Blog

DOMESTIC VIOLENCE IN THE BAY AREA – ROLE OF COMPLAINING WITNESS

Arrested for Domestic Violence in the Bay Area?

One of the most common questions Domestic Violence arrests provoke is what is the role of the complaining witness in deciding to or influencing charging and prosecution.

DOES VICTIM HAVE TO TESTIFY?

It is well known that a victim of domestic violence does not choose whether charges are brought against his or her significant other. The questions of whether a domestic violence victim have to testify in a domestic violence trial depends on several factors.

You can be sure that the District Attorney will subpoena the victim to appear on the day of trial.

WHAT HAPPENS IF WITNESS DOES NOT SHOW UP?

Any individual that does not respond to a subpoena properly served, will be subject to a bench warrant and an Order to show cause as to why that witness did not appear in court. This applies to domestic violence victims. If no good cause is shown for non-appearance, the court will hold the witness in contempt of court.

CAN I SHOW UP AND NOT TESTIFY?

If the witness appears in court but refuses to testify, California Civil Code section 1219(b) limits the penalties the court can impose on the person. That is, a court can not imprison a victim of domestic violence for contempt of court and can refer the that person to a domestic violence counselor.

IF I REFUSE TO TESTIFY, WILL THE DISTRICT ATTORNEY DISMISS THE CHARGES?

Unfortunately, the answer to this question is…. IT DEPENDS. The District Attorney will have to consider the strength of the evidence given the refusal to testify. Factors such as injuries (and photographs of those injuries), witnesses, prior testimony/statement of Complaining witness and defendant’s statement will be evaluated. It may be that the prior statement of the victim of Domestic violence is admissible as an exception to the hearsay rule.

If you or your significant other have been arrested or charged with Domestic Violence, contact Summit Defense Domestic Violence Lawyer for a free consultation. (800) 929-0451

Santa Clara Mandatory Domestic Violence Arrest Policy (CA Penal Code 273.5)

California Penal Code section836(d) allows an arrest by an officer of a  crime that does not take place in their presence if:

  1. The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.
  2. The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.

While this section could, in theory apply to any crime committed, law enforcement agencies will, in fact, make an arrest in virtually every domestic violence case.  The most common domestic violence arrest in Santa Clara is for violation of penal code section 273.5 or 243e.  However, any crime which is made against a “domestic partner” will trigger an immediate arrest under this section. 

According  to a manual published in 2014, (DOMESTIC VIOLENCE PROTOCOL FOR LAW ENFORCEMENT), any Santa Clara Agency must make an arrest if called in to a domestic violence investigation whether they believe charges will be filed or not.  The following agencies are obligated under this protocol.

  • · CALIFORNIA HIGHWAY PATROL
  • · PALO ALTO POLICE DEPARTMENT
  • · CAMPBELL POLICE DEPARTMENT
  •  · SAN JOSE POLICE DEPARTMENT
  • · GILROY POLICE DEPARTMENT
  • · SAN JOSE STATE UNIVERSITY PD
  • · LOS ALTOS POLICE DEPARTMENT
  • · SANTA CLARA COUNTY DISTRICT ATTORNEY’S OFFICE
  • · LOS GATOS- MONTE SERENO POLICE DEPARTMENT
  •  · SANTA CLARA COUNTY SHERIFF’S OFFICE
  • · MILPITAS POLICE DEPARTMENT
  • · SANTA CLARA POLICE DEPARTMENT
  •  · MORGAN HILL POLICE DEPARTMENT
  • · SUNNYVALE DEPARTMENT OF PUBLIC SAFETY
  •  · MOUNTAIN VIEW POLICE DEPARTMENT Chief Scott Vermeer

 

The protocol makes a “Pro Arrest policy” in domestic violence incidents and DEMANDS that an arrest be made.  Further, in circumstances of “mutual combat”, the officers must determine who the “primary aggressor” is and arrest that person. 

The manual (link below) describes the various crimes that may be considered “domestic Violence” thus triggering mandated arrest upon a probable cause determination.  These are:

  • 136.1 – Intimidating or dissuading a witness
  • 148 – Resisting arrest
  • 166 – Violation of a court order – typically criminal court order
  • 187 – Murder
  • 207 – Kidnapping
  • 236/237 – False imprisonment
  • 236.1 – Human Trafficking
  • 240 – Assault
  • 243 (a) – Battery
  • 243 (e) – Battery – Spousal/cohabitant/parent of suspect’s child/former spouse/fiancée/fiancé/dating and former dating relationship abuse
  • 243 (d) – Battery with serious bodily injury
  • 243.25 – Battery of an elder or dependent adult, who knew or should have known that the victim is an elder or dependent adult
  • 245(a)(1) – Assault with a deadly weapon
  • 245(a)(4) – Assault by means of force likely to produce great bodily injury
  • 246(a) – Shooting at an inhabited dwelling
  • 261.5 – Unlawful sexual intercourse
  • 262 – Spousal rape, eliminates the reporting and corroboration 10 requirements. Now consistent with P.C. 261
  • 270.6 – Leaving California with the intent to avoid paying spousal support, after having notice that a court has made a temporary or permanent order
  • 273.5 – Abuse of spouse, former spouse, cohabitant, former cohabitant, parent of suspect’s child, fiancé, current or previous dating relationship
  • 273.6 – Violation of a protective order (Cross ref to CCP 527.85 pg 8) Typically family law or civil protective orders 20. 273a – Child abuse / endangerment
  • 368 – Crimes against elder or dependent adults
  • 417 – Brandishing a weapon
  • 418 – Forcible entry into the home of another
  • 422 – Criminal threats
  • 591 – Malicious destruction of a telephone line
  • 591.5 – Unlawful removal, damage of wireless communication device, or obstructing use of such device to summon law enforcement
  • 594 – Vandalism
  • 597a – Cruelty to Animals
  • 603 – Forcible entry with damage to property
  • 646.9 – Stalking
  • 653m (a) – Obscene or threatening calls or electronic contacts
  • 653m (b) – Making repeated, annoying telephone calls or electronic contacts.
  • 653m (e) – 653m (a) and (b) are violated when a person knowingly permits any telephone or electronic communication under the person’s control to be used for the purposes prohibited by these subdivisions.
  • 29825 – Restrained person possess or attempt to purchase firearm
  • 25400 – Possession of a concealed firearm
  • 18250 – Confiscation of firearms (Authority for seizure).
  • 25850(a) – Possession of a loaded firearm
  • 653.2 – Electronically distributing, publishing, e-mailing, or making available for download, personal identifying information of an electronic message of a harassing nature, about another person, with the intent to place the person in reasonable fear for his or her safety, or his or her immediate family’s safety, and for the purpose of imminently causing the person unwanted physical contact, injury or harassment by a third party.
  • 528.5m – Knowingly and without consent, credibly impersonating another actual person through or on an Internet Web site or by other electronic means, for purposes of harming, intimidating, threatening, or defrauding another person.
  • 664 – Attempt of any of the above

 

A full copy of the manual can be seen here: goo.gl/qFOAqi

 

Alameda County Court still Struggling With Computer System

Alameda County Court still Struggling with Computer System

It has now been over six months since the Odyssey computer system was implemented in Alameda County.  Over the last six months there have been reports of inmates staying in jail pass their sentence, individuals arrested for probation violations  that had been recalled and a host of other delays and complications.   Whether this is a terminal software issue or what that can be fixed remains to be seen, however, there have been, to be fair, some advantages of the new system including cost cutting, ability obtain information immediately across the various courts as well as ability of criminal lawyers to pull files on line.  It appears Alameda Presiding Judge Jacobson has taken the matter under submission and we hope the various issues with the software are resolved soon.

Bay Area Domestic Violence Bail schedules – Should I Bail Out? (CA Penal Code 273.5)

Bay Area Domestic Violence Bail schedules – Should I Bail Out?

Often, a domestic violence arrest triggers an immediate dilemma of whether to bail out or wait for a court proceeding.  Bail is the system by which those accused of a crime can essentially mortgage their freedom by posting a bond in court.  The amount of the bond depends on the  crimes alleged as well as the county the crime is alleged to have occurred in and is set by the county jail officials in charge of the  booking process.

What is unique about domestic violence arrests(CA Penal Code 273.5) is that while the offense is often charged as a misdemeanor, the initial arrest is almost always a felony arrest.  As such, the bail amount initially set by the jail is likely to be reduced dramatically and often a defendant can be released without bail.  Additionally, the District Attorney may opt not to file charges at all in which case bail is no longer necessary.

In Santa Clara, the initial bail set for domestic violence by the county’s bail schedule is $25,000.  In San Mateo and Alameda and San Francisco, bail for a felony domestic violence arrest is $50,000.

Somethings to consider when deciding whether to bail out after a domestic violence arrest:

1. What is the court date assigned to my case if I stay in custody?

2. What is the likelihood of the District Attorney filing charges against me?

3. What is the likelihood of an Own Recognizance release assuming I am charged?

4. Would the bail premium preclude financial ability to retain counsel

The answers to these questions will often dictate a person’s decision to post bail or not.  Summit Defense Criminal Attorneys offers a free consultation and can help you prioritize these and other decisions if you are arrested for domestic violence. 

San Francisco Sheriff Denies Home Detention After Child Porn Conviction (CA Penal Code 311)

San Francisco Sheriff denies Home Detention After Child Porn Conviction

In a far too common turn, Enrique Pearce’s sentencing for possession of Child Pornography (CA Penal Code section 311) was delayed because the San Francisco Sheriff declined to accept Mr. Pearce into it’s home detention program. 

While the Sheriff may deny anyone from the home detention program, Bay Area Sheriff departments routinely will deny those convicted of offenses involving minors from home arrest.  To be clear, home arrest allows a defendant to work but demands HOME ARREST at all other times. 

Prosecutors, under pressure from public outcry, and now the Sheriff’s office have yet again turned a negotiated plea agreement into a public display of false disgust.  While Mr. Pearce was convicted of more that simple possession of child pornography (distribution under penal code section 311.2) , it is clear that the facts of his case do not lend themselves to harsh sentencing under the statute.  Given that this material is most often shared via file sharing software, any one who downloads and possesses, often unknowingly, also distributes. 

At some point the emotional reactions to these crimes become nothing more than fear mongering.  Much like the military industrial complex sows fear to accommodate the large budges it enjoys, this fear mongering is putting money in someone’s pocket and we just eat it up.

Two Criminal Trials for The Price of One – Budgetary Concerns and Criminal Justice in Santa Clara

Two Criminal Trials for The Price of One – Budgetary Concerns and Criminal Justice in Santa Clara

Santa Clara District Attorney Jeff Rosen’s analysis of the two-jury criminal trials in the Mercury news lacks merit.  To begin with, Criminal trials are difficult and require a constant focus that is, at times, difficult with one jury.  The idea that the criminal justice system can and should save resources by grouping defendants together and having two or more juries hear parts of the testimony presented is absurd.  While the rules allow for one of the juries to be removed in the event that they are not to hear some of the testimony, it is difficult for counsel and defendant to keep track of all of the evidence and this confusion will, inevitably, lead to mistrials and costly appeals.  The idea that we accommodate a single jury for a single case because we “prefer the comfort of the familiar” is profoundly disingenuous.  We accommodate criminal defendants because it is a sacred part of American democracy.  That no citizen should be convicted unless proven guilty beyond a reasonable doubt. 

DA Office Found Arrest Disparities in Santa Clara County

The Santa Clara County District Attorney’s Office found disparities in the percentages of Latino and Black individuals charged with misdemeanors and felonies. These findings confirm anecdotal impressions and data from the San Jose police department.

Disparities were found across all charges beginning with the following points of encounter: car stops, 911 calls, in person street encounters, results of police investigations and resisting a police officer.

This final category reveals a disproportion that is both notable and troubling. The proportion of people charged with resisting arrest (CA Penal Code 148) were 50% Latino and 14% Black. Latinos make up 26% of the county’s population, Blacks make up 3%.

“Resisting an officer” is a subjective determination. Frequently, those charged believe that they are in fact the victims of rough treatment by police officers.  Concerns regarding resisting an officer charges that follow a use of force by police officers are being voiced by San Jose’s Independent Police Auditor, many attorneys, individual residents and community advocates.

It is important to point out that these numbers were not caused by people coming into Santa Clara County from other areas, as the same disparities were revealed when the data was limited to Santa Clara County residents charged with a crime. The DA’s report also shows whites, Asians and Pacific Islanders are underrepresented in the data when it comes to felony and misdemeanor prosecutions.

While the study does not try to identify why these results exist, it is very important to note that the questions are being raised and asked at the District Attorney level.

East Palo Alto Landlord Arrested for Vandalism (CA Penal Code 594) and Dissuading a Witness (CA Penal Code 136.1)

An East Palo Alto landlord was arrested for vandalism (CA Penal Code 594) on October 21, after the Office of the District Attorney for the county of Santa Clara issued warrants stemming from his alleged destruction of tenant’s property in order to intimidate them and cause them to leave the premises.  It is alleged that the landlord, Nemat Matt Malek Salehi vandalized property belonging to tenants because he hoped they would leave the premises, and he would be able to charge higher rent at the East Palo Alto residential building.

His son, was arrested on the same warrant for dissuading a witness (CA Penal Code 136.1) who was allegedly cooperating with investigators.

Santa Clara District Attorney: No Charges Filed for Alleged Sexual Assault at Stanford University (CA Penal Code 243.4)

The Santa Clara District Attorney has decided not to file charges against a Stanford University graduate for alleged sexual assault  (CA Penal Code 243.4). 

Prosecutors with the Santa Clara District Attorney’s office have deemed that there is insufficient evidence to charge the student.  It is the duty of a District Attorney to only charge cases they feel they can win at trial. 

Govinda Dasu was arrested on Sept. 24 after officers were called to his room.

Given the recent changes in law as well as the general atmosphere in San Jose around sexual assaults involving Stanford students, we truly respect the District Attorney’s decision to file charges given emotional and political pressure. 

Meanwhile, the witch hunt against Judge Perski in Palo Alto continues.  This time for another Judge’s decision to allow a student another chance to complete the Domestic Violence counselling Judge Persky ordered him to complete. 

This is the state of the law in Santa Clara.