The State of California takes domestic violence charges very seriously, and legislators have crafted a broad set of laws to protect potential victims. However, if you’ve recently been accused, arrested or charged with domestic violence, your thoughts probably won’t be on the technicalities of the law, but on what happens next. What can you expect in the wake of domestic abuse allegations, and just as importantly, what are the penalties if you are convicted?
You can brush up on the specific California laws dealing with domestic violence here if you wish, but for now, let’s dig more deeply into the potential legal consequences of breaking those laws—what you can expect, and what (if anything) you can do to defend your innocence if wrongly accused?
Felony or Misdemeanor?
While certain crimes are distinctly categorized as either felonies or misdemeanors, most domestic violence crimes in California are “wobbler” offenses, meaning they can be prosecuted either as felonies or misdemeanors. Prosecutors usually make this determination based on a number of factors, including:
- The severity of injuries. (If the victim’s injuries are slight or non-existent, you’ll probably be charged with one or more misdemeanors. If the injuries are more significant or serious (e.g. severe cuts or broken bones), the prosecution will usually file felony charges.
- The defendant’s prior record. If you have no prior criminal record or this is your first DV offense, you’re more likely to face misdemeanor charges. If you have prior offenses, the prosecution usually leans toward felony charges.
- Available evidence. Prosecutors generally only file charges they feel confident will result in a conviction. If the evidence is sparse for a felony, prosecutors may opt for a lesser charge, or your defense attorney may press for a reduction in the charges from a felony to a
Felony convictions generally involve more severe penalties than misdemeanors. If convicted of a felony, you can expect longer prison times and higher fines. Additionally, if the victim’s injuries are serious, a conviction may count as a “strike” under California’s Three-Strike program.
What to Expect in the Immediate Aftermath of DV Allegations
California’s current domestic violence code requires law enforcement to take immediate steps to protect possible victims, even before charges are officially filed. Thus, if you’re involved in a domestic dispute and someone calls 911, for example, when the police respond, here’s what you can expect to happen immediately:
- If there are any visible signs of injury—even mild injury—police are required to arrest the suspect. Period.
- If there are any firearms in the house, police are now required to confiscate them for the victim’s protection.
- If you violated an existing restraining order, the police will arrest you regardless of any evidence of violence.
- At the alleged victim’s request, police will issue an Emergency Protective Order effective for seven days. If this happens, you’ll have to leave your home immediately even if you aren’t arrested—and you can’t return home at least until the order expires (provided another restraining order doesn’t replace it).
While the law, in general, considers you innocent until proven guilty, California domestic violence law places the victim’s safety above all else. One reason for this is that victims have been sometimes subject to additional attacks—sometimes fatal—in the time between when the defendant is charged and when he is convicted. Restraining orders offer a way for the state to bridge that gap and protect alleged victims until guilt or innocence is established. For you as a defendant, if your significant other gets a restraining order, you won’t be able to go within 100 yards of the accuser (and in some cases, your children) while the order is in effect. If you violate the order, you’ll be subject to immediate arrest.
California currently utilizes four types of restraining orders:
- Emergency Protective Order (mentioned above)—provides immediate temporary protection for the victim for the first seven days after an alleged attack.
- Criminal Protective Order—a restraining order that stays in effect during the course of a criminal trial, and rescinded if you’re acquitted.
- Temporary Restraining Order (TRO)—If the victim requests it and presents evidence to support the request, the court may issue a temporary restraining order for approximately 20-25 days pending further review.
- Permanent Restraining Order (PRO)—If the victim requests it and can convince the court that you are an ongoing threat, the judge may issue a permanent restraining order against you. While “permanent” in name, PROs usually last about 5 years.
What to Expect if You Are Convicted
If you’re found guilty of domestic violence charges, your penalties will be generally lighter misdemeanors, and more severe for felonies. In either case, you can expect some or all of the following to happen:
- Jail time. Actual sentencing may vary according to the circumstances of the case, but you can generally expect up to one year in jail for a misdemeanor conviction, and up to 4 years for a felony. State law does allow for some defendants to receive probation in place of jail time if the injuries were slight and/or it was their first offense; however, many counties in California enforce a mandatory minimum jail sentence for any DV conviction, no matter how slight. Bottom line: Even if you receive the most lenient treatment possible, you can expect to spend at least 30 days in jail if convicted.
- Fines and restitution. Fines generally range between $2000 and $10,000 per offense, depending on the charge and the circumstances. In addition, the court will likely require you to pay restitution to the victim for medical bills, mental health treatment, and any lost wages.
- Lost custody of your children. You may be allowed visitation rights for your children, but if convicted of domestic violence, you will probably forfeit any custody rights.
- Lost gun rights. Both misdemeanor and felony DV convictions result in the loss of the right to own a firearm in California—generally a ten-year ban for misdemeanors, and a lifetime ban for felony convictions.
- Mandatory “batterer’s program.” You’ll probably be required under law to attend a one-year treatment/counseling program for domestic violence perpetrators.
- If you’re an immigrant: Deportation and/or inadmissibility. Domestic violence convictions in California may result in a revocation of your legal immigration status, resulting in deportation and a ban on returning to the U.S.
You can see from this long list of consequences that there’s quite a bit at stake if you’ve been accused of domestic violence, whether or not you’re actually guilty of the crime. For this reason alone, you don’t want to face these charges without legal representation. An attorney experienced in domestic violence law can investigate the facts surrounding the charges and help protect your interests against excessive and unnecessary penalties. For a free case evaluation, give our offices a call today.