The Definition of Domestic Battery

Domestic battery, is a California offense also known as “spousal abuse” or “spousal battery.” Under California law, battery is a domestic violence crime that applies to intimate partners. Intimate partners can be of opposite or the same genders, married, divorced, living together, have children in common, or be dating or formerly dating.

Battery is a “wobbler” offense, meaning that it can be charged either as a misdemeanor or a felony depending on the facts of the individual case. When charged as a misdemeanor, battery is punishable by a maximum one-year jail sentence and a $2,000 fine.

An individual can be charged with domestic battery even if he or she used only the slightest force. Any unwanted physical touching can result in a misdemeanor battery charge. However, if an individual suffers serious injury, such as broken bones, loss of consciousness or a concussion, the offense will likely be charged as a felony punishable by a maximum of four years in state prison.

Every crime has specific elements 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.” In order to find the accused guilty of “spousal battery”, the prosecutor must prove three elements.

The first element is that the accused used force or violence upon another. Note that this element doesn’t make any mention of injury. This is because a battery is simply any unwanted touching and has nothing to do with whether or not an injury was sustained by the offended party. The jury must only find that the defendant actually touched the accuser.

The second element is that the use of the force or violence was willful. “Willful” means that the individual had the willingness or desire to use force. Willingness has nothing to do with the amount of force used or the physical result of the force, it only deals with the willingness to simply do the act. In a situation where the accused willfully used the force in self-defense or in the defense of others, he or she is not guilty of a battery. It is the prosecutor’s burden to prove that the willful force was unlawful and not for self-defense or in the defense of others.

The final element that must be proved is that the accused and the accuser were intimate partners at the time of the alleged offense. This means that as long as the parties met the definition of “intimate partners” as defined above (which includes being married, divorced, separated, living together or formerly living together, having children in common, dating or formerly dating) at the time of the battery, the defendant may be convicted of this charge. It is important to remember that the definition of intimate partners includes heterosexual relationships as well as same-sex partnerships.

In a domestic abuse battery case where the victim suffered from serious bodily injury, there is an additional element that must be proved. The prosecutor must be able to show that the injury that the victim sustained was a result of the force or violence that was used by the accused. In other words, it must be proved that the injury wasn’t self-inflicted or caused as the result of an accident.

A California domestic battery accusation is a very serious matter. Facing a domestic violence charge can be devastating emotionally and financially, and a conviction carries severe penalties. To best avoid these consequences, it is imperative that an accused hires a skilled criminal defense lawyer who knows the most effective ways to refute this crime’s elements. In order to secure the best representation from a firm who has successfully defended countless intimate partner abuse cases, contact the experienced attorneys at the Kavinoky Law Firm for a free consultation.

California’s domestic violence crimes fall under three categories: Misdemeanors, felonies and what are known as “wobblers.” Misdemeanors are crimes that are punishable by fines and/or up to one year in a county jail. Felonies are crimes that are punishable by fines and/or incarceration in a state prison. Wobblers are crimes that, depending on the circumstances that surrounded the alleged incident, may be prosecuted as either a misdemeanor or as a felony. The expungement of a domestic abuse conviction is possible but will depend on how the crime was charged.

Expungement refers to the cleansing of one’s criminal record. It is a process by which one’s court file is sealed and it allows an individual to honestly claim, under most circumstances, that he or she has never been convicted of a crime. Expungement is most helpful to individuals who are seeking employment, housing, higher education and simply peace of mind.

Persons convicted of Domestic Violence offenses, whether they were sentenced as misdemeanors or as felonies without prison time, are entitled to an expungement. If probation was granted in a misdemeanor conviction or in a felony conviction where a prison sentence was not imposed, the individual may be entitled to withdraw his or her plea of “Guilty” or “No Contest” and enter a plea of “Not Guilty” or may have a “Guilty” verdict set aside if he or she was convicted following a trial. Either way, the court must dismiss the charge if the defendant’s probation was terminated early or if he or she fulfilled all of the probation terms, and is not serving a sentence for any other offense, on probation for any other offense or charged with any other offense. If, however, while on probation, the offender incurred a probation violation, the court may decide whether or not to dismiss the charge. For strategic reasons, a skilled criminal defense lawyer will first ask the court to reduce a felony conviction that is a “wobbler” to a misdemeanor before asking the court to dismiss the charge.

It should be noted that even if a conviction is expunged, there are certain times that it will still be relevant and/or must be disclosed. For example, an individual must still report his or her conviction if he or she is applying for public office, for licensure by any state or local agency or for contracting with the California State Lottery. In addition, expungement does not lift the requirement that a registered sex offender must remain registered for life or lift any firearm restrictions that were imposed upon conviction. Finally, if a person subsequently suffers another DV conviction, the prior conviction will still be used to increase the sentence in the pending case if the defendant is ultimately convicted.

An individual with a felony intimate partner violence conviction that resulted in a state prison sentence will seek relief through a Certificate of Rehabilitation and Pardon. This certificate is applicable to an individual who has lived in California for at least three years and who leads an honest life, free from any additional criminal convictions for a specified period of time, depending on the intimate partner abuse crime that he or she committed. If granted, the certificate is forwarded by the court to the Governor and acts as an application for a pardon. A Governor’s Pardon will only be issued when an individual demonstrates that he or she is reformed and has become a useful, productive member of society.

Only a qualified criminal attorney should petition for expungement or for a Certificate of Rehabilitation and Pardon. The experienced attorneys at The Kavinoky Law Firm specialize in California domestic violence law and know all of the evidentiary issues, both pre-trial and post-conviction, that are applicable to this technical area of the law. For unparalleled assistance in cleansing one’s domestic abuse conviction, contact The Kavinoky Law Firm today for a free consultation.

Infliction of injury, more commonly called “spousal abuse,” is a California domestic violence crime that applies to intimate partners. These partners may be married or divorced, living together or formerly living together, or have children in common. The law applies to both heterosexuals and same-sex partnerships. If an individual willfully inflicts any injury, no matter how minor, upon the body of an intimate partner, he or she can be charged with a felony, punishable by up to four years in prison and a fine of up to $6,000. This charge can be brought against a defendant even if he or she barely touched the intimate partner.

With the proof of injury set so low and the consequences of a conviction set so high, facing an infliction of injury charge is no joke. That is why it is imperative for the accused to hire an attorney who is knowledgeable not only with respect to California domestic abuse crimes but with the types of evidentiary issues that frequently arise during these types of trials. The experienced criminal defense lawyers at The Kavinoky Law Firm have successfully defended countless individuals in infliction of injury cases. They receive ongoing training and education about intimate partner abuse cases and the issues that commonly surround these types of cases. They know how to argue for admission or exclusion of hearsay and 911 call evidence to provide the most effective defense for their clients.

“Hearsay” is a legal term that refers to statements that were made out of court that are later offered in court as evidence of their truth. Although hearsay evidence is generally inadmissible in criminal proceedings, there are exceptions to that rule, and intimate partner abuse cases are one of those exceptions. California has decided that hearsay statements, including 911 telephone calls, are relevant in domestic violence cases. This exception admits into evidence statements made by the complaining witness at the time when he or she was experiencing or witnessing the violent act or acts that are the subject of the case. The rationale behind this exception is that the spontaneity of such statements and the lack of opportunity for reflection and deliberate fabrication provide an adequate guarantee of their trustworthiness. Clearly this isn’t the case in reality, as many 911 calls have been placed under false pretenses and based on underlying motives such as anger, revenge and jealousy. Nonetheless, these statements are admissible into evidence and in a vigorous effort to convict the defendant, the prosecutor will seek to have the officer who took the complaint read the alleged victim’s statements to the jury and will also ask the judge to play the recorded 911 call for the jury. As with all areas of the law, even the exceptions have exceptions, which is why it is so important to have professional legal representation that is familiar with this area of the law.

Because of the highly complex and technical rules (and exceptions to those rules) that come into play in a California intimate partner violence case, having a skilled and qualified defense lawyer who knows how to exclude or downplay this type of evidence is critical. The attorneys at The Kavinoky Law Firm have both the knowledge and experience to aggressively tackle any issue that may arise in an infliction of injury case. Whether the allegation stems from an intense, emotional dispute that took a turn for the worse, from a false report, or from a simple mistake, professional guidance can help ease a difficult situation. When things are at their worst, the attorneys from The Kavinoky Law Firm are at their best! Click here for a free consultation and for the best representation.

Domestic Violence Civil Protective Orders

Civil Protective Orders are one type of protective order available to victims of domestic violence. In California, domestic violence laws apply to disputes between intimate partners. These partners may be married or divorced, cohabiting, have children in common, dating or formerly dating. The laws apply to both heterosexual couples and same-sex partnerships.

Unlike their criminal counterparts, a civil protective order doesn’t require that the person seeking the order and the restrained individual share an intimate relationship, even though they often do. Although it is common for a victim of intimate partner abuse to file for a Criminal Protective Order, it is advisable that he or she applies for a Civil Protective Order as well. A skilled attorney can help explain the importance of having both orders and will aid in the requesting party in successfully obtaining them.

Although Civil Protective Orders and Criminal Protective Orders can offer the same protection to victims of domestic abuse, the proof necessary to obtain the orders is different. When requesting a Criminal Protective Order, the individual seeking protection doesn’t need to be a victim of actual violence. For example, the requesting party can obtain the order if he or she is a victim of harassment, disturbing telephone calls, unwanted e-mails or verbal abuse. However, when requesting a Civil Protective Order, the individual seeking protection must prove that he or she is the target of actual violence or is reasonably in danger.

The process for obtaining a Civil Protective Order is almost identical to obtaining a Criminal Protective Order, except that the requesting party applies for a civil harassment order instead of a domestic violence protective order. Another difference is that there may be a fee for applying for a civil protective order whereas the fee for a domestic violence protective order is waived. Both processes involve an application for a Temporary Restraining Order and then an “Order To Show Cause” hearing to determine if the order is warranted. In the civil process, there must be reasonable proof that the accused is guilty of the abuse.

In general, a Civil Protective Order will prohibit the restrained individual from coming within a certain number of yards from the protected party. However, depending on the circumstances, the order can be much more restrictive and can include the same protections available under a Criminal Protective Order. Unless a specific end date is listed, the order will expire three years after being issued, which is another difference between the criminal and civil order. A criminal order may expire based on the occurrence of specific situations, where a civil order will not expire until the stated date.

Whether an individual is the victim or the alleged abuser, hiring an attorney who is experienced in California domestic violence law can help either side get his or her desired outcome at the Order To Show Cause hearing. The victim desiring the order may want to hire an attorney who will help ensure that his or her imminent danger is effectively communicated to the court. The individual who is defending against the order should hire a criminal defense lawyer to make sure that the judge hears both sides of the story and doesn’t blindly process the order out of habit. The attorneys at The Kavinoky Law Firm are familiar with every aspect of a domestic abuse case and take the time to explain each step of the criminal court process with their clients. Their reputation for treating their clients with compassion and respect is exceeded only by their success rate. Click here for a free consultation and for the best representation.

Mandatory Terms of Probations in a Sexual Battery Conviction

Intimate partners may be charged with sexual battery is a California domestic violence case if one individual is accused of touching the other for purposes of sexual gratification or abuse. Almost any type of relationship can be considered an intimate partnership – the couple may be of the same or opposite genders, and can be married, divorced, living together, have children in common, dating or formerly dating.

A sexual battery charge can stem from any type of touching or physical contact of another person’s intimate parts, whether it occurs directly, through the clothing of the accused, or through the clothing of the accuser. Even an individual involved in an ongoing relationship can face a sexual battery charge. This offense 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.

While that is the maximum prison sentence and fine that can accompany a first time sexual battery conviction (a person with aggravating factors and/or prior sexual battery convictions faces more severe punishment), it is not a complete list of the penalties that ultimately face the offender. If a defendant is convicted of any intimate partner abuse crime in California, and is granted probation, there are certain conditions that must be imposed.

Upon a conviction of sexual battery, the defendant is placed on a minimum of three years probation, which may be formal or informal, depending on whether the crime was charged as a felony or a misdemeanor. During that time, a criminal court protective order will be issued against the defendant to prevent further acts of violence against the victim and, if appropriate, will contain a residence exclusion or stay-away conditions. It should be noted that the victim will be notified about the outcome of the case. The defendant will also be required to register as a sex offender and required to pay an additional $200 – $300 fine for committing the offense, which will be paid to the Department of Justice Sexual Habitual Offender Fund. Registration is for life, has many requirements, and if those requirements aren’t met, the convicted faces additional penalties, including additional time in jail and/or prison.

In addition to the procedural conditions just described, the convicted must pay a separate fine of at least $200 to various domestic abuse funds that are distributed by the state. He or she will also be required to attend a minimum two-hour “batterer’s class” on a weekly basis for at least one year. Depending on the circumstances surrounding the charged incident, the court may also order the defendant to enroll in a drug and/or alcohol dependency program. Community service will also be required.

In lieu of an additional fine (but not in lieu of the $200 – $300 or $400 payments described above), the court may order the convicted to pay up to $5,000 to a battered women’s shelter or to reimburse the victim for any reasonable expenses that the court believes were incurred as a direct result of the abuse.

When the court evaluates the defendant’s progress, it takes into consideration his or her ability to pay and his or her willingness and diligence in following through with these mandated conditions. Finding good cause, the court may modify, extend or even revoke probation. If probation is revoked, the maximum prison sentence will likely be imposed. Having an experienced criminal defense lawyer is the key to ensuring that these probation requirements are kept to a minimum.

The understanding attorneys at the Kavinoky Law Firm treat each client with compassion and respect. They sympathize with their clients and do their best to help each client through this difficult time. A knowledgeable defense lawyer can explain the complexities of a California sexual battery charge during a free consultation.