Domestic Violence

As indicated above, domestic violence cases occur in two forms. The first form punishes crimes against an intimate partner, while the other seeks penalties for crimes that harm or cause actual injury to a child. Crimes that affect intimate relationships include domestic battery, corporal injury on a spouse, and criminal threats. Violence against children includes child abuse and child endangerment.

Domestic battery, as defined under Penal Code 243 (e) (1), is the deliberate touching of an intimate partner in an offensive or harmful way. The law further defines an intimate partner as:

• The defendant’s spouse, current or former,

• The defendant’s fiancé, current or former,

• The defendant’s cohabitant, current or former,

• The mother or father of the defendant’s child, or

• An individual with whom the defendant is in a romantic relationship.

You could be convicted of battery even if your actions did not result in physical harm or injury to the victim. All the prosecution needs to prove is that you willfully touched your intimate partner angrily or disrespectfully.

Domestic battery is a misdemeanor offense. You are looking at a jail term of up to one year, a fine to the tune of $2,000, and/or summary probation if convicted. In most cases, the summary probation is available as an alternative to serving a jail sentence. It is also referred to as a suspended sentence. The terms of the probation do vary and are as directed by the judge.

Defendants who get summary probation as punishment for the crime will be required to attend a batterer’s treatment program, which is a one-year program. The court can further impose a $5,000 fine in place of the $2,000 fine as part of the probation terms. The conditions also include footing the victim’s medical expenses. If you face spousal battery for the second or subsequent time, you may serve a jail term of forty-eight hours. The jail term is over and above the probation sentence imposed by the judge. These are the terms provided for under Penal Code 243 (e) (1).

Legal penalties for domestic battery extends to immigration matters. Non-citizens risk deportation for a domestic violence conviction. The deportation happens even if you were in the country legally.

According to Penal Code 273.5, corporal injury on an intimate partner or a spouse will have occurred in the following scenarios:

• If the defendant willfully causes harm on an intimate partner, current or former. From this, all the prosecution needs to prove is that the defendant caused the victim injury whether or not it was

• The physical injury causes a traumatic condition. In pointing out a traumatic condition, the prosecution will point out to injury. However, the degree of injury is not in question. What matters is its existence. Code 273.5 PC further details corporal injury to include the following: a broken bone, sprain, bruise, internal bleeding, concussion, and suffocation and strangulation injuries. Also, the prosecution needs to prove that the bodily injury caused the traumatic condition.

Corporal injury on an intimate partner or a spouse is prosecutable either as a felony or as a misdemeanor. Discretion on which charges to pursue is upon the prosecution. Your criminal history and the facts in your case add to what charges the prosecutors will prefer. However, if the injuries inflicted on your spouse or intimate partner are grave, you are likely to face felony charges. The same penalties hold if there is a history of domestic violence complaints. Any other circumstance other than the above mentioned will be treated as a misdemeanor matter.

Misdemeanors are punishable with a fine of $6,000 and/or a jail sentence of up to one year. Summary probation is available as an alternative to the jail term if so directed by the presiding judge. You will be required to serve the probation terms within a period of one to three years. The judge may direct that you serve specified hours in community service, attend counseling, or pay restitution fees. Any actions that violate the probation terms will lead to automatic revocation of your probation, and you will be required to serve time in jail.

Felony cases, on the other hand, are punishable with a two, three, or four-year-long prison time. A fine to the tune of $6,000 may also be imposed. You can also serve formal probation for the crime if the circumstances in your case are grave. Like the summary probation, formal probation lasts for three to five years. In that period, you will be required to pay restitution fees among other conditions set by the judge. However, unlike the summary probation, you will have a probation officer who periodically reports to the judge on your progress in meeting the probation terms.

Stiffer penalties are imposed on defendants with priors. Any of the following charges aggravates your punishment for the corporal injury offense:

• Assault/battery that results in great bodily harm (Penal Code 243 (d)),

• Battery on a spouse (Penal Code 243 (e)),

• Sexual battery, (Penal Code 243.4),

• Assault/battery with a caustic chemical (Penal Code 244),

• Assault with a stun gun (Penal Code 244.5),

• Assault with a deadly weapon (Penal Code 245),

• Corporal Injury on a spouse (Penal Code 273.5)

If you have a prior for a battery on a spouse, you are likely to face a prison term of two, three, or four years and a fine of not more than $10,000. However, all the other assault cases are punishable with two, four, or five year’s prison time, and/or a fine of $10,000. If the corporal injury case resulted in great bodily harm, your sentencing would be guided by Penal Code 12022.7, which provides for sentence enhancement. The code provides for an additional three to five years to the imposed sentence.

Penal Code 422 defines criminal threats as any actions aimed at threatening to harm or intimidate another person. The intention of the threat and the victim’s fear are questioned to determine the defendant’s culpability. You violate Penal Code 422 if you threaten to harm another person even without specifying the actions you would take because threats can be issued without specifying what actions they (the defendant) will take on the victim.

The law further states that the threat must be written, verbal, or communicated electronically. This section of the law encompasses all possible forms of communication. That is, you can convey the threat through a text, and it is held in the same standard as those communicated verbally, or in a letter.

Fear is the final aspect that needs to be determined for a statement to be considered a threat. The fear should be actual, reasonable, and sustained. The prosecution needs to establish that the victim feared for their safety and that of their family. Their fear should have resulted from the thought of the threat being executed. It is also upon the prosecution to show that the fear was reasonable. It should be clear that the victim believed in the actualization of the threat. The defendant may not have the means to carry out the threat immediately, but it is still considered a threat if the victim believed that the threat would happen. Finally, fear should last longer than a moment.

In handling threat cases, questions arise, like, “What are empty and conditional threats?” and “Are they also considered as criminal threats?”

Conditional threats are twofold. One section of the threat has to happen to pose a risk of harm to a victim, for example, “I will kill you if you do not pay me back my money in full.” Death as a threat in this context can only happen if the defendant is not paid their money in full. The fact that the threat is conditional does not take away the fact that the threat can happen. Therefore, the threat is reasonable, actual, and if sustained, it is a criminal threat.

Similarly, empty threats are held to a similar standard. In most cases, empty threats are used to scare the victim. Your intentions to execute the threat is immaterial. What the court will consider is whether the victim reasonably believed the threat to be real and that you had the means and intention to carry it out. If so, criminal threat charges will be levied against you.

Criminal threats are wobbler offenses in California. That is, the prosecution has the latitude to prosecute your case as a felony or a misdemeanor. The degree of harm to the victim and your criminal past determine whether you will face misdemeanor felony charges. If convicted for a misdemeanor offense, you will be required to pay a fine of up to $1,000 as well as spending one year in prison. Felony charges, on the other hand, carry a fine of $10,000 and three years in jail. If you used a deadly weapon to carry out the threat, you are looking at an additional one year in prison.

It should be noted that criminal threats to individuals and groups are both prosecutable. If you issued the threats to a group, the threats are considered as targeting each group member. Therefore, you are likely to face penalties for each threat issued.

Penal Code 273d defines child abuse as the causing of injury or brutally punishing a child. A child, in this case, is an individual less than 18 years of age. Any actions that cause harm to a child are forms of child abuse. Penal Code 273d introduces benchmarks in determining what constitutes child abuse. These benchmarks form the basis to which the prosecution needs to prove in your case. Your actions need to show willfulness and traumatic condition. Under willfulness, the district attorney should prove that you were aware and in control of your actions. The intention may not have been to injure the child or break the law. However, if your actions resulted in an injury, you violate this law. Moreover, any bodily injury caused by your actions is classified as “traumatic conditions.”

The law in punishing child abusers does not take away the disciplinary rights of guardians or parents. That, therefore, means that spanking is not child abuse as long as it is only disciplinary and not excessive. In determining child abuse cases, the jury is not limited to what actions they will consider as child abuse. If the prosecution can prove that your actions were deliberate and resulted in a traumatic condition, any action, no matter how small will get you convicted for the crime. Moreover, the prosecution needs to show that your actions were not disciplinary.

California has a general rule about evidence; your prior convictions cannot be introduced as evidence in your child abuse case. Your priors only feature as aggravating factors in your sentencing. However, in child abuse cases, there is an exception. Complaints and prior convictions of child maltreatment are admissible in court as evidence. It is upon the judge to determine what priors and allegations of child abuse the prosecution can introduce as evidence.

In child abuse cases, the prosecution tries to show a pattern of violent actions by the defendant. Therefore, it is common for them to introduce any domestic violence matter brought against you. However, the prosecution can only do so if the domestic violence matter happened within five years preceding this child abuse case. Domestic violence priors and complaints are also held to the same evidence standard as in child mistreatment priors. The judge will determine what can be introduced as evidence in the case.

Child abuse cases are wobbler offenses, according to Penal Code 273d. You can be charged for a misdemeanor or a felony, all dependent on what charges the prosecution prefers. The district attorney will look at your criminal past and the circumstances surrounding your case. If there was significant bodily injury, or you have prior complaints or convictions for related offenses such as the child abuse matter, you are looking at felony charges. If the above is not the circumstance in your case, the prosecution will charge you for a misdemeanor.

Misdemeanor convictions are punishable with a fine of not more than $6,000 and/or a jail term not exceeding one year. Felony charges carry a prison sentence of two, four, or six years and/or a fine of $6,000. Jail terms may be increased by an additional four years if you have a prior child abuse conviction. However, these four years may be ignored if you served your sentence more than ten years ago, and if you have not served time for any other conviction within ten years.

Probation is also available as an alternative to jail - that is, summary probation for misdemeanor offenses and formal probation for felony convictions. You will be required to follow through with the following probation terms:

• Serve a three-year minimum probation sentence.

• Regularly report to your probation officer.

• Submit to random drug tests as directed by the courts.

• Adhere to the criminal protective order issued for the victim.

• Attend a court-mandated child abuser’s treatment program for at least one year.

Any violation of the probation terms is punishable with time served in jail.

Child endangerment is the willful causing of a child's pain, suffering, or putting them in dangerous situations. The legal provisions defining and punishing child endangerment are provided for under Penal Code 273a. Child endangerment differs from child abuse in that child abuse matters deal with punishing actions that abuse children or cause physical harm to a child, while child endangerment laws punish the possibility of danger to a child. Therefore, you can be convicted for child endangerment even if no physical injury befell the child.

Penal Code 273a seeks to punish parents or guardians charged with the care of a child. If your actions as a parent or guardian cause pain or mental suffering to a child, you are considered to have violated Penal Code 273. It also follows, if your actions caused a child’s injury or put a child in a dangerous situation, you too will have violated Code 273a PC. The following are provided as actions considered as child endangerment:

• Leaving a child to the care of a babysitter with a history of abusive behavior.

• Leaving a dangerous weapon within a child’s reach.

• Failing to seek medical treatment for a sick child. California law, Penal Code 270 allows parents to find faith-based healing for their children. However, you are required to seek actual medical attention if the child is at risk of dying or if the child is gravely ill.

• Tattooing a minor. Such actions violate Penal Code 653.

The prosecution will seek to prove the following in a child endangerment case:

• That your actions were willful and that they caused mental suffering, pain, or bodily injury on a child.

• You inflicted or allowed a child to be injured.

• You willfully caused or allowed a child to be placed in a situation that compromised their health.

• You were criminally negligent in your actions that allowed the child to be endangered. Criminal negligence is brought out through reckless behavior. Such behavior is considered contrary to what an ordinary person would have done given similar circumstances.

Moreover, the prosecution in their arguments need only show the possibility of your actions resulting in harm to a child. A likelihood of your actions causing harm is enough to charge you with child endangerment.

You risk facing felony or misdemeanor charges for the crime. Significant bodily injury on a child or death of a child are reasons to charge you with a felony. Other circumstances other than death and significant physical injury reduce the charges to a misdemeanor. Misdemeanors could land you in jail, serving a sentence of up to one year. You risk also paying a fine of no more than $1,000. Felony charges carry a penalty of two, four, or six years prison term served in state prison. You may also be required to part with $10,000 in fines.

Probation sentences are also available in child endangerment cases. The presiding judge may require you to serve four-year summary probation for the misdemeanor charge or four years of formal probation for a felony charge. You will be required to submit to random drug tests and attend mandatory counseling. In some cases, a restraining order may be issued to which you will be required to comply with its terms.

A judge may issue a sentence enhancement for cases that showed criminal negligence. Additionally, if there was serious bodily injury or if you inflicted physical harm on the child, you are looking at an additional three to six years in prison all dependent on the severity of the injuries inflicted. If death resulted from your actions or inactions, the judge will add four years to your prison sentence.

Domestic violence negatively affects the foundations of familial and intimate relationships. That is why California laws are elaborate when it comes to punishing such offenses. However, penalizing an individual for any of the above crimes does not eliminate their innocence in the matter. This is why you need a criminal defense lawyer. Their experience should help develop a defense strategy in any criminal matter. If you are in San Jose, call the California Criminal Lawyer Group at 408-622-0204 and let us review and work on your case.