How A Domestic Violence Mitigation Packet Helps You
A mitigation packet consists of documentation that puts an individual in a positive light in the eyes of the beholder or in this case the prosecutor who is issuing the domestic violence case in the family protection unit in San Diego. Often times it is difficult for the prosecutor to get an idea of who they are prosecuting based on the police reports they review before issuing the case. As a criminal defense attorney practicing in San Diego and seeing a lot of clients cases get dismissed, we believe the most important part of the criminal stage in getting the case dismissed is the filing of the mitigation packet with the district attorney's office or city attorneys office. These cases can either be filed as a felony or a misdemeanor. The idea is to get the charges reduced or dismissed at an early stage by making sure the mitigation outweighs the reasons to prosecute in the instant case. If there are serious injuries and the prosecutor is debating on filing as a felony and mitigation packet can help get the formal charges reduced to a misdemeanor and misdemeanor conduct can even be dismissed outright based on the mitigation packet submitted. The idea of the mitigation packet is to put someone on a pedestal amongst all the thousands of defendants that they are reviewing cases on a daily basis.
The following consists a mitigation packet for a domestic violence case in San Diego:
- Supporting documentation for Resume
- Employment certificates and achievements (to show prosecutor consequences will have devastating affects to individuals with good jobs)
- Academic certificates and achievements (to show prosecutor will lose scholarships or further education and employment opportunities in the future)
- Character Letters from people in the community that know defendant for a long time (Letters from friends and family to support the character of the person is important to understand how others feel about issues surrounding the case)
- Non-profit volunteer work (shows the prosecutor defendant is actively engaged and is a productive member of the community)
- Any rehabilitation completed on own accord (this does not admit guilt just shows that defendant can rehabilitate himself without the involvement of the court which consists of counseling or anger management classes)
- Any medical history documentation or psychological evaluation (to show defendant is not a violent person or issues regarding certain health concerns the prosecutor should take into consideration before filing any charges)
We often are able to get cases dismissed or reduced based on the information provided above. This must be done early on in the case when the issuing attorneys at the prosecutors office is reviewing the case. We submit the mitigation packets to the prosecutors in the family protection unit that we have built close relationships with over the years.
Imagine police knocking at your door saying that they are there for a welfare safety check and storm into your home without a warrant and take you into custody for domestic violence! This happens every single day in San Diego County. The policy for San Diego law enforcement is that if a domestic call is made to 911, then they have to arrest someone regardless if there is any visible injuries or incriminating statements made against you. The main reason is that there was a 911 call made and that alone can be used as evidence against you in a Domestic Violence case.
Domestic Violence in San Diego
This offense occurs under PC 273.5 when one partner tries to maintain control of the other partner by using physical force, intimidation, and threats. The abuse can be physical, sexual, emotional, or verbal.
Domestic violence is not only harmful to the person being abused, but is also harmful to those who know of the abuse. For example, a husband who physically beats his wife is not only hurting his wife, but is also harming the kids who have to witness the beatings. In addition, this could mean more charges could be filed such as child endangerment.
Using Your Family Against You in a DV Case
It is not uncommon for the prosecutor to attempt to use your family against you in order to get a conviction. Often times this happens when a subpoena is served on behalf of family members mandating them to be at court and produce certain information at a hearing against you. If you hire an experienced criminal defense attorney, the best advice to prevent any harassment to your family would be to have all of them be represented by an attorney of their choice. There is a civil code section 1219 that prevents sanctions against victims in criminal cases when a judge orders them in contempt of court for not following a subpoena. This is something you may want to discuss further with your attorney.
Understanding Penal Code Section 273.5
In consideration of the seriousness of domestic abuse, California has criminalized it under Penal Code section 273.5. Under this law, “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition 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 or by both that fine and imprisonment.”
Domestic Violence: Prosecution's Burden of Proof
- The defendant willfully and unlawfully inflicted bodily injury upon:
a. a current or former spouse,
b. a current or former cohabitant, or
c. the mother or father of the defendant’s child,
2. The injury resulted in a traumatic condition.
A traumatic condition can be described as simple as offense touching or as serious as great bodily injury. This really makes the difference of how a prosecutor chooses to file the case against you. Most of the time when the issuing attorney at the District Attorney’s Office looks at the police reports they will review the 911 calls, witness statements, and any pictures of injuries collected at the scene. The pictures are what will make or break a case for the prosecutor. Most of the time they are looking for injuries that can be substantiated by an expert medical opinion. Depending on the seriousness of the injuries it will make the difference between filing the case as a misdemeanor or felony.
Domestic Violence Can Be Filed as a Felony or Misdemeanor
Infliction of a corporal injury on a cohabitant or a spouse is a wobbler. A wobbler is a charge that can be filed as either a misdemeanor or a felony. The prosecutor chooses. Prosecutors tend to decide this based on the facts surrounding the specific offense, which means the pictures of injuries that is direct evidence against you that cannot be refuted easily by the defense. Also, if injuries are minor and there is prior criminal history or prior bad acts it will give the prosecutor discretion to increase the severity of the charge.
Evidence Used Against You in a Domestic Violence Trial
In most Domestic Violence cases in San Diego, the victims in the case end up recanting their original statements made to the police officers at the time of arrest. The only way the prosecution will have a better chance at winning at trial without the victim is through the pictures and prior criminal acts. Also, it is impossible to suppress the 911 call made at the time that it was recorded because it was made during an ongoing emergency. No hearsay rule will keep these 911 calls out at trial because they are non-testimonial. The court looks at 911 calls as present sense impressions that were made at a time while the domestic violence was occurring. This can be strong evidence against you depending on what was said on that call and if your voice can be heard in the background.
Evidence Code 1108 and 1109: Prior Bad Act Evidence and Prior Convictions
Every domestic violence case considers all prior bad act evidence and prior convictions.If your spouse has ever called the police before, but you were never charged, this is prior bad act evidence. If you were charged within the past 10 years and were convicted of a violent act, then that conviction will be used against you. Most of the time prior acts of violence are sufficient impeachment evidence to show that you are in fact an aggressive person.
What to Expect at the First Court Appearance for a DV Charge
The court tends to act as a mediator while the case in ongoing. After the court has set the bond amount and you plead not guilty to the charges, the judge will give you and your attorney an opportunity to argue for a no negative contact order or a full protective order.
No Negative Contact Order vs. Criminal Protective Order
The main difference between a no negative contact order and a full criminal protective order is that the former allows you to still be around your spouse during the duration of the case. A full protective order prevents you from coming into contact with your spouse within a certain amount of feet or else you are looking at additional charges for violating this order. Also, full protective orders and no negative contact orders can be modified at any time.
Usually, if the evidence is strong against you it is in your best interest to start doing anger management classes or parenting classes to get the court to minimize the restrictions. Also, a mitigation packet including all the things that show you are a productive member of society helps in arguing for a no negative contact order as well. A full criminal protective order is a way to separate families for long periods of time. They are similar to Temporary Restraining Orders in the civil courts.
Protective Orders: An Attempt to Gain Advantage in Divorce Proceedings
Often times family law cases play a huge role in criminal domestic violence cases. This is what drives the agenda of the criminal courts. The burden of proof in a family law case is lower compared to the burden in the criminal courts. However, if a judge makes an order against you in a criminal court it is likely that the judge in the family law court will follow that same order.
More often than not, these domestic violence cases are frivolous in nature but are brought due to some child custody dispute, visitation issues, spousal support.
If you find yourself in a situation facing criminal domestic violence charges that stems from a dispute arising at home, contact an experienced attorney that handles hundreds of these cases and knows the best way to maneuver the judicial process.
Penalties for Domestic Violence
Misdemeanor Domestic Violence
If a person is convicted of misdemeanor domestic violence under PC section 273.5, he or she will face any of the following:
- A minimum 3 years of informal or “summary” probation,
- Up to a 1 year sentence to county jail
- Up to $6,000.00 in fines
- Payments to a battered women’s shelter not to exceed $5,000.00 and/or reimbursement to the alleged victim for any medical and/or counseling services he/she reasonably incurred as a result of the offense,
- A protective order that protects the alleged victim from further acts of violence, threats, sexual abuse, stalking, harassment, and possibly a residence exclusion and/or stay-away conditions,
- A restraining order that prohibits you from having any contact with the alleged victim for up to ten years,
- Notice to the victim of disposition of the case,
- Successful completion of at least a year’s worth of batterer’s classes that meet for at least two hours on a weekly basis,
- Any other type of counseling services that the court determines might be beneficial.
Felony Domestic Violence
If a person is convicted of felony domestic violence under PC section 273.5, he or she will face any of all of the following:
- Formal probation,
- Up to 2, 3, or 4 years in California State Prison,
- An additional and consecutive 3, 4, or 5 year prison sentence if the alleged victim or anyone other than the convicted person sustained a “great bodily injury”,
- A possible “strike” on the convicted person’s record under California's Three Strikes Law, and
- All of the probation requirements listed above under the misdemeanor penalty section.
There are different variations of domestic violence classes and if you find yourself looking at serious domestic violence charges, then contact an attorney that will tell you what needs to be done to prevent you from getting a serious punishment in your case. In every case you should always be looking for the best possible outcome and that is getting the case either reduced or dismissed.
Even if the domestic violence charge is a felony, the court may be willing to reduce the charge from a felony to a misdemeanor as long as you get your attorney to file a 17(b) motion with the court. The court may also grant an early termination of probation under 1203.3 if the convicted person complies with all the terms and conditions of probation for the first year or two.
If you do not think the criminal charges are strong and the evidence is weak against you then the best approach would be to start preparing for trial early in your case. This means getting your attorney to get an investigator to interview your spouse after the incident to draft a report in regards to any statements that is incorrect in the police report and pictures of yourself immediately after if it is a self-defense claim.