I have handled thousands of domestic violence cases both as a prosecutor and defending my clients. When I worked in the District Attorney's Office I reviewed all of the felony cases that were referred to the domestic violence unit. For six years I personally decided which cases were filed and what charges were filed. If you are facing domestic violence charge you need an experienced attorney to be on your side. Call me and let me use my experience to help you in your case.
My Strategy in Domestic Violence Cases
In one word: fight! I always conduct a follow-up investigation in domestic violence cases. The police usually do not conduct a detailed interview of the complaining witness nor any other family member. I do my own investigation. I use the information I uncover to get the DA to reduce or dismiss the charges. I fight all domestic violence cases because the punishment is more serious than in other misdemeanor or felony cases.
In California, you can be arrested for domestic violence even if the alleged victim does not want it. You can be prosecuted even when the complaining witness requests that the DA drop the case. The prosecutor can proceed with the criminal case even if the alleged victim decides not to go to court. In fact, I have never seen a DA dismiss a case just because a complaining witness requests a dismissal. DA's dismiss cases when then cannot prove the charges. I make sure I uncover evidence to show that the incident did not occur as it was originally described.
Domestic Violence Crimes
Domestic Violence can range from threats, annoying phone calls, and stalking (such as following the victim to and from work, and threatening the victim) to criminal threats and attempted murder. In some cases domestic violence may include child endangerment charges if the child witnesses the violence. In addition the alleged victim can obtain a Protective Order (Restraining Order) that would prevent the abuser/aggressor from visiting or having any contact with their children. Violation of this Protective Order can be grounds for jail. It is possible to modify these protective orders and in some cases prevent them from being issued.
PC 273.5/243(e) - Domestic violence is defined as any use of force against a spouse or cohabitant that causes injury. PC 273.5 requires that the injury be a "traumatic condition."If there is no visible injury the DA will file the 243(e).
Domestic violence requires that the person using force have a certain relationship with the alleged victim. The following relationships make a use of force qualify as domestic violence: spouse, former spouse, cohabitant (live together in an intimate relationship), former cohabitant, mother or father of a common child, and dating relationship.
PC. 646.9 - Stalking is defined as a situation where a person maliciously and willfully harasses or or maliciously and repeatedly follows another person and makes a credible threat to the person with the intent to place the other person in reasonable fear.
There are many defenses to stalking. Many times the complaing witness is over reacting or dramatizing non-criminal behavior. Call me so that we can talk about defenses in your case.
PC 207 - Kidnapping is defined as taking or holding or detaining another person by using force or fear and using that force or fear to move the other person a substantial distance without the persons consent.
A defense to kidnapping is an honest belief in the other person consenting to the movement or when the person actually gives consent.
PC 236 - False imprisonment is defined as restraining or confining or detaining someone by violence or menace against that person?s will. It is a felony when force or violence is used. If it is not used but the person is still restrained against their will, the offense is a misdemeanor.
A defense to false imprisonment is a reasonable and honest belief in the other persons consent or actual consent to the actions.
PC 422 - Criminal threats (sometimes called terrorist threats) is defined as a threat to kill or cause great bodily injury where:
- The person making the threat in tended that the statement be understood as a threat.
- The threat was so clear, immediate, unconditional and specific that it communicated a serious intention and immediate prospect that the threat would be carried out.
- The threat caused the complaining witness to be in suspained fear for his/her own safety.
- The complaining witness's fear was reasonable under the circumstances.
There are many defenses to the charge of criminal threats. In fact it is very difficult for the DA to prove this charge. Many times threats are made but not made seriously. Many times the complaining witness is not in fear or their fear is unreasonable given the circumstances.
Violation of Restraining Order:
PC 273.6 - Violation of a domestic violence restraining order happens when a person who is the restrained party on a restraining order does something that is prohibited by the terms of the order.
There are many defenses to violating a restraining order. The DA has to prove that you had notice of the order. If you were not served with the order then you cannot be prosecuted. Additionally, many times the conduct is underlying the allegations is innocent conduct: driving on a public street; walking through a public mall. You cannot be successfully prosecuted unless they can show that you were not engaged in innocent conduct.
An experience attorney in these types of cases can successfully defend those who are accused of domestic violence and take advantages of jail alternatives. Do not rely on the advice of friends or family members to guide you in the domestic violence arena. You need to speak with an experienced, trial-tested attorney. Contact The Law Office of Joshua Webb today for a free consultation and to discuss the facts about your case.