this order only lasts 30 days. After that, you can challenge the longer-lasting stay-away order, commonly called a permanent restraining order, in a court hearing before it is issued.
Can I Go Home with a Restraining Order in Place?
When a stay-away order is issued, you will need to leave your home (assuming you and the alleged victim live together) for the duration of the order. However, the court will allow you to enter your home while supervised by law enforcement officials to retrieve your stuff. This is usually a one-time occurrence, and if there are any disputes as to who owns specific belongings, you will not be allowed to take them.
Can I See my Kids with a Restraining Order in Place?
When it comes to child custody and protective orders, this should be addressed in court when the original order is issued. In some cases, the order may include exceptions for you to have temporary contact with the protected party to allow for child visitation rights, but your attorney must address this at the hearing. If the restraining order does not explicitly permit you to see your children, you cannot violate it to do so.
Some of these cases turn into divorces or child custody battles, and custody issues must be settled in Family Court. A domestic violence conviction will prevent someone from gaining custody of their children.
How Can I Avoid Violating a Restraining Order?
Avoiding someone entirely can be tricky, even in a massive county like San Diego, especially if you live together in the same city. Fortunately, the court allows you to defend yourself if someone accuses you of violating a restraining order. Intent is an essential element of this crime, so if you accidentally showed up somewhere without knowing your ex was there, you are not guilty of violating the restraining order.
If your ex starts to contact you, you can still be charged with violating a restraining order if you reply or return to your home. If your ex contacts you, call your defense attorney to discuss bringing this information to the judge, as it might be enough to get the stay-away order lifted.
How Prosecutors Show Domestic Violence Occurred
Prosecutors use numerous tactics to convince the court that the defendant is guilty of abusing their intimate partner, even if the alleged victim later recants their story. A domestic violence defense lawyer must be familiar with these methods to effectively develop a strategy to counter the charges.
Sticking With the Victim’s Original Story
In many domestic violence cases, the victim will recant or change their statements from what they told the police. One tactic that prosecutors use in these situations is to claim the supposed victim revised their statement or testimony because of fear of the abuser or the consequences of a conviction.
Your attorney is responsible for finding reasons the original statements are not credible or corroborated by the facts. If the physical evidence doesn’t match the victim’s claims of injuries, the defense can argue the claim was made in haste or anger. The defense can often argue that a disgruntled partner called the police to gain leverage in child custody or divorce proceedings. Prosecutors are aware of this and are receptive to evidence that the victim is using a criminal case to gain the upper hand in a family law proceeding. A defense investigation may also reveal the bias or motive of the victim to fabricate a claim of domestic violence.
Claiming the Defendant is Lying
At the same time that the prosecutor will try to play up the truth in the alleged victim’s story, one of the main tactics prosecutors use is to try to show that the defendant’s side of the story is 100% false. This process will start long before the DA even takes over a case and will begin when the police first interview you to get your side of the story. Any inconsistency in what you say will be used as evidence that you are lying.
It is rarely advisable for a suspect or defendant to talk directly to the police, victim or prosecutor about the case. A lawyer can explain your side and show extenuating circumstances without requiring you to make statements that can be turned around and used against you. In many cases, officers frame their questioning so that they are not required to provide a Miranda warning, which results in the suspect saying more than they would otherwise. With or without a Miranda warning, you should avoid talking to the police, who have many tactics to get suspects to confess.
Showing the Defendant is a Violent Person
The prosecution will often try to prove that you are a violent person at heart and use any information at their disposal to do so. They may use any past violent crime convictions against you or introduce witnesses to testify that you have a temper. Your attorney should counter this by blocking the introduction of evidence when appropriate and providing proof that you are a level-headed, non-violent person, or at the very least, that you are not the type of person that would hurt your partner.
Neglecting to Investigate the Victim
The prosecutor must provide any relevant criminal history of the victim. However, they have no obligation to investigate the character and credibility of the victim independently. Your lawyer must dig beyond the criminal record to see if the victim has a history of false accusations or violent acts which didn’t result in arrests. If the victim has a history of lying or violent behaviors, this can show the prosecutor and, if necessary, a jury that the victim isn’t as innocent as they claim.
Presenting Recordings of Your Phone Calls
Anything you say while in custody is recorded, so if you talk to a friend or family member about your case, the prosecutor could use your words against you —or even accuse you of trying to dissuade a witness. It is highly advisable to avoid saying anything about the case over the phone while in custody, no matter how tempting it may be to vent about the situation.
If a restraining order was in place, the district attorney may also file charges against you if you contact the alleged victim, even if you are trying to make up with them. And just like when talking to a friend or family member, they may use anything you say to the alleged victim as evidence against you later. Your lawyer will usually try to help you fight a restraining order if possible, but even without such an order, you are best off not speaking with the victim over the phone.
Common Defenses Against Domestic Violence in California
There are many different defenses to these allegations. It is up to you and your Vista domestic violence defense lawyer to determine the right course of action for your case based on the specific facts and laws involved in your situation.
Lack of Evidence
Anyone can accuse someone of beating them, but there is no case without proof, especially if you have evidence proving your side of the story, such as an alibi that places you somewhere else when the incident allegedly happened. Like anyone on trial, a domestic abuse suspect cannot be found guilty unless the prosecution can prove they committed the crime. In some cases, evidence is so thin the case will not even be brought to trial.
Like rape charges, domestic violence accusations can often come down to the victim making one claim while the suspect says something different -and just like rape charges, this is sometimes because the alleged victim is making false accusations. When it comes to cases involving spousal abuse, these false claims often arise during divorces when one person believes it will be beneficial to say the other physically abused them. If the alleged victim has a proven history of making false accusations, this can be one of the most effective defenses against domestic violence.
In many domestic abuse situations, both parties were violent, and if one acted in self defense, they cannot be convicted of committing domestic abuse. When properly used, self defense is a complete defense against domestic violence allegations.
Evidence that can back up a self defense claim can include photographs and medical records showing your injuries from the incident, or the fact that you were arrested though you called the police in the first place.
The Activity was Consensual
Sometimes people agree to violent acts for sexual or other reasons. If your lawyer can prove that your partner willingly consented to physical harm, this is an excellent defense against domestic violence. This defense can be a bit risky in many cases, as few juries will believe a victim “asked for it,” but if you have an agreement on video or a contract between the two of you, you may be able to invoke this defense successfully.