Introduction

If you’ve been arrested for domestic violence, you probably have many questions that need to be answered.  Acting fast is a must.  A skilled domestic violence lawyer will seek to prevent loss of evidence, gather the best evidence, and give you the best chance at fighting your case.  Your first call should be to domestic violence lawyer Matthew Luzaich for a free consultation.  It’s important to start preparing your defense as early as possible, and the best way to do that is to speak to an experienced domestic violence lawyer.

The Statute(s)

If you’ve been arrested and accused of committing one of the below statutes, you probably have many questions about your case and the laws you’re alleged to have broken.  Below, domestic violence lawyer Matthew Luzaich has provided the code sections you may have been charged with so that you can better understand what it is you are accused of doing.

Penal Code § 243(e)(1): “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…”

Penal Code § 273.5(a): “Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment.

(b) Subdivision (a) shall apply if the victim is or was one or more of the following:

(1) The offender’s spouse or former spouse.

(2) The offender’s cohabitant or former cohabitant.

(3) The offender’s fiancé or fiancée, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243.

(4) The mother or father of the offender’s child.

(c) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section.”

The Elements

Penal Code § 243(e)(1):

A domestic violence lawyer will first look to the elements of the crime to assess the strength of the prosecution’s case.  To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant willfully [and unlawfully] touched in a harmful or offensive manner; [AND]
  2. is (the/a) (defendant’s [former] spouse/defendant’s cohabitant/defendant’s fiancé[e]/person with whom the defendant currently has, or previously had, a (dating/ [or] engagement) relationship/(mother/ father) of the defendant’s child)(;/.). (CALCRIM No. 841)

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

The touching can be done indirectly by causing an object [or someone else] to touch the other person.

The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties’ holding themselves out as (husband and wife/domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship.

A person may cohabit simultaneously with two or more people at different locations, during the same time frame, if he or she maintains substantial ongoing relationships with each person and lives with each person for significant periods.

The term dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.

A person is considered to be the (mother/father) of another person’s child if the alleged male parent is presumed under the law to be the natural father. (CALCRIM No. 841)

Penal Code § 273.5(a):

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant willfully [and unlawfully] inflicted a physical injury on (his/her) ([former] spouse/[former] cohabitant/the (mother/father) of (his/her) child)/someone with whom (he/she) had, or previously had, an engagement or dating relationship); [AND]
  2. The injury inflicted by the defendant resulted in a traumatic condition.

Someone commits an act willfully when he or she does it willingly or on purpose.

A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.

The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties’ holding themselves out as (spouses/domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship.

A person may cohabit simultaneously with two or more people at different locations, during the same time frame, if he or she maintains substantial ongoing relationships with each person and lives with each person for significant periods. (CALCRIM No. 840)

“Traumatic condition” means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, “strangulation” and “suffocation” include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck. (Pen. Code § 273.5(d))

A traumatic condition is the result of an injury if:

  1. The traumatic condition was the natural and probable consequence of the injury;
  2. The injury was a direct and substantial factor in causing the condition; AND 3. The condition would not have happened without the injury. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.

In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that resulted in the traumatic condition. (CALCRIM No. 840)

Penalties

The maximum punishments are set forth below, however, a skilled domestic violence lawyer will seek the minimum amount of punishment possible even where a person may be guilty of the crime.  Domestic violence lawyer Matthew Luzaich has successfully fought domestic violence cases and had charges both reduced and dismissed.

Penal Code § 243(e)(1):

A violation of this subdivision is a misdemeanor and is punishable by a fine not exceeding two thousand dollars ($2,000), 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.

Upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:

(A) That the defendant make payments to a battered women’s shelter, up to a maximum of five thousand dollars ($5,000).

(B) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.

Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously convicted of a violation of this subdivision or Section 273.5, the person shall be imprisoned for not less than 48 hours in addition to the conditions in paragraph (1). However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence.

In addition to the above potential consequences, a conviction of this subdivision may subject a person to deportation if the person is not a citizen of the United States.

Penal Code § 273.5(a):

Punishable by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment.

Pen. Code § 273.5(f)

(1) Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000).

(2) Any person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to ten thousand dollars ($10,000), or by both that imprisonment and fine.

Pen. Code § 273.5(g)

If probation is granted to any person convicted under subdivision (a), the court shall impose probation consistent with the provisions of Section 1203.097.

Pen. Code § 273.5(h)

If probation is granted, or the execution or imposition of a sentence is suspended, for any defendant convicted under subdivision (a) who has been convicted of any prior offense specified in subdivision (f), the court shall impose one of the following conditions of probation:

(1) If the defendant has suffered one prior conviction within the previous seven years for a violation of any offense specified in subdivision (f), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 15 days.

(2) If the defendant has suffered two or more prior convictions within the previous seven years for a violation of any offense specified in subdivision (f), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 60 days.

(3) The court, upon a showing of good cause, may find that the mandatory imprisonment required by this subdivision shall not be imposed and shall state on the record its reasons for finding good cause.

In addition to the above potential consequences, a conviction of this subdivision may subject a person to deportation if the person is not a citizen of the United States.

Defenses

There are many defenses to domestic violence charges, and when you retain our office to represent you, you are always innocent until proven guilty.  We will investigate your case, interview witnesses, explore all possible defenses, and fight for you and your rights.  Every case is different, each person’s situation is different, and every individual is different.  When you talk to us we will discuss the specific facts of your case, your background, how the law applies to the facts of your case, and all defenses you may have.

Common defenses to domestic violence charges include:

  1. You were falsely accused
  2. Self-defense
  3. Defense of others
  4. You did not act willfully (see above)
  5. Violations of your constitutional rights

Miscellaneous Information

The Alleged Victim

Whether a “victim” wants the alleged abuser to be arrested or charged is not at the alleged victim’s discretion.  That person is usually fairly powerless to dissuade a prosecutor from seeking “justice.”  Often, the alleged victim after giving a statement incriminating the defendant tries to contact the police, District Attorney’s Office, and goes to court in the hopes that s/he can influence the defendant’s case.  Unfortunately, most District Attorneys hear these pleads by the victim not to press charges routinely and usually tune them out.

A skilled domestic violence lawyer will listen to the alleged victim, as often the police hear what they want to hear to make an arrest and separate the parties.  Sometimes the officer(s) assume it’s in the victim’s interest (sometimes they’re justified in doing so).  There are two sides to every story, and the story the police and District Attorney concoct, may not be accurate, or may not be based on all the facts.  That’s why our firm gathers all the evidence, interviews all of the witnesses, and builds a defense that considers everything.  Not just what the officer wrote in his or her report.  Investigating and fighting these kinds of cases, domestic violence lawyer Matthew Luzaich has successfully defended cases other lawyers originally advised his clients to plead guilty to.

Criminal Protective Order

The police or judge in your case, pursuant to Penal Code § 136.2, may order that you have no contact with the alleged victim.  This means you may be required to leave your own house and not return until after the case is resolved.  It also means no calling, texting, emailing, or any other contact whatsoever for sometimes at least the duration of the case.  There is no need for a hearing before this order is imposed.  For most people this is a devastating prospect.  These orders are difficult to overcome, but it is possible to have the court modify the order and impose a “no negative contact order” which allows the person accused of the domestic violence charge to have peaceful contact with the alleged victim.

What You Should Do

When you retain our office to represent you, you are always innocent until proven guilty.  domestic violence lawyer Matthew Luzaich will investigate your case, interview witnesses, explore all possible defenses, and fight for you and your rights.

Every case is different, each person’s situation is different, and every individual is different.  When you talk to us we will discuss the specific facts of your case, your background, how the law applies to the facts of your case, and all defenses you may have.

Domestic violence charges are serious.  You need serious representation.  Whenever a person faces these types of charges, there’s more than just the criminal justice system to worry about and handle.

Representing a person charged with domestic violence requires more than knowledge of the law and in-court advocacy.  Domestic violence lawyer Matthew Luzaich provides a compassionate and caring service for his clients focused on you as an individual.  He is always available day or night to discuss your case with you.  Speak with domestic violence lawyer Matthew Luzaich today about your case by calling (530) 809-1752.  The consultation is free and you have nothing to lose.  We are available by phone during office hours and after hours for your convenience.

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