Prosecutors and law enforcement officials in San Diego do not take accusations of domestic violence lightly. They are trained to believe the accuser’s side of the story – no matter what the case. The San Diego courts are full of people falsely accused of domestic abuse who admit to something they didn’t do or were wrongly convicted.
If you have been accused of domestic violence, then seek help immediately from an experienced San Diego domestic violence attorney. Don’t give the prosecution time to build their case against you. Vikas Bajaj has 15 years experience handling both felony and misdemeanor charges and will fight aggressively on your behalf. We offer a free consultation for your convenience.
Domestic Violence Charges
Under California law, domestic violence is addressed in several penal codes – depending on the type of abuse, severity of the crime, and the nature of the injury sustained.
Corporal Injury on a Spouse or Cohabitant
This is the most common criminal charge in California domestic violence cases. Under California Penal Code §273.5, a person who willfully inflicts corporal injury on a (1) spouse or former spouse, (2) cohabitant or former cohabitant, (3) someone the accused has been engaged to or had dating relationship, or (4) mother or father of of the accused’s child, is guilty of this crime. It is considered a wobbler and can be tried as either a felony or a misdemeanor – depending largely on the severity of the injuries sustained. Prosecutors often seek felony conviction whenever they are able.
The penalties for this crime include a fine of up to $6,000, imprisonment for two, three, or four years, or in a county jail for no more than one year, or both a fine and imprisonment.
California Penal Code §243(e)(1) makes it a crime to willfully and unlawfully touch a spouse or cohabitant that is harmful or offensive. The main difference between this and PC §273.5 is that you do not have to prove that there was an injury or physical force used. It is a misdemeanor crime and filed most often when a victim was allegedly pushed or touched.
You can be charged under California Penal Code §422) when the victim alleges that the accused threatened her/him. There must be proof that the accused willfully threatened to commit injury or death to the victim. It is considered a wobbler and can be filed as either a misdemeanor or a felony.
Stalking and Cyber-Stalking
(Penal Code §646.9) – This occurs when you follow or harass someone and make a credible threat with the intent to put that person in reasonable fear for their safety. The law defines “harassing” as engaging in “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.”
A “credible threat” is a threat that you made with the intent of putting someone in reasonable fear for their safety. Whether you actually interned to carry out the threat does not matter. For example, let’s say you told someone, “I’m going to kill you right now” via text, but at the time you were in a New York and they were in San Diego. That person would not reasonably be in fear, given the distance between the parties.
Violating a Protective Order
Domestic violence allegations often result in a restraining order being placed on the accused. Pursuant to Penal Code §273.6, intentionally and knowingly violating a protective order is misdemeanor punishable by a fine of up to $1,000 and/or up to one year in county jail. If there is physical injury, the person “shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment.” Read more about restraining orders here.
Making Annoying Phone Calls
Under Penal Code §653m, you can be found guilty of a misdemeanor if you make contact with intent to annoy via an electronic device, and either:
- Use obscene language or threaten to inflict injury to the person or property of the person addressed or a member of their family, or
- Make repeated contact.
How the Court Determines Domestic Violence Penalties
In general, the penalties will depend heavily on the facts of the case as well as the defendant’s prior criminal history. Relevant fines and jail terms are based on:
- Severity of the victim’s abuse,
- How often the abuse occurred,
- Mental condition of the offender, and
- Background and “track record” of the offender
Having a skilled San Diego domestic violence attorney on your side can greatly impact both the outcome and the penalties.
Consequences of a Domestic Violence Conviction
While the penalties are fact specific to your case, the potential consequences often include:
- Loss of Gun Rights: A person with a criminal conviction may be unable to possess a firearm.
- Immigration Consequences: Defendants who are not U.S. citizens could also find themselves the target of deportation or other immigration consequences.
- One Strike: A felony domestic violence conviction is considered a “strike” for the purposes of California’s Three Strike Law.
- Loss of Employment Opportunities: A conviction can adversely affected your employment, both in the current position as well as in obtaining employment in the future.
- Professional License: Being found guilty of domestic abuse could bar you from obtaining a professional license.
- Other Consequences: Restraining orders, probation, and a felony record can also result from a domestic violence conviction.
What Acts Fall Under the Term Domestic Violence?
Under Penal Code 13700 PC, domestic violence is defined as “abuse committed against an adult or fully emancipated member of the family, a spouse, former spouse intimate partner, cohabitant, relative, domestic partner or the other parent of your child.”
The act or crime does not have to involve physical harm or bodily contact. Domestic violence may be abusive in nature with no physical contact. Some examples include:
- Psychological abuse
- Harassment (by telephone or electronic devices)
- Mental or emotional abuse
- Verbal abuse
- Economic abuse
- Threatening another person
- Child endangerment
- Throwing objects near the victim
- Obstructing another’s free movement
- False imprisonment
- Destruction of personal property
- Creating a disturbance at another’s place of employment
When a spouse has documented or visible injuries, or when the considerable complaint of pain exists, the accused may be facing felony charges. Spousal abuse charges could also apply when infliction of bodily injury on a person of the opposite sex with whom the perpetrator had sexual relations, has a child in common.
Law Enforcement Response to Domestic Violence Allegations
By the time the police arrive to your house after someone notifies them of an altercation, they are probably ready to make an arrest. The police may be responding to a 911 call, to neighbors who have overheard yelling or screaming, or to the opinions of witnesses to the confrontation.
The factors surrounding a domestic violence arrest can be extremely subjective, and the police do not always make the right call. In some instances, the person who actually dialed 911 could find themselves being placed in handcuffs and loaded into the back of a police cruiser.
The San Diego District Attorney generally proceeds with the case even if the alleged victim admits to making up the allegations and declines to press charges. Law enforcement officials tends to err on the side of caution, believing the accuser may be pressured by his or her abuser to drop the charges. In many cases, jail time can result for a domestic abuse conviction—even a first-time conviction.
Domestic Violence Misconceptions
The Alleged Victim Can “Drop” The Charges
There is a common misconception that the charges can be dropped simply because the alleged victim chooses to do so. That is incorrect.
The decision to move forward with the case rests solely with the D.A. prosecuting the case. The D.A. will consider the 911 call, injuries, and past abuse (under Evidence Code 1109, the prosecution can introduce evidence of past domestic violence allegations, even if you were not convicted for it).
Your Spouse Can Refuse to Testify
Another misconception is that your spouse can simply refuse to testify, or that the California Evidence Code precludes him/her from testifying. Again, that is incorrect.
California Evidence Code § 972 (e)(1) is an exception to the testimonial privilege outlined in California Evidence Code § 971, meaning that you cannot claim privilege to prevent your spouse from testifying. If your spouse refuses to testify, he/she can be subpoenaed by the D.A. and held in contempt (which means jail time) for refusing to testify.
The 911 Tape Is Excludable Under the Hearsay Rule
Additionally, the 911 tape can be introduced as evidence against you during a trial under the “excited utterance” exception to the hearsay rule.
Reasons False Allegations of Domestic Abuse Occur
Revenge could be the number one reason behind a false allegation of domestic abuse. A spouse, former spouse, cohabitant, or family member could simply want to get even after a bad divorce, an affair, or a child custody case.
False allegations could be made during a divorce in order to gain an unfair portion of marital assets. Child custody cases, in particular, are notorious for producing allegations of domestic violence. One parent may attempt to defame the other, feeling there is little risk in making such an untrue allegation when the “payoff” is being given full custody.
Even when a person who has made false allegations later has a very real attack of conscience, it can be very difficult to set the situation right after the allegations have been made to law enforcement. Further, few district attorneys go out of their way to prosecute a person who is later found to have made false allegations, so there are few hindrances to doing so.
Defenses to Domestic Violence Charges
In any criminal case, the prosecution must prove—beyond a reasonable doubt—the defendant committed the act, and had the necessary intent. The San Diego prosecutor must show the victim is a member protected by the domestic violence statute, that an act of violence or credible threat actually occurred and that the defendant actually committed the act.
Common defenses to domestic violence allegations include:
- Self-defense: or that the alleged victim was, in fact, the actual instigator.
- False Allegations: If false allegations were made, the attorney for the defendant will show the allegations were made out of spite, rather than facts, perhaps by searching for inconsistencies in your accuser’s story.
- No Willful Conduct: If you have been charged with willful infliction of bodily injury, your attorney can argue that the act was not willful.
Defending domestic abuse charges can be challenging, especially when there are conflicting stories about the incident. Strong legal representation is crucial, as the San Diego court system is unlikely to treat you with compassion or understanding. The District Attorney will presume you are guilty, therefore you need a strong legal defense by an attorney who knows how to protect your right and present you with all available options.
Get Help Now From An Experienced San Diego Domestic Violence Attorney
Call the Law Office of Vikas Bajaj, APC today for a free consultation. San Diego domestic violence lawyer Vikas Bajaj has spent the last 15 years helping those facing domestic abuse charges. We know how to investigate the charges, push for a dismissal, and are prepared to take your case to trial if necessary.