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Domestic Violence Information | Fresno Domestic Violence Lawyer | Information on Domestic Violence

Posted by Jonathan Rooker | Dec 16, 2017 | 0 Comments


When the police believe that person has committed a crime of domestic violence when involved in a relationship with the victim or various other circumstance included having previously been in a relation or having children in common, they will likely arrest the individual they suspect committed a crime of Domestic Violence and take then into custody.  If you or a person you would like to help has been arrested or charged with a domestic violence or domestic violence related crime Pursuant to section 273.5 of the California Penal Code, or another Domestic Violence related section of the Penal Code, Contact Attorney Jonathan Rooker for help.

Laws Relating to Domestic Violence have changed, and continue to change on a regular basis.  A defendant must be able to protect themselves by consulting with a Fresno Criminal Defense Attorney who has experience with Criminal Defense.  Many times the Police do not have the ability, resources, or desire to figure out who is at fault while at the scene of the incident.  Often time tempers are flaring and communication between people at a very difficult point.  Usually at least one person is arrested for assault or battery upon a person with a domestic relationship when the calls are made for police intervention.

Minor arguments and slight physical touching can be enough for the police to arrest a person for a violation of the domestic violence laws.  This can also be sufficient for a prosecutor to file charges and prosecute.  Domestic Violence has become a political crime, where politicians, police, and prosecutors may be inclined to detain, arrest, and prosecute upon any allegation.  Usually the heads of these departments and judges are elected officials want to keep the appearance of being tough on crime by prosecuting exactly this type of crime.  Special grants are allocated to catch and prosecute crimes that are highly politicized like DUI, Domestic Violence, drug and sex crimes.

Even when it is clearly a mutual combat situation, when police arrive they often feel they must arrest a particular person, all too often based on who they feel won the fight.  The person with the most apparent injuries is likely to be categorized as the victim, even if they were the aggressor and the arrested party was merely defending themselves.  Many times a loud argument is mistaken by neighbors, onlookers, or other uninvolved people who see only a small part of the incident yet form their own biased opinion.  We have seen many times in sports and life that it is the person who retaliates that is viewed by onlookers as being the violator or even instigator of the offense.

An experienced Fresno County Defense Attorney will listen to the facts, read the reports and assist you in making decisions based upon legal advice provided with an understanding of the law.  This advice is designed to protect your rights and interests.  All too often events occur in the heat of passion, that at the time look to be violent.  But, upon closer evaluation, two people who have an emotional connect, even in love, may wish to put the incident behind them.   The problems is that courts routinely issue restraining orders that keep them from being together.  Careers are ruined, harming all parties, including innocent children.  Once initiated, the case will continue even if the victim asks for charges to be dismissed or not filed to start with.

California allows prosecutors to file Domestic Violence in many ways.  It could be filed as misdemeanor, felony, or even as a non-domestic assault of battery.  Felonies that can be filed as misdemeanors are called wobblers, because they can be either a felony or misdemeanor.  Felonies generally involved an injury.  However, even a slight injury or almost non-existent injury may be used to justify a felony violation being filed. Slight scratchers, bumps, bruises, red marks, and even slight bloody or swollen lips have been used quite commonly as the necessary injury for a felony violation.  In certain circumstances a felony conviction can be reduced to a misdemeanor before a plea is entered, following a plea at sentencing, or even at the conclusion of probation or a later time.

Many factors are considered by prosecutors on whether or not to file a felony rather than a misdemeanor.  Past criminal history, and domestic incidents, even when uncharged or undocumented can be used as a factor, along with numerous other facts.  If you are convicted of domestic violence there are numerous and serious repercussions.  Time in Jail or prison, restraining orders, fines, counseling, batterers treatment program potentially 52-weeks in length, and if probation is granted there would be terms and conditions that must be followed or you could be incarcerated.

Having an attorney who is familiar with the courts, court staff, and prosecutors could help you in your case and increase the odds of a favorable resolution of the your case.  In a recent case Mr. Rooker was able to negotiate a reduction form a felony to a misdemeanor and resolve a domestic violence following the first court appearance.  There was no additional jail time in custody or work program.  Other times charges have been reduced to disturbing the peace or other less severe charges.  Mr. Rooker has actively defended his clients in trial and won not guilty verdicts, and garnered dismissals prior to trial. Below are some of the more common Domestic Violence related crimes, punishments, and elements of the crimes.

1.       Penal Code Section 273.5(a) Corporal Injury to Spouse (Domestic Violence). As a felony the punishment is 2, 3, or 4 years in state prison.  But, probation may be granted with up to a year of custody in the county jail.  The District Attorney must prove to a jury or at judge trial if jury trial is waived, that an accused inflicted a traumatic injury on the person of another who is either a spouse, live in partner, parent of your child, or a former partner that in which you once resided together with.  The extent of the injury need not be major, only be light to fulfill the elements.

2.       Penal Code Section 273.6(a) PC- Disobeying a Domestic Relations Court Order: To be punishable as a felony, the defendant must have a prior conviction of this section.  As a felony, a defendant may be punished with 16 months, 2 years, or 3 years in the State Prison.  If there has not been a previous conviction then the defendant may be punished as a misdemeanor violation.  The sentence may be up to one year in length, and may be required to serve some time if an injury to the victim occurred.  The District Attorney's office must prove that the defendant knowingly and intentionally violated a valid court order and the defendant was served with that order.  One of the most common facts involved in a violation of this section is during a child custody transfer a dispute arises and the police all called on the restrained individual.

.3.       Penal Code Section 242-243(e)(1) Battery: As a misdemeanor this crimes can be punished by up to one year in county jail.  The District Attorney must prove that the defendant used force or violence upon the person of another with whom there was a relationship, for the domestic violence violation to be a factor.  Many times this may be a fist fight, mutual combat, or merely pushing another away from you, and however slight the contact, a violation may be charged.  If there is a factual domestic relationship, a person may lose their right to own or possess a firearm for life.  If not domestic link is factually present, California will still, upon conviction, prohibit ownership or possession of a firearms for 10 years.

4.       Penal Code Section 240-241(a) Simple Assault: A misdemeanor crime is punishable by up to one year in county jail.  The prosecutor, who prosecutes on behalf of the District Attorney's office, must prove that he defendant have a present ability to harm someone, and made an attempt to commit a violent injury upon another (or as little as attempted to batter, however slight), person.  No injury or even actual physical contact need occur.  A missed attempt to strike a person is sufficient to cause a conviction.  A missed punch, throwing an object at another person, or kicking something at them could be enough for a conviction.  This offense will result in a 10 year prohibition on ownership or possession of a firearm, and if it is a “misdemeanor crime of domestic violence” which need only include a factual domestic link, then a lifetime ban on firearm possession or ownership will occur.

5.       Penal Code Section 422 Criminal Threats: This crime can be a misdemeanor or a felony.  As a felony it may be punished by 16 months, 2 years, or 3 years in State Prison.  Probation may be granted, if the court finds the defendant to be a suitable candidate.  The Prosecutor must prove to the jury that a defendant willfully and unlawfully threatened to commit a crime, which would result in death or great bodily injury, and made the statement with the specific intent that the crime be taken as a threat.  This crime is commonly charged when a person threatens to “kill” someone when they are angry.  Sometimes, even a metaphorical threat, not intended to be taken seriously but instead just an expression is charged.  The pure percentage of times people claim they are going to kill someone, and the number of times it occurs, or is even attempted shows there is a very low chance that the threat is credible and meant to be an actual threat.  However, this crime is still alleged despite the common sense knowledge that most people don't actually mean they are going to kill anyone when they say these things.

6.       Penal Code 653m(a) Making an annoying phone call: This crime is a misdemeanor and is punishable by up to 6 months in county jail.  The prosecutor must prove that the defendant made the phone calls, or used other electronic means, and used threats to inflict injury to another person or their property.  In domestic situations this often in the heat of the moment – two people are talking over the phone and one gets angry.

People tend to jump to conclusions when a person is arrested and/or charged with domestic violence.  The social stigma of being a “wife beater” or other violence aggressive individual who is immoral or otherwise a bad person.

The truth of the matter is that innocent people get wrongly accused of Domestic violence on a regular basis in California.  Often time the accuser will make false reports or false allegation of domestic violence out of jealousy, or to assist them with gaining custody of the children or hoping to help their case for divorce settlements.  During bad breakups people become angry, bitter, and sometimes vindictive.  Having a romantic relationship turn bad, and losing out on the comforts of a life together, people may try to harm the other party.

Domestic Violence, even just accusations, can have a detrimental effect on many careers.  State licenses may be revoked, credential may be taken, and firearm rights can be stripped away.  Therefore, an angry ex-romantic partner can detrimentally harm the former lover with even an accusation.  People do this to other people all the time.  The next problem occurs if they try to recant.  Then, the original accuser could be threatened with criminal charges themselves if they recant their statement.  They could be charged with providing a false police report.  That causes many people, who later realize their mistakes, to fail to correct their own actions out of fear of being charged with a criminal violation.

Other times it is a true self defense where the “winner” who was also the victim is re-victimized by law enforcement and the justice system by being charged with a serious crime for simply defending themselves.  Many older police have stated that when they show up to a bar fight, once guy will go to the hospital and the other guy will go to jail.  Winning is not a crime, win done in necessary self defense.  However, the officers cannot look back into time and ascertain how it happened, so they base it on who got the worse of it being the victim.  After all, they “look like” the victim. It is my job as a criminal defense attorney to investigate the facts, have necessary witnesses interviewed, and orchestrate quality defense by providing as much relevant background information as needed.  

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About the Author

Jonathan Rooker

Fresno DUI Attorney & Criminal Defense Attorney Jonathan Rooker is an experienced and aggressive attorney. His education and work ethic help him separate himself from the other attorneys. He provides quality legal defense at an affordable rate.


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