In California, a conviction for a violation of Penal Code section 273.5, subdivision (a), among other common domestic violence charges, carries consequences far greater than most people realize. In addition to the “familiar” punishments of fines, jail or prison time, a probationary sentence may require a Batterer's Treatment Program for 52 weeks and attending frequent court reviews. Domestic violence cases may also have great significance in the family court setting. A domestic violence conviction may create a presumption against that party in a child custody and visitation case. (Family Code section 3044, subd. (a).)
Although most folks who come to me for help in these cases have been arrested for felony domestic violence, the District Attorney may file these crimes as felonies or misdemeanors. The District Attorney has very broad charging discretion in deciding how to file and proceed in a criminal case. The reviewing Deputy District Attorney will consider the nature and seriousness of the injury (if any), prior convictions, possible accompanying crimes, such as criminal threats or witness intimidation or dissuasion, among many others factors, to determine how the case should be charged.
The domestic violence charge most frequently alleged is Penal Code section 273.5. Subdivision (a) of that section states:
“Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) 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 ($6,000.00) or by both that fine and imprisonment.”
Subdivision (b) provides: “Subdivision (a) shall apply if the victim is or was one or more of the following:
The offender's spouse of former spouse.
The offender's cohabitant or former cohabitant.
The offender's fiancé or fiancée, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243.
The mother or father of the offender's child.”
Subdivision (d) defines “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. [. . . .]”
Certain prior domestic violence convictions can result in increased penalties. Subdivision (f)(1) states that: “Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of section 243, or section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years. . . .” The subdivision also provides for a fine of up to $10,000.00, or both a fine and imprisonment.
Even in cases where the court grants probation, the terms and conditions of probation can seem punitive. The court may impose jail time as a condition of probation¸ and will order the 52-week Batterer's Treatment or Intervention Program. Prior convictions may result in some mandatory jail time, although the court has the power to not impose mandatory time in appropriate circumstances. (Penal Code section 273.5, subdivision (h)(3).)
The defendant in a domestic violence case may be restrained by the court from contact with the victim, not only during the case but after a conviction. (See Penal Code section 273.5, subdivision (j).)
Penal Code section 273.5 is only one of a number of charges that often appear in domestic violence cases. Criminal threats to others (Penal Code section 422), assault with a deadly weapon or by force likely to inflict great bodily harm (Penal Code section 245, subdivisions (a)(1) and (4)), false imprisonment (Penal Code section 236), misdemeanor simple battery against a spouse, former spouse, cohabitant (and many others) (Penal Code section 243, subdivision (e)) are charges commonly appearing in a domestic violence case. The District Attorney may also consider filing section 273a charges for child abuse or endangerment if a child was present and possibly put in harm's way during the incident.
In many counties, including Fresno, domestic violence cases are administered in courtrooms dedicated to those cases only. There, the Judge or other magistrate, the prosecutor, the public defender, and the probation officer, handle a remarkable volume of cases in which husbands and wives, cohabitant boyfriends and girlfriends and former spouses and the formerly intimate are brought to handle DV allegations. In Fresno, if you are charged with domestic violence or a related crime, you will likely appear in Department 95 or 96, located inside the North Jail at the corner of M and Merced Streets.
Sometimes it becomes necessary to represent the alleged victim of a crime of domestic violence. That person sometimes feels that neither the police nor the DA will listen to them as they try to clarify the statement that the police say that they made, not even when they try to explain that they “made up” most of their statement out of anger or frustration with their husband, wife, or boyfriend or girlfriend (any of those described earlier). These alleged victims of crime have rights, too, and I have often represented them, or found other counsel to help them while I represented the person accused. It is important to understand these rules when making sure that justice is done in every domestic violence case.
These cases are not necessarily always adversarial. Many DV matters involve a family in crisis. In these circumstances, the court may offer a structured way to begin putting the pieces back together again and to improve the relationship between the parties.
Given all of the possible consequences of a conviction for a crime of domestic violence, you need an attorney experienced in helping people accused of this crime. I have twenty-five years of experience handling domestic violence cases, and I am ready to help immediately.