Mandatory Terms of Probations with a Conviction for Violating a Protective Order

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 accuser are intimate partners. Intimate partners may be married, divorced, living together, have children in common, or be currently or formerly dating. These laws apply to both heterosexual and homosexual couples.

Protective orders are issued by the court and may prohibit the offender from engaging in specific acts of abuse, re-entering his or her own home or even behaving in a specified way. 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 and the fine may rise to $2,000.

While that is the maximum prison sentence and fine that can accompany a first-time conviction for violating a protective order (a person with aggravating factors and/or prior convictions for the same crime 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 for violating a court order, the defendant is placed on a minimum of three years probation, which will likely be informal, because the charge is a misdemeanor. During that time, a more restrictive criminal court protective order will be issued against the defendant to prevent further acts of violence against the protected party and, if appropriate, will contain a residence exclusion and/or stay-away conditions. It should be noted that the protected party will be notified about the outcome of the case.

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 payment described above), the court may order the convicted to pay up to $5,000 to a battered women’s shelter or to reimburse the protected party for any reasonable expenses that the court believes were incurred as a direct result of the violation.

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. An experienced defense lawyer can explain the complexities of a charge of violating a protective order during a free consultation.

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.

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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.