Anthony Lowenstein

Attorney at Law
Criminal Defense

500 Airport Blvd., Suite 100 • Burlingame, CA 94010
Telephone (650) 579-6680 • Facsimile (650) 745-1010

Internet: www.LowensteinLaw.com
Email: Anthony&LowensteinLaw.com

CRIMINAL DEFENSE FOCUS ® A Lowenstein Publication © 2003

Domestic Violence
What to do if you are being investigated or
charged with Domestic Violence !

If there has been a domestic violence dispute between you and your current or ex - boyfriend / girlfriend / husband / wife / or parent of your child, and the Police were called (either by one of you or a neighbor), what was until now just your personal business, has suddenly become the business of the Police and the Courts.

Who is the Suspect and who is the Victim?
Unfortunately, because of the built in bias of Society, the Police, Prosecutors and the Courts, the man is usually (although not always) considered the perpetrator (or “suspect”) and the woman the “victim”. Since the O.J. Simpson case, Police officers are under strict orders that if someone gets hit, someone gets arrested!

When the Police arrive at the scene, they are first going to separate the two people and attempt to determine who is the Suspect and who is the Victim.
There are two factors that are a stereotype and general rule of thumb:

* The one who called the Police (first) is the Victim
* The one who is injured is the Victim.

The best thing that you can do is to stay out of the system in the first place. If your domestic partner resorts to violence, take a walk rather than engage in a fight.
Don’t ever let yourself be sucked into a physical conflict. No matter what the provocation, do your best to not retaliate physically.
But if you do … as with all criminal cases, NEVER talk to the Police if you are questioned. Insist on your right to an attorney no matter what the Police suggest to you, no matter what they promise or threaten.

If you think your partner may call the Police, go to a phone and call the Police first. If your partner tries to call the Police NEVER try to physically stop him / her, or you may additionally be charged with preventing a victim from calling for emergency help. It may surprise many to learn that in nearly half of all cases, the Suspect tries to pull the phone cord out or otherwise stop the Victim from calling 911.

What if the Victim does not want to “press charges” against me?
This question presupposes a common misconception held in California by many people. In California law, in any crime, the victim is not the one who chooses whether to press charges. It is the District Attorney (Prosecutor) who presses charges. The Prosecutor has an independent motivation to punish [suspected] Offenders and protect society from them. Whether a victim wishes prosecution is only one factor of many that the Prosecutor considers when deciding whether to press charges. Thus once the Police are called and “the ball starts rolling”, it’s now in the hands of law enforcement and the Courts. It’s no longer up to the Victim to stop the process.

It may surprise many to learn that in approximately 90% of all Domestic Violence cases, the “Victim” recants / doesn’t wish to press charges. Most “victims” take back what they’ve told the authorities. There are a variety of reasons why a “Victim” might recant their previous statements to 911 / the Police. – other than that they lied about the battery and now wish to tell the truth. The Prosecution is concerned that the “Victim” has been coerced or threatened by the “Suspect” to recant – or that the “Victim” simply feels badly for the disruption caused and the harmful consequences facing the “Suspect” and thus wishes to just “stop the whole thing”. Thus the District Attorney is very accustomed to “Victims” recanting and looks very suspiciously upon such recantations and considers what the “victim” said at the time of the incident to be true, and assume that her recantations are the results of pressure.

However, this does not mean that if the “Victim” wishes to help the “Suspect”, it is useless for the “Victim” to recant. To the contrary, it is extremely helpful. Specifically, if true, the “Victim” should contact the District Attorney and the “Domestic Violence Victim’s advocate” and say the following:

* She is going to recant all his/her statements. The incident simply got blown up and over-exaggerated and his/her statements to the Police were not true.
* S/he does not wish the D.A. to seek prosecution of the “Suspect”. S/he is not going to co-operate in any way with the D.A. to prosecute the “.Suspect”
* S/he is doing the above out of his/her own free will and has not been coerced or threatened in any way, by the “Suspect” or otherwise.

Restraining Orders
One concern and surprise to both partners at the outset of all Domestic Violence cases occurs when the District Attorney requests and the Court considers issuing a “Protective Order” restraining the Defendant from being with or even contacting the Victim. If a “No Contact” Order is issued, the Defendant must sleep at “Motel 6” because s/he cannot go home or call / email or otherwise contact the Victim, in any way (and thus sometimes may not even be able to see his/her family).
To avoid this result, it is critically important for the Suspect and Victim to hire a lawyer and present evidence to the District Attorney and Court that such a “No Contact” order is unnecessary and not warranted as the Suspect poses no threat to the Victim and the Victim is not in fear for his/her own safety.
In that case, sometimes, the Court will simply issue a “No Harass” order, only prohibiting the Suspect from harassing or annoying the Victim – but still allow him /her to contact and stay with their partner.

What are my possible Defenses?
Self Defense
One very good defense is the fact that you were hit first. Note that this defense does not necessarily put your partner in jeopardy of being charged. Usually, it just makes a good case for self defense. Photographs of your injuries or some independent witnesses who can swear that you were hit first will be of significant help.
If your partner has a prior history of aggressive physical assaults, either with you in a previous relationship, getting proof of the details of that history can go a long way to show that you were the real victim. As discussed, above the most common (and best) defense is a fully recanting victim.
You need a lawyer who specializes in Criminal Defense – and in particular in Domestic Violence !

What will be the Outcome?
You and your lawyer have an important decision to make: Settle or fight the charge and take the case to a jury trial. The range of charges that cases may settle for are:

Penal Code § 415 – Disturbing the Peace - This is the most minor criminal offense and is the closest to a complete dismissal.
It is merely defined as “maliciously and willfully disturbing another person by loud and unreasonable noise”.

Penal Code § 240 – Assault - Simple Assault is defined as “an unlawful attempt … to commit a violent injury on another person”

Penal Code § 242 – Battery - Simple Battery is defined as “an willful and unlawful use of force or violence upon another person”
It is further defined as any unconsensual touching of another person (however slight).

Penal Code § 243(e) – Domestic Violence - Domestic Violence is any battery (above) where the “Victim” is a current or former spouse, girlfriend, etc.

Penal Code § 273.5 – Domestic Violence - Inflicting corporeal injury on a domestic partner resulting in a “traumatic condition”
A “traumatic condition” is defined as any visible injury, which includes scratches, bruises or even redness.
If the District Attorney can prove that a domestic violence occurred and has proof (witness or photographs) that it cause a visible injury, then this is the most likely charge.

Penal Code § 273ab – Child Endangerment One last concern is that if any children were present or in close proximity during a violent altercation between
partners then the D.A. may additionally file Child Endangerment charges.
Sentences
Most Defendants who are convicted or plead guilty to Domestic Violence charges face sentences that include the following:
· 3 Years of (Supervised) Probation
During at least half of this time, you may need to meet with a probation officer and follow the guidelines as instructed by the Probation Department.
If you violate any order of the court or commit any new offense within the Probation term, the Judge may increase your punishment in your original case (in addition to prosecuting you for any new case). If you complete all of your terms of Probation and do not commit any new crimes, probation automatically expires.

· 10-60 Days JAIL
The maximum sentence for Assault, Battery or Domestic Violence is 6 months county jail. If the Domestic Violence causes an injury, the maximum is 1 year.
However, in practice, most defendants get sentenced in a range between 10 to 60 days of jail, unless there are unusual mitigating or aggravating circumstances.
Note that this time does not necessarily need to be spent in jail, but can spent serving on the Sheriff’s Work Program.
A good lawyer can make a substantial impact minimizing the jail sentence in your case.

· Fines can range from $100 to $2000 depending on the nature of the case.

· Domestic Violence Classes
Anyone convicted of Domestic Violence MUST complete fifty-two (52) weeks Domestic Violence Classes (2 hours, once a week, for a year).
Sometimes, the District Attorney / Court will allow a Defendant to plead to one of the lesser charges above, but still require as a mandatory term of Probation that the Defendant nonetheless complete the Domestic Violence Classes.

Therefore, if charged with Domestic Violence, it is a very good idea to immediately get enrolled in a local Domestic Violence class. Some are concerned that enrolling in such a class might be construed by the court as implicit admission of guilt. Not so! Experience shows that:
the Court looks very favorably upon Defendants who acknowledge that they have a problem and take positive steps to solve it. Every Defendant who voluntarily enrolls in DV Classes and shows proof of enrollment to the Court gets a significantly more lenient sentence. The sentence is even more lenient if it is accompanied by a positive letter from the DV counselor stating that the Defendant has participated well in the DV classes and is making good progress.
Thus, enrolling in the DV classes is a freebee! If convicted, the Court is going to make you do it anyway, but this way, you get a head start and score major brownie points with the Court for your proactive hard work to improve yourself and work through your problems.
Even if you fight the case and win, you can always simply stop taking the DV classes, if they are not ultimately court ordered.
Interestingly, and most importantly, most people who are having domestic dispute problems find taking the DV classes tremendously helpful.
In those classes, participants learn anger management and relationship techniques that help save their marriages and make them much better people.
The most simple step you can take to help yourself, emotionally and legally, is get enrolled in the DV classes – right away!

Domestic Violence charges create great havoc to the Suspect, the “Victim” and their entire family and threaten to harm the Suspect with a criminal record. However, with the help of a good lawyer, the charges can be managed and a criminal record can be avoided or minimized, while the partners actually get the help and counseling they need to repair their relationship, if desired, and get their lives back in order – in better shape in a few short months.

The Lowenstein Law Office
If you are charged with Domestic Violence in the San Francisco Bay Area call the Lowenstein Law Office at 650-343-1971 for a FREE CONSULTATION. Specializing in over 100 Domestic Violence cases, I have gained tremendous experience that can work for you. I provide total commitment to clients by providing the best legal services and Aggressive Defense at an Affordable LOW COST. This includes defending your criminal record, protecting your constitutional rights, your reputation and taking care of all aspects of your case.