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 The information contained on this page is meant for general informational purposes, only. This information should not be considered legal advice for any individual. Legal advice for each situation can only be obtained by conferencing directly with an attorney
1. Do I have to be married to be convicted of Domestic Violence?No. California Penal Code Sections 243(e) and 273.5 (the most commonly used prosecution sections for domestic violence), provide that any one who is co-habiting, has had a dating relationship with, is a former spouse of, or who is the parent of a child in common with the other person is subject to these charges 2. What if I never hit anyone, all I did was push, shove or just slightly touch the other person?You can be found guilty no matter what most people consider to be true "Domestic Violence", the most minor conduct is now subject to prosecution. As a demonstration of what can be sufficient to allow a conviction for a misdemeanor, this is what the jury is told at the conclusion of the trial: CALJIC 141 (in part): "As used in the foregoing instruction, the words "force" and "violence" are synonymous and mean any [unlawful] application of force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act. The slightest unlawful touching, if done in an insolent rude or angry manner, is sufficient..." 3. Would the case against me (or my spouse/friend) automatically go away if the alleged "victim" refused to "press charges"?No. In California and most other states, there is no such thing as having a victim "press charges". The alleged "victim" has no power over the prosecution of these cases. The prosecution of these cases is performed by the District Attorney's Office, whether or not the victim wishes the matter to be prosecuted. In fact, the D.A. expects that in over 80% of cases, the "victim" will not only want the prosecution to stop, the victim will "recant" or change his or her testimony to be different from the story told to the police or 911. In spite of that, all District Attorney's offices now continue the prosecution until they are faced with serious difficulties of proof or are convinced that an alternative choice may be preferable in your situation. 4. Should I talk with the police to tell them "what really happened"?Generally, no. There are a number of reasons for that answer, some of which are technical/legal and must be discussed in the office, but the general reasons that apply are as follows:
5. Should the alleged victim, who is on my side, contact the D.A. to tell them that it didn't really happen the way he/she originally said it did to the police?Generally, no. Unfortunately, the authorities expect the alleged victim to change their story and are usually unconvinced by that new statement. Additionally, the alleged victim, may just downplay the event, and usually does not say that he/she gave completely wrong information to the police. Therefore, contacting the D.A. may just result in another statement validating the charge, even if it does make it more minor. 6. I was arrested for a felony, but I have not yet been to court, does this mean that I will have to face felony charges when I go to court?Maybe not. Frequently the police, who can not arrest for a misdemeanor unless it is actually committed in their presence, will find probable cause to arrest for a felony, if there is any evidence at all of an injury, no matter how slight (slight bruising or redness). However, once the case is reviewed by a deputy district attorney, the formal charges that are filed may well be misdemeanor charges, if the conduct alleged is really not that serious. 7. What happens to me if I am convicted of domestic violence?Obviously there are a number of variables considering the severity of each case. If you are charged with a felony (because the alleged violation appears to be serious), you could be subject to state prison, or a lengthy county jail sentence. If convicted of the most minor kind of domestic violence, you may be subject to a relatively minor jail sentence which could be served on a "weekender work" basis. In many cases, a jail sentences can be avoided. However, in California, if you are convicted of anything involving domestic violence, certain mandatory conditions must be imposed if probation is granted, namely:
8. I am not a citizen of the United States, what effect will a conviction have on me?Although you should always confer with an immigration attorney, a conviction for this offense could result in potentially serious immigration problems. You could be denied admittance, be subject to deportation or suffer other immigration consequences if convicted of domestic violence. However, if you make sure you tell us that you are not a U.S. Citizen, we can frequently work our way around that problem in how we craft a settlement of the case. 9. Is there anything special that I should do for my first court appearance?Yes. If you and the alleged victim do not want to have the Court issue a "no contact" restraining order (preventing you from having any physical, telephone or written contact) the alleged "victim" must come to court and tell the judge that she/he wants to have contact. There is a great likelihood that the judge in that case will then issue an order requiring the two of you to have "peaceful contact" rather than "no contact". Otherwise, if the alleged "victim" fails to appear, the Court will issue a "no contact" restraining order. 10. What are the exact charges I could be facing for "domestic violence' in California?The usual domestic violence charges are Penal Code Sections:
11. How long will the court process take?Usually, 2 to 4 months. Although each case is different, and the procedure for misdemeanors and felonies is different, you can expect a number of court appearances, many of which you need not be present for, if we represent you. You should expect that for most cases, it will take a number of months before there is a resolution and a finality achieved. For example, it is rare that a case is settled at the first court appearance, the Arraignment, where there is no opportunity to discuss it. Usually there are multiple court appearances and conferences that occur before cases are resolved. In a very few cases, no resolution is possible and a trial must be held. Although there are different time-line requirements to process your case quickly, it is usually, but not always, in your best interest to waive (or give up) these time-line requirements. This is a matter that should be discussed with your attorney for each individual and each case. 12. If I actually did the act I'm charged with, do I need a lawyer?Yes! Although an office consultation is needed to describe for you what can be done, most people have much better results, if they are represented by a lawyer who is expert in this area. First, you must remember that the D.A. has to prove his case against you. To do that, the D.A. needs the kind of evidence that will be allowed in court. In many cases, the D.A. will have a problem in that area. Only a consultation with an experienced attorney who has obtained the police reports and spoken with you and/or other witnesses can advise you about your chances of success in this area. Second, each case is unique. Even in cases that the D.A. can prove, an experienced attorney can often get a reduced charge or a charge that will not entail either a jail sentence, having take the year long class or having this kind of charge show up on your record. It is unlikely that any one charged with these offenses would be able to negotiate with the D.A. as successfully as an attorney experienced in this field. Our firm serves all of Northern California and the Bay Area with particular emphasis in criminal defense for Palo Alto, Redwood City, Sunnyvale, San Jose, Santa Clara County, San Mateo County and Alameda County. |
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