If you have been arrested for the crime of Domestic Violence, call experienced criminal defense lawyer Max Gorby at (323) 477-2819.

California Penal Code 273.5 PC — Domestic violence. (“(a) Any person who willfully inflicts upon a 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.”

CALJIC 9.35 — Spouse or cohabitant beating). (“In order to prove this crime [that is, willful infliction of corporal injury of a spouse, cohabitant, or fellow parent under California Penal Code 273.5], each of the following elements must be proved:[1] A person inflicted bodily injury upon [[his] [her] [former] spouse] [a [former] cohabitant] [the [mother] [or] [father] of [his] [her] child]; [2] The infliction of bodily injury was willful [and unlawful]; and [3] The bodily injury resulted in a traumatic condition.”

California Penal Code 17 — felony / misdemeanor. Penal Code 17(b)(3) states “(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail [as is a California Penal Code 273.5 willful infliction of corporal injury on a spouse, cohabitant, or fellow parent], it is a misdemeanor for all purposes under the following circumstances:…(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”

Domestic violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.

The domestic violence laws say “abuse” is:

  • Physically hurting or trying to hurt someone, intentionally or recklessly;
  • Sexual assault;
  • Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
  • Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.

 

The physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of the family pets.

Also, keep in mind that the abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.

Types of Domestic Violence Restraining Orders

Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So, a police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night.

The emergency protective order starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim and any children for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.

To get an order that lasts longer than an EPO, you must ask the court for a temporary restraining order (also called a “TRO”).

Temporary Restraining Order (TRO)
When you go to court to ask for a domestic violence restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order.

Temporary restraining orders usually last between 20 and 25 days, until the court hearing date.

“Permanent” Restraining Order
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years.

At the end of those 3 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.

Criminal Protective Order or “Stay-Away” Order
Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.

If you also have a family law case, call Los Angeles Criminal Defense Lawyer Max Gorby immediately. Anything you say in that case can be used against you in the criminal case. Tell the family law judge that you also have a criminal case.

The most common question in all domestic violence situations is the following:

What if the protected person wants to drop the charges?

The City Attorney or District Attorney (D.A.)–not the protected person–decides if criminal charges will be filed against you. They will decide based on the facts in the police report.

Possible Lesser or Reduced Charges During Plea Bargain Negotiations:

California Penal Code 243(e)(1) is a battery committed upon a spouse, former spouse, cohabitant, parent of the defendant’s child, fiancé, or anyone with whom the defendant has (or previously had) a dating relationship. California Penal Code Section 243(e)(1) domestic battery is a misdemeanor and carries a penalty of up to one year of county jail.

California Penal Code 602 PC — Trespass. This code lists a variety of ways that trespasses take place, but it is essentially summed up as entering or remaining on another’s property without the right to do so. This and disturbing the peace under endnote 46 below, are common plea bargains used in California Penal Code 273.5 PC willful infliction of corporal injury on a spouse, cohabitant, or fellow parent prosecutions.

California Penal Code 415 PC — Disturbing the peace. (“Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”

As of January 1, 2000, there are stricter laws regarding domestic violence in California.  The new laws include the following:

California police are now mandated to arrest offenders who violate domestic violence restraining orders.

Expands coverage of domestic violence criminal law protections to include former spouses and cohabitants (Penal Code §243(e) and 273.5)

Mandates that police remove all firearms at domestic violence scenes (SB 218).

Every domestic violence victim in California who reports to police is eligible for up to $2,000 to cover costs of housing relocation.

Requires that Family Courts make a presumption that giving custody to a perpetrator of domestic violence is detrimental to the child (Family Code §3044).

Provides that an employer may not discharge, discriminate, or retaliate against an employee, domestic violence victim who takes time off work to “attempt to …..ensure the health, safety, or welfare of a domestic violence victim or his or her child” (Labor Code §230)

Recent Case Law Decisions:

People v. Martin, S175356, SUPREME COURT OF CALIFORNIA, 51 Cal. 4th 75; 244 P.3d 496; 119 Cal. Rptr. 3d 99; 2010 Cal. LEXIS 13374, December 30, 2010
  • To be clear, we are concluding, as a matter of substantive law, that the trial court did not err when it imposed the domestic violence probation conditions, which were based on a dismissed charge, because defendant expressly agreed to those very conditions, thereby waiving the right this court recognized in Harvey, supra, 25 Cal.3d at page 758. We are not here addressing any procedural questions regarding preservation or forfeiture of appellate issues. Such questions might be presented if, instead of expressly agreeing to the domestic violence probation conditions, defendant instead had failed to object, or had withdrawn his objection, to those conditions. (See People v. Welch (1993) 5 Cal.4th 228, 234–237 [19 Cal. Rptr. 2d 520, 851 P.2d 802] [trial court objection generally required to preserve challenge to probation condition].) Likewise, we are not considering a situation in which a defendant, after the trial court has overruled an objection to proposed probation conditions, has merely agreed to accept the grant of probation without expressly agreeing to the challenged probation conditions.

Please contact Attorney Max Gorby at (323) 477-2819 regarding any questions related to California Penal Code section  273.5 Domestic Violence.