Domestic Violence

ACCUSED OF DOMESTIC VIOLENCE IN THE SAN FRANCISCO BAY AREA?

 

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Do not gamble with your future. Accusations related to domestic violence can be devastating to you, your family and your career. Once an accusation is made it is critical that you have a knowledgeable expert on your side.

Our Domestic Violence lawyers includes three former prosecutors, a former police officer and attorneys educated at the country’s top law schools. We fight domestic violence charges—often resulting in dismissal, acquittal or reduced charges.

Feel free to contact us at (888) 986-1338 for a Free Case Review or schedule a consultation online.

As the largest defense firm in the Bay Area, our Domestic Violence lawyers specialize in defending domestic violence cases. We believe that families have a right to sort out their own problems, and we do not want our clients to bear the burden of an unfair criminal conviction. Our first and foremost goal is the complete dismissal of charges. This is why we do everything possible to have these matters dismissed by the DA before charges are filed, and when necessary, vigorously defend domestic violence accusations in court.  For your convenience, we have 6 bay area offices located throughout the Bay Area:

  • San Jose Domestic Violence Lawyer – 2570 North 1st Street, 2nd Floor, San Jose, CA 95131  (408) 333-9622
  • San Francisco Domestic Violence Lawyer – 580 California Street, 12th floor, San Francisco, CA 94104  (415) 666-2316
  • Oakland Domestic Violence Lawyer –  1970 Broadway #1145, Oakland, CA 94612  (510) 352-1450
  • Pleasanton Domestic Violence Lawyer –  6200 Stoneridge Mall Rd #300, Pleasanton, CA 94588  (925) 218-4730
  • San Rafael Domestic Violence Lawyer – 4040 Civic Center Dr #200, San Rafael, CA 94903  (415) 524-7717
  • San Mateo Domestic Violence Lawyer – 533 Airport Blvd #400, Burlingame, CA 94010  (650) 763-8766

 

A domestic violence conviction can have very serious consequences – including jail time, the imposition of restraining orders, and a permanent criminal record. And in the case of non-citizens, immigration issues present even further difficulties. The Bay Area is a melting pot, and we regularly represent immigrants from all over the world. In those cases, our defense attorneys will work with the specialist immigration attorney on our team to prioritize the protection of our client’s immigration status.

 

DOMESTIC VIOLENCE – DEFINITIONS, PENALTIES AND ANALYSIS

 

In this section of our site, we will explain domestic violence laws in California – the criminal offenses, the laws related to restraining orders, as well as the police and prosecution policies that impact these cases. We understand how the local police departments and courts treat these matters, and are experts in directing our clients to resources that are available to help deal with family conflict. Families are under a lot of stress – many of our clients are hard-working professionals who are concerned about money, or their kids, and sometimes that stress boils over into an argument. We recognize that these people aren’t criminals, and our aim is always to protect our clients’ rights and reputation, and to keep families together wherever possible.

 

The California Penal Code makes it a crime to use physical violence against your domestic partner, or to threaten them with physical violence. Of course it is illegal to assault anyone, but when the defendant and the alleged victim are in a special kind of relationship, the law treats that as a more serious kind of offense. Domestic violence offenses under Penal Code 243(e)(1) and 273.5 cover a very broad spectrum of relationships – the laws apply to spouses, people who are engaged, people who are living together in an intimate relationship, and in some cases even people who are dating. They also apply to couples who have separated and parents who have children together, whether they are still together or not. The law applies to both heterosexual couples and same-sex couples.

 

There are also laws that create a scheme for the imposition of restraining orders under both the Penal Code and the Family Code. These are orders that can be made against people who are accused or suspected of being violent or threatening violence against their current or former domestic partner. The orders are not, by themselves, a criminal charge – rather, they seek to restrain the behavior of the person who is seen as the aggressor in the relationship, in an effort to protect the other person.

 

The final aspect that is important to consider are the policies of the police and the prosecutors. Since specific domestic violence laws were passed in California in the 1980’s, police departments are required to enact special policies and protocols that, amongst other things, seek to prioritize the arrest of offenders. District Attorneys are also required to prioritize the prosecution of these matters.

 

The effect of these laws and policies, however, is that the pendulum has now swung too far – many people are arrested unfairly, when their partners do not want to take any action, or when families would be better served by sorting out their own problems. Another issue that arises in domestic violence responses today is that all incidents get ‘thrown in together’ in the system. This results in the courts being clogged by many cases that people could best deal with as a family, and not enough resources being directed to where they really should be, that is, focused on the most serious cases.

 

Finally, the legal system’s response to domestic violence means that it is not wise for a defendant to try to tackle accusations alone. The system is not set up to assist couples or families to help themselves through these cases – in fact, trying to do so can often make things worse. Every person accused of a domestic violence offense should obtain expert legal advice and representation to navigate the system effectively, and to protect their reputation.

 

 

WHAT IS DOMESTIC VIOLENCE?

Many different violent or threatening acts are treated as criminal offenses, but when violence or threats are perpetrated against someone you are in a domestic relationship with, the law in California treats those acts separately, and often more seriously.

 

How does the law define domestic violence?

Under California Penal Code 13700(b), domestic violence means “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.”

 

There are two important aspects to this definition:

  1. abuse; and
  2. the specific kind of domestic relationship between the parties.

 

The Penal Code goes on to define those terms.

 

Under Penal Code 13700(a), ‘abuse’ means “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”[1] So, the laws that deal with domestic violence cover acts that cause injury, as well as acts that make someone afraid that they might be injured.

 

The kinds of domestic relationships that the laws apply to are quite broad. They are:

  • people who are married, or who used to be married;
  • people who have a child together;
  • people who are engaged or dating, or who used to be; and
  • people who live together – cohabitants – or who used to live together.

 

Penal Code 13700(b) says that cohabitants are “two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.” It is not always clear if two people who live together are in the kind of domestic relationship that would fit under these laws, so in judging whether the couple fit the term ‘cohabitants’, the factors that can be taken into account include, but are not limited to:

  • sexual relations between the parties while sharing the same living quarters,
  • sharing of income or expenses,
  • joint use or ownership of property,
  • whether the parties hold themselves out as husband and wife,
  • the continuity of the relationship, and
  • the length of the relationship.[2]

 

How do the police and the prosecution approach domestic violence matters?

In the past, the police would use a variety of different methods when dealing with domestic violence cases. Often they would try to talk to the parties and calm the situation down, they might suggest they spend a bit of time apart, and only very rarely would they make an arrest. In the 1970’s and 80’s, there were increasing calls for police to take domestic violence offenses more seriously, and to treat them in the same way as any other violent offense – there were demands for perpetrators to be subject to the full force of the law, and for victims to be properly protected. This led to the passage of specific laws to address domestic violence in Part 4, Title 5 of the California Penal Code in the late 1970’s and early 1980’s.

 

These laws direct the police response to domestic violence. In fact, sections in the Penal Code make it mandatory for every law enforcement agency to develop policies and protocols around domestic violence, including specific policies that prioritize arrest of suspects.[3] For example, Penal Code 13701(b) states, in part, that the “written policies shall encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed.”

 

Several vital points emerge from these laws, which provide a good background to understanding the approach taken to domestic violence offenses by the police today. They include the following statements, from Penal Code Sections 13700 and 13702:

 

  • “The written policies shall encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. These policies also shall require the arrest of an offender, absent exigent circumstances, if there is probable cause that a protective order … has been violated.”[4]
  • “These policies shall discourage, when appropriate, but not prohibit, dual arrests. Peace officers shall make reasonable efforts to identify the dominant aggressor in any incident.”[5]
  • “These policies shall reflect that calls reporting threatened, imminent, or ongoing domestic violence, and the violation of any protection order, … and restraining orders, shall be ranked among the highest priority calls. Dispatchers are not required to verify the validity of the protective order before responding to the request for assistance.”[6]

 

The policies are generally found on the website of every police department in the state. For example, the ‘Domestic Violence Protocol for Law Enforcement’ in San Mateo County states, “A pro-arrest policy should be implemented by all agencies.”[7]

 

In the case of the prosecuting authorities, the emphasis is much the same – policies state that matters should be prosecuted, even when victims do not want to testify. In San Francisco, for example, the District Attorney has what is known as a “no drop” policy, which requires prosecutors to press charges whenever there is sufficient evidence to convict.[8]

 

What all of this means for defendants and their families, however, is that the power to make decisions about how to deal with their conflicts and disagreements is often taken away from them. In many cases, the interference of the full force of the law – with all of the time and complications it involves – makes it more difficult for families to deal with, and move past, conflict.

 

 

WHAT HAPPENS WHEN THE POLICE BECOME INVOLVED?

 

What does the law require the police to do?

As we have explained above, the law places quite strict obligations on police officers. Basically, if they are called to a home or other place where there is an allegation that domestic violence has occurred, they must:

 

  • respond to every call requesting assistance in relation to domestic violence;
  • determine who the ‘dominant aggressor’ is;
  • make an arrest if there is probable cause that an offense has been committed;
  • avoid making a dual arrest wherever possible;
  • speak to all the occupants of the home, including children;
  • give the alleged victim information about their rights, and assistance available;
  • ensure that the proper domestic violence reports are completed; and
  • forward report and recommendations to the District Attorney’s office.

 

Once the police become involved, the complainant loses control of the situation.

When the police respond to a domestic violence call, they must follow the policies under the law, and make an arrest wherever there is probable cause. In fact, the ‘Guidelines for Law Enforcement Response to Domestic Violence’ specifically state that an officer should not take into account the complainant’s “preference that an arrest be made, or not be made”.[9]

 

They also state that they should not take into account further factors including:

  • Speculation that the complainant may not follow through with the prosecution,
  • Speculation that the case may not result in a conviction,
  • Complainant’s history of prior complaints, or
  • Verbal assurances that the violence will cease.

 

These policies severely hamper police discretion. They mean that even in a case where the complainant insists that they want no action taken, the conflict is over, and the police think that there may not be enough evidence to sustain a conviction, they may still be required to make an arrest!

 

We deal with many cases where, by the time our clients call us, they and their partner wish that the police had never been called. Often, the alleged victim regrets reporting the matter, but it’s not up to them to drop the case. Both parties feel powerless once the police have stepped in. This is where we can help – a Summit Defense attorney can help you by speaking to the alleged victim if there’s a temporary order in place that prevents you from communicating, and we can let the police and the DA know that they will have an uncooperative victim that does not want to testify against their partner.

 

If you are either the defendant or the alleged victim in a domestic violence matter, and you want a say in what happens with your case, the best way to do that is to engage an attorney from Summit Defense – we cannot change the fact that someone was arrested, but we can influence the next stage in the proceedings. We will find out which DA is dealing with your case, present mitigating or exculpatory evidence, and work to head off the filing of charges.

 

Should I try to explain things to the police?

No, you should not. If you are accused of an offense, there is usually no point in trying to explain things to the police. Given the policies that we have outlined above, the police will make their own decision about the incident based on the statement of the alleged victim and any other evidence or witnesses at the scene– regardless of what the accused person might say to them.

 

The best thing to do if the police arrive at your home in relation to an incident, or otherwise speak to you about a domestic violence allegation, is to say nothing. You should hire a lawyer immediately, and have them speak for you.

 

What should I say to the police if I am arrested or questioned?

Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police – your lawyer will speak for you. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.

 

In many domestic violence matters, the police will respond and arrive at your home very quickly after receiving a complaint – either from the alleged victim, or perhaps a neighbor who has heard an argument. When you have just been involved in a dispute with your partner, emotions run high and it can be a tense situation. The police will separate and talk to both you and your partner, they will want to know what happened, and they will often act as if they are just trying to help you sort out the disagreement. The police might try to ask you questions about what has happened, and any allegations made against you, without first arresting you – which means they don’t have to tell you about your right to say nothing.

 

This can lead people to believe that the matter is simply a ‘misunderstanding’ that can be ‘cleared up’ with a brief explanation. However, this is never really what happens – and anything that is said, even in an informal conversation, can be used as evidence against you. If any kind of allegation is being made against you, you should never answer any questions from the police without first getting legal advice, and you should always have an attorney present when speaking to the authorities.

 

If you are arrested, the police are required to tell you about your rights. These include your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them.

 

Being charged and going through the arrest process can be scary and intimidating, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer as soon as you can. Summit Defense Attorneys defend many cases and it is almost never a good idea for a suspect to talk to the police – in fact, many people have hurt their cases by doing so. The early intervention of an experienced attorney is by far your most effective defense strategy.

 

If I am arrested, will I go to jail?

No, not necessarily – most criminal defendants are entitled to bail. In some cases, bail is not necessary and you can be released on your own recognizance. But in more serious cases, such as where physical violence is alleged, bail will be required – and it may be set at a relatively high amount. If you are not able to immediately secure your release, we will do everything to ensure that you are released on bail as soon as possible following an arrest. Summit Defense’s first priority will be to use every effort to keep you out of custody.

 

Once the charging process is complete at the police station, the amount for bail will be set in accordance with the schedule that is applicable in that county. The amount required to secure your bail will depend on the number and seriousness of the charges filed against you. Once it is paid, you will be free to leave the custody of the police.

 

One additional factor that is relevant to domestic violence cases is the issue of restraining orders. At times, a defendant is released from the police station but there is a restraining order in place that makes it illegal for them to return home, or to have any contact with their partner or children. We explain more about restraining orders in this section of our site, and outline what your Summit Defense attorney can do for you if the conditions of the restraining order are too restrictive.

 

I’m not a US citizen – will the involvement of police raise immigration issues for me?

Yes, unfortunately it will. If you are not a citizen and you are accused of committing a domestic violence offense, you need to contact Summit Defense Attorneys immediately – we are the only defense firm in the Bay Area that has a specialist immigration attorney on our team, and he is involved in every case where a person’s immigration status is at risk.

 

If you are an immigrant, it is especially critical that you have an attorney who is prepared to defend your matter aggressively. We know that many people come to the Bay Area from all over the world to live and work, and many are not US citizens but are on visas, such as the H1 or H1B visa, or have green cards. We know that if you’re not a US citizen, you need extra assistance to protect against negative immigration consequences. Our clients are educated, hard-working professionals and we do not want to see them suffer the loss of their job, their good reputation, or their immigration status. We bring both our immigration and our criminal defense expertise to the table, and fight to get charges dropped.

 

If I’m not a citizen, can I leave the country with a domestic violence case pending?

Every case is different – but if you leave the country, it is possible that the Immigration and Naturalization Service (the INS) will not let you back in if you have a case pending. Our specialist immigration attorney can advise you on the best course of action to take in your case.

 

Immigration issues affect many of our clients, which is why we have an expert immigration attorney at Summit Defense team. He is part of the team for every case where our clients are facing immigration issues, and works with our criminal defense attorneys to develop the best strategies to preserve and protect our clients’ immigration status.

 

Can I settle this out of court?

Yes – it is often possible for us to settle your matter out of court. How we can assist you will depend on where your case is procedurally, and the exact nature of the accusations against you. Some of the things that Summit Defense Attorneys can do in your case include:

 

  • Finding out who the DA is in your case;
  • Securing representation for the victim in some cases;
  • Suggest resources like family counseling or anger management classes;
  • Present exculpatory and positive character evidence to the prosecution, before charges are filed;
  • Make the DA aware of problems with their case before charges are filed.

 

As we have discussed, the priority of law enforcement and the DA in these cases is very often an arrest, followed by the swift filing of charges, and obtaining a restraining order. So for our efforts to be most effective, it is essential to contact us as soon as possible.

 

What if I go to court without a lawyer?

Having legal representation is not only your right, but your best chance of fighting the case against you. Summit Defense Attorneys have handled many domestic violence matters where we have been able to influence the process by presenting mitigating evidence to the DA to have charges dismissed, and where we have also been able to assist our client, and their family, access services to help them deal with conflict in a more positive way in the future.

 

People accused of domestic violence cannot afford to ignore the allegations, or think that they are something minor that can be sorted out privately. The policies and the laws behind them make it very clear that the police will take action in almost all cases, and the prosecution will fight for a conviction. The operation of these policies make it vital that anyone who is accused of a domestic violence offense have a skilled and experienced legal representative – this is not something that anyone should try to deal with by themselves.

 

You should seek legal representation because these cases can have very serious repercussions. A domestic violence charge exposes you to the risks of a criminal record, large fines and jail time, as well as the humiliation and damage to your reputation, and the difficulties of living with a restraining order and being separated from your family. If you are not a US citizen, you face the additional risk to your immigration status – which is why we have an expert immigration attorney on our team.

 

In a recent case that we defended, our client was a prominent attorney who, in the course of a night out drinking, got into an argument with his wife. On the way home, the fight escalated and, by the time the police arrived at his home later that night, they found his wife with some injuries, the most serious being a bloody nose. The police arrested him for Penal Code 273.5 inflicting injury on his spouse – a felony – and took him to the police station. He secured bail, but because the police had applied for an emergency restraining order, he was unable to return home and prohibited from contacting his wife.

 

Our client told us that he had been arrested despite his wife’s insistence that they were both responsible for the argument. She had tried to explain the situation to police, and that they both had suggested that he spend a night at a friend’s house to let things cool down instead of the police arresting anyone. The police had ignored them both, however, and arrested our client.

 

We immediately went to work on our client’s case. Our attorney:

  • spoke to our client’s wife, who assured us that she was also responsible for the fight, and that she wanted her husband to be able to come back home;
  • made contact with the DA who was handling the matter;
  • at the first court appearance, persuaded the judge to change the restraining order to a peaceful contact order, so as our client could return home and communicate with his wife;
  • presented mitigating and character evidence to the DA;
  • told the DA about the problems they would have in their case – primarily, that our client’s wife would not be co-operative, would not speak to the DA, and would not testify against her husband; and
  • referred the couple to counseling.

 

Due to our attorney’s work in presenting this case in the most positive light, and bringing the serious difficulties with the case to the attention of the DA, we were able to persuade the DA to drop the case. This case demonstrates how much a skilled attorney can influence the process in your case, especially when involved at the pre-file stage.

 

 

DOMESTIC VIOLENCE OFFENSES

 

What offenses are charged in domestic violence matters?

In the California Penal Code, there are two main offenses that relate specifically to incidents of domestic violence. They are:

  • Domestic battery, Penal Code 243(e)(1), and
  • Inflicting injury on spouse etc, Penal Code 273.5.

Other offenses that can also be charged in domestic violence cases include:

  • Violation of restraining order, Penal Code 273.6,
  • Child endangerment, Penal Code 273a(b),
  • Making criminal threats, Penal Code 422,
  • False imprisonment, Penal Code 236 and 237,
  • Kidnapping, Penal Code 207(a), and
  • Deprivation of child custody order, Penal Code 278.5.

 

Are domestic violence offenses felonies or misdemeanors?

The offense of domestic battery is a misdemeanor, while inflicting injury on a spouse, cohabitant etc is a wobbler – meaning it can be charged as a misdemeanor or a felony. In the case of other commonly charged offenses in domestic violence matters, some are treated as felonies and some are treated as misdemeanors.

 

Whether a felony or a misdemeanor, any domestic violence charge must be taken seriously. Technically, even a first misdemeanor offense exposes a defendant to a potential one-year jail sentence, but in reality, that is almost never the result. The real battle, though, is in protecting the clean record and reputation of the defendant. An experienced Summit Defense Attorney knows that even a first-time conviction can affect your employment prospects, your good name, and burden you with a permanent criminal record. This is why out objective is the full dismissal of all charges. Where that is not possible, we are skilled as minimizing consequences to protect your reputation.

 

What evidence will the Prosecutor use to try to prove a charge of domestic battery against me?

If you are facing a charge of domestic battery under California Penal Code 243(e)(1), the Prosecutor will need evidence to prove the following elements beyond reasonable doubt:

 

  1. that you willfully touched the alleged victim in a harmful or offense manner;
  2. that you and the alleged victim were in one of the required types of domestic relationship; and, in some cases,
  3. that you did not act in self-defense, or in the defense of another.

 

Willfully touched in a harmful or offense manner

An act is done ‘willfully’ when it is done willingly, or on purpose. So, you cannot be guilty of this offense if the touching was an accident. However, even slight touching can be enough to commit a battery is it is done in a way that is harmful or offensive – for example, done in a rude or angry manner. Further, the touching can be through the other person’s clothing, or by using an object, and it does not have to cause physical pain or injury of any kind.

 

For example, imagine a husband and wife are having an argument in the kitchen while the wife is washing the dishes. She picks up a rolling pin and holds it against the side of her husband’s head, which does not hurt him at all, but says, “If you don’t shut up, I’m going to knock your head in”. That kind of touching is both willful and offensive, and would satisfy this element of the offense of domestic battery.

Required domestic relationship

Because this charge relates to battery of someone with whom the defendant is in a domestic relationship with, the Prosecutor must prove that relationship. The kinds of relationship that offense applies to are as follows:

  • the parties are married, or used to be married;
  • the parties are cohabitants, or used to be cohabitants;
  • the parties are engaged, or used to be engaged;
  • the parties are in a dating relationship, or used to be in one; or
  • the parties have a child together.

 

‘Cohabitants’ does not simply mean people who live together – for example, you cannot be charged with domestic battery on your roommate. The law provides that a cohabiting relationship refers to “two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship.”[10] Several factors can be used to determine if a cohabiting relationship exists, or existed, including:

  • sexual relations between the parties while sharing the same residence,
  • sharing of income or expense,
  • joint use or ownership of property,
  • the parties holding themselves out as husband and wife, or domestic partners,
  • the continuity of the relationship, and
  • the length of the relationship.

 

‘Dating relationship’ means “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.”[11]

 

Did not act in self-defense, or defense of another

The Prosecutor only has to prove this element in cases where the defendant raises the issue of self-defense – this is, where the defendant admits to touching the other person, but argues that they did so to defend themselves or someone else. Summit Defense has defended many cases where someone was accused of domestic battery when they were actually acting in self-defense. We explain more about how this defense can be used in domestic violence cases, below.

 

For example, consider the scenario above where the wife is holding the rolling pin to her husband’s head. The husband then pushes his wife’s hand away forcefully. If the husband was actually afraid that his wife would hurt him with the rolling pin, he would likely be able to argue that, when he pushed her hand away, he was acting in self-defense – and, therefore, not guilty of domestic battery.

 

 

 

 

What evidence will the Prosecutor use to try to prove a charge of inflicting injury on spouse against me?

If you are charged with the offense of inflicting injury on your spouse etc, under Penal Code 273.5, the Prosecutor will need to prove the following elements beyond reasonable doubt:

  1. that you willfully inflicted a physical injury on the alleged victim;
  2. that the injury inflicted resulted in a traumatic condition;
  3. that you and the alleged victim were in one of the required types of domestic relationship; and, in some cases,
  4. that you did not act in self-defense, or in the defense of another.

 

Willfully inflicted physical injury

This element requires the Prosecutor to prove that the defendant inflicted the injury on purpose. That is, they meant to injure the alleged victim, and it was not just an accident. The defendant can do this directly, or by using any object to inflict an injury.

 

Injury resulted in a traumatic condition

The Prosecutor must prove that the injury caused some kind of wound or other bodily injury, even if only minor. So, for example, if a man throws a punch at his partner, who tries to avoid the punch but gets a small cut on his face from a ring the man is wearing, that small cut would be enough to constitute a ‘traumatic condition’. Obviously, more serious injuries such as bruises, broken bones, and burns would all satisfy this element as well – but the Prosecutor must be able to prove some kind of wound or bodily injury caused by the defendant.

 

Required domestic relationship

The Prosecutor must prove that the defendant and the alleged victim were in one of the following kinds of relationships:

  • the parties are married, or used to be married;
  • the parties are cohabitants, or used to be cohabitants; or
  • the parties have a child together.

 

‘Cohabitants’ does not simply mean people who live together – for example, you cannot be charged with this offense in relation to your roommate. The law provides that a cohabiting relationship refers to “two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship.”[12] Several factors can be used to determine if a cohabiting relationship exists, or existed, including:

  • sexual relations between the parties while sharing the same residence,
  • sharing of income or expense,
  • joint use or ownership of property,
  • the parties holding themselves out as husband and wife, or domestic partners,
  • the continuity of the relationship, and
  • the length of the relationship.

Did not act in self-defense, or defense of another

If the defendant claims that they were acting to defend themselves or another person, the Prosecutor must prove beyond reasonable doubt that they were not.

 

This issue can arise in many domestic violence matters, especially where both parties are involved in an argument, or where the police assume that the wrong person was the main aggressor. Summit Defense Attorneys has acted in many cases where someone was accused of inflicting an injury on their spouse or partner, but they were actually acting in self-defense. To read more about how we can help you raise this vital defense in a domestic violence case, please refer to this section of our site.

 

What evidence will the Prosecutor use to try to prove a charge of violation of a restraining order against me?

In many domestic violence matters, the police or a judge will issue a restraining order against the alleged aggressor – we explain more about restraining orders in this section of our site. Having one of those orders made against you is not, by itself, a criminal charge – but if the order is violated then an offense may have been committed.

 

If the Prosecutor is alleging that you violated a restraining or protection order, pursuant to Penal Code 273.6, they must prove the following elements beyond reasonable doubt:

  1. that a court had lawfully issued a written order against you;
  2. that the court order was a protective/stay-away order, or some other kind of relevant order;
  3. that you knew of the court order;
  4. that you had the ability to follow the court order; and
  5. that you willfully/intentionally violated the court order.

 

Further, if the Prosecutor is alleging that you caused physical injury to the alleged victim, pursuant to Penal Code 273.6(b), they must prove a further element:

  1. that your conduct resulted in physical injury to another person.

 

Alternatively, the Prosecutor may allege that the order was violated by an act of violence, an offense under Penal Code 273.6(d). The additional element in those matters is:

  1. your conduct involved an act of violence, or a credible threat of violence.

 

Court had lawfully issued a written order

This offense is based on the existence of some kind of restraining order, so the Prosecutor must prove that, at the time the alleged offense was committed, there was actually a lawful, written order in place.

 

 

 

Order was a protective/stay-away order

This offense only applies to certain kinds of orders – generally, those that relate to domestic violence incidents, or those that seek to protect people in a domestic relationship with the defendant. The Prosecutor must prove that the order that was in place was the type of order specifically related to this offense.

 

Knew of the court order

The Prosecutor must prove that you knew of the court order, and that you had the opportunity to read it and become familiar with it. So, for example, if the police applied for a temporary restraining order, but you had not been informed of the existence of the order yet, nor had an opportunity to read it, then there is no way that you could be found of guilty of breaching the order.

 

Had the ability to follow the court order

Besides proving your knowledge of the court order, the Prosecutor must also prove that you had the ability to follow it. This element is not often in issue in these kinds of matters – but it may arise where, for example, the defendant has some kind of mental impairment that means they can’t control their actions.[13]

 

Willfully/intentionally violated the court order

To prove this charge, the Prosecutor must show that you violated the order on purpose. So, if an order states that you must not call or contact your boyfriend at all, you would be guilty of violating that order if you continually made calls and sent texts to his phone.

 

However, if your actions were accidental, you could not be found guilty of this offense. So, for example, you may be subject to an order that says that you have to stay a certain distance away from your ex-wife at all times. One day, you go to the local mall to buy some new shoes, and your ex-wife is there also – she sees you trying on shoes when she passes a store, and calls the police. In that situation, however, you would not be found guilty of violating the order. That is because you did not go to the mall to see your ex-wife, you did not know that she would be there, and you did not go near her on purpose.

 

Conduct resulted in physical injury

This element makes the offense of violating an order more serious. To prove this charge, the Prosecutor must prove that the conduct that constituted the violation of the order resulted in the alleged victim suffering some kind of physical injury. The injury does not have to be very serious, but there must be some kind of injury – such as bruising or broken skin.

 

It is very common for restraining orders to specify that the person must not ‘harass, attack, strike, threaten, or assault’ the protected person. In a case where this offense is charged, the Prosecutor may allege that the defendant breached the order by hitting the protected person. If that hit resulted in the protected person having a bleeding nose, for example, then it can be said that the conduct that violated the order also resulted in a physical injury.

 

Conduct involved act of violence, or credible threat of violence

Again, this is an element that serves to make the offense of violating a restraining order more serious. To prove this element, the Prosecutor must prove that the defendant acted violently, or that they threatened to.

 

An act of violence does not necessarily mean that any harm was done to the alleged victim – it could be an act of violence, for example, to throw a plate at the wall next to where the victim was standing. It could also be an act of violence if someone in the victim’s family was treated violently by the defendant.

 

A credible threat of violence is made when a defendant “willfully and maliciously communicates a threat to a victim of or a witness to the conduct that violated a court order. The threat must be to use force or violence against that person or that person’s family. The threat must be made with the intent and the apparent ability to carry out the threat in a way to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.”[14] So, for example, imagine that a woman is subject to an order to stay away from her ex-girlfriend’s home. However, she goes over to her girlfriend’s home, and while standing at the front door, yells inside to her girlfriend, “If you don’t let me in I’m going to break this door down and strangle you!” Even if the person left shortly after that, and never carried out the threat, the threat itself would be enough to constitute a credible threat of violence.

 

What evidence will the Prosecutor use to try to prove a charge of child endangerment against me?

Even though domestic violence offenses almost always involve two adults, there are situations where children are present when adults are arguing or fighting. In those cases, the police will sometimes charge one (or both) of the adults with child endangerment. If you are charged with child endangerment under Penal Code 273a(b), the prosecution must prove the following elements of the offense beyond reasonable doubt:

  1. that you had care or custody of a child;
  2. that you caused or permitted the child to be placed in a situation where the child’s person or health was endangered;
  3. that you were criminally negligent when you caused or permitted the child to be endangered.

 

Had care or custody of a child

This charge can only be filed against someone who is responsible for the child in question. The prosecution must show that, at the time when the child was endangered, the defendant was either caring for the child, or had custody of the child. This obviously allows for broader scope than just a parental relationship – for example anyone that cares for a child, such as another relative or a baby sitter, could be subject to this charge.

 

Caused or permitted the child to be placed in a situation where their person or health was endangered

This element requires the Prosecutor to prove not only that the child was endangered, but that the defendant was responsible for that, or allowed it to occur. A wide variety of situations are covered, but one that is commonly seen is where a child is present when there is a violent incident between two adults, and the child was in danger of being hurt during the incident. For example, consider a scenario where a mother is nursing her child, and the father of the child attacks her while she is doing so – such an act could see the father charged not only with the attack on the mother, but also with endangering the child.

 

Criminally negligent

This element describes the state of mind that the prosecution must prove on the part of the defendant. To prove that the defendant was criminally negligent in endangering the child, they must show that the defendant acted with “more than ordinary carelessness, inattention, or mistake in judgment.”[15] So, this element requires the DA to prove a serious level of negligence. As set out in the Judicial Council of California Criminal Jury Instructions, the law states a person acts with criminal negligence when:

  1. He or she acts in a reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation;
  2. The person’s acts amount to disregard for human life or indifference to the consequences of his or her acts; and
  3. A reasonable person would have known that acting in that way would naturally and probably result in harm to others.[16]

 

Again, consider the example of the father who attacks the mother nursing their child. If he knows the mother is nursing the child, and completely disregards the child’s safety when he attacks the mother, then it might be easy to suggest that he acted in a criminally negligent way. However, what if the father had come up behind the mother, did not know that she was nursing the child, and stopped when he saw the child? In that case, while the father might be guilty in relation to his attack on the mother, the prosecution would probably not be able to prove that he was criminally negligent in relation to the safety of the child – so he could not be found guilty of this offense.

 

What evidence will the Prosecutor use to try to prove a charge of making criminal threats against me?

If you are charged under Penal Code 422 with making criminal threats, the prosecution must prove the following elements of the crime beyond reasonable doubt:

  1. that you willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the alleged victim, or someone in their immediate family;
  2. that you made the threat orally, in writing, or by an electronic communication device;
  3. that you intended that your statement be understood as a threat (and intended that it be communicated to the alleged victim);
  4. that the threat was so clear, immediate, unconditional, and specific that it communicated to the alleged victim a serious intention and the immediate prospect that the threat would be carried out;
  5. that the threat actually caused the alleged victim to be in sustained fear for their own safety, or for the safety of their immediate family; and
  6. the alleged victim’s fear was reasonable under the circumstances.

 

Willfully threatened to unlawfully kill or cause great bodily injury

To establish this element of the offense, the Prosecutor must prove that a certain kind of threat was intentionally made by the defendant – that is, a threat to kill or cause great bodily injury to the alleged victim. ‘Great bodily injury’ means “significant or substantial physical injury”[17] and it must be more than just a minor, or even moderate, amount of harm. For example, threatening to push someone off a chair might not be considered a serious enough threat to establish this element, because it is not really a threat of causing great bodily injury.

 

Made the threat orally, or in writing, or by an electronic communication device

This element really catches all of the ways in which someone would usually make a threat. However, the Prosecution must prove that the threat was made by one of these means – so, by speaking to the alleged victim, calling them, texting or emailing them, or similar.

 

Intended the statement to be understood as a threat, and communicated to the alleged victim

This element refers to the defendant’s state of mind – the Prosecutor must prove that, at the time of making the threat, the defendant really did mean to make a threat. So, for example, if the defendant was not serious – even if they were making a joke that was in very poor taste, or otherwise inappropriate – then they could not be found guilty.

 

Further, the Prosecutor must prove that the defendant intended the threat to be communicated to the alleged victim. If the defendant never intended for the alleged victim to see or hear the threat, then the prosecution could not prove this element. For example, consider a man who creates a private Facebook group that he invites only a few of his friends to join. In that group, he posts photos of his ex-girlfriend and writes posts that include threats to harm her. If the girlfriend is shown one of those posts by one of the members of the group, she might very well be upset – but the ex-boyfriend would probably not be guilty of this offense, because he never intended for his ex-girlfriend to see the posts or learn of the threats at all.

 

 

Threat was clear, immediate, unconditional, and specific, to the alleged victim a serious intention and the immediate prospect that it would be carried out

It is not enough for the Prosecutor to prove that some kind of vague threat was made – for example, “one day I’m going to kill you!” Rather, the threat must meet all the requirements set out in this element of the offense.

 

When deciding if a threat does fulfill all of these requirements, the words as well as all of the surrounding circumstances are important to consider. For example, imagine a threat made to stab someone – if the person says that over the phone, in the heat of an argument, and they are interstate at the time, then the threat might not be considered immediate and specific enough to meet these requirements. However, if the threat to stab someone is made by someone who is holding a knife at the time, and in the presence of the alleged victim, then it would likely meet the requirements.

 

Threat actually caused sustained fear

The Prosecutor must prove that the threat really did make the alleged victim afraid, and afraid for more than a moment. It is not enough that the alleged victim is momentarily shocked or upset by what the defendant says – they must really be afraid, in a sustained manner, that the defendant will carry out the threat on them or someone in their immediate family.

 

Fear was reasonable in the circumstances

Again, this element requires a consideration of all of the circumstances surrounding the threat. The position of the alleged victim must be considered, and a determination made about whether their state of fear was reasonable. Consider the above example of someone making a threat from interstate, over the phone – if someone is many miles away at the time a threat is made, and there is no real prospect of them travelling any closer to the alleged victim, then it might be unreasonable to be really afraid of them.

 

What evidence will the Prosecutor use to try to prove a charge of false imprisonment against me?

There are two kinds of false imprisonment offenses – one that is a felony and one that is a misdemeanor, both under Penal Code 237(a). Either of these offenses may be charged in a domestic violence case, depending on the circumstances.

 

If you are charged with misdemeanor false imprisonment, under Penal Code 237(a), the Prosecutor must prove:

  1. that you intentionally restrained, confined, or detained someone; and
  2. that your act made that person stay or go somewhere against that person’s will.

 

If you are charged with felony false imprisonment the Prosecutor must prove a more serious first element – that is:

  1. that you intentionally restrained, confined, or detained someone by violence or menace.

 

Intentionally restrained, confined, or detained

To prove this element of the offense, the Prosecutor must prove that the defendant acted on purpose in keeping the alleged victim restrained, confined, or detained. The offense of false imprisonment is not about someone being confined to a jail or a prison, it can take place anywhere. So, for example, it can be false imprisonment to tie someone up, or to lock them in a room with no means of escape, or even to force them to stay in a house with no way of leaving. The size of the area does not matter, nor does the time period during which they are imprisoned, as long as the person is not free to leave for some period of time – even a minute or two.

 

Intentionally restrained, confined, or detained by violence or menace

Keep in mind that, if some kind of violence or menace is used to imprison the person, then this offense can be elevated to a felony. Menace means some kind of verbal or physical threat, or a threat made with a weapon, either made explicitly or implied.[18] The kind of violence used must be more than the force that is necessary to restrain someone.

 

For example, imagine a couple that are fighting in a bedroom. They both try to leave the room, but one jostles the other out of the way and forces the door closed behind them, locking the other person in the room. That could be an act of false imprisonment, however no more physical force than was necessary to keep the person in the bedroom was used. However, if the person doesn’t just jostle the other person out of the way, but shoves them across the room and pushes them into a wall before leaving and locking the door, then that might be considered additional violence – and that person may then be charged with felony false imprisonment.

 

Act made the person stay or go somewhere against that person’s will

The Prosecutor must show that the alleged victim was forced to stay somewhere, or go somewhere, without their consent. In a case where the use of violence or menace is alleged, it could be that the person agreed to stay or go somewhere – but only because of the threat made or the violence used against them.

 

Other offenses that are commonly charged.

There are several other criminal charges that may be filed in domestic violence matters, depending on the circumstances of the incident and the view that the police take of the offending conduct. Some of the more common charges that Summit Defense Attorneys have seen filed in these cases include the following:

 

Kidnapping

There are several offenses in the Penal Code that involve kidnapping, with Penal Code 207(a) being the most common one filed in domestic violence offenses. This charge relates to when someone takes, holds, or detains someone by force or fear, and takes them somewhere without their consent. In domestic conflicts, for example, defendants could be charged with this offense in relation to forcing their partner to go somewhere with them, or in some instances because it is alleged that they unlawfully took a child or another family member against their will.

 

Kidnapping is a very serious charge, always treated as a felony, and exposes defendants to years in prison. If you are facing allegations that involve kidnapping, you need an experienced Summit Defense attorney representing you.

 

Deprivation of child custody order

Domestic conflict, and conflict between parents, is common when families are going through a divorce or separation. When parents separate, child custody orders will often be made by the courts – but they are not always agreed to by both parents, and the separation from their children can cause parents (as well as their children) a lot of grief. In cases where there is conflict over custody or visitation with children, there are sometimes incidents where one of the parents, or another involved adult, removes the child from the person who has lawful care and custody of them. In other situations, one parent or adult might stop the other from exercising their lawful right to have visitation. This kind of behavior can be an offense under Penal Code 278.5.

 

The offense of depriving a lawful custodian of a right to custody, or right to visitation, is a ‘wobbler’ – meaning that it can be charged as either a felony or a misdemeanor. And while this kind of matter might seem like a family law problem, if you are charged with this offense you need an expert criminal lawyer from Summit Defense Attorneys on your case.

 

 

DEFENSES

 

We have reconciled.

Although not strictly a legal defense, the fact that you have reconciled with the alleged victim can have an impact on the outcome of your case. Many cases of domestic violence are conflict between partners – either married, living together, or otherwise in a serious relationship – and in those kinds of relationships, conflict is common. At Summit Defense Attorneys, we see good, hard-working Bay Area couples every week who are over-worked and stressed out about money or their kids.

 

These kinds of tensions can cause tempers to flare and arguments happen – sometimes people call the police and later regret it, or sometimes neighbors hear a disturbance and call the police. But just because a report has been made to police, or someone has been arrested, does not mean that the relationship between the parties ends. Rather, once they have the chance to cool down and spend a little time apart, people are able to deal with their disagreements more calmly, and in many cases, able to sort things out privately.

 

But what happens if the police are involved, or charges might be filed? As we have already discussed, the authorities can arrest and file charges, even if the alleged victim does not want them to do so, or later changes their mind. This is where Summit Defense Attorneys can help – when you and your partner have reconciled, you need an attorney that is skilled in dealing with the police and the DA. We have an excellent track record of having charges dropped and cases dismissed. We are skilled at presenting cases in the best light, and will point out to the police or the DA that there would be little use in continuing with the matter when the alleged victim does not want to give evidence against their partner, and when proceeding with the case would only further damage the family.

 

We can communicate on your behalf, assure the authorities that your reconciliation is genuine, and fight to have charges and any restraining orders dropped, so as you and your partner can move on with your lives without the threat of criminal charges or a restraining order hanging over you.

 

In many cases that we defend, one of the most important things we do for our clients is to make sure that the Prosecutor has the full story. It is important to remember that the DA usually only has the police report to base their decisions on – but that is really only one part of the story, especially where a relationship is concerned. We often see cases where the couple have had a long, peaceful marriage with no history of violence. They have reconciled after the argument, and they want to continue to work on their relationship. At the time, they were dealing with some kind of extraordinary incident or stress – such as severe financial trouble, or a chronically ill child – and that contributed to the conflict. Situations like this are incredibly sympathetic because we can all imagine how hard it must be to deal with those kinds of problems. When we are able to present all of this mitigating information to the DA, we are often able to persuade them that the incident was a one-off, and that the family would be better served by the charges being withdrawn.

 

Self defense

At Summit Defense Attorneys, we have seen many cases where the wrong person has been charged in a domestic violence matter. And in other cases, where there was a mutual struggle and both parties are equally guilty of aggression or making threats. Sometimes the police rush to charge the person who seems angriest when they arrive at the scene, or the person who is bigger, or who is more aggressive towards them. Sometimes the alleged victim lies, but the police believe them and charge the other person. In other cases one person has more apparent injuries than the other, or the man is initially too embarrassed to tell the police about his injuries. So, the police can never really tell the full story, and in many cases someone is charged with a crime when they were only acting to defend themselves.

 

If you have been unfairly charged when you were actually acting to defend yourself, or to defend someone else, you need to contact an attorney straight away. In many cases, we have been able to bring evidence of self-defense to the attention of the police or DA, which has resulted in matters being dropped at the pre-file stage. Examples of the kinds of situations where we have assisted our clients who acted in self-defense include:

  • Bringing evidence of the victim’s own alcohol or drug use to the attention of the DA, which raises questions about the credibility of their statement, and bolsters our client’s case.
  • Building a case that demonstrates the couple was equally involved in the incident, that is, a case of ‘mutual combat’ where they were both aggressors.
  • Collecting evidence of our own client’s injuries that were not recorded by the police at the scene of the incident, calling into question the completeness of the police evidence, and also supporting our client’s claim to self-defense.
  • Presenting significant mitigating evidence as to our client’s peaceful, non-violent demeanor, versus a history of aggression, bad temper, and violence on the part of the alleged victim.

 

In other matters, the case will go to trial – and you should have an attorney that is experienced in defending these kinds of matters to properly raise this defense for you in court.

 

First, the defense of self-defense needs to be raised by the defendant. Then, the court must decide whether the defendant used force against the other person in lawful self-defense, or defense of another. As set out in the Judicial Council of California Criminal Jury Instructions, the law provides that a defendant acted in lawful self-defense if:

  1. The defendant reasonably believed that they were in imminent danger of suffering bodily injury or of being touched unlawfully;
  2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and
  3. The defendant used no more force than was reasonably necessary to defend against that danger.[19]

 

In deciding whether the defendant’s belief that they were in imminent danger was reasonable, the court must look at all of the circumstances. In domestic violence cases, a history of threats or violence – either towards the defendant, or to others – can be taken into account when assessing whether the defendant responded reasonably. Further, the law does not require defendants to retreat – they can stand their ground and defend themselves.

 

In the end, once the defense has been raised, the prosecution has the burden of proving beyond reasonable doubt that the defendant did not act in lawful self-defense. Otherwise, the defendant must be found not guilty of the offense.

 

As you can appreciate, these kinds of issues arise in domestic violence cases frequently. Consider a case involving a married couple. There have been incidents in the past where the husband has hit the wife during arguments, and she has suffered injuries such as swollen and black eyes, bruising, and cuts that has required stitches. One evening, the husband returns home drunk and starts yelling at his wife. He raises his hand to her, is pushing her around, and is threatening to “punch her head in”. The wife runs to the kitchen and the husband follows her. She grabs a bread knife and says that if he comes any closer, she’ll use it. The husband swings at her, and she defends herself with the knife, cutting his hand.

However, it is also easy to see how this is not an ‘open and shut’ case – there are certainly different ways of looking at the facts in this case, and different ways it could be decided. This is why it is imperative to have a skilled criminal defense attorney representing you when raising the issue of self-defense in your case.

 

Accident

In every offense that relates to domestic violence, there is a requirement that the Prosecutor prove that the defendant acted with intent – that is, that the defendant acted violently, or made threats, on purpose. For example, one of the elements of the offense of Penal Code 243(e)(1) domestic battery that the Prosecutor must prove is that the defendant ‘willfully touched the alleged victim in a harmful or offensive manner’. So if what happened was actually an accident, then the defendant must be found not guilty.

 

For example, it is easy for things to happen that are outside of anyone’s control when people are fighting. We have seen cases where someone throws something in the heat of the moment – a plate, a glass, their mobile phone – with absolutely no intention of hitting the other person, but they are accidentally injured. Another example is when someone is accidentally hurt when their partner slams a door in anger, not realizing that they still had their hand in the way. In all of these kinds of situations, people have lost their tempers and are angry, but they have not acted to hurt the other person on purpose.

 

Summit Defense Attorneys have defended many cases where our client was charged with an offense for something that was not done intentionally. We recognize that accidents happen, especially when people argue or are in heated situations, and you should not have to pay the price of a criminal charge for something that was not intentional.

 

False accusations

Maybe the alleged victim has falsely accused you, maybe you didn’t touch or threaten the alleged victim at all, or maybe the police have incorrectly targeted you in their investigation – whatever the case, we will work to clear your name.

 

Summit Defense Attorneys know from experience that victims do lie, and that innocent people have been falsely accused or wrongly convicted as a result. Sometimes people can be motivated by jealousy over an ex’s new relationship, or false accusations can arise in the course of a divorce or ongoing family disputes – it is a sad fact that some people will lie to get an advantage when it comes to their children, or their own reputation.

 

Our attorneys have defended several cases where our client’s ex-wife or partner has made false statements about his violence towards her or their children in family law proceedings. Those kinds of lies are not only extremely distressing, but can also leave a parent feeling powerless as they face the prospect of a battle in both the family and the criminal courts to clear their names. The team at Summit Defense Attorneys, however, is expert in properly investigating these kinds of allegations and revealing them for the misleading lies that they are, and to prevent baseless charges from being filed in the first place.

 

Insufficient evidence and reasonable doubt

One of the most fundamental rules of the criminal law is that the prosecution must prove every element of a charge beyond reasonable doubt. Unfortunately, a lack of evidence does not always stop the authorities from filing charges against someone – this can be even more so in domestic violence matters, where the police often feel compelled to charge someone so they are seen to be taking domestic violence seriously. A lack of evidence, or a lack of evidence strong enough to support a charge beyond reasonable doubt, is one of the most common defenses relied upon. If the evidence being relied upon in your case is not adequate, Summit Defense Attorneys will challenge the prosecution case and make sure that you are not unjustly convicted.

 

We know how to raise reasonable doubt in your case. For example, the majority of domestic violence cases come down to the word of the alleged victim against the word of the accused – yes, there might be injuries or broken objects, and upset partners, but those things often don’t tell the full story of what has happened in an argument between two people. This can make it easy for one person to lie or embellish in a case.

 

Our attorneys include ex-police officers and an ex-District Attorney – this experience on the other side means that we know how common it is for charges to be pursued where evidence is weak, or where the case is built only on the word of the alleged victim against the word of the accused. This is why Summit Defense Attorneys will always insist that the prosecution meet their burden of proving any charge beyond reasonable doubt, and will not let baseless charges stand.

 

Interests of justice

Even in cases where the District Attorney believes they have enough evidence to prosecute, it is within the power of the DA’s office to use their discretion to not proceed. There are various reasons why a DA might be persuaded to drop a case, but Summit Defense Attorneys are skilled in putting together and presenting a case where we are able to convince them it is in the interests of justice to do so. Some of the things that we do for our clients, and to persuade the DA to drop a case, include:

 

  • Present mitigating factors. This can include information about a significant stress in our client’s life at the time, such as severe financial troubles, chronically ill family members, or the loss of employment.
  • Provide an explanation for the client’s one-time violent behavior, such as the fact that our client had just caught his wife with another man, and was extremely upset.
  • Directing our clients to counselling, anger management, and family therapy and support groups, as appropriate.
  • Present positive character evidence, such as a record of military or community service, and positive references from senior colleagues or community members.
  • Present evidence that demonstrates the disproportionate or unfair impact that a conviction would have in our client’s case, such as in cases where our client’s immigration status would be jeopardized.
  • Inform the DA that the couple have reconciled, that the alleged victim does not want a criminal case to proceed, and the steps that are being taken in the family to deal with conflict in a more positive way in the future.

 

 

PENALTIES

The penalties in domestic violence cases can vary widely, and will always depend on the kind of offense charged and the exact circumstances of the offense. Whether or not the defendant has a criminal history, or a history of previous domestic violence offenses, will also affect the severity of the penalty imposed.

 

Of course, penalties are only of concern if a defendant is actually convicted of an offense. At Summit Defense, our aim in every case is always the complete dismissal of all charges and we will do everything possible to avoid a conviction in your case. However, in cases where a conviction cannot be avoided, Summit Defense Attorneys will fight to minimize consequences. In many cases we can:

  • Get charges reduced to lesser offense/s;
  • Achieve a sentence of only a fine or short probation period;
  • Seek counseling and jail alternatives; and
  • Enrol our clients in diversion programs.

 

What factors will the judge take into account when sentencing me?

Apart from the nature of the offense itself and any criminal history, the judge will consider the specific circumstances of each case before passing sentence. Some of the things that the judge will consider are known as aggravating and mitigating circumstances  – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence.

 

There are some common factors that can occur in domestic violence cases – for example, if alcohol or drug use was associated with the offense, and you voluntarily enter into a treatment program, then your attorney may persuade the judge to take that into account as a mitigating circumstance. On the other hand, if the offense was part of a pattern of violent and abusive behavior over some time, that might be considered an aggravating circumstance. However, every case is different and every defendant is unique – an experienced Summit Defense attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.

 

What are the penalties for Penal Code 243(e)(1) domestic battery?

This offense is a misdemeanor, and the maximum penalties include:

  • a $2,000 fine;
  • imprisonment in the county jail for up to one year; or
  • both a fine and imprisonment.

 

The court also has the option of granting probation, or suspending the imposition of a jail sentence. However, the Code specifies that if the judge makes that decision, then there must be a condition that the defendant participate in and successfully complete a ‘batterer’s treatment program’ for at least one year (or more). If there is no such program available, the court can specify another suitable program.

 

What are the penalties for Penal Code 273.5 inflicting injury on spouse?

This offense can be filed as a felony or a misdemeanor, and this means that the maximum penalties in the case of a felony charge are serious. They include:

  • imprisonment in the state prison for two, three, or four years;
  • imprisonment in the county jail for up to a year;
  • a $6,000 fine; or
  • both a fine and imprisonment.

 

The law also specifies that more serious penalties apply to cases where the defendant has been convicted of a relevant offense within the previous seven years. Those provisions can increase the penalties up to two, four, or five years in state prison, and increase the possible fine up to $10,000.[20]

 

Probation can also be granted to a defendant convicted of this offense, however, conditions must be applied. These conditions can include the imposition of a protective order, requiring that a minimum amount of time be spent in jail, and requiring the defendant to pay the victim costs of counseling and any other costs reasonably associated with the defendant’s behavior.[21]

 

 

What are the penalties for Penal Code 273a(b) child endangerment?

The child endangerment offense that is most often charged in domestic violence cases is a misdemeanor. The maximum penalties include:

  • up to one year in jail;
  • a $1,000 fine;
  • both a fine and imprisonment.

 

As in other domestic violence offenses, if the court chooses to impose a period of probation, then certain conditions will apply. Under Penal Code 273a(c), the period of probation must be for a minimum of 4 years, and the court must impose some kind of protective order. The court will also specify that the defendant complete at least one year of an approved child abuser’s treatment counseling program.[22]

 

What are the penalties for Penal Code 422 making criminal threats?

The offense of making criminal threats is a wobbler, which means it can be filed as either a misdemeanor or a felony. As with any charge where the District Attorney employs their discretion in choosing how to file the charge, your Summit Defense attorney will fight for your matter to be dealt with as a misdemeanor, so you are exposed to less serious penalties.

 

If you are convicted of misdemeanor criminal threats, the maximum penalties include:

  • one year in the county jail;
  • a fine of up to $1,000; or
  • both a fine and imprisonment.

 

If you are convicted of felony criminal threats, the maximum penalties include:

  • imprisonment in the state prison for 16 months, 2 years, or 3 years;
  • a fine of up to $10,000; or
  • both a fine and imprisonment.

 

What are the penalties for Penal Code 236 and 237(a) false imprisonment?

There are two kinds of false imprisonment offenses, with one being a misdemeanor and one a felony. Which offense is charged will depend on whether the Prosecutor is able to prove the additional element that violence or menace was used.

 

If you are facing sentencing for felony false imprisonment, the maximum penalties include:

  • imprisonment in the state prison for 16 months, 2 years, or 3 years;
  • a fine of up to $10,000; or
  • both a fine and imprisonment.

 

If you are convicted of misdemeanor false imprisonment, the maximum penalties include:

  • one year in the county jail;
  • a fine of up to $1,000; or
  • both a fine and imprisonment.

 

What other consequences can occur as a result of being convicted of a domestic violence offense?

Being convicted of a domestic violence offense exposes a defendant to several other consequences besides possible imprisonment or fines. This is, in part, due to the policies surrounding domestic violence and the fact that the law and the courts try to address some of the underlying causes of violence, as well as aiming to protect victims. This means that the law gives judges significant power to restrict a defendant’s liberties beyond the standard sentences available. We outline the most significant additional consequences that a defendant may face in a domestic violence matter, below.

 

Immigration status jeopardized

A conviction for a domestic violence offense can have particularly serious consequences for non-citizens. A conviction can jeopardize your immigration status, such as by making it difficult to renew your visa in the future – which may affect your job, and your opportunity to remain in the US.

 

If you are not a US citizen, and on a visa, or hoping to apply for a Green Card, then you need Summit Defense – we are the only criminal defense firm in the Bay Area with a specialized immigration attorney on our team. This means we are able to provide the best representation to our clients who are immigrants by taking into account all of their legal needs.

 

Give up or sell your guns

If there is a restraining order made against you, you will be required to sell your guns and provide proof of that sale to the police, or hand your guns over to the police to keep until the order ends. If you are convicted of certain domestic violence offenses, you will be forced to give up any guns that you own – and in many cases, you will not be allowed to own a gun ever again. This is fairly complex area of law, because both Federal and state laws apply here – and, where Federal and California laws conflict, the Federal law must be followed. Further, the courts have held that these bans do not violate the Second Amendment right to bear arms.

 

The way in which domestic violence offenses trigger these bans on gun ownership are as follows:

 

  1. California ban on gun ownership if convicted of a felony: Under Penal Code 29800, anyone convicted of a felony anywhere in the world is prohibited from having a gun. This includes felony domestic violence convictions. If you breach this law, there are serious penalties, including jail time and large fines.

 

  1. California ban on gun ownership if convicted of certain misdemeanors: Under Penal Code 29805, there is a ten-year ban on gun ownership for people convicted of certain misdemeanors. Those include domestic violence related offenses of battery, making criminal threats, and stalking. It is only after the ten-year period expires that you are allowed to own a gun again.

 

  1. Federal lifetime ban on gun ownership for domestic violence offenses: Under 18 United States Code 922(g), there is a Federal ban on owning firearms for life that is imposed on anyone who is convicted of most domestic violence offenses. So, regardless of the California ten-year ban, the Federal law would actually ban most people convicted of domestic violence offenses from owning a gun ever again, anywhere in the United States.

 

Compulsory restraining or protective orders

In most cases where a domestic violence conviction is recorded, the judge will impose a criminal protective order. And, in the case of some offenses, the law requires the judge to do so. These orders can – and are – imposed whether the victim requests the order or not.

 

These orders can be very restrictive – they can prevent a defendant from living in their home, from spending time with their family, from seeing or talking to their partner, or from communicating with their children. Considering that orders can be imposed for up to five years in some cases, these orders can have a significant and ongoing impact on your life. A Summit Defense attorney will always try to avoid a conviction so these kinds of consequences aren’t imposed on our clients. And even in cases where a conviction cannot be avoided, we will present compelling evidence to the court to have orders made that are reasonable and take into account our client’s and their family’s circumstances.

 

 

RESTRAINING AND PROTECTIVE ORDERS

The rationale behind restraining and protective orders is to protect people who have been abused, or threatened with abuse. Restraining orders are not, by themselves, a criminal charge or penalty, and having a restraining order made against you does not result in a criminal conviction. However, it is an offense under Penal Code 273.6 to violate the terms of a restraining order. In cases where the DA has filed criminal charges, they will often seek a criminal protective order, sometimes known as a ‘stay-away’ order.

 

Unfortunately, restraining or protective orders can sometimes be imposed regardless of whether the alleged victim requests one or not. Criminal judges will often make an order with little regard for whether the victim feels it is needed – but Summit Defense will work to avoid the imposition of restraining orders wherever possible.

 

 

 

What are restraining and protective orders?

There are several different kinds of restraining and protective orders that a court can make, but in domestic violence cases ‘domestic violence restraining orders’ are most commonly used. These orders can be made pursuant to Division 10 of the California Family Code – otherwise known as the Domestic Violence Protection Act.

 

This law aims “to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.”[23] It gives the courts the power to issue orders to protect people who allege that they have been subject to a recent incident of violence, or a threat of violence, from someone that they are in a domestic relationship with. There are three types of domestic violence restraining orders.

 

Emergency Restraining Orders

These are orders that the police can obtain at short notice, by calling a judge. The judge authorizes the order over the phone, and they can be made 24 hours a day.

 

Emergency restraining orders begin immediately, and they can last for up to seven days. These orders can include provisions that the alleged abusive person leave the home, or stay away from the alleged victim and any children. The aim of an emergency restraining order is to give the alleged victim time to go to court and properly file for a temporary restraining order, or to give the police time to investigate a matter before a criminal protective order is made.

 

Temporary Restraining Orders

These are orders that are in place between the time that someone applies for a restraining order, but before a full hearing is held. So, when someone goes to court to request that a restraining order be made, if the judge believes that temporary protection is warranted, they will make a temporary order.

 

Temporary restraining orders usually last between 20 and 25 days – that is, until the final court hearing date for the permanent order. In criminal cases, temporary orders can also be made until there is a final determination of the charges against the defendant.

 

’Permanent’ Restraining Orders

These orders are made once there has been a court hearing. If the person requesting the order satisfies the judge that hears the case that protection is needed, the judge can make a permanent order that lasts up to three years. At the end of that time, the order will lapse – unless the person seeking protection applies for it to be extended, and goes through another hearing to determine if an order is still warranted.

 

Criminal Protective Orders

In cases where criminal domestic violence charges have been filed against a defendant, the Prosecutor will usually also request a criminal protective order, sometimes also known as a ‘stay away’ order. Even if the DA does not make such a request, judges can decide to issue an order on their own volition.

 

Criminal protective orders operate in virtually the same way as restraining orders, and run alongside a criminal case. They usually remain temporary while the case is progressing, and can be made ‘permanent’ if the defendant is found guilty.

 

What is a domestic violence civil restraining order?

Even if there is no criminal case pending, a person can still apply for a civil restraining order against someone they are in a domestic relationship with. These orders are made by the Family Court, and are often seen in the context of divorce cases. They can cover situations where the person is alleging violence and threats, or where they allege harassment. Again, these orders do not represent a criminal conviction – but violating an existing order is an offense.

 

Who is covered by domestic violence restraining or protective orders?

Domestic violence restraining orders, and criminal protective orders, apply to people who are in close domestic or family relationships. In California, these orders can be made in relation to people who are:

  • married or registered domestic partners;
  • divorced or separated;
  • dating or used to date;
  • lived together, or used to live together – that is, ‘cohabitants’;
  • parents together of a child;
  • otherwise closely related – for example, siblings, grandparents, in-laws.[24]

 

Parents can also apply for orders on behalf of their children, and children over twelve years of age can apply for their own orders.

 

What are the consequences of having an order made against me?

Restraining and protective orders are court orders and, as such, must be taken seriously – criminal charges will be filed against a person who violates an order.

 

By making an order, the court can order you to:

  • not contact or go near you spouse, your children, other relatives, or other people who live with you;
  • move out of your house;
  • give up your gun;
  • follow child custody and visitation orders;
  • pay child support;
  • pay spousal or partner support ;
  • stay away from your pets’
  • pay certain bills; and
  • release or return certain property, usually to the protected person.

 

 

How can Summit Defense Attorneys help me with restraining orders?

In cases where the parties want to remain in contact with one another, we are usually able to persuade the judge to grant what is known as a ‘peaceful contact order’. This restrains the person from being violent or threatening the protected person, but it can still allow the person to live in the home and keeps the family together.

 

We understand that the usual restraining and protective orders can make day-to-day life very difficult, and can cause families great pain – that’s why we will always work to make sure that any orders made in your case are ones that you can live with. We will also aggressively defend any criminal charges against you, so as you are not subject to the additional ‘penalty’ of having a permanent order made against you that is available as a matter of public record.

 

Will a restraining order affect my immigration status?

Yes, a restraining order can affect your immigration status. If someone has applied for a restraining order against you, or you are already subject to an order, you should contact Summit Defense Attorneys and speak to our specialist immigration attorney immediately. Even though a restraining order is not a criminal charge, an order can still affect your immigration status if you are on a visa, trying to get legal papers, or applying for a green card. We will develop a strategy that protects your immigration status, and aggressively defend any criminal charges against you.

 

Will a restraining order still be made, even if we’ve reconciled and my partner doesn’t want one?

Yes, a restraining order can still be made, despite what the alleged victim wants, and regardless of whether the parties have sorted out their differences. The DA can apply for an order if there are criminal charges pending, and a judge can make an order of their own volition.

 

If you have reconciled with your partner, or if the alleged victim does not want an order made, your best chance of avoiding the imposition of an order – or of having a less restrictive order made – is to have an attorney from Summit Defense in court for you. When the judge is considering whether to make an order or not, and what the terms of the order should be, we can make sure that they hear all of the facts from your side, and present your relationship in the best light. We are often successful in having ‘peaceful contact’ orders granted, even in cases where criminal charges are pending. This gives our clients the best chance of being able to get on with their day-to-day lives, and to maintain their family relationships.

 

Can I get an order lifted, or can the victim ask for it to be dropped?

When an order is made in the context of criminal proceedings, the only person who can decide what happens to the order is the judge. If the order is not final, however, there are steps your attorney can take to make a difference.

 

Every case is different, but if you or your partner is unhappy with the order, or the terms of the order, you should contact a Summit Defense Attorneys to discuss how we can assist in your case.

 

What happens if I contact the victim when there is an order in place?

If the order made against you prohibits you from contacting or communicating with the protected person, then you must obey that order. If you violate the restraining order, and the police are informed, then they will charge you with an offense.

 

We outline the elements of the offense of violating a restraining order in more detail, above. If you do need to contact your partner, or if you and your partner think that the order in place is too restrictive, you should contact an attorney for assistance – we can speak to your partner on your behalf, and depending on whether the order is temporary or not, we may be able to ask the judge to impose a peaceful contact order so you and your partner can still speak to and see each other.

 

 

VICTIM’S RIGHTS

Victims in domestic violence cases come from all walks of life – they can be male or female, and can be involved in straight or homosexual relationships. And in many cases, an alleged victim may not want the law involved in their family dispute, they may regret calling the police, or they may feel that the system is ignoring their wishes. In this section, we will explain the powers and rights an alleged victim in a domestic violence case has, and also what the police and District Attorney can do regardless of the victim’s wishes.

 

When someone’s partner, their ex, or someone they have children with is charged with a domestic violence offense, it begins a very difficult and challenging time for them as well. If you are alleged to be a victim of domestic violence, you will be involved in the criminal justice process – often, whether you have asked for police assistance or not. This process can be confusing and, if the police are involved, you might feel as if the power to make decisions for you and your family is taken away from you.

 

While we would never speak to an alleged victim against their wishes, we do often work with both the defendant and their partner. This can be for several reasons – couples often reconcile, sometimes the partner did not want the police involved in the first place, the partner may have changed their mind about wanting to take any action, or simply because the parties are still in contact and the partner wants to understand the process as well. In some cases, it is the wife, husband, boyfriend or girlfriend of the defendant who first makes contact with us, seeking help for their partner.

 

Summit Defense Attorneys are skilled in helping families navigate the process and understand what their rights and obligations are while a case is pending. We understand that the criminal justice system can often leave both defendants and victims feeling powerless, and as if no one is listening to what you and your family want. We believe in families being allowed to sort out their own problems if they want to, and we will do everything possible to fight these cases and to keep our client’s families together.

 

Do I get to decide whether charges are filed, or whether a restraining or protective order is made?

The alleged victim does not get to decide whether the defendant is arrested or whether charges are filed. The police will usually not apply for a restraining order if the victim does not want one, but when a criminal case goes to court, the judge may make one anyway. In fact, as we have discussed above, the policies that apply to domestic violence cases specifically state that the authorities should not take into account what the complainant wants when making arrest decisions.

 

This can be one of the most frustrating aspects of the process for complainants. However, you should also know that you are not required to talk to the police, the DA, social workers, etc, if you do not want to, and are entitled to consult your own attorney.

 

If you are still in contact with the defendant, or if you’d like to be but there is an order preventing contact between you, you can always speak to the attorney for the defendant. At Summit Defense Attorneys, we are always happy to speak to our client’s family members and partner, including the alleged victim. If they tell us that they don’t want any action taken, that they want the terms of an order changed, or that do not want an order in place at all, we can often take that information to the DA to give them a more full picture of the state of the relationship, and try to resolve the matter.

 

Do I have to talk to the police?

No, you do not have to talk to the police if you do not want to. Just as the police cannot force an accused person to speak to them, they cannot force an alleged victim to make a report or complaint against anyone.

 

However, keep in mind that just because you do not speak to the police, does not mean that they will not take any action in a case. If the police see or hear enough to give them a basis to believe that an offense has occurred, they can still make an arrest and charges can still be filed. For example, in cases where other people are present in the house, or where neighbors have seen or heard something, there may still be enough evidence for the police to take action against an alleged offender. Further, even in cases where there might not be enough evidence to support a charge, the police could still apply for a restraining or protective order on behalf of the alleged victim – regardless of their wishes.

 

 

 

Can I contact my partner if there is a restraining or protective order in place?

Maybe – it depends on the terms of the order. If an order has been made for your protection, then the law requires that you be provided with a copy. You should read the terms of the order carefully, and if there is anything you don’t understand you can ask the police or a lawyer to explain it to you.

 

Although there are typical orders that are made, they can be different, so read yours carefully. If you are worried about whether you can be in contact with your partner at all, you should look for terms in the order that talk about ‘contact’ or ‘communication’. For example, an order might prohibit your partner from living in your home, but it might not prevent the two of you from talking to each other.

 

On the other hand, if an order says that your partner is not allowed to communicate with you at all, then you should not communicate them. If you do need or want to communicate with your partner, you could speak to an attorney. If you are not happy with the terms of the order and you want to be able to communicate with your partner, you should consult an attorney to see what your options are.

 

What if I feel safe and I don’t want the order anymore?

What can happen in the case depends on what stage the court proceedings are at, and if any criminal charges have been filed against your partner. As we have discussed before, a judge in a criminal case can make an order, even if the victim doesn’t want one made. This can be a difficult area of the law for a victim to handle by themselves so, in most cases, the best course of action is to speak to a lawyer early in the case so they can help you navigate the process, and discuss with you what the best options are for you and your family.

 

Do I have to attend court and testify?

Yes, you do have to go to court if you have been served with a notice from the prosecution, or a subpoena – you should not ignore a court order. It is understandable that you might not want to go to court, but you can face penalties yourself if you disobey a court order.

 

One important aspect of the law to know is that, in a domestic violence case, there are ways that you can go to court but refuse to testify and be protected from prosecution for contempt, under Section 1219 of the California Code of Civil Procedure. However, you should carefully consider why you do not want to testify or go to court at all. This is a complicated issue, and it is best for someone in this situation to seek the advice of an attorney before deciding what course of action to take, or potentially exposing yourself to criminal penalties.

 

 

LOCAL RESOURCES

There are different kinds of services and resources available throughout the Bay Area to assist families and couples who are dealing with conflict. There are services that focus on assisting victims, those that focus on helping offenders, and those that work with entire families. Even though the courts do look positively on defendants who take action to address their issues, that is not the only reason to access these kinds of services – at Summit Defense Attorneys, we know that when clients and their loved ones are able to access the help that they need to work on their relationships, it keeps families together.

 

In this section, we outline some of the groups and organizations that offer domestic violence-related services throughout the Bay Area. You do not need a referral and can approach these providers on your own. However, these services do NOT provide legal assistance – if you are facing a criminal charge or someone is applying to have a restraining order made against you, you should contact a Summit Defense attorney immediately for help with your case.

 

State-wide service referrals

Navigating the vast amount of information and resources across the Bay Area and Northern California can be difficult. If you’re not sure what kind of service or help you need, you can contact the California Partnership to End Domestic Violence – they do not provide services, but can refer you to service providers across the state.

 

California Partnership to End Domestic Violence

P.O. Box 1798
Sacramento, CA 95812-1798
Toll Free: 800-524-4765
Phone: 916-444-7163
Fax: 916-444-7165

 

Counseling services

There are countless counseling services available for individuals, partners, and families. Many counselors specialize in helping families deal with conflict, and others specialize in dealing with either offenders or victims of domestic violence. An important thing to consider when choosing a counselor is not only their background and expertise, but whether you feel comfortable talking to them and are being treated in a non-judgmental and helpful way.

 

Some specialist counseling services in the area can be accessed as follows:

 

Stand! For Families Free of Violence – an organization in Contra Costa County that provides services for men, women, and children affected by family violence.

1410 Danzig Plaza, Suite 100
Concord, CA 94520

Telephone: +1 925 676 2845
Crisis Line: +1 888 215 5555
FAX: +1 925 676 0532

 

Marin Abused Women’s Services – provides services and support group for women, and also a men’s program.

734 A Street

San Rafael, CA 94901

Phone: (415) 457-2464

Fax: (415) 457-6457

TTY: (415) 457-2421

 

CORA: Community Overcoming Relationship Abuse – services for women and children, in English and Spanish.
2211 Palm Avenue
San Mateo, CA 94403

Business Line: 650-652-0800
Fax: 650-652-0808

 

Alameda Family Services – counseling available for individuals, couples, and families.

2325 Clement Ave.
Alameda, CA 94501
(510) 629-6300

 

Community United Against Violence – provides counselling services for gay, lesbian, bisexual, and transgender victims of domestic violence.
Crisis line (415) 333-HELP
427 South Van Ness Avenue
San Francisco, CA 94103
ph: (415) 777-5500
fax: (415) 777-5565

 

Anger management courses

While everyone gets angry from time to time, some people are more easily frustrated and can seem to ‘fly off the handle’ – even if they later regret it. Anger management courses can be particularly helpful for individuals who have trouble in dealing with and expressing their emotions by helping you to learn more peaceful tactics for responding to conflict and frustrating situations.

 

There are many anger management courses that are run regularly across the Bay Area – a simple internet search should turn up many in your area, and some are listed below:

 

Abuse, Violence & Anger Cessation Alliance – programs for people who have problems with anger or violence.

342A – 9th Street, Suite 218

San Francisco, CA 94103

Main:  (415) 553‐7825

Fax:  (415) 553‐7825

 

Axis Community Health Mental Health Services – offers a 20 week anger management course, as well as counseling for adults, couples, families, and children.
Address: 4361 Railroad Avenue Pleasanton, CA 94566

Phone: (925) 201-6240

 

“VIP” Violence Intervention Program – a program of the Public Health department, they provide mental health services for trauma survivors and perpetrators.
Community Justice Center
555 Polk Street
San Francisco, CA 94102
ph: (415) 292-2565

 

Shelters/transitional housing, victim assistance, support groups

There are supportive organizations across the Bay Area that provide short-term accommodation, transitional housing, and other assistance for people who want to leave a violent home situation. These places are generally open to women and children, and provide a secure place to stay for a short period of time. There are also many services that cater to particular groups or provide services in languages other than English.

 

The Riley Center | Services for Survivors of Domestic Violence – help with transitional housing, as well as counselling and support services.

St. Vincent de Paul Society of San Francisco 
crisis line (415) 831-3535
1175 Howard Street
San Francisco, CA 94103
ph: (415) 552-2943 x206
fax:(415) 552.0337

 

Asian Women’s ShelterProvide emergency shelter, support, and counselling, with specialized services for non-English speaking Asian women and their children.
Crisis line (415) 751-0880
3543 18th Street, #19
San Francisco, CA 94110
ph: (415) 751-7110
fax: (415) 751- 0806

 

W.O.M.A.N., Inc. – city-wide San Francisco service that provides shelter availability information, and has special programs for lesbians and Latina women.
Crisis line (415) 864-4722
333 Valencia, Suite 251
San Francisco, CA 94103
ph: (415) 864-4777
fax: (415) 864-1082

 

Midway Shelter of Alameda – housing and assistance for women and children suffering from homelessness and domestic violence.

24 hour service: 1-866-A WAY OUT (1-866-292-9688)

Questions: (510) 523-2377 or (510) 357-0205 ext.206

 

A Safe Place – comprehensive domestic violence services in Oakland for women, girls, and children.

Tel: 510.986.8600

Fax: 510.986.8606

24-Hour Crisis Line:  510.536.7233

 

Building Futures – provides emergency, temporary, and short-term housing for women and children leaving family violence.

1395 Bancroft Ave.
San Leandro, CA 94577
Main Line: 510-357-0205
Fax: 510-357-0688
24-Hour Toll Free Crisis Line
1-866-A-WAY-OUT
1-866-292-9688

 

 

Child Assessment and Treatment Services, and Children’s Programs

Parenting Assistance

Children can sometimes witness violence and conflict in the home, such as between their parents, or between their parents and new partners. Many service providers provide special programs for children, or will be able to refer you to services that specialize in counselling and helping children to deal with witnessing trauma and conflict. There are also several service providers who specialize in parenting assistance, helping people adjust to being parents, and helping parents develop co-parenting strategies after separation.

 

Building Futures – has a specialized children’s program.

1395 Bancroft Ave.
San Leandro, CA 94577
Main Line: 510-357-0205
Fax: 510-357-0688
24-Hour Toll Free Crisis Line
1-866-A-WAY-OUT
1-866-292-9688

 

APA – Family Support Services – provides home visitation to at-risk Asian families with children 0-5; parenting education and victim support services.
10 Nottingham Place
San Francisco, CA 94133
ph: (415) 206-5450
fax: (415) 206-4778

 

Family Paths – offices in Oakland, Fremont, and Hayward. Provide family support, counseling services, and parenting classes, as well as referral to other service providers.

24-hour support and referrals: 1800-829-3777

 

 

[1] California Penal Code 13700(a).

[2] California Penal Code 13700(b).

[3] California Penal Code 13701(a).

[4] California Penal Code 13700(b).

[5] California Penal Code 13700(b).

[6] California Penal Code 13702.

[7] ‘County of San Mateo: Domestic Violence Protocol for Law Enforcement’, page 7, available at: http://www.co.sanmateo.ca.us/Attachments/districtattorney/pdfs/SMCO-DV-Protocol-2011-3.pdf

[8] See, for example, http://sfpublicpress.org/news/2012-09/san-francisco-trails-bay-area-in-domestic-violence-prosecutions

[9] California Commission on Peace Officer Standards and Training, ‘Guidelines for Law Enforcement Response to Domestic Violence’, page 3, available at: http://lib.post.ca.gov/Publications/domestic-violence-manual_wv.pdf

[10] Judicial Council of California Criminal Jury Instructions, Instruction 841.

[11] Judicial Council of California Criminal Jury Instructions, Instruction 841.

[12] Judicial Council of California Criminal Jury Instructions, Instruction 841.

[13] People v. Greenfield (1982) 134 Cal.App.3d Supp. 1

[14] Judicial Council of California Criminal Jury Instructions, Instruction 2703.

[15] Judicial Council of California Criminal Jury Instructions, Instruction 823.

[16] Judicial Council of California Criminal Jury Instructions, Instruction 823.

[17] Judicial Council of California Criminal Jury Instructions, Instruction 1300.

[18] Judicial Council of California Criminal Jury Instructions, Instruction 1240.

[19] Judicial Council of California Criminal Jury Instructions, Instruction 3470.

[20] California Penal Code 273.5(f)(1) and (2).

[21] California Penal Code 273.5(g), (h), and (i), and 1203.097.

[22] California Penal Code 273a(c).

[23] California Family Code 6220.

[24] California Courts, Self-Help, Domestic Violence, available at: http://www.courts.ca.gov/selfhelp-domesticviolence.htm