While domestic violence is a serious issue in our society, it’s also one of the most common offenses brought by an alleged victim based on false allegations. The frequency of false allegations is compounded by the political pressure on prosecutors to aggressively pursue these cases.
Unfortunately, the days of a spouse or significant other recanting allegations the morning after an altercation and having the case go away have long since passed. Even if the alleged victim completely recants, prosecutors can and frequently do proceed because special evidentiary rules are in place that allow them to do so.
Domestic Violence Prosecution in San Diego
When the police are summoned to the scene of a domestic disturbance, one or both of the parties involved is typically arrested. Because statistics suggest men are more likely to be the perpetrator in these situations as well as long-held biases, typically the male party is arrested. This is particularly true if the complaining witness can provide evidence of a physical altercation, such as bruises, scratches, cuts or red marks.
While allegations of battery, assault or criminal threats are serious crimes, the potential punishment and seriousness of such offenses are increased if the alleged victim is a spouse, significant other or co-parent.
In San Diego, both the city attorney and the district attorney’s offices have units exclusively devoted to prosecuting domestic violence-related crimes. Mandatory jail time is also commonly imposed upon conviction, even for first offense misdemeanors. Because of the politically sensitive nature of domestic violence allegations, many people are arrested based on false allegations or because police officers have rushed to judgment and arrested people who are simply defending themselves in a domestic altercation.
Unfortunately, because these allegations can be a substantial strategic advantage in a contentious divorce, child custody hearing or civil restraining order hearings, false allegations are extremely common.
If you’re under investigation for domestic violence or have been arrested and charged, do not discuss your case with anyone, including the police or prosecutor. I spent years as a prosecutor and dealt with many domestic violence cases, so I know how important this is. If the police attempt to interrogate or interview you, request the right to leave. If the police do not grant your request, exercise your right not to answer questions until an attorney is present.
Given my experience as a prosecutor, I have an insider’s knowledge of the strategies likely to be deployed against you and the best plea deals that can be negotiated. While my primary objective is always to seek dismissal of the charges or an acquittal after trial, I aggressively develop the most effective trial strategy in every case to provide an advantage in plea negotiations so that we can obtain the best possible resolution of your case.
What the Law Says
California domestic violence law makes it a criminal offense to exercise physical force/violence or to communicate a threat against a spouse or other intimate partner. While conduct that constitutes domestic violence may also qualify as other types of criminal offenses under the California Penal Code (such as assault, battery or criminal threats), the intimate relationship between the parties in these cases makes the offense more serious and the potential punishment more severe.
Among the wide range of domestic violence offenses, here’s an explanation of two of the most common:
Domestic Violence: Penal Code Section 243(e)(1) makes it a criminal offense to inflict force upon a spouse, a boyfriend or girlfriend, someone you live with or someone with whom you have parented a child. This misdemeanor offense does not require any evidence of visible injury.
Corporal Punishment Inflicted upon a Spouse: Usually charged under Penal Code Section 273.5(a), this law makes it a crime to inflict “corporal injury” that causes a “traumatic condition” upon anyone with whom you have or have had a substantial or dating relationship with or have children with. This offense is much like the first, but applies when there is some evidence of physical injury, no matter how slight. An injury as minor as a bruise, scrape, cut or red mark can be sufficient to constitute a violation of this offense. This violation is a “wobbler,” meaning it can be charged as a misdemeanor or felony, depending usually on the severity of the injuries.
In addition to these two most common offenses, other domestic violence-type offenses may include criminal threats, child abuse, child endangerment and elder abuse.
Consequences of Conviction
The consequences of a conviction on any of these offenses can be serious and include the following:
- Incarceration: Most California counties impose a minimum 30-day sentence for even a first misdemeanor conviction of a domestic violence offense.
- Counseling: The court will typically order completion of a 52-week certified domestic batterer class.
- Protective Order: The judge will order you to have no direct or indirect contact with the victim.
- Denial of Rights: If convicted, the court may impose restrictions on your ability to own or possess weapons or firearms and may give you search terms which allow law enforcement to search you or your belongings without the necessity of a warrant
- Criminal Record: A domestic violence conviction will remain part of your criminal record, which makes it available when employers, landlords, occupational licensing agencies, universities or student aid providers run a criminal background check. This means that the consequences of conviction for a domestic violence related crime could follow you long after your criminal case is resolved, and you have served your sentence. Because domestic violence related crimes are usually considered offenses of moral turpitude, they also may prevent admission into certain occupations and could result in deportation, removal, and other adverse immigration consequences to certain individuals.
Here’s how I approach these cases. First, I aggressively challenge all evidence and witness testimony. I’m particularly effective at obtaining a positive result when the prosecution chooses to proceed with the case even after the complaining witness has recanted his or her testimony. Because many of these cases are brought in order to obtain an advantage in a Family Court proceeding or out of jealousy, I am tenacious about identifying inconsistent and fabricated testimony through cross examination. I will even use investigators to uncover bias and other inappropriate motives that may form the basis for false allegations.
Additionally, even if the specific facts of your case make it impossible to obtain a dismissal of charges or acquittal after trial, I will aggressively attack and expose the weaknesses in the prosecution’s case to obtain the best possible plea agreement.