The Law on Domestic Violence, Spousal Abuse
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Domestic Violence crimes in California are those that involve family
members, anyone you are dating or have had a dating relationship,
the mother or father of your children, your relatives, your siblings,
your kids and your parents. The laws specifically define what
conduct is criminal, as follows:
(a) Any person who willfully inflicts upon a person who is his or her
spouse, former spouse, cohabitant, former cohabitant, or the mother
or father of his or her child, corporal injury resulting in a traumatic
condition, is guilty of a felony, and upon conviction thereof shall be
punished by imprisonment in the state prison for two, three, or four
years, or in a county jail for not more than one year, or by a fine of
up to six thousand dollars ($6,000) or by both that fine and
imprisonment.
(b) Holding oneself out to be the husband or wife of the person with
whom one is cohabiting is not necessary to constitute cohabitation as
the term is used in this section.
(c) As used in this section, “traumatic condition” means a condition
of the body, such as a wound or external or internal injury, whether
of a minor or serious nature, caused by a physical force.
(d) For the purpose of this section, a person shall be considered the
father or mother of another person's child if the alleged male parent is
presumed the natural father under Sections 7611 and 7612 of the
California Family Code.
(e) (1) Any person convicted of violating this section for acts
occurring within seven years of a previous conviction under
subdivision (a), or subdivision (d) of Section 243, or Section 243.4,
244, 244.5, or 245, shall be punished by imprisonment in a county
jail for not more than one year, or by imprisonment in the state prison
for two, four, or five years, or by both imprisonment and a fine of up
to ten thousand dollars ($10,000).
(2) Any person convicted of a violation of this section for acts
occurring within seven years of a previous conviction under
subdivision (e) of Section 243 shall be punished by imprisonment in
the state prison for two, three, or four years, or in a county jail for
not more than one year, or by a fine of up to ten thousand dollars
($10,000), or by both that imprisonment and fine.
(f) If probation is granted to any person convicted under subdivision
(a), the court shall impose probation consistent with the provisions of
Section 1203.097.
(g) If probation is granted, or the execution or imposition of a
sentence is suspended, for any defendant convicted under subdivision
(a) who has been convicted of any prior offense specified in
subdivision (e), the Burbank Court shall impose one of the following
conditions of probation:
(1) If the defendant has suffered one prior conviction within the
previous seven years for a violation of any offense involving domestic
violence, it shall be a condition thereof, in addition to the provisions
contained in Section 1203.097, that he or she be imprisoned in a
county jail for not less than 15 days.
(2) If the defendant has suffered two or more prior convictions
within the previous seven years for a violation of any offense
specified in subdivision (e), it shall be a condition of probation, in
addition to the provisions contained in Section 1203.097, that he or
she be imprisoned in a county jail for not less than 60 days.
(3) The court, upon a showing of good cause, may find that the
mandatory imprisonment required by this subdivision shall not be
imposed and shall state on the record its reasons for finding good
cause.
(h) If probation is granted upon conviction of a violation of domestic
violence, the conditions of probation may include, consistent with the
terms of probation imposed pursuant to Section 1203.097, in lieu of a
fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's shelter
in Burbank or any other city, up to a maximum of five thousand
dollars ($5,000), pursuant to Section 1203.097. (2) That the
defendant reimburse the victim for reasonable costs of counseling and
other reasonable expenses that the court finds are the direct result of
the defendant's offense.
For any order to pay a fine, make payments to a battered women's
shelter, or pay restitution as a condition of probation under this
subdivision, the court shall make a determination of the defendant's
ability to pay. In no event shall any order to make payments to a
battered women's shelter be made if it would impair the ability of the
defendant to pay direct restitution to the victim or court–ordered child
support. Where the injury to a married person is caused in whole or
in part by the criminal acts of his or her spouse in violation of this
section, the community property may not be used to discharge the
liability of the offending spouse for restitution to the injured spouse,
required by Section 1203.04, as operative on or before August 2,
1995, or Section 1202.4, or to a shelter for costs with regard to the
injured spouse and dependents, required by this section, until all
separate property of the offending spouse is exhausted.
Arrest for Domestic Violence
When an officer responds to a call alleging a violation of a domestic
violence protective or restraining order (whether issued in California
or another state), and the officer has probable cause to believe that
the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer must
make a warrantless arrest and take the violator into custody,
regardless of whether or not the offense was committed in the officer’
s presence. The officer must, as soon as possible after the arrest,
confirm with the appropriate authorities or the Domestic Violence
Protection Order Registry that a true copy of the protective order has
been registered, unless the victim provides the officer with a copy of
the protective order. Cal. Pen. Code §836(c)(1). In cases where
mutual protective orders have been issued, the officer need only
arrest the person reasonably believed to have been the primary
aggressor. The primary aggressor is the person determined to be the
most significant, rather than the first, aggressor. In identifying the
primary aggressor, the officer should consider: (i) the intent of the law
to protect victims of domestic violence from continuing abuse, (ii) the
threats creating fear of physical injury, (iii) any history of domestic
violence between the persons involved, and (iv) whether either person
involved acted in self-defense. Cal. Pen. Code §836(c)(3).
Law References Provided by Lexis-Nexis.
If you or a loved one has been arrested, call the Domestic Violence
Defense Lawyers in Burbank for a free consultation. For over a
decade we have been defending those accused in this area of the law
with great success.
You can read more about attorney Matthew Ruff on the web and
read his peer reviewed articles and posts about the law and how he
can help you.
members, anyone you are dating or have had a dating relationship,
the mother or father of your children, your relatives, your siblings,
your kids and your parents. The laws specifically define what
conduct is criminal, as follows:
(a) Any person who willfully inflicts upon a person who is his or her
spouse, former spouse, cohabitant, former cohabitant, or the mother
or father of his or her child, corporal injury resulting in a traumatic
condition, is guilty of a felony, and upon conviction thereof shall be
punished by imprisonment in the state prison for two, three, or four
years, or in a county jail for not more than one year, or by a fine of
up to six thousand dollars ($6,000) or by both that fine and
imprisonment.
(b) Holding oneself out to be the husband or wife of the person with
whom one is cohabiting is not necessary to constitute cohabitation as
the term is used in this section.
(c) As used in this section, “traumatic condition” means a condition
of the body, such as a wound or external or internal injury, whether
of a minor or serious nature, caused by a physical force.
(d) For the purpose of this section, a person shall be considered the
father or mother of another person's child if the alleged male parent is
presumed the natural father under Sections 7611 and 7612 of the
California Family Code.
(e) (1) Any person convicted of violating this section for acts
occurring within seven years of a previous conviction under
subdivision (a), or subdivision (d) of Section 243, or Section 243.4,
244, 244.5, or 245, shall be punished by imprisonment in a county
jail for not more than one year, or by imprisonment in the state prison
for two, four, or five years, or by both imprisonment and a fine of up
to ten thousand dollars ($10,000).
(2) Any person convicted of a violation of this section for acts
occurring within seven years of a previous conviction under
subdivision (e) of Section 243 shall be punished by imprisonment in
the state prison for two, three, or four years, or in a county jail for
not more than one year, or by a fine of up to ten thousand dollars
($10,000), or by both that imprisonment and fine.
(f) If probation is granted to any person convicted under subdivision
(a), the court shall impose probation consistent with the provisions of
Section 1203.097.
(g) If probation is granted, or the execution or imposition of a
sentence is suspended, for any defendant convicted under subdivision
(a) who has been convicted of any prior offense specified in
subdivision (e), the Burbank Court shall impose one of the following
conditions of probation:
(1) If the defendant has suffered one prior conviction within the
previous seven years for a violation of any offense involving domestic
violence, it shall be a condition thereof, in addition to the provisions
contained in Section 1203.097, that he or she be imprisoned in a
county jail for not less than 15 days.
(2) If the defendant has suffered two or more prior convictions
within the previous seven years for a violation of any offense
specified in subdivision (e), it shall be a condition of probation, in
addition to the provisions contained in Section 1203.097, that he or
she be imprisoned in a county jail for not less than 60 days.
(3) The court, upon a showing of good cause, may find that the
mandatory imprisonment required by this subdivision shall not be
imposed and shall state on the record its reasons for finding good
cause.
(h) If probation is granted upon conviction of a violation of domestic
violence, the conditions of probation may include, consistent with the
terms of probation imposed pursuant to Section 1203.097, in lieu of a
fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's shelter
in Burbank or any other city, up to a maximum of five thousand
dollars ($5,000), pursuant to Section 1203.097. (2) That the
defendant reimburse the victim for reasonable costs of counseling and
other reasonable expenses that the court finds are the direct result of
the defendant's offense.
For any order to pay a fine, make payments to a battered women's
shelter, or pay restitution as a condition of probation under this
subdivision, the court shall make a determination of the defendant's
ability to pay. In no event shall any order to make payments to a
battered women's shelter be made if it would impair the ability of the
defendant to pay direct restitution to the victim or court–ordered child
support. Where the injury to a married person is caused in whole or
in part by the criminal acts of his or her spouse in violation of this
section, the community property may not be used to discharge the
liability of the offending spouse for restitution to the injured spouse,
required by Section 1203.04, as operative on or before August 2,
1995, or Section 1202.4, or to a shelter for costs with regard to the
injured spouse and dependents, required by this section, until all
separate property of the offending spouse is exhausted.
Arrest for Domestic Violence
When an officer responds to a call alleging a violation of a domestic
violence protective or restraining order (whether issued in California
or another state), and the officer has probable cause to believe that
the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer must
make a warrantless arrest and take the violator into custody,
regardless of whether or not the offense was committed in the officer’
s presence. The officer must, as soon as possible after the arrest,
confirm with the appropriate authorities or the Domestic Violence
Protection Order Registry that a true copy of the protective order has
been registered, unless the victim provides the officer with a copy of
the protective order. Cal. Pen. Code §836(c)(1). In cases where
mutual protective orders have been issued, the officer need only
arrest the person reasonably believed to have been the primary
aggressor. The primary aggressor is the person determined to be the
most significant, rather than the first, aggressor. In identifying the
primary aggressor, the officer should consider: (i) the intent of the law
to protect victims of domestic violence from continuing abuse, (ii) the
threats creating fear of physical injury, (iii) any history of domestic
violence between the persons involved, and (iv) whether either person
involved acted in self-defense. Cal. Pen. Code §836(c)(3).
Law References Provided by Lexis-Nexis.
If you or a loved one has been arrested, call the Domestic Violence
Defense Lawyers in Burbank for a free consultation. For over a
decade we have been defending those accused in this area of the law
with great success.
You can read more about attorney Matthew Ruff on the web and
read his peer reviewed articles and posts about the law and how he
can help you.
Matthew J. Ruff, Esq.
Toll Free at 1-877-617-4485
20 Years Experience in Criminal Law
