Facing Domestic Violence Charges? We Can Help. PC 273.5
Proven Approach with results forged by Experience.
The California Penal Code adds additional penalties to a typical assault and battery case when the incident involves your spouse, partner, girlfriend, boyfriend or child. San Diego domestic violence charges are vigorously prosecuted. Typically, domestic violence cases are reported to the police after the incident already occurred. More often than not, tempers are raging and inaccurate statements are given in the heat of the moment. When tempers cool and calmer minds prevail, people often change their statements. In fact, sometimes the statements about the incident given to the police are exaggerated or even fabricated due to jealously, alcohol or a plethora of other factors. As a former domestic violence prosecutor, I saw this often.
However, the police and the district attorney’s office are not receptive to new statements that weaken their case. Many people believe that if the alleged victim calls the prosecutor or police to “drop the charges” that the case will be dismissed. It is extremely rare for the prosecution to dismiss a case at the request of an alleged victim of domestic violence. They have likely labeled the relationship as having a “cycle of violence” with just the knowledge contained in the police report without investigating the relationship further. But that doesn’t mean that the case can’t be reduced or dismissed. You need an experienced lawyer who understands the process to present evidence on your behalf and exploit weaknesses in the prosecution’s case. You can show that couples will fight in the course of their relationship and both can cross the line of simple verbal arguing. It often takes “two to tango.”
Relevant Code Sections & Penalties in Domestic Violence Cases
A conviction for a San Diego domestic violence charge can be a misdemeanor or a felony. The misdemeanor domestic violence law is codified in Penal Code Section 243(e)(1), which in pertinent part states, “When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both fine and imprisonment.”
Domestic violence can also be charged as a felony if there is evidence of a “corporal injury” resulting in a “traumatic condition” as codified in Penal Code Section 273.5. An injury to the body is a traumatic condition. A felony conviction for domestic violence can result in a four-year prison sentence.
What You Should Do Next?
San Diego domestic violence cases have many unintended consequences. Domestic violence programs last up to a year. You need an experienced attorney to start working on your defense by obtaining statements and preserving any physical evidence. I, Mark Deniz, can do this. The right evidence, presented to the prosecutor in the correct way, can turn your case around. I have successfully handled hundreds of domestic violence cases.
Stages in a Domestic Violence Case
Every case is unique so it may not fall exactly in this order. These stages are a general roadmap of most domestic violence situations.
Many San Diego domestic violence cases begin when an alleged victim calls 911 for assistance. The 911 call is also commonly made by a neighbor, friend, family member, or even a passerby. These third parties may not even know what is going on. When the police officers arrive at scene of a disturbance, they typically start their investigation by interviewing the people involved in the conflict and any witnesses. The police are trying to figure out which person is the aggressor. They are also trying to figure out the extent of any injuries and to determine whether the incident was an incidence of domestic violence, as opposed to simply a loud argument. Upon making this decision, the police will make a determination regarding who should be arrested and pursued for domestic violence charges.
The process described above is a perfect-world scenario that occurs when an investigation is conducted correctly. However, in real life, the actual process will not be so clean. Police officers, who often may not be sufficiently trained, often go into an investigation with pre-conceptions that somebody is at fault and that somebody needs to be punished – even though what actually happened was just a simple argument between two partners. They boil a domestic violence investigation down to, “once someone is touched, someone needs to be arrested”.
They make big assumptions about how the incident occurred and who is responsible. These assumptions are problematic because they prevent the police officers from conducting a detailed, unbiased, and complete investigation. Instead, they write these problematic conclusions into the police report. In most cases, they take in and report only one person’s side of the story.
A trained domestic violence attorney can meticulously review the investigation and look for holes in the evidence. A well-versed domestic violence attorney will look at the number of police officers who arrived on the scene, who interviewed which person involved, how the interview was recorded, and keep an eye out for any inconsistencies with their training and report-writing.
After the police officers make a decision regarding who the aggressor is, they will arrest that person and take them into custody. Due to an often deficient investigation, it is not uncommon for someone to be unjustly labeled the aggressor. That person usually bails out and gets home within 12 hours. As the accused is figuring out their next steps, the police will record their findings in a police report and also suggest to the prosecutor whether a felony or a misdemeanor should be charged. This decision is made on the particular facts of the case and the extent of the injuries to alleged victim.
The period of time after the arrest and before formal charges are filed is called the “pre-issuing stage”. During the pre-filing stage, the police officers finish their investigations, interview witnesses, and complete the recording of their determinations in the police report. There is a window of time between when the case is leaving the police department and heads over to be reviewed by a domestic violence prosecutor. Hopefully, by this time, someone has retained a trained domestic violence defense attorney to take advantage of this time to reach out to the prosecution to obtain a rejection of the charges.
In this time, it is very important that your domestic violence attorney conduct his or her own investigation. In most cases, this is letting the prosecution know the other side of the story. This is because you cannot rely on the police’s version of the events and you also want to establish a more fully formed picture of what actually happened. Contingent on what your domestic violence attorney finds during their investigation, they might be able to convince the prosecutor to not charge you formally. You also want to show that your character is not one to have likely committed the acts they may be facing. Providing this information early could convince the city attorney or district attorney from filing formal charges against you or reducing the severity of the charges.
The Arraignment: An “arraignment” is the legal term given for the first time you make a court appearance after charges have been formally filed against you. At the arraignment, the judge informs you of your constitutional rights, you are given a copy of the police report and the complaint (which is the formal document listing the charges against you), and you are required to submit a plea of either guilty or not guilty. You would only submit a plea of guilty if your domestic violence attorney and the prosecutor have negotiated a plea agreement. And then, only if you fully understand the consequences of the plea agreement and you also agree to the terms and conditions. After you enter your plea, the judge will also make a decision regarding a protective order. If enacted, the protective order would require you to abstain from any sort of contact with the supposed victim while the case is ongoing. This can create many issues for couples who live together or have children. Your domestic violence attorney can request that the protective order only prohibit harmful contact, which is called a no-negative contact order. Whether the judge agrees to this depends on the specific facts of your case, your criminal history, and your reasons for the contact.
Pre-Trial Conference: The pretrial conference is actually a series of hearings that occur before the actual trial. It can be one hearing or it can be several. It is during this time that a domestic violence attorney can negotiate formally with the city or district attorney about the charges filed against you. At this point, in the domestic violence proceedings, it is important that your attorney begin building the defense on your behalf. By presenting strong evidence and arguments on your behalf, either in negotiations with the prosecutor or in open court, the better opportunities you will have to gain a more favorable result in your case. This usually is done by showing the prosecution discrepancies in the facts as well as deficient investigations by the police. In many cases, what is on the report is not consistent with what is shown on the police officer’s body cameras. Most cases resolve in this phase because an agreement contains certain safeguards rather than proceed at trial. A determination whether it is better to proceed at trial or enter into an agreement is based solely on the totality of the evidence of a particular case.
Pretrial motions: After a trial date is set by the judge, your domestic violence attorney should present motions to the court arguing for or against the admission of certain evidence at trial. A motion is a formal way of presenting a legal request to the judge. These pretrial motions regarding the admissibility of evidence can make or break your domestic violence case.
Trial: This is the phase where the prosecution’s case must stand up to the high legal burden of proving the case beyond a reasonable doubt. This is where both sides of the story are formally presented to a jury. The arguments that can be presented depend highly on the pretrial motions, which may request evidence to be included or excluded. A jury consists of a group of your “peers.” Remember, the prosecutor must have proved his case beyond a reasonable doubt. If they are unable to do that, your case will be dismissed. If the jury finds you guilty, then you will be convicted and proceed to the sentencing phase of the trial. Your domestic violence attorney can present arguments to the judge or negotiate with the prosecutor about the sentence. Depending on the particular case, you could be sentenced with anything between probation to prison time.
This is often too much for someone to handle. Where do I start in a domestic violence case? Call now for a free consultation.
If you are facing accusations of domestic violence, you should call the Law Offices of Mark Deniz now to be proactive. Take advantage of our years of experience by calling 858-751-4384 for a free consultation.