Criminal Defense Attorney for domestic violence

Legal Definition of Domestic Violence

California Penal code section 13700 defines domestic violence as “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.”  See Cal Penal Code section 13700.  The same code section defines “Abuse” as, “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”

Domestic violence offenses may include infliction of corporal injury (Penal Code section 273.5), misdemeanor spousal battery (Penal Code section 243(e)), Criminal Threats (Penal Code section 422), Stalking (Penal Code section 646.9), violation of a domestic violence protective order (Penal Code section 273.6), Assault with a Deadly Weapon, (Penal Code section 245(a)(1)), Assault likely to Produce Great Bodily Injury (Penal Code section 245(a)(4), Kidnapping (Penal Code Section 207) and Mayhem (Penal Code section 203).

Infliction of Corporal Injury – Penal Code section 273.5

Under Penal Code section 273.5, the infliction of a physical injury that results in a traumatic condition against someone with whom the defendant has a domestic relationship (spouse/former spouse, cohabitant, fiancée, child’s parent, dating relationship) is punishable by a fine and imprisonment of up to four years in state prison.

In order to prove that someone committed the crime of corporal injury to a spouse or cohabitant, California law, as stated in California’s Criminal Jury Instructions, requires the prosecutor to prove that:

  1. The defendant willfully and unlawfully inflicted a physical injury on his or her spouse/former spouse, cohabitant/former cohabitant, the mother or father of his or her child, someone with whom he or she had, or previously had, an engagement or dating relationship; AND
  2. The injury inflicted by the defendant resulted in a traumatic condition. AND
  3. The defendant did not act in self-defense or in defense of someone else.

See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 840, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

Spousal Battery – Penal Code section 243(e)

The Judicial Council of California, Criminal Jury Instructions provide that in order to prove the crime of spousal battery, the prosecution must prove:

  1. The defendant willfully and unlawfully touched [the allege victim] in a harmful or offensive manner; AND
  2. The alleged victim is the defendant’s spouse, former spouse, defendant’s cohabitant, defendant’s fiancée, a person with whom the defendant currently has, or previously had, dating or engagement, relationship, or the mother or father of the defendant’s child; AND
  3. The defendant did not act in self-defense or in defense of someone else.

See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 841, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

The law further provides that the prosecutor does not have to prove that the defendant was trying to injure the alleged victim.  For purposes of battery, even a soft or slight touch against another person may be enough to constitute a crime if it is done in a threatening, angry or rude manner.  This is true even if the touching causes no physical injury or pain.

Criminal Threats – Penal Code section 422

The crime of criminal threats does not require the prosecution to prove a domestic relationship. It is a crime to make criminal threats against any person.  However, it is a criminal charge that frequently arises in the context of domestic violence allegations and if the prosecution can show that there was a domestic relationship, then the crime will carry domestic violence related consequences.  If a defendant is convicted of a felony violation of Penal Code section 422, the charge results in a “strike” conviction under the California Three Strikes Law.

To prove the crime of Criminal Threats, the prosecution must prove:

  1. The defendant threatened to kill or cause a serious injury to the alleged victim or a member of the alleged victim’s immediate family;
  2. The defendant made the threat willfully and unlawfully;
  3. The threat was spoken, written or made by electronic communication device;
  4. The defendant intended that the statement or writing be taken as threat.
  5. The threat was so clear, immediate, unconditional, and specific that it communicated to the alleged victim a serious intention and the immediate prospect that the threat would be carried out;
  6. The alleged victim was placed in “sustained fear” as a result of the defendant’s threat;
  7. The alleged victim’s fear was reasonable under the circumstances.

See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 1300, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

In order to prove a criminal threats charge, the prosecution does NOT have to prove that the defendant intended to carry out the threat.  The prosecution does NOT have to prove that the defendant had the ability to carry out the threat.  If the other elements are met, it is enough that the defendant intends that the statement be taken as a threat.

The jury instructions define “immediate family” as:

(a) spouse, parent, and children;

(b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or

(c) any person who regularly lives in the other person’s household or who regularly lived there within the prior six months.

See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 1300, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

Stalking – Penal Code section 646.9

Stalking does not require proof of a domestic relationship, but can carry domestic violence related consequences if there is a domestic relationship between the parties.

Stalking requires proof that:

  1. The defendant willfully and maliciously harassed or willfully, maliciously, and repeatedly followed another person; AND
  2. The defendant made a credible threat with the intent to place the other person in reasonable fear for his/her safety or for the safety of his/her immediate family.

See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 1301, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

A threat is considered “credible” if it causes the victim “to reasonably fear for his or her safety or for the safety of his or her immediate family and one that the maker of the threat appears to be able to carry out.” See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 1301, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

A credible threat may be an oral statement, a written statement, or, “may be implied by a pattern of conduct or a combination of statements and conduct.” See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 1301, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

Conduct is considered harassment if it is directed at a specific person and is meant to seriously annoy or terrorize that person and serves no legitimate purpose.

The prosecution does NOT have to prove that the defendant actually intends to carry out the threat. It is legally possible to commit the crime of stalking from inside of a jail.

See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 1301, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

Violation of a Domestic Violence Restraining Order – Penal Code section 273.6

To prove the crime of violation of a domestic violence restraining order, the prosecution must prove that:

  1. A court lawfully issued a written order that the restrained defendant from contacting, following or being within a certain distance of the alleged victim
  2. The court order was issued in a pending criminal proceeding involving domestic violence or as a condition of probation after a conviction for domestic violence;
  3. The defendant knew of the court order;
  4. The defendant had the ability to follow the court order; AND
  5. The defendant willfully/intentionally violated the court order.

The People must prove that the defendant knew of the court order and that he or she had the opportunity to read the order or to otherwise become familiar with what it said. But the People do not have to prove that the defendant actually read the court order.

See Judicial Council of California, Criminal Jury Instructions CALCRIM 2021, Instruction 2701, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf

Aggressive Criminal Defense for Domestic Violence

David Canty is one of the best Domestic Violence Lawyers in Southern California. With over 19 years of experience as an aggressive advocate, he fights tirelessly to achieve the best results for his clients.

David Canty specializes in criminal defense, so he is not intimidated by prosecutors. He is very passionate about defending people’s rights.

 If you are under investigation or accused of a domestic violence, you will need an experienced criminal defense attorney that will aggressively work to protect your rights and freedom. David Canty has successfully handled hundreds of cases and will work diligently to help you achieve your best possible outcome.

To schedule your free initial consultation, please fill out this quick online form.

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