People often have simple questions which do not have simple answers.  One of the first things you learn in law school is that the main aim of the law professor is to “hide the ball”.  You sit in class and discuss case after case in mind numbing detail and at the end of an hour and a half you distill what you’ve learned into a simple rule.  You ask yourself why didn’t the prof just tell us the simple rule in two minutes instead of questioning us over and over again about minute details.  At some point in your legal education, if you’ve been properly taught, you realize that there are no “simple rules”.  Each case depends upon the facts of each case and the facts sometimes depend upon who is relating them to you.

Recently some politicians have referred to “alternative facts”.  In the law there actually are such things.  Whatever questions you have regarding any criminal case in general and in a domestic violence case in particular, cannot be answered without knowing ALL the facts.  What you may think of as irrelevant, may well be very important.  An experienced lawyer will know the difference and may ask questions which may sound bizarre at first but will aid him or her in answering the questions. 

For example, a wife slaps her husband.  Is that a battery or a domestic violence case?  You might say that it’s obvious.  The right answer depends upon whether or not she had a right to slap him.  What gives someone the right to strike another?  Again, this is not a question that can be answered in a vacuum.  If her husband raised his hand with no intention of striking his wife, but she reasonably thought he was going to, she had a right to defend herself and strike first.  She doesn’t have to be right, she just has to be reasonable.  What is “reasonable”?

Reasonable is whatever a jury says it is.  And two juries may differ on the same set of facts.  The law is written clearly, but what it means is what a jury or a prosecutor says it means.  In some ways, it’s like juggling chain saws.  There are a lot of moving parts and a mistimed play might cause a disastrous result.

What Causes A Domestic Violence Arrest?

When two people have a relationship defined under the Family Code and any offensive touching occurs, you have what the Penal Code considers as an illegal act under several statutes.  Generally, after one party finds the conduct of the other offensive, the police are called and they are required to sort out the problem. ***** Spoiler Alert****** The current police policies in most jurisdictions have been drastically changed from 20 years ago.  Back then, if the complaining party told the police that they didn’t want to prosecute or felt that their intervention was no longer needed, the police would go on their merry way and leave the parties to their search for domestic bliss.  After the OJ debacle, the policy has changed.  When the police come out, someone is going to jail.  No police office will be criticized for taking someone to jail, but if the situation is glossed over and the offending party kills the complaining party, everyone from the police officer on the scene, to his training officer, to his sergeant, to the police chief is going to have their picture in the paper and someone calling for their firing or resignation.

Several years ago, I had a case where a woman’s ex-husband was a long haul truck driver.  He had come from Oklahoma to visit his son and got into an argument with his ex-wife.  He was told to leave her house and take his 18 wheeler back to Oklahoma City.  He left the house, but decided that he wanted to continue the argument.  The front door was locked so he tried to climb in through one of the living room windows.  As he was crawling through his ex-wife was pushing him out and dialing 911.  The police arrived and wanted to arrest the man.  He had broken into a house and obviously was in a very agitated state.  The woman begged them not to arrest her ex.  She explained that if he didn’t get the truck back to Oklahoma he would lose his job.  Then he might decide to come back to California.  She liked it a whole lot better when he was in Oklahoma.  The officers were in a dilemma.  They asked her what she did when he was trying to crawl through the window.  She said that while he was crawling in she struck him on the top of his head.  The officers then arrested her for domestic violence. It’s much easier to simply arrest someone than to take the chance that the trucker would simply wait a couple of hours, get tanked up and then return and kill his ex-wife.  The wife may have been uncomfortable in jail, but she was safe.  The case was eventually dismissed, but it was filed and the woman had to hire an attorney.  Since the domestic violent statues have a felony sentence, the police can make arrests between people with a familial relationship that they could not make between two strangers.

You might ask, “How can they do that?”  Under the California Penal Code, only a felony can permit an arrest outside the officer’s presence.  In a misdemeanor case, the officer must witness the act before he can make a legal arrest in most cases.  Over 95% of all domestic violence cases are prosecuted as misdemeanors, but the statutes are written so they are wobblers.  A wobbler is a case that can be charged as either a felony or misdemeanor subject to the discretion of the district or city attorney.  In all cases, the officer arrests on a felony and the DA charges a misdemeanor. 

Is there a difference if the filing is a misdemeanor or a felony?  Not at the stage when the arrestee is being processed in the jail.  The person arrested is treated as if he or she committed a felony.  The big difference is the fact that the felony charge has a bail of between $50,000 and $100,000. You might be able to pay the bail in full, but most likely there will be a bail bondsman involved and he will charge a premium of 7 to 10% of the bail.  This means that at a minimum, you will pay a non-refundable fee of $3,500 to $7,000 to get the arrestee released from custody.  This will not happen for at least four hours and sometimes more than 12 hours, depending upon the speed of the booking sergeant and the return of the computer fingerprint records.  If a person is left in custody, he or she has a right to an arraignment (being told the charges) in court within 48 hours.  Although the law clearly says 48 hours, again, there are some things that are added. If the 48th hour expires while the court is closed, the police agency has until the end of the next court day to arraign the defendant.

Normally when the defendant comes to court, charged with a misdemeanor, the court will reduce the bail or release a defendant without bail.  Again, the court is mindful of the fact that if it lets a person out without the statutory bail and he or she harms the complaining witness, the judge is going to be on the hot seat.  It’s much easier and safer for the judge simply to set bail at the statutory rate than to worry about the certainty of criticism IF the defendant does anything to cause more harm to the victim.

What Are the Possible Charges?

There are two basic filings in the domestic violence area.  A charge of 273.5 of the Penal Code which is domestic violence with a traumatic injury and a 243 (e) which is a domestic battery.  The difference is the extent of the offensive touching.  If the touching leaves marks, cuts, abrasions, bruises or anything visible, no matter how slight, the law will sustain a finding of domestic violence.  Although there appears to be a difference between the two, their is little difference in the punishment.  The 243(e) charge carries probation for three years, a fine of up to $2,000 and/or imprisonment in a county jail for up to one full year.  There will also be a one year’s batter’s treatment program, a donation of up to $5,000 to a battered women’s shelter, reimbursement for costs of counseling.  In addition, if this is a second offense, there is a mandatory period of incarceration of at least 48 hours.  The punishment for 273.5 is the same for a misdemeanor and gets harsher as a felony depending upon whether or not the defendant has any prior convictions.  The fine is raised by $1,000 and the maximum jail time for a first offense is 4 years in the state prison.

As a practical matter, unless there is substantial injury or there are numerous prior offenses, the case will be charged as a misdemeanor.  The biggest difference between a 273.5 and a 243(e) is that after January 1, 2019 anyone convicted of the former will be permanently barred from possessing a firearm in the state of California.  This squares the California law with current federal law.  If convicted of a 243(e) the period of prohibition is 10 years.

Protective Orders

When an arrest is made, the police department usually will serve an emergency protective order on the defendant.  This prohibits him from having any contact for a period of days.  At the arraignment the judge can do one of three things.  He or she can simply not issue any protective order.  This is extremely unlikely.  The second is that an order can be made called a level 1 protective order which mandates that the defendant not molest, annoy, strike, or harm the victim in any way.  This order would allow normal living arrangements to continue.  However, in many cases the judge will order a protective status which prevents ALL contact.  This order requires the offending party to vacate the premises and no have any contact whatsoever with the victim, except through his or her attorney.

In some cases, especially in Orange County, the judges will not grant a level 1 protective order until the victim has attended several sessions of the Personal Empowerment Program. (PEP).  These classes are designed to prevent the cycle and acceptance of domestic violence in certain relationships.  The judges have little regard for the hardships attendant to forcing someone to leave the family residence and figure out where and how to live.  The court is very serious about its orders and if a defendant is caught disobeying said orders, jail is the first option.  The courts, the prosecutors and the police all have the same goal: protect the victim until it’s determined that the person accused is no longer a threat.

What’s the Difference Between A Lawyer and A Public Defender?

All Public Defenders are lawyers.  They have the same professional degrees as private lawyers.  The continuing education requirements are the same.  The bar exam is the same.  The county provides Public Defenders to those who cannot afford private legal services.  This is required under the Constitution of the United States.  Public Defenders generally work 8 to 5 and do not see clients after 5 o’clock.  They have many cases, a heavy workload and do not have time to explain things to your family and certainly don’t have time to explain things more than once.  A private lawyer is paid by you and has plenty of time, especially if you’re paying for it.  This doesn’t mean that one is necessarily better than the other.  If you cannot afford a lawyer, having a public defender is a great benefit.  There are many reasons a lawyer remains in the PD’s office.  It might be that he or she enjoys the practice of law and does not want the responsibility and problems associated with the business of law.  The downside is that there is usually a heavy case load which prevents the attorney from developing more of a friendly relationship with his clients.  This is not to say, nor do I mean to imply that the Public Defenders’ Office doesn’t give caring, professional, skilled legal service, because it does.  What I am saying is that a private lawyer may have a lot more time for interaction and discussion.  Often times, this interaction does not help your case, but on some occasions, it proves vital.

Is There A Benefit to Hiring A Local Lawyer?

In many instances a local lawyer, who knows the attitudes and prejudices of the judge or the prosecuting attorney, may be able to steer a case into a more favorable position.  In addition, he or she may well know the filing deputy and be able to make contact prior to the case being filed.  This is not to say that simply because you lawyer knows someone in the prosecutor’s office that your case will be dismissed.  What I am saying is that because of connections built up over the years, the prosecuting attorney may well take your lawyer’s call, be favorably inclined to discuss the case with your lawyer and may consider what is said and the mitigation or evidence your lawyer might present which may lead the Prosecutor to not filing the case at all or filing it as a misdemeanor rather than a felony. 

There are some cases which are sensitive and where a local lawyer may not be your best choice.  Sometimes cases have to be tried and sometimes toes get stepped on.  Is a local lawyer the best person to accuse a local police agency of falsifying documents or manufacturing evidence?  In cases like these, the local lawyer may have ties to the community and the police agency that make this a difficult defense to sell.    We are back to where we started.  Each case, the defense and the lawyer to present the defense are all things that must be considered when the desired result is the best possible outcome.

Can the Victim Drop the Charges?

The Prosecutors’ Offices are used to victims coming into their offices and having changes of heart.  The statements range from, “Please drop the charges, I know it won’t happen again” to “I was the aggressor, I hit him first”.  Once the case arrives at the Prosecutor’s Office, it’s out of the complainant’s hands.  The DA will decide what, if any, charges to file.  The DA will manage the case and the “victim” simply becomes a witness for the Prosecution, regardless of what he or she feels should be done.  In cases where the victim decides to change the story given to the police, the Prosecutor can let the jury know that there were things said, other than what was testified in court and the jury can use those out of court, hearsay statements to base it’s decision upon and the law will consider those statements, competent evidence upon which to base a conviction.

Under Marcy’s Law, a victim’s wishes must be considered.  Although the victim must attend a trial if subpoenaed, he or she may refuse to testify.  The judge cannot put the victim in jail until he or she decides to testify.  He can levy a fine which he expects to be paid.  The contempt order could last to the end of the trial.  Even a witness who doesn’t testify can be the basis for a conviction.  Certain statements withstand hearsay and confrontation exceptions.  One of the most used exceptions is excited utterance.  The law provides an exception to the hearsay rule if a person makes a statement in an excited state.  The theory is that people who are excited by something usually tell the truth and they are reliable. In a case where the victim doesn’t testify, the job of the prosecutor becomes more difficult but not impossible.  Sometimes when you have a recanting victim, the job becomes even easier when the victim won’t testify.  Again, as in the opening paragraph, each case is different and even if the facts are the same, the defendant and the victim are different which opens up a whole new world of possibilities of results.

Why Should I Think of Hiring Your Office?

I have been in practice in the local area for over 40 years.  During that period of time I have represented thousands of people.  I have forged relationships with young lawyers who are now Judges and heads of offices of the District Attorney and City Prosecutors.  My long and successful track record has built credibility in the local courts.  The fact that I have tried a lot of cases indicates that I’m not simply going to stand by you and watch you plead guilty.  If you have a defense, we’ll exercise it.  And the judges and prosecutors know it.  They also know that I’ve appealed incorrect decisions and have won acquittals for clients who have been convicted after improper trials.  You will get a conscientious defense and a fair trial.  In some cases, where my client is guilty AND the People can prove it, it becomes time to make sure that the sentence fits the crime.  There are a variety of alternatives that some judges will accept to custody.  Sometimes there are ways to show the court and the prosecutor that we are dealing with a good person who has done a bad thing, not simply a bad person.

Finally, my office makes sure you don’t make mistakes by not doing your community service or failing to pay fines.  We do this for you.  You don’t leave our calendar until your probation is over and there is no further jeopardy from the legal system.  And our fees are the most reasonable of anyone who has the experience, ability and track record that we possess.  Pick up the phone and the Law Offices of Richard L. Poland at 562-437-6418 so we can discuss the details of your case.

To learn more about domestic violence laws and how a conviction can impact your future, or to discuss your family violence charges with an experienced California Board Certified criminal defense lawyer in confidence, please schedule a free initial consultation to determine how we can help you by calling us at 562-437-6418 or filling out our intake form on our Contact page. We care about your future.