Physical Evidence in a Sexual Battery Case

Sexual battery is a California domestic violence offense that can be charged against intimate partners. California defines intimate partners in domestic abuse cases very broadly – they may be straight or gay, married, divorced, cohabitating, have children together, or be currently or formerly dating.

Anyone who touches an intimate partner against that person’s will for the purpose of sexual arousal, sexual gratification or sexual abuse can be charged with sexual battery. “Touching” can mean any type of physical contact, however slight, and can occur directly or through the clothing of either partner. This offense can be charged even against partners involved in an ongoing relationship. Sexual battery 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.

Unfortunately, many partners are involved in mutually abusive relationships. This means that both partners are victims and abusers. In these troubling relationships, both partners will exert their power in a number of ways. One of the common ways that a partner will do this is by making a false allegation. An example of this is when the self-proclaimed “victim” accuses his or her partner of sexual battery when it didn’t occur or accuses the partner of causing an injury that, in fact, wasn’t his or her fault.

When this type of situation arises, DNA evidence plays a vital role. When faced with a sexual battery charge, it is important to hire an attorney who is experienced with all aspects of a California intimate partner abuse case, including the many types of evidentiary issues that often arise in connection with this crime. The skilled criminal defense lawyers at the Kavinoky Law Firm receive ongoing training in domestic violence trial strategies and evidentiary issues, such as DNA evidence, giving them a leg up on the competition. They have successfully defended countless individuals who faced sexual battery charges, protecting them from the devastating consequences that the charge carries.

In criminal courts throughout this country, DNA evidence is playing a larger role than ever before in helping to convict the guilty and to clear the falsely accused. DNA (deoxyribonucleic acid) evidence is particular to each individual and remains constant throughout one’s life. Virtually every cell in the body contains DNA and it is the same in each cell, whether it is found in one’s hair, saliva, blood, skin tissue or bone. This evidence is so powerful because, with the exception of identical twins, no two people share the same DNA.

This means that if DNA can be collected from a crime scene, it can either link the accused to the crime or exclude the accused from the crime. For example, in a sexual battery case, if an alleged abuser’s DNA evidence, such as semen, saliva, blood or skin tissue, is found on the alleged victim’s body or clothes, it will be easier to assess blame to the accused. However, if someone else’s DNA is found on the alleged victim, it may be easier to clear the suspect and possibly look at bringing a criminal charge against the “victim” for filing a false police report.

DNA evidence is clearly here to stay. Having an attorney who is well versed with DNA evidence and the ways that it can be admitted into and excluded from evidence in a domestic abuse case is of the utmost importance, especially when facing the severe consequences inherent within a sexual battery conviction. The knowledgeable attorneys at the Kavinoky Law Firm have experience with this complex and technical area of the law and can outline an effective strategy during a free consultation. In addition, they have the necessary resources to help prepare the best possible defense strategy, which is specifically developed for each client.

Classes and resources for perpetrators and victims of intimate partner stalking in California

Stalking will be prosecuted as a crime of domestic violence in California when the accused follows or harasses and threatens his or her intimate partner with the intent of placing that partner in fear. Intimate partners are heterosexual and homosexual partners that are married, divorced, dating, formerly dating, living together or who have children together. Although stalking isn’t always a domestic abuse crime, it will be treated as such if committed against one’s intimate partner and is punishable as a misdemeanor by up to one year in the county jail and/or a maximum $1,000 fine or as a felony by up to one year in the state prison. While that is the maximum prison/jail sentence and fine that can accompany a first time stalking conviction (a person with aggravating factors and/or prior convictions faces more severe punishment), it is not a complete list of the penalties that ultimately face the offender.

To help rehabilitate an individual who has been accused or convicted of stalking his or her intimate partner, California offers many different types of classes and other resources that are readily available to anyone seeking help. The state also has numerous resources that are available to victims of intimate partner stalking as well as other types of intimate partner abuse as well.

The purpose of programs that target the offender is to help the individual learn to stop his or her stalking, and possibly other abusive behaviors. Intensive counseling, batterer’s classes, hotlines and websites are all available to help the offender who desires to change his or her ways. These services are available to everyone, regardless of sexual orientation, religion, ethnicity or financial status and are provided in numerous languages. The compassionate attorneys at the Kavinoky Law Firm are dedicated to helping their clients get the help they need to steer-clear of further legal troubles. They can recommend classes and additional resources to people who need help controlling their anger, managing their stress or dealing with other personal issues.

Classes and resources are also available to those who are victims of stalking by their intimate partners. Education is the key not only to ensuring one’s safety but also to gaining awareness about how to effectively deal with an intimate partner’s stalking behavior. The trusted attorneys at the Kavinoky Law Firm can help a victim of D.V. stalking apply for a protective order and can also refer that individual to additional services that meet that individual’s needs. Great resources can also be accessed online and include the Stalking Resource Center found at www.NCVC.org or at (800) FYI-CALL and The Stalking Victim’s Sanctuary found at www.StalkingVictims.com.

In addition to stalking resources, there are general intimate partner violence websites that both partners who are affected by domestic violence may find helpful. SAFE (Stop Abuse For Everyone), found at www.Safe4All.org lists numerous programs offered throughout California and is a tremendous resource. Another great resource is the National Domestic Violence Hotline found online at www.NDVH.org or at 1-800-799-SAFE.

The bottom line is that help is available to those who seek it. The caring criminal defense lawyers at the Kavinoky Law Firm have helped many individuals and couples locate the types of services that best meet their needs. For more information about stalking or about intimate partner abuse in general, click here for a free consultation.

The requirements of a court ordered domestic violence batterer’s class

In California, when a crime is committed against one’s intimate partner, it will be treated as a crime of domestic violence. An intimate partner is one’s boyfriend or girlfriend, one’s former boyfriend or girlfriend, one’s spouse or former spouse, the person with whom one has children, the person with whom one is living or the person with whom one formerly lived. Intimate partners are both heterosexual and homosexual partnerships. It therefore follows that if one pursues or harasses and threatens his or her intimate partner, intending to place that partner in fear, he or she will be charged with stalking as a domestic abuse crime in California.

When an individual is placed on probation for committing any intimate partner abuse crime in California, he or she will be ordered to complete certain requirements while on probation. One of those requirements is participation in a batterer’s class. As part of probation, the defendant will be required to attend at least 52 weekly two-hour classes and, in the end, will be evaluated based on his or her progress.

The goal of a batterer’s class for someone who has been convicted of D.V. stalking is to get that individual to stop his or her behavior and to hopefully prevent further occurrences of stalking or other types of abusive conduct. The classes are virtually the same throughout the state and must follow certain guidelines regarding course conduct and the manner in which the classes are taught. Examples include, but are not limited to, lectures, classes, group discussions and counseling. They are conducted in all male or all female settings and are appropriate for all people, regardless of their sexual orientation, ethnic backgrounds or financial status.

Batterer’s classes are mandated by the state to ensure that a defendant receives the same education, regardless of where he or she resides. Each program must address strategies that hold the defendant accountable for his or her abusive role in his or her relationship, must maintain an alcohol and drug free environment and must examine gender roles, socialization, the nature of violence, the dynamics of power and control and the effects of abuse on children and others. Class facilitators are supposed to have specific knowledge about intimate partner abuse, child abuse, sexual abuse, substance abuse, the dynamics of violence and abuse, the law and the legal system.

Batterer’s classes, if successful, will ultimately teach the defendant that stalking his or her intimate partner can be devastating to that partner, as stalking victims live in constant fear and can feel very isolated. The participant will learn that it is unhealthy to try to control a relationship through intimidation or threats and will learn positive ways to control his or her emotions and ways to help empower his or her partner to restore balance within the relationship.

Progress reports will be provided to the court on a regular basis and at the end of the program. If the class facilitator feels, at any time, that the defendant’s participation is unsatisfactory, he or she can suggest removing the defendant from the program. If that happens, the defendant will likely be ordered by the court to participate in a different type of more intensive counseling and/or will be sentenced to more jail or prison time. A good criminal defense lawyer will help the defendant comply with all of his or her requirements to avoid further punishment.

The compassionate attorneys at the Kavinoky Law Firm do their best to help their clients through difficult times. They understand that meeting the class requirement may be the most difficult part of probation for some of their clients to fulfill and will try to make it as easy and convenient for them as possible. To speak to an attorney about a stalking charge, a batterer’s class or about any other legal matter, click here for a free consultation.

Violations of a Protective Order

Violation of a protective order is a California domestic violence crime that applies to intimate partners. Intimate partners may be straight or gay and can be married, divorced, cohabiting, have children together, or be currently or formerly dating.

Protective orders issued by the court prohibit the offender from engaging in specific acts of abuse, re-entering his or her own home, or even behaving in a specified way. An intentional and knowing violation of a protective order is a misdemeanor charge punishable by a maximum penalty 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. In addition, if the accused has prior convictions for violating a protective order, he or she will also likely serve mandatory jail time. California courts will even punish an offender for violating an order in California that was issued in another state.

When a suspect is arrested for violating a protective order, bail is set according to the bail schedule but can be raised or lowered based on an application that can be submitted by the defendant, by anyone on behalf of the defendant or by the arresting officer. However, if the suspect made threats to kill or harm, engaged in violence against, or has gone to the protected party’s home or office, the law requires that a bail hearing must be held to determine if modification is appropriate.

If there is a bail hearing, the judge will consider the defendant’s prior criminal history, his or her flight risk, and the facts of the pending case to determine whether to raise or lower the bail amount or to release the defendant on his or her own recognizance (OR). When the judge makes decisions about bail, he or she presumes that the accused is guilty and makes a decision keeping that in mind. With that being the case, it would be quite foolish for anyone to try and take on a bail hearing without first hiring a criminal defense lawyer who has experience with every phase of an intimate partner abuse case.

If the defendant is denied an OR release (which is typical when a defendant faces an intimate partner abuse charge) and must post bail, he or she may be released through two different methods: either posting cash bail or posting a bail bond. To be released on cash bail, the defendant must post certified funds (or cash) in the full amount of the bail with either the arresting agency or with the Clerk of the Court. If the accused attends every court appearance, the cash will be returned within 60-90 days after the case is resolved. However, if the defendant fails to appear, the cash bond is forfeited to the court.

A bail bond is a contract with a bail agent where the agent agrees to post a bond for the full bail amount. The bondsman will generally charge ten percent of the bond amount as his fee. The bondsman may also require “collateral” (which is usually a car, house or something else of great value) to secure the bond. This means that if the defendant doesn’t repay the bond, the bondman has the legal right to keep or sell the defendant’s collateral. Once the case is over, the bond is exonerated, and the collateral is then released.

An arrest made for violating a protective order is serious, as a conviction carries severe penalties. Because California is so strict with its domestic violence offenders, it is critical to contact a skilled California defense attorney immediately after being arrested to begin preparing a defense. In order to secure the best representation from a firm who has successfully defended countless individuals charged with domestic abuse crimes, contact the unparalleled attorneys at The Kavinoky Law Firm for a free consultation.

Alternative Sentencing with a Conviction for Violating a Protective Order

California courts often issue protective orders in domestic violence cases that bar individuals from engaging in specific acts of abuse, re-entering their own homes, or even behaving in a certain way. Violation of a protective order is one of the charges that can be brought under California’s domestic violence laws. Domestic violence laws apply to crimes where the suspect and alleged victim are intimate partners. Intimate partners are married, divorced, cohabiting, have children in common, dating or were formerly dating. These laws apply to both heterosexual and homosexual couples.

Any intentional and knowing violation of a protective order by an individual against his or her intimate partner is a misdemeanor punishable by a maximum penalty of a one year jail sentence and a $1,000 fine. California courts may even punish an offender for violating an order in California that was issued in another state. If the violation results in physical injury to the alleged victim, the offender will serve mandatory jail time of at least 30 days, possibly up to one year, and the fine may rise to $2,000. In addition, if the accused has prior convictions for violating a protective order, he or she will likely serve additional mandatory jail time.

Even though an individual faces up to one year in jail for committing this crime, an experienced criminal defense lawyer may arrange it so that his or her client never spends a day in a cell. The outstanding attorneys at The Kavinoky Law Firm specialize in California domestic abuse law. They know the intricacies involved in sentencing and, as a result, can effectively fight to keep their clients out of jail.

Alternative sentencing is just that – an alternative to incarceration. When properly utilized, alternative sentencing can be even more effective than jail or prison, as it usually has some rehabilitative element to it, as opposed to straight punishment. When an individual is rehabilitated, it not only benefits that particular person, but his or her family, the courts and society as a whole.

There are several factors that a judge may consider when hearing a defense attorney’s recommendation for alternative sentencing. An attorney will usually address any mitigating or extenuating circumstances that were involved in the defendant’s case, whether alcohol or drugs played a role in the charged incident and whether the accused suffers from mental illness. Because every person and every case is different, an experienced lawyer will know what facts and circumstances are relevant to his or her client’s case and which are likely to persuade a judge that alternative sentencing is appropriate.

In a case where the defendant has been convicted of violating a protective order, there are several options that may be imposed as an alternative to jail. The attorneys at The Kavinoky Law Firm will aggressively advocate on behalf of their clients to ensure that alternative sentencing is imposed when appropriate. These options include probation, either formal or informal, house arrest, electronic monitoring, community service or labor, individual or group therapy for issues dealing with drugs, alcohol and/or other addictive behaviors, and making restitution to the victim when possible. Although this list is not exhaustive, it includes the most popular alternatives to serving time.

When arrested on a domestic abuse charge, the defendant faces life-changing consequences. His or her family, reputation, career and freedom are all in jeopardy, especially if sentenced to a significant jail term. Unfortunately, many attorneys don’t know that alternative sentencing is available. Speaking with a qualified criminal defense lawyer is the safest way to ensure that the possibility of losing it all doesn’t become a reality. The attorneys at The Kavinoky Law Firm can answer any questions about sentencing alternatives in California domestic violence cases during a free consultation.

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Domestic violence cases will be more difficult to prosecute following a U.S. Supreme Court decision that will make it harder for prosecutors to use out-of-court statements as evidence against defendants.

The court ruled that allowing a murder victim’s earlier reports to police to be admitted as evidence denies the suspect’s right to confront his accuser unless the killing was committed to silence the accuser.

The court ruled 6-3 to overturn the murder conviction of a Los Angeles man who shot and killed his girlfriend. The man claimed the killing was done in self-defense but was convicted after a police officer testified that the woman had reported that the man threatened her life.

Until 2004, prosecutors could introduce statements made by victims who were unable or unwilling to testify, including statements made to police.  Police can now testify about what they witnessed, but cannot repeat statements made by the victim unless prosecutors can prove that the victim was killed in order to silence him/her.

However, proving that a killing occurred to silence the victim is extremely difficult. The court’s ruling will also impact domestic violence cases where the victim is available to testify but unwilling to do so.

To learn more about prosecution and defenses to California domestic violence cases, contact a skilled defense lawyer from The Kavinoky Law Firm today for a free consultation

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The Possible Consequences of Domestic Violence in California

Domestic violence is a “wobbler” crime in California, and it can be charged and prosecuted either as a misdemeanor or a felony. A Sacramento criminal attorney can explain the likely consequences of a particular domestic violence charge best, because this requires an understanding of how the local and state statutes and penal codes determine the gravity of the offense and appropriate punishment.

In general, California law establishes the baseline consequences for a domestic violence conviction. If convicted for a misdemeanor, the potential sentence includes minimum of a 52-week domestic violence course with behavior counseling, 40 hours of community service, a “No Contact Order” with the victim, and several different fines. Many times the prosecutor will not try to get the maximum fine and many judges will not opt for more than a month of jail time, though a maximum of a year is possible. In many cases, alternate sentences that increase the financial cost but eliminate jail time in favor of a work program are possible.

A felony conviction entails a similar domestic violence program, more community service, the same no contact order, significantly higher fines, and a minimum jail sentence of three months. Depending on the severity, this can take the form of a year or more in prison, or something less serious such as supervised probation. In either case, local statutes leave a wide range of sentences for the prosecution and the judge to choose from depending on all the related factors.

No matter what your circumstance, whether you are a victim of domestic violence or have been charged with the crime, you need a Sacramento criminal attorney immediately. The right attorney can help protect you, help you get the counseling or therapy you need, and see that local and California laws are executed fairly for the sake of the victim and the accused .The end goal is the appropriate sentence so that both people can lead better, safer lives.

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If you have been the victim domestic violence and want to press charges against your abuser but are afraid to do so, the first step you need to take is to reach out to a Los Angeles domestic violence attorney. Surprisingly, a Los Angeles criminal defense lawyer with domestic violence experience can often offer very sound advice as to your first steps depending on your circumstances. They will almost always include finding a way to make yourself safe from your abuser such as moving out.

You need to understand a few things about domestic violence. If you have been a victim, pressing charges may be emotionally and practically difficult, especially if the abuser is your spouse or the parent of your child. He or she may threaten you or attempt to prevent you from informing the police or testifying, which is illegal but can be quite coercive. And if the only evidence of the abuse is your word, the abuser’s defense lawyer will almost certainly attack your character in court, so you need to prepare to defend yourself despite your stressed emotional state. Once you have contacted a lawyer to begin preparing your legal charges, and moved out or done what you need to make yourself safe from the abuser, you should also call the police.

In dire circumstances, this should actually be your first step as the police should come and arrest the accused abuser and get him or her out of the house. They can also collect immediate evidence of the abuse at this point, or direct you to a police medical examiner to look for physical or emotional signs of abuse. This is important because this evidence will service as the primary foundation for your case and will make it more difficult for a Los Angeles criminal defense lawyer to weaken the case by assaulting your character. You will have to tell the police you want to press charges, and it can be difficult to persevere when put on the spot about having your partner tried for abuse. But in the end, nobody should live in fear of abuse, least of all children, so you will find you are doing the right thing to seek legal help and press domestic abuse charges.