Let's begin by going over the most common Domestic Violence charges in San Diego:
1. Penal Code 273.5 Domestic Violence
2. Penal Code 243(e) Battery
Under California's domestic battery law, Penal Code 243(e)(1) PC, the legal definition of domestic battery is any willful and unlawful touching that is harmful or offensive-and is committed against
- the defendant's spouse or former spouse,
- the defendant's cohabitant or former cohabitant,
- the defendant's fiancé(e) or former fiancé(e),
- a person with whom the defendant has or used to have a dating relationship, or
- the father or mother of the defendant's child.
California Penal Code 273.5 makes it a crime to willfully inflict "corporal injury on a spouse or cohabitant." "Corporal injury" means any physical injury, whether serious or minor.
What is the prosecution looking for?
The prosecution will receive the reports from the police and begin reviewing. They are looking for what charges, if any, can they prove beyond a reasonable doubt.
Their strongest evidence is what is called independent or corroborating evidence. Indepedent evidence is evidence that supports a proposition already supported by initial evidence, therefore confirming the original proposition. For example, if someone testifies that they were screaming for help. The police interview three neighbors who can testify they heard the screams and called 911. This is what the prosecution will be searching for.
Another factor- Cycle of Violence
Is there a cycle of violence? It is one factor a prosecutor will be looking for when determining if there will be charges & punishments. They review the police reports, video, 911 calls to find this information. There are often statements that may give some hints of domestic violence history when there really is not. It is key to get information to the prosecutor putting to rest any thoughts of a cycle of violence. It is a factor in a domestic violence case.
Domestic Violence in San Diego
Domestic Violence can be one of the toughest series of facts in all criminal law. There is a public safety issue and San Diego has a healthy amount of Domestic Violence. However, emotions get high and accusations are thrown around just as much. Like any fight between couples, it can get nasty fast. It can begin verbally and turn into trumping the other in hurting them. This can result in a call to police to get the other in trouble.
On the other hand, there is a cycle of violence in San Diego Domestic Violence offenses. You get a frantic 911 call and a victim who is scared and tired of the abusers' actions. Within 24 hours that same victim is blaming themselves and minimizing the abuser's actions. They will go back and the abuse cycle will begin again. A good detective will hopefully ferret out the difference. Hopefully, the independent evidence will show what actually happened. Call the Law Offices of Mark Deniz to get started at (858) 751-4384.
What is a cycle of violence?
The cycle of violence is a pattern that is often found in Domestic Violence cases. The pattern is as follows:
- Any type of abuse occurs (physical/sexual/emotional)
- Abuser starts to get angry
- Abuse may begin
- There is a breakdown of communication
- Victim feels the need to keep the abuser calm
- Tension becomes too much
- Victim feels like they are 'walking on egg shells'
- Abuser may apologize for abuse
- Abuser may promise it will never happen again
- Abuser may blame the victim for causing the abuse
- Abuser may deny abuse took place or say it was not as bad as the victim claims
- Abuser acts like the abuse never happened
- Physical abuse may not be taking place
- Promises made during 'making-up' may be met
- Victim may hope that the abuse is over
- Abuser may give gifts to victim
The cycle can happen hundreds of times in an abusive relationship. Each stage lasts a different amount of time in a relationship. The total cycle can take anywhere from a few hours to a year or more to complete.
It is important to remember that not all domestic violence relationships fit the cycle. Often, as time goes on, the 'making-up' and 'calm' stages disappear.
This theory shows why a witness may be changing their story. Unfortunately, it is a part of many relationships in San Diego. The prosecution is zealous, in part, because of they truly want to help stop violence on a person and in our San Diego community.
One size does not fit all
For every case that has substantiated Domestic Violence history, there are people who are arrested for Domestic Violence who have no cycle of violence in their history. There is a lot of grey area because someone when speaking to the police says, "we fight all the time" or "it has never been this bad, but we fight bad". Sometimes, this gets interpreted as there being domestic violence cycle of violence history. This means the prosecution feels there is more evidence to issue charges/harsher punishments (less likely to make reductions).
It is key to get the truth to prosecutors BEFORE they issue charges. Call the Law Offices of Mark Deniz to get started at (858) 751-4384.
CHAPTER 2. Abandonment and Neglect of Children [270 - 273.75]
( Chapter 2 enacted 1872. )
(a) 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), or by both that fine and imprisonment.
(b) Subdivision (a) shall apply if the victim is or was one or more of the following:
(1) The offender's spouse or former spouse.
(2) The offender's cohabitant or former cohabitant.
(3) 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.
(4) The mother or father of the offender's child.
(c) Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section.
(d) As used in this section, "traumatic condition" means 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. For purposes of this section, "strangulation" and "suffocation" include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.
(e) For the purpose of this section, a person shall be considered the father or mother of another person's child if the alleged male parent is presumed the natural father under Sections 7611 and 7612 of the Family Code.
(f) (1) 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, or by both imprisonment and a fine of up to ten thousand dollars ($10,000).
(2) Any person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 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 ten thousand dollars ($10,000), or by both that imprisonment and fine.
(g) If probation is granted to any person convicted under subdivision (a), the court shall impose probation consistent with the provisions of Section 1203.097.
(h) If probation is granted, or the execution or imposition of a sentence is suspended, for any defendant convicted under subdivision (a) who has been convicted of any prior offense specified in subdivision (f), the court shall impose one of the following conditions of probation:
(1) If the defendant has suffered one prior conviction within the previous seven years for a violation of any offense specified in subdivision (f), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 15 days.
(2) If the defendant has suffered two or more prior convictions within the previous seven years for a violation of any offense specified in subdivision (f), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 60 days.
(3) The court, upon a showing of good cause, may find that the mandatory imprisonment required by this subdivision shall not be imposed and shall state on the record its reasons for finding good cause.
(i) If probation is granted upon conviction of a violation of subdivision (a), the conditions of probation may include, consistent with the terms of probation imposed pursuant to Section 1203.097, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097.
(2) (A) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.
(B) For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. An order to make payments to a battered women's shelter shall not be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. If the injury to a person who is married or in a registered domestic partnership is caused in whole or in part by the criminal acts of his or her spouse or domestic partner in violation of this section, the community property may not be used to discharge the liability of the offending spouse or domestic partner for restitution to the injured spouse or domestic partner, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse or domestic partner and dependents, required by this section, until all separate property of the offending spouse or domestic partner is exhausted.
(j) Upon conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.
(k) If a peace officer makes an arrest for a violation of this section, the peace officer is not required to inform the victim of his or her right to make a citizen's arrest pursuant to subdivision (b) of Section 836.
(a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.
(b) When a battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, security officer, custody assistant, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, security officer, custody assistant, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at (858) 751-4384 or send an email to [email protected]