The Definition of “Criminal Threats”

Criminal threats are one of the charges that can be brought in a California domestic violence case involving intimate partners. The term ‘intimate partners’ defines any type of couple – the individuals may be heterosexual or homosexual and can be married, divorced, living together, have children together, or currently or formerly dating.

Any individual who threatens, either by verbal, written or electronic communication, to commit a crime which will result in death or serious bodily injury against an intimate partner can be charged with making criminal threats. Whether or not the individual has any intent to actually carry out the threat is irrelevant if the partner is reasonably in fear for his or her own safety or for the safety of his or her family. This charge may be prosecuted as either a misdemeanor or a felony, punishable by up to one year in the county jail or state prison.

Every crime has specific elements or facts that the prosecutor must prove beyond a reasonable doubt in order to obtain a conviction against the defendant. Each element of the charge must be independently proved or else the jury must vote “Not Guilty.” That means that if just one element doesn’t hold true, the jury cannot return a conviction. An experienced domestic abuse attorney will aggressively defend the accused partner’s rights by individually attacking each element to sow reasonable doubt in the minds of the jurors.

Criminal threats consists of five elements that must be proved before the accused can be convicted. The first element is that the defendant willfully threatened to commit a crime, which if committed, would result in death or great bodily injury to his or her intimate partner. “Great bodily injury” means a substantial or significant injury.

The second element is that the accused intended his or her statement to be taken as a threat. This means that if the defendant was only joking or attempting to be funny and didn’t intend for the partner to take him or her seriously, he or she shouldn’t be convicted of this crime.

The third element is that the threat was communicated verbally, in writing or through an electronic communication device. Examples of electronic communication devices are computers, pagers, fax machines and videos. The gist of this element is that the threat simply has to be conveyed to the intimate partner through some means – even a third party can communicate the threat to the defendant’s intimate partner.

The fourth element is that the threat, on its face and under the circumstances, must be so clear, unconditional, immediate and specific so as to convey to the defendant’s partner that the threat could be immediately executed. It is important to note that even if the accused didn’t actually intend to carry out the threat, he or she can still be charged with this crime, as that fact will not negate his or her culpability.

The final element is that the intimate partner must reasonably fear for his or her safety or for the safety of his or her family. This means that a reasonable person would have to fear for his or her life if placed in a similar situation. This element is designed to weed out any frivolous charges.

To best avoid the consequences that may be imposed with a criminal threats conviction, it is imperative that the accused hires an experienced criminal defense lawyer who knows the most effective ways to refute elements of this crime. The skilled attorneys at The Kavinoky Law Firm receive extensive ongoing training in intimate partner abuse and on the many issues that frequently arise in these types of cases. An experienced defense lawyer can answer any questions about a California criminal threats prosecution during a free consultation.

If you’ve been convicted of a criminal offense, you have a criminal record. In the past, only those with authorization could view your criminal record, but times have changed. Technology has blurred the gap between public and private, and background checks are becoming more and more common. Unfortunately, almost anyone can access your criminal record.

Because it’s now extraordinarily easy to access your criminal record, expungement or another form of post-conviction relief is critically important. Expungement works like cleaning up a credit report. A successful expungement means that the conviction is removed from the record. The knowledgeable expungement lawyers of The Kavinoky Law Firm can evaluate your California criminal conviction to determine whether post-conviction relief may be an option.

Expunging a criminal record in California once required that you simply fulfill the terms of your sentence and probation and petition the court to allow expungement of your conviction. However, a new California law effective Jan. 1, 2008 now requires that you have a formal court hearing so that the judge can consider your expungement petition. The judge now has the discretion to decide whether expunging your record serves the interests of justice.

To facilitate a successful expungement hearing, you may have to call witnesses, file declarations, provide the court with information about you and your particular circumstances, and convince the judge why your good conduct and reform justify expunging the conviction.

It’s still entirely possible to expunge your California criminal conviction, and the benefits of doing so are significant. Essentially, the judge dismisses your case after the fact, even if you originally pled guilty. In these cases, the guilty plea is withdrawn and the case is dismissed. On your criminal record, expunged offenses are listed as “dismissed.”

While expungement offers the most relief, it is not an eraser, and relief from disclosure is limited. Also, expungement is not available in all cases. While it is possible to expunge some felonies, expungement is generally limited to misdemeanor offenses, where the probationary period has ended. However, an experienced criminal defense attorney can assist with getting probation terminated early.

Common situations where expungement is usually granted include driving under the influence, drug possession, reckless driving, and other misdemeanor offenses. Most employers are prohibited from asking about both arrests that did not result in convictions, and expunged offenses. However, there are limits on expungement relief, including several situations that require mandatory disclosure of expunged offenses.

Still, the benefits of expungement far outweigh the limitations. While expungement is most commonly considered for purposes of future employment, the psychological benefits should not be overlooked. Knowing that a prior criminal conviction is out there can be unnerving. While hiring a good criminal defense attorney to help resolve matters initially is always encouraged, there’s no reason to suffer needlessly from a prior conviction. Help is available. In some cases where expungement isn’t an option, alternatives such as a Certificate of Rehabilitation or a pardon may be available.

For a free-of-charge preliminary evaluation on whether your offense can be expunged, please contact a skilled criminal defense attorney at The Kavinoky Law Firm. We have offices throughout California and are extremely experienced in expungement and post-conviction relief.

Infliction of Injury Trial Considerations

Infliction of injury or spousal abuse is one charge that can be filed in a California domestic violence case involving intimate partners. The term “intimate partners” is a broad one that includes heterosexual or homosexual couples, married or divorced, living together or were formerly living together, or have children in common.

Anyone who willfully inflicts any injury, no matter how minor, upon the body of an intimate partner can be charged with a felony, punishable by up to four years in prison and a fine of up to $6,000. In some cases, this charge is brought against individuals who barely touched their intimate partners.

In an intimate partner abuse case, there are several evidentiary issues that frequently surface. Because the consequences of a domestic violence conviction are so severe, it is imperative that the defendant hires a criminal defense lawyer who is kept up-to-date on the latest applicable case law and cutting-edge trial strategies. The attorneys at The Kavinoky Law Firm have experience dealing with every aspect of a California domestic abuse case and receive ongoing training to make sure that they maintain their reputation for being the best. They not only know the intricacies behind each and every evidentiary issue that may arise, but they know how to successfully use each to their client’s advantage.

The following are some of the issues that are likely to arise in an infliction of injury case:

• Battered Person’s Syndrome also referred to as battered women’s syndrome, is a psychological condition applied to a partner who has been consistently, severely victimized by his or her partner. Although it is often used to describe women, battered person’s syndrome can involve people of either gender involved in heterosexual or same-sex relationships.
• Physical evidence can be a major factor in infliction of injury cases. Photographs or medical records showing actual injury are used by the prosecution if and when they exist. A skilled defense attorney will argue forcefully that any physical evidence in a domestic abuse case should be excluded.
• DNA evidence is being used more and more in intimate partner violence cases throughout the country, both to convict the guilty and to exonerate those wrongly accused or convicted.
• Recanting victims are extraordinarily common in infliction of injury cases and other domestic violence prosecutions. There are many reasons why an accuser might change his or her story during a trial. This occurs so frequently that prosecutors have tactics to proceed despite the accuser’s change of heart. However, a skilled defense attorney can use a recanting victim to the accused individual’s advantage.
• Eyewitness accounts often make or break an infliction of injury domestic abuse case. Both sides can subpoena witnesses who were present during the altercation that led to the charge. An experienced lawyer will work with defense witnesses to ensure that they present their testimony in a light most favorable to the accused. A good attorney will also effectively cross-examine prosecution witnesses to highlight discrepancies in their accounts.

The prosecution will likely try to introduce hearsay and 911 calls into evidence. Although this type of evidence is typically excluded in most criminal cases, hearsay and 911 calls are sometimes allowed into evidence in domestic violence cases. This is yet another good reason why it is so critical to have an attorney experienced in California domestic violence law, as he or she knows how to effectively argue against the admission of this type of evidence.

Domestic violence law is technical and complex, so it’s imperative to have an attorney who is qualified, skilled and experienced in this area. In order to secure the best representation from a firm who has successfully defended countless domestic abuse cases, contact the unparalleled attorneys at The Kavinoky Law Firm for a free consultation.

Penalties Imposed with a Violation of a Protective Order Conviction

Violation of a protective order is a California domestic violence offense that can be brought against an intimate partner in a current or past relationship. The term “intimate partners” applies to couples who are married, divorced, living together, have children together, or who are currently or were formerly dating. These laws apply to both heterosexual and homosexual couples.

Courts often issue protective orders in California domestic violence cases that prohibit the offender from specific acts of abuse, re-entering his or her own home, or exhibiting certain behaviors. Any individual who intentionally violates a protective order can be charged with a misdemeanor punishable by a maximum of a one-year jail sentence and a $1,000 fine. If the violation results in physical injury to the alleged victim, the offender will serve mandatory jail time of at least 30 days and the fine may rise to $2,000. California courts may even punish an offender for violating an order in California that was issued in another state.

If aggravating factors – facts that surround the charged incident that elevate the seriousness of the offense – are present, the offender faces additional penalties. Similarly, a prior conviction for violating a protective order will likely invoke an even stiffer sentence.

If the defendant is placed on probation (which is usually the case), it will remain in effect for at least three years. There are certain mandatory terms of probation with respect to any California domestic abuse crime, and these include the booking process if the defendant wasn’t booked upon arrest, issuance of a more restrictive criminal protective order against the defendant, the offender’s participation in a batterer’s class, and an additional fine payable to specific domestic violence funds.

A conviction for violating a protective order may also bring professional licensing restrictions. Under California law, a licensing board may suspend or revoke a professional license if the license-holder has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. This means that a conviction could potentially end an individual’s career, which is another reason why it is so important to have a competent attorney who is familiar with California law and can argue against such a restriction.

Finally, an individual may not only be charged criminally for violating a protective order, but may be sued in civil court for the violation as well. In a civil court, a person who is found liable for committing this wrong is subject to additional heavy fines and a more restrictive civil protective order but cannot be sentenced to jail or prison.

With such devastating consequences, it is imperative that an individual who has been arrested for violating a protective order immediately hires a qualified criminal defense lawyer who is familiar with all of the defenses that apply to this crime. The attorneys from The Kavinoky Law Firm have successfully defended countless individuals who were facing intimate partner abuse and protective order violation charges. They can answer any questions about a California domestic violence charge during a free consultation.

Recanting Victims and Sexual Battery Case

Sexual battery is a California domestic violence crime that applies to intimate partners. Intimate partners may be heterosexual or homosexual and married, divorced, living together, have children in common, dating or formerly dating. If a person touches an intimate part of his or her intimate partner against that person’s will for the purpose of sexual arousal, sexual gratification or sexual abuse, he or she may be charged with sexual battery.

“Touching” can consist of any physical contact, however minor, whether it occurs directly, through the clothing of the accused, or through the clothing of the accuser. Sexual battery can be charged even against a partner involved in an ongoing, intimate relationship. Depending on the circumstances, the crime can be charged as a misdemeanor or a felony with penalties of up to one-year in jail or up to four years in prison and fines of up to $10,000.

A sexual battery charge can be filed against an individual even if he or she caused no injury to the victim, making it easy for an alleged “victim” to charge his or her partner with this crime with little or no evidence. Many times an individual will do this out of revenge, anger, or jealousy. He or she may later decide to tell the truth, but once the police are involved, it is too late to take the allegation back, as only the prosecutor and/or judge can decide to drop the charges at that point. When this type of situation arises, it is imperative for the accused to hire a skilled criminal defense lawyer from the Kavinoky Law Firm.

If the accuser chooses of his or her own free will that calling the police was a mistake for any reason, it is best for both partners to speak with an attorney who will help decide the best course of action. Many times the victim thinks that “recanting” (which means to take back or deny) the original story or not cooperating with the police or prosecution will help the defendant. Unfortunately, that is incorrect. In fact, in an intimate partner abuse case, the prosecution usually expects that a victim will recant and knows exactly how to proceed under this type of situation. A genuine recanting victim can be extremely harmful to the defendant if not first guided by an attorney.

When a victim recants, there are two major issues that arise. The first is that evidence that may otherwise have been inadmissible during the trial will now likely be admissible, and the second issue is that a “recanting victim” gives the prosecution a great argument against the defendant. Beginning with the first issue, when a victim recants his or her story, the prosecution plays for the jury a recording of the call that the victim placed to the police. The prosecutor will also admit into evidence any statements that the victim made to the police during the initial investigation. Because these statements were made in the heat of the moment and possibly out of revenge or stemming from some other motive, these statements can be devastating to the defense. Looking at the second issue, when a victim recants, the prosecutor usually brings in an expert witness who testifies that the victim is recanting because he or she has either been threatened by the “abuser” into doing so or that he or she is afraid of what further abuse might take place if he or she doesn’t recant. The expert will further explain that recanting is part of the “cycle of abuse” and that the victim likely suffers from “battered person’s syndrome.”

When an intimate partner chooses to recant his or her allegation, a highly qualified defense attorney from the Kavinoky Law Firm can help both parties navigate through the system with knowledge and compassion. The attorney will help develop the most effective defense strategy to successfully put an end to a terrible situation that simply spiraled out of control.