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Domestic Violence FAQ

Milpitas domestic violence defense lawyer

Domestic Violence Laws In California

Domestic violence laws in California are complicated, sometimes counterintuitive and often one-sided. The consequences of a domestic violence conviction can be jail, fines, restraining orders and loss of children and career. The more common forms of domestic violence are addressed here, but for a more detailed discussion you should contact a domestic violence attorney immediately.

  1. What Is Domestic Violence?
  2. What Is Corporeal Injury Under Penal Code Section 273.5?
  3. How Does A Prosecutor Prove Corporeal Injury On A Spouse?
  4. Can Penal Code Section 273.5 Be Charged As A Misdemeanor Or Felony?
  5. What Is The Punishment For Corporeal Injury Convictions?
  6. What Is Domestic Battery Under Penal Code Section 243(e)?
  7. How Does A Prosecutor Prove Domestic Battery?
  8. Can Domestic Battery Be Charged As A Misdemeanor Or Felony?
  9. What Is The Punishment For Domestic Battery Convictions?
  10. What Is Domestic Stalking?
  11. What Is The Punishment For Domestic Stalking?
  12. What Is The Crime Of Making Criminal Threats?
  13. What Is A Domestic Violence Restraining Order?
  14. Will I Lose My Child Because Of A Domestic Violence Charge?
  15. Will I Lose My Gun Rights Because Of A Domestic Violence Charge?
  16. What Are The Defenses To A Domestic Violence Charge?

What Is Domestic Violence?

Domestic violence is an act of abuse, which is intentional and either physical, sexual or psychological in nature. In the criminal context, the accused must be the spouse, cohabitant or in a dating relationship (or formerly in one of those relationships) with the accuser. There must be some act of aggression, whether physical or mental, that was done intentionally or recklessly that caused or attempted to cause bodily injury, sexual injury or was done to place the victim in reasonable fear for his or her safety.

Such abuse can include battery, assault, intimidation, stalking, making threats, harassment, sexual assault and verbal abuse. Domestic violence may also include crimes directed at minor children or elderly parents, including "child endangerment" and "elder abuse."

Domestic violence may be charged as a misdemeanor or felony offense and in some cases as a strike offense under California's Three Strikes Law. If the injuries are serious the offense may be charged as a felony, exposing the accused to state prison. However, most allegations of domestic violence are charged as misdemeanors exposing the defendant to county jail or jail alternatives, fines, probation and domestic violence counseling.

There are defenses to domestic violence and important mitigating factors more often than not. These defenses should be addressed early on whether to seek a dismissal or reduction in charges to avoid the complications of a domestic violence conviction. Such issues must also be preserved for trial, if necessary.

What Is Corporeal Injury Under Penal Code Section 273.5?

Penal Code section 273.5 (a) states: "Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim…is guilty of a felony." Although the victim is usually a spouse or cohabitant, he or she may also be in a dating relationship or former dating relationship, or the parent of the offender's child.

The basic element of this crime is that a "traumatic condition" was willfully inflicted upon a person by a spouse, cohabitant or other designated person. In reality, prosecutors will file a complaint alleging this crime if there was any injury, even a scratch or small bruise. Any visible sign of a touching, whether a scratch, bruise, welt or redness will be prosecuted under section 273.5, whether serious or not. In fact, a "traumatic condition" need not be serious at all, so long as the injury resulted from and caused by forcible conduct.

How Does A Prosecutor Prove Corporeal Injury On A Spouse?

There are several elements that a prosecutor must show to prove a violation of Penal Code section 273.5:

  1. The defendant willfully inflicted an injury on the victim.
  2. The injury resulted in a traumatic condition.
  3. The defendant did not act in self-defense or in the defense of another person.

As to the injury, the prosecutor must prove beyond a reasonable doubt that the traumatic condition was a consequence of the injurious conduct and that the traumatic condition would not have resulted but for the injurious conduct.


A husband comes home drunk, which upsets his wife. While making another cocktail for himself in the kitchen his wife comes in yelling at him. In front of their 16-year-old daughter, she picks up a wine glass and pretends she is about to smash her husband with it. As a reaction husband swings his arm around to shield himself and strikes his wife's jaw, dislocating it. At the hospital the wife receives medical attention and reports that her husband struck her.

Although the husband may be arrested as the "dominant aggressor," no crime has occurred. The husband was both defending himself from a perceived threat and did not intend to hit his wife. He may assert self-defense as an affirmative defense.

NOTE: The act must have been intentional, but not necessarily the injury. Also, if the accuser was the initial aggressor, this may provide a defense as the injury was caused in response to an act of aggression. The police routinely arrest who they determine was "the dominant aggressor." However, this does not defeat a self-defense theory or claim of accident.

Can Penal Code Section 273.5 Be Charged As A Misdemeanor Or Felony?

A violation of 273.5 is an alternative charge (sometimes called a wobbler) and may be filed as a felony or misdemeanor and under certain circumstances may be charged as a strike offense. Whether the prosecutor files the matter as a felony or misdemeanor depends on the level of injury, prior convictions and available evidence.

If the conduct resulted in "great bodily injury," or GBI, the matter can be filed as a strike offense pursuant to California's Three Strikes Law.

NOTE: It is important to contact the prosecutor early and present your case and any mitigating factors. This could prevent a felony charge or avoid any charges being filed altogether. Presenting your case early may lessen the impact on you or deflate the prosecutor's first impressions of the case.

What Is The Punishment For A Corporeal Injury Conviction?

A felony conviction for a violation of 273.5 carries a potential prison term of two, three or four years in a state prison. If probation is granted, a term in county jail or jail alternative may be imposed, along with fines and protective orders. However, if convicted the court must impose a 52-week "batterer's treatment" program.

NOTE: The first goal in domestic cases is always a dismissal or a reduction in charges. However, if convicted a good lawyer should explore all sentencing alternatives for his client. Jail may not necessarily be required or deserved and a defendant may be eligible for community service, work release or electronic monitoring. An agreement to take additional anger management classes or counseling may be done in lieu of jail or other consequences.

What Is Domestic Battery Under Penal Code Section 243(e)?

An offensive touching is at the heart of a charge of Penal Code section 243(e). Unlike section 273.5, no actual injury is required. The question is whether one spouse or cohabitant touched the victim in an "offensive manner." The slightest touching can constitute a criminal battery and a prosecution for domestic violence. For example, if a wife slightly pushes her husband, causing no injury, but was done in a rude or angry way and was perceived as such by the victim, a battery has occurred.

How Does A Prosecutor Prove Domestic Battery?

A prosecutor must prove several elements beyond a reasonable doubt to find a conviction for domestic battery:

  1. The defendant willfully touched the victim in an offensive or harmful way.
  2. The victim was a spouse, cohabitant or in a dating relationship with the defendant.
  3. The defendant did not act in self-defense or in the defense of another person.

A prosecutor does not have to show an actual injury or that the defendant intended to break the law. He must prove that the defendant touched the victim willfully and in an offensive manner and not done so as an act of self-defense.


A man and woman who are in a dating relationship go out to a romantic dinner at a local Italian restaurant. The man admits he had an affair with the woman's "best friend forever" whom he is leaving her for. The woman gets upset and begins yelling at the man about his infidelity who in response splashes wine in her face and then abandons her at the restaurant.

Although an arrest is unlikely, the man in this scenario committed a battery on his girlfriend. Splashing wine in his girlfriend's face after telling her he was cheating on her with her best friend was meant to be an offensive touching and could only be understood as offensive touching. Although the girlfriend likely sustained no physical injury, the mere touching is enough to constitute a battery.

NOTE: A mere shoving or pushing is enough to allege a violation of domestic battery. Without an injury and the pictures to show it, proving domestic violence can be difficult for the prosecutor and may require direct testimony by the complaining witness, i.e. victim. Other potential evidence may come into play and may be more essential to the prosecutor's case, such as the 911 call, percipient witnesses and prior allegations of domestic violence. A good lawyer knows how to deal with these issues, by motion and procedure, to dismiss, exclude evidence and reduce charges.

Can Domestic Battery Be Charged As A Misdemeanor Or Felony?

A violation of Penal Code section 243(e) is a misdemeanor offense. It cannot be charged as a felony or a strike offense and is not prison offense. It is a "lesser included" of section 273.5 and is sometimes used as a "plea deal charge" to avoid the harsher penalties of a corporeal injury offense.

What Is The Punishment For Domestic Battery Convictions?

A conviction for Penal Code section 243(e) carries a maximum of one year in county jail, fines and protective orders. As with all domestic violence convictions, if probation is granted the court must impose a 52-week "batterer's treatment program" and may impose anger management and parenting classes.

NOTE: The factual basis for the charge must first be examined and any defenses pursued. A domestic violence attorney must always look for ways to dismiss the case or reduce the charge. However, all sentencing alternatives must also be pursued, including community service, work release, electronic monitoring and accountability classes.

What Is Domestic Stalking?

Penal Code section 646.9 states: "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking."

There are several elements or factors that must be shown to prove criminal stalking:

  1. The defendant must have deliberately and maliciously and repeatedly followed the victim.
  2. While doing so the defendant made a credible threat with the intent to place the victim in reasonable fear of his or her safety.
  3. The defendant was in a position, or the victim believed the defendant to be in the position, to carry out the threat.


A man is seen driving by his ex-girlfriend's house every night. Also, every night the man text messages his ex-girlfriend that he is going to kill her and her son. When he is stopped by police they find a butterfly knife in his glove compartment. This would constitute a felony act of stalking and may be charged as a strike offense.

It should be noted under the scenario the defendant may also be charged with making criminal threats, which as a felony is a strike offense under Penal Code section 422. Also possession of a butterfly knife is illegal and a felony offense.

What Is The Punishment For Domestic Stalking?

Stalking may be charged as a misdemeanor or felony and may result in a year in county jail or a term in state prison. If the offense was committed while there was a protective order in place, the offense is a felony and carries a prison term up to four years. It also may be charged as a strike offense under the California Three Strikes Law.

What Is The Crime Of Making Criminal Threats?

Penal Code section 422 makes it a crime to threaten another person, which will result in the death or great bodily injury to the person it is directed or that person's immediate family. The threat must be willfully made and communicated to the victim with the intent that it be understood as a threat. Whether the defendant had an intention to carry out the threat is irrelevant. However, the recipient of the threat must reasonably believe the threat to be credible and that the defendant has the means to carry it out.

NOTE: Although a wobbler (the offense can be charged as a misdemeanor or felony), if charged as a felony it is automatically a strike offense. This means that the prosecutor does not have to specifically allege a strike, as the charge is itself a mandatory strike offense.

What Is A Domestic Violence Restraining Order?

When a person is arrested for domestic violence, the police will ask the alleged victim whether he or she requires a temporary emergency protective order or EPRO. They usually last seven (7) days and to continue the victim must go to family court and request further orders.

However, the criminal court will issue a protective order if charges are filed against the defendant. In most cases, the court will either issue a no-contact order or a peaceful contact order. In the absence of the alleged victim, the court generally issues a no-contact order and will order the defendant to stay away from the victim and their home.

NOTE: A good lawyer knows how to tailor these restraining orders in order to protect his client and avoid the complications that a no-contact order can cause. An argument must be made to persuade the court that no protective order is necessary. For instance: 1) The victim is not requesting one. 2) The alleged facts are not serious or there is no factual basis for the charge on the face of the complaint. 3) There are mutual children. 4) There is no prior misconduct. 5) There is no reasonable likelihood of a future misconduct.

The court may also issue a peaceful conduct protective order, which allows contact. However, the restrained party must not harass, annoy or molest the peace of the other party. Even with this limited protective order, the restrained party is at risk.

Will I Lose My Child Because Of A Domestic Violence Charge?

An allegation of domestic violence creates a rebuttable presumption that the accused parent is "unfit" to have custody of his or her child and to have visitation rights. (See Family Code section 3011). Such allegations must be disputed early to preserve your parental rights.

A conviction for domestic violence may lead to loss of:

  • Physical and legal custody of your child
  • Loss of visitation or an order of supervised visitation
  • Stay-away orders
  • Requirements to pay the victim's attorney's fees and other costs
  • Mandatory parent counseling and therapy.
NOTE: An accusation of domestic violence may also be used as a factor to deny spousal support to the accused party in a divorce or separation proceeding. (Family Code Section 4325 and 4320(m)).

What happens in criminal court may have a direct impact on your divorce and child custody proceedings. Your criminal attorney needs to aware of all the potential consequences a conviction may in a family court proceeding to protect your rights as a parent.

Will I Lose My Gun Rights Because Of A Domestic Violence Conviction?

Yes. A conviction for a domestic violence will result in loss of gun rights. A misdemeanor conviction will deprive you of the right to own, possess or use a firearm for a period of 10 years. A felony conviction will result in a lifetime ban on the use and possession of firearms. The deprivation of these rights cannot be restored by record clearances or subsequent motions.

If the court issues a domestic violence protective order, the restrained party may be required to relinquish his or her firearms during the life of the protective order. This particularly applies to temporary orders issued while the case is pending.


A man is arrested for domestic violence against his girlfriend. After he is arrested, the court is informed that the man has a registered firearm in his name. However, the man gave the gun to his now estranged son years before and does not know where his son is. This is an uneasy position to be in, because the man must relinquish his firearm, but is not in physical possession of it. Some judges will allow the defendant in this situation to testify under oath that he no longer has physical possession of the gun and this will satisfy the requirement.

In other situations, where the defendant is in actual possession of the firearm the best option is for him is to legally transfer the firearm to a trusted person and if the domestic violence charge is dismissed or reduced have the gun legally transferred back.

NOTE: If the police are called to the home on a domestic violence accusation and they know there are firearms in the home, they will confiscate the guns. Retrieving these are difficult, but can be done by filing a motion in civil court and filing an application with the Department of Justice.

What Are The Defenses To A Domestic Violence Charge?

There are real and viable defenses to a charge of domestic violence, which are usually fact-dependent. The more notable defenses are as follows:

  1. Self-defense or defense of others. Protecting yourself or another person from an initial act of aggression is an affirmative defense and an easy one for jurors to understand. For example, let's say one spouse lunges at the other spouse, who deflects the assault. The lunging spouse as a result falls on her face and breaks a nose. When the police come in response to a 911 call, they arrest the spouse they determine was the "dominant aggressor," which would be the spouse without the injury. However, no crime was committed by the arrested spouse, and he may assert a self-defense theory.
  2. Intentionally false allegations. One of the sad realities of domestic violence cases is that the alleged conduct is made up or exaggerated because of jealousy, hatred or other emotional responses by one spouse or cohabitant. For example, a husband learns that his wife is about to leave him and wants to take the minor kids with her. They get into a heated argument and the wife storms out of the house. The husband attempts to follow, but trips and hits his head causing a bruise. He then calls the police and makes a report of domestic violence, alleging his wife hit him. It is not uncommon for one party to go as far as to self-inflict in order to further a false claim of domestic violence.
    Although a common defense, this is difficult to prove in he said / she said cases. Anecdotal evidence may be important to prove that the accuser has reason to lie and to falsely accuse his or her spouse.
  3. Accident or mistake. To be guilty of a domestic violence charge, the act must be intentional. An injury that is caused by an accident is not a crime (except in some extreme circumstances) and is a defense to the charge.
  4. Factual or legal impossibility. Factual impossibility merely means that the defendant could not have completed the crime. Legal impossibility means that the conduct was not illegal. These defenses are generally applied in incomplete offenses, meaning that the defendant did not follow through to the end of the crime, and are rarely successfully, if even permitted.
NOTE: There are motions that can be used as defenses to a charge of domestic violation as well and should be explored in every case:
  1. Search and seizure motions (Penal Code Section 1538.5)
  2. Discriminatory prosecution (Murgia motion)and vindictive prosecution
  3. Motion to set aside indictment for lack of probable cause (Penal Code section 995)
  4. Motions to exclude evidence (based on hearsay, prejudice, prosecutorial misconduct etc)
  5. Pitchess motions (a motion to access the police officer's personnel file to determine whether he has a history of excessive force or lying)

Schedule A consultation Today

No lawyer can guarantee an outcome but a good lawyer knows the sooner they get involved the better opportunity they have to produce the best possible result. Do not let a bad situation become worse because you did not have experienced and relentless legal representation. Contact our San Jose domestic violence attorney at the Law Offices of Erik Steven Johnson at 408-246-3004 to schedule your consultation today.

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