Orange County Domestic Violence Lawyer

Domestic violence is an issue not to be taken lightly, as it affects thousands of individuals throughout California and across the United States. It is essential for everyone to feel safe in their home and be unafraid to report any abuse that occurs. Rightly, law enforcement and prosecutors take these charges seriously and often aggressively pursue charges against the accused. Unfortunately, domestic violence is often a complex issue and, too frequently, charges are filed without cause or prematurely. When this occurs, anyone falsely accused is likely to go through immense stress as they face harsh public opinion and the legal system.

Criminal charges in Orange County, especially domestic violence charges, can be terrifying. Effectively facing these charges generally requires an attorney who is understanding of both your situation and the law. The Law Offices of Christopher J. McCann, APC, focuses exclusively on criminal defense cases, taking great pride in ensuring that our clients are afforded a fair and competent defense if they have been charged with domestic violence. As an experienced Orange County criminal defense law firm with more than 20 years of history defending clients in California, our office is ready to help you navigate this challenging process.

What Is Domestic Violence?

Although many people may think they know what constitutes domestic violence, it is important to understand exactly what domestic violence is. Domestic violence is also known as domestic abuse, intimate partner violence, or relationship abuse. It is characterized by violent or aggressive behavior used by someone in a relationship to gain or maintain control and power over another. Some limit domestic violence situations to a heterosexual relationship, where the man is the abuser, but this is far from the only circumstance that is considered domestic violence. Regardless of sex, race, education, age, marital status, or position in the family, anyone can be a victim or perpetrator of domestic violence. According to Family Code Section 6211, you can be charged with domestic violence if you have been accused of abusing:

• A domestic partner
• A current or former spouse
• Someone who has a child with you
• Someone currently living with you or who has previously lived with you
• Someone who you are currently or have previously dated
• Your child
• Someone related to you by marriage or blood

Similar to the wide range of people who can be involved in domestic violence situations, there is a wide range of actions that are considered domestic violence under the law. Although the most recognizable is some form of physical abuse, charges are not limited to instances where physical contact is made. In addition to recklessly or intentionally attempting to harm, or harming, someone, the following actions can be charged as domestic violence:

• Physical abuse
• Emotional abuse
• Sexual abuse
• Psychological abuse
• Economic abuse
• Cyberbullying
• Stalking
• Preventing a person from coming or going freely
• Threatening, harassing, hitting, disturbing another person’s peace, or destroying personal property
• Threatening a person or making them feel unreasonably afraid that they or another person will be severely hurt

Domestic violence laws are often vague, allowing a lot of room for law enforcement and prosecutors to bring charges against those who deserve to be penalized. Unfortunately, this vagueness can result in charges being brought when the situation does not really fall under the purview of domestic violence.

Common Domestic Violence Charges

There are numerous charges that fall under the domestic violence portion of the law, but some of the violations are more common than others. Some of the more common crimes in California include:

• Penal Code 243(e)(1): Domestic Battery
  Under this code, domestic battery is defined as violence or force against a cohabitant, current or former spouse or partner, or other parent of your child. The terms “force” or “violence” do not necessarily mean that the actions must have caused pain or inflicted injury but that the victim was touched, even in the slightest way. Examples include being slapped in the face by your partner or grabbing someone by the shirt and ripping it. It can also include the victim being touched by something or someone that was pushed or thrown into the victim by the aggressor.
• Penal Code 273.5: Corporal Injury to a Spouse or Inhabitant
  This code defines domestic violence as physical, or corporal, injury to a dating partner, spouse, cohabitant, or the other parent of a child. This section of the code is violated when an aggressor willfully inflicts injury, and the injury results in a “traumatic condition,” meaning any bodily injury or wound caused by physical force. Even a minor injury can fall under that definition, but there is a wide range of common injuries. Examples include bruising, a sprain, a concussion, a broken bone, or even internal bleeding.
• Penal Code 273d: Child Abuse
  This law makes it illegal to inflict injury or corporal punishment on a child. There are exceptions for reasonable spankings, but any punishment that causes injury or is cruel is deemed child abuse in California. Certain professions, like teachers and pediatricians, have a legal obligation to report child abuse suspicions under mandatory reporting laws. Examples of child abuse include hitting a child with a belt harder than is reasonable or slapping a child hard enough to leave a mark.
• Penal Code 368: Elder Abuse
  This code defines elder abuse as physically or emotionally abusing, neglecting, or financially exploiting a victim who is 65 years of age or older. Examples of elder abuse include ridiculing an elderly patient for being wheelchair-bound, using fraud to convince an elderly neighbor to change their will, or not feeding an elderly patient under your care who cannot feed themselves.
• Penal Code 422: Criminal Threats
  Penal Code 422 outlines the crime of criminal threats, or threats of great bodily injury or death that place victims in a sustained and reasonable fear for their safety or the safety of their loved ones. Examples of criminal threats include texting someone that you plan to set fire to their home or threatening to shoot an ex-partner because they ended the relationship.
• Penal Code 601: Aggravated Trespass
  According to this code, aggravated trespass occurs when you make a criminal threat to injure someone. You then enter that person’s workplace or home without permission within 30 days while having the intent to carry it out. The threat is considered credible if it causes the threatened person to reasonably fear for their safety or for the safety of their immediate family and you appear to be able to carry out the threat.

To be convicted of these crimes, one of the factors that must be proven is that the accused acted willfully. This does not mean that the person intended to break the law or inflict injury on the person. Instead, it means the action that they committed was done intentionally.

Potential Penalties for Domestic Violence

Most domestic violence charges are considered wobblers. This means that they can be charged as either a misdemeanor or a felony, depending on the circumstances of the case and the criminal history of the defendant. In most instances, domestic violence is charged as a misdemeanor. However, the charges can be elevated to a felony if:

• Serious bodily injury was caused to the victim.
• Sexual assault or bodily harm was caused to a minor.
• The victim was sexually assaulted.
• You have prior domestic violence convictions.
• You have prior convictions for other crimes.

Since there are a number of different penal codes that are classified as domestic violence, there is a wide range of penalties that can be applied in these cases. Different crimes, even if they are both charged as misdemeanors, can carry different severities of punishments.

A conviction of Penal Code 273.5, or corporal injury to a spouse or inhabitant, will generally carry the harshest penalties. If charged as a misdemeanor, penalties can include up to one year in county jail and/or a fine of up to $6,000. If charged as a felony, the penalties can include two, three, or four years in state prison and/or a fine of up to $6,000.

Alternatively, a conviction of Penal Code 243(e)(1) can result in up to one year in county jail and/or a maximum fine of up to $2,000. In some instances, you may be able to avoid jail time if the judge sentences you to summary probation, or misdemeanor probation. Probation most frequently lasts for 12 months but can be extended to 24 months, and any violation can result in you being remanded to jail. If probation is granted, the defendant may also be required to attend a batterer’s intervention program.

There are, however, penalties that can affect your life even outside of jail or prison time and fines. Unless expunged, your criminal record will also be publicly available. Potential employers or other personal connections will be able to find this information. If a restraining order has been issued, you may be required to change your habits or even move to a new home to comply with the order. A misdemeanor domestic violence conviction can negatively affect your gun ownership rights, as some crimes will result in a 10-year ban on owning or possessing a firearm. If the charge is filed as a felony, the ban will be for life.

Speaking with a domestic violence attorney can help you understand the charges that have been brought against you and the potential penalties that you are facing

Domestic Violence Effects on Family Law Cases

Domestic violence accusations are likely to trigger criminal and civil legal issues, but they will also complicate family law matters during issues like divorce and child custody.

If there is proof of a domestic violence conviction, family law judges have some freedom to limit an abuser’s ability to leave the marriage with a favorable outcome in the divorce. Generally, a victim will not be forced to pay spousal support to their abuser, and they are more likely to get a higher percentage of assets in the split.

A domestic violence conviction can also impact child custody, as the courts are not likely to award custody to a parent who is deemed to be a danger to their children. Even without a conviction, domestic violence accusations can allow the accuser to successfully argue for sole custody.

Although these protections were built into the law to protect victims, they can unfortunately be used incorrectly. If you are falsely accused of domestic violence by a partner, there are significant impacts outside of the criminal case. It is important to fight false or misleading accusations to ensure that they do not have impacts on your family law issues. An attorney can help you further understand the potential implications and move forward with protecting yourself from domestic violence accusations.

Defenses Against Domestic Violence Charges

A defense attorney can examine the circumstances of your case and help you find the most effective defense for the charges that have been brought against you. They can determine information like:

• The contents of the police incident report
• Police findings that differ from the involved party’s statements
• Reports of any injuries sustained during the alleged abuse
• The emotional state of each party during the incident
• Past reports of violent incidents involving the parties in the police report
• Any signs of physical struggle at the location
• Inebriation status of those involved

This information can help them craft a defense that offers you the greatest chance of having the charges dismissed or reduced or being found not guilty. The following are potential defense strategies in domestic violence cases:

• Innocence
  In some instances, the victim may have been abused but accused the wrong person. Although the victim may be afraid of their abuser and making an accurate report, it is important to establish your innocence to avoid the negative consequences of a domestic violence conviction. If the victim was abused or injured by another person, the attorney can gather evidence to support this claim.
• The Victim Lied
  In some instances, people will use domestic violence accusations to get back at their partner or family member for a perceived slight. An attorney can work to show that no violence or injuries occurred or the victim’s story does not match up with the police investigation of the scene.
• It Was an Accident
  This defense is used to establish that you were present when the injury occurred but that the injury was caused unintentionally. An attorney can attempt to corroborate your claim with the police report, witness statements, and other evidence found at the scene.
• Self-Defense
  You can claim self-defense if you were attempting to defend yourself or your children from the other person. Evidence that would support this type of defense includes a statement made by the accuser that they used violence, indications that the injuries support self-defense, and any witness statements that support your claim.
• Lack of Evidence
  When taking a case to court, the prosecution must have enough evidence to support your guilt beyond a reasonable doubt. If they lack this evidence, a defense attorney can show the flaws in their case and increase the likelihood of a not-guilty verdict from a jury. In some instances, the prosecution may choose to drop the charges before a trial even starts due to a lack of evidence.
• Investigative Errors
  When conducting an investigation or arresting someone, there are procedures that the police must follow. If they are not followed and there was police misconduct during the process, the charges may be dismissed by the prosecution or the judge. Examples of police misconduct include denying a request for an attorney, lacking probable cause before conducting a search, or not collecting physical evidence to support your claim.

Regardless of the circumstances, it is crucial that you be open and honest with your attorney. A trustworthy defense attorney can listen without judgment and clearly help you establish what steps should be taken to move forward. Lying about the circumstances of the case could seriously harm your position if the prosecution is able to clearly dispute your claims with the evidence, potentially resulting in even harsher penalties than if you had been honest from the beginning.

Dropping Domestic Violence Charges

Domestic violence crimes are taken seriously under California law, and many prosecutors have taken a stand against dropping domestic violence charges unless the victim recants their allegation. This means that the accusation is no longer in the control of the accuser once law enforcement is involved. In fact, you can be charged with domestic violence even if the other person did not report the incident. The prosecution will rely on the evidence collected and the circumstances reported to determine if charges should be brought and the severity of those charges.

Although this is meant to prevent cases from being dropped if the abuser intimidates or threatens the victim into altering their recollection of events, it can have poor overall effects for those who were falsely accused. The charges can still be dropped in instances where there is not enough evidence or an inconsistency of statements, but it may take longer than if the prosecution dropped the charges as soon as an alleged victim recanted.

Orange County Domestic Violence FAQs

Q: Can a Defendant Accused of Domestic Violence Be Sentenced to Probation Instead of Jail?

A: Although penalties for domestic violence can be severe, there are some instances where a judge may sentence a defendant to probation instead of jail time. A judge may be more willing to use probation as a penalty when it is a first-time offense or the victim’s injuries were not significant. It is also more likely when domestic violence crimes are being prosecuted as a misdemeanor, as felony charges are usually brought when a significant injury occurs.

Q: What Are Some of the Non-Incarceration Consequences of Having a Domestic Violence Conviction on Your Record?

A: Although criminal punishments in domestic violence cases are often severe, they are far from the only penalties that arise after a conviction. You may be required to pay the victim restitution. In addition, you will need to pay into domestic violence programs in California and will usually be required to attend a batterer’s program. A conviction may also affect your ability to get custody of your children, property division in a divorce, or your right to own a firearm.

Q: What Proof Is Required to Obtain a Temporary Restraining Order?

A: The burden of proof in obtaining a temporary restraining order is low because the order is limited in duration and may involve a situation that could be extremely dangerous for the person requesting the order. The judge will balance the impact a temporary restraining order has on the accused with the need for the requestor’s safety. For this reason, a temporary restraining order often cannot be stopped, but you will have the opportunity to prevent it from becoming permanent.

Q: Can Domestic Violence Charges Be Dropped by the Accuser?

A: An accuser can change their statement and recant the accusation of abuse. However, this will not automatically prevent the prosecution from filing charges against the accused. Law enforcement and the prosecution will proceed with investigating the case unless they choose to drop the charges for other reasons, such as a lack of evidence.

Q: Do I Need an Attorney If I Have Been Accused of Domestic Violence?

A: The penalties that arise after being accused and/or convicted can be severe, even ignoring the emotional toll that can arise due to the situation. An attorney can provide valuable insight into the legal process that will occur once charges have been filed. Having this information will not only help you throughout the criminal case, but it can also support your emotional state as it happens.

Support Through Domestic Violence Accusations

The police will aggressively search for evidence in domestic violence cases, so you need a knowledgeable attorney that can defend you just as aggressively. Our team can be a crucial ally during this difficult period, potentially finding routes to lessen your penalties or even have the charges dropped. When you are searching for an Orange County domestic violence lawyer, reach out to the Law Offices of Christopher J. McCann, APC, for a consultation on your case.