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San Diego Domestic Battery Lawyer

 

Domestic battery and Corporal injury tend to be used incorrectly. A lot of times people think they can be used interchangeably because both offenses require that the victim have an intimate relationship with the defendant. This requirement alone is the reason that both offenses fall under domestic violence crimes. However, this does not mean that they are the same offense. It is important that you understand that these are two separate crimes under domestic violence.  The best way to distinguish the two is that domestic battery only requires that the defendant use force against an intimate partner or immediate family member. Where as corporal injury requires that the intimate partner or immediate family member actually suffer a physical injury. In California a person can be charged and convicted of domestic battery even if the alleged victim did not suffer physical injury. 

 

Domestic Battery in San Diego

This offense occurs under PC 243(e)(1) when a person uses force or violence against a person with whom they have an intimate relationship, resulting in the unlawful touching. Given the nature of the relationship to the alleged victim in a domestic battery case, prosecutors often times attempt to use your own family against you in order to obtain a conviction. They do this by serving a subpoena on behalf of your family members to pressure them to appear in court and testify at a hearing against you. They use this subpoena to threaten your family with holding them in contempt of court if they do not show up to testify. The reality is that court cannot hold your family members in contempt of court if the contempt consists of refusing to testify concerning a domestic violence crime that they were considered victims to.

Intentional:

Intending to perform the motion that caused the battery.  

Harmful or Offensive:

The touching of another person in a violent, rude, aggressive, angry, or disrespectful manner.

Touching:

The slightest contact, touching or use of force. Physical contact can be indirect by causing an object or another person to touch the person.

Of Partner:

A person from a former or current intimate relationship.

Without Consent:

The person did not consent to the touching.

Prevent Any Further Harassment to Your Family

It is important that you realize that your family members have rights under California Civil Code 1219. You should hire an experienced criminal defense attorney who may explain this code section and advice you how to proceed. This code section actually prevents the court from punishing the victims of domestic violence cases for refusing to testify concerning that domestic violence crime. The law clearly states that "a court shall not imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime".

 

Understanding Penal Code Section 243(e)(1)

In consideration of the seriousness of domestic battery, California has criminalized it under Penal Code section 243(e)(1). Under this law, “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, or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court". 

Basically, to convict someone of California PC 243(e)(1), the prosecutor must prove the following elements:

1) The defendant willfully and unlawfully touched another person:

(a) a current or former spouse,

(b) a current or former cohabitant (someone with whom the defendant shares or shared a residence), or

(c) the mother or father of the defendant’s child,

and

2) The touching was harmful or offensive. 

 

Evidence Used Against You in a Domestic Battery Trial

A lot of times domestic battery arrests result from 911 calls made by the victim looking for a mediator in response to an altercation. If you are facing domestic battery charges it is important that you know that 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 exists to 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. On the other hand, where there are no 911 calls placed and the only statements made by the victims are to the arresting officer, these statements can and often do end being recanted. Which means that the only way the prosecution will have a better chance at winning at trial without the victim is through your priors. 

Evidence Code 1108 and 1109: Domestic Battery Cases Considers All Priors

Prior Bad Acts Evidence:

If you have ever been investigated or arrested for domestic violence charges, it does not matter that the allegations were dismissed or the victim retracted her accusations. In California, any prior bad acts evidence of a defendant in a prosecution for domestic battery is always admissible. This means that if you have any prior conduct of aggression or violence, this evidence will be considered against you. 

Prior Convictions Evidence:

This kind of evidence consists of any prior convictions for domestic violence offenses. It does not matter what sentence you actually served or if you were acquitted of all the charges. In California, evidence of a defendant’s prior convictions in a prosecution for domestic battery is always admissible.

Prior Convictions of Violent Acts:

This kind of evidence consists of any prior convictions for violent offenses in the past ten years. For example, if you were previously convicted for domestic violence, the prosecution could use this as impeachment evidence to show that you are an aggressive person. In California, evidence of a defendant’s prior convictions of violent acts are always admissible in a prosecution for child abuse.

 

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 the alleged victim during the duration of the case. 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. A full protective order prevents you from coming into contact with this person and any family member that lives with them. You will be required to keep your distance within a certain amount of feet or else you are looking at additional charges for violating this order.

However, it is important to note that both full protective orders and no negative contact orders can be modified at any time. A good way to obtain a modification from a full protective order to a no contact order is to show the court that you are taking positive steps towards correcting the situation. In domestic battery cases to get the court to minimize the restrictions imposed against you, you should start doing anger management therapy, marriage counseling, or parenting classes. 

Also, if the evidence against you is strong, an experienced criminal defense attorney will be able to put together a mitigation packet to argue for no negative contact. Your mitigation packet should include all the things that show you are a productive member of society and are taking the right step to remedy the situation. 

Most People File Protective Orders in an Attempt to Gain Advantage in Divorce Proceedings

You would be surprised to find out the huge role that family law cases play in criminal domestic battery offenses; this is what drives the agenda of the criminal courts. Domestic battery usually involves family court proceedings in which the burden of proof  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. It is very common that frivolous domestic battery allegations are made to win the upper hand in a 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. 

 

Domestic Battery in California is a Misdemeanor 

If convicted for domestic battery under PC 243(e)(1) you could face:

  • Sentence up to 1 year in county jail;
  • A maximum fine of $2,000;
  • Summary probation;
  • A minimum 1 year batterer's treatment program
  • Payments to a battered women’s shelter not to exceed $5,000;
  • Reimbursement to the alleged victim for any medical or counseling services reasonably incurred as a result of the offense;
  • Notice to the victim of disposition of the case;
  • 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 any contact with the alleged victim for up to ten years.

 

Not Guilty

  • Your partner was the original aggressor; you were just acting in self-defense or were protecting another person.

A self-defense claim will be successful if the reason that you used force was because the victim initiated the attack. You must have believed you were in imminent danger of unlawful touching or bodily injury when you defended yourself from the attack. The key to this defense is that you used no more force than was reasonably necessary under the circumstances. This means that the amount of force you exerted in your defense cannot be greater than the force you were being threatened with by the attacker. 

 

Best Defense

Even though domestic battery is charged as a misdemeanor in California, it can still carry serious consequences that will follow you for the rest of your life. 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 the alleged victim 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.

 

Contact San Diego Domestic Battery Criminal Defense Attorney Vik Monder for a FREE consultation today at: 619-405-0063 

Contact San Diego Criminal Attorney Vik Monder for a free consultation today at: 619-405-0063

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