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

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

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

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

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

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

 

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

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

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

 

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