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Jan 14, 2019

State of California Domestic Violence Laws

If you’ve been charged with domestic violence in California, you may assume that you’re being accused of hitting your spouse. The truth is, in the state of California, domestic violence laws encompass relationships other than those of married couples and actions other than striking another person. If you’re facing charges in Oakland, it’s important to understand State of California domestic violence laws, and to obtain representation from a seasoned Alameda County domestic violence attorney.


The Variety of Domestic Violence Accusers

While it’s common to think of domestic violence as occurring between a married couple, the truth is that State of California domestic violence laws protect a broad range of accusers. It’s helpful to think of one set of potential accusers as “intimate partners.” This means that, yes, it can be the person you’re married to. It also includes your girlfriend or boyfriend, as well as your registered domestic partner or the person to whom you’re engaged. Your accuser could be someone you’ve dated long-term, someone with whom you’ve had a baby, or someone with whom you live and with whom you have a relationship. It’s important to know that this set of accusers can be either current or former intimate partners. In other words, your ex-girlfriend, ex-husband, or your former live-in significant other are all protected by State of California domestic violence laws.

But that’s just one set of accusers. The other set of accusers covered by California domestic violence laws are people who are related to you, either by blood or by marriage. These include your children and grandchildren, your parents and grandparents and in-laws, your brothers and sisters (including half- and stepsiblings), your aunts and uncles, and your nephews and nieces.


The Range of Domestic Violence Acts

According to State of California domestic violence laws, domestic violence encompasses a wide range of acts. While it’s common to assume that domestic violence means hitting someone, the law defines abuse more broadly. Actions like kicking, shoving, or pushing your partner are considered abuse, as is pulling their hair or throwing things at them. Sexual assaulting your partner is also considered domestic violence.

In addition to physical acts, it’s considered domestic violence if you threaten your partner with harm or intimidate them. Likewise, it’s considered domestic violence if you make them dependent upon you economically, emotionally abuse them by putting them down or calling them names, or controlling what they do and who they see. In California, verbal, emotional, and psychological abuse are violations of domestic violence laws.


Domestic Violence in California’s Penal Code

If you’ve been charged with domestic violence, you may be accused of violating one or more laws. Here are some of the most common:

Battery: The law defines battery as “any willful and unlawful use of force or violence upon the person of another.” When battery is committed against a current or former intimate partner, the punishment can be a fine of up to $2,000 and a jail sentence of up to one year. If the person convicted is given probation or a suspended sentence, then they’ll need to complete a treatment or counseling program lasting a year or more. The court can also order that they pay for the accuser’s counseling and pay a battered women’s shelter up to $5,000. For a second offense, the law says that the person convicted has to spend 48 hours in jail – even if they are granted probation of if their sentence is suspended.

Rape: The law defines rape as sexual intercourse that occurs in the context of specific circumstances, such as against a person’s will, when they’re unable to resist, or when they’re unconscious or asleep. The law specifically says that, in and of itself, a dating or marital relationship doesn’t automatically mean that the other person consents to sex. In fact, it explicitly states that threatening to retaliate, or threatening to arrest or deport the partner in order to get them to acquiesce, constitutes rape. Under California law, a conviction of rape is punishable by three, six, or eight years in prison. If the person convicted receives probation, the court can require them to pay a battered women’s shelter up to $1,000 and to reimburse the accused for psychological counseling and other expenses.

Bodily injury: It is illegal to inflict bodily injury on a current or former intimate partner. The law casts a broad net, defining an injury as internal or external and minor or serious. For example, a person who puts their hands around their partner’s throat inflicts bodily injury even if the injury is slight. A conviction under this section of the law is punishable by up to a year in county jail or up to four years in state prison, as well as up to $6,000 in fines. A prior conviction of bodily injury or domestic battery within the previous seven years can increase the punishment to up to five years in prison and up to $10,000 in fines. If the person convicted is granted probation, they still must serve 15 days in jail if they have a prior. If the person had two or more convictions in the previous seven years, probation carries 60 days of mandatory jail time. In addition, the terms of probation can include payments to a battered women’s shelter of up to $5,000 and reimbursement to the accused for expenses and counseling.

Threats and Extortion: Threatening an intimate partner – whether or not you intend to make good on the threat – is against the law. The threat can be made face to face, by telephone, via text, or online. Under the law, extortion includes threatening sexual conduct or threatening to distribute sexual images. The punishment for conviction is up to one year in jail or prison and a fine of up to $10,000.

Stalking: California law defines stalking as following or harassing another person so that there’s a credible threat that the person is afraid for their safety or the safety of their family. A stalking conviction is punishable by up to a year in jail or prison and a fine of up to $1,000. If probation is granted, the person convicted may be mandated to obtain counseling and may be subject to a restraining order. However, if the person convicted has a prior felony conviction for domestic violence and then is convicted of stalking, the punishment can be two, three, or five years in state prison.


Other Types of Domestic Violence in California

As a reminder, State of California domestic violence laws not only pertain to intimate partners, but also to other family members. For example, elder abuse laws make it illegal to harm someone over the age of 65. Elder abuse can mean inflicting physical or mental pain, negatively impacting their health, or placing an elder in a situation that could endanger their health. The punishment for a conviction is up to a year in county jail or up to four years in state prison, and up to $6,000 in fines. If the person suffered great bodily injury, additional prison time can be ordered: three years if the victim is under 70 years old and five years if the victim is over 70 years old.

Striking a child is a form of domestic violence and is treated very harshly under California law. If the child suffers a traumatic condition, a conviction can carry a sentence of up to one year in county jail or up to six years in state prison, as well as a fine of up to $6,000. A prior conviction can mean a four-year sentence enhancement. If someone is convicted and is granted probation, there is a litany of probation requirements, which can include a restraining order, child abuser’s counseling program attendance, or random drug testing.


Restraining Orders for Domestic Violence

If you are arrested for a crime related to domestic violence, chances are good that a restraining order won’t be far behind. A restraining order can include a variety of mandates. For example, in addition to prohibiting you from contacting your accuser, it can forbid you from going to your home or your child’s school. It may require you to move out of your house, pay child support, and pay spousal support. It can ban you from seeing your children or your pets, or require you to attend an intervention program. It can also regulate a number of areas relating to your finances and how you spend your money. Having an Alameda County domestic violence attorney at your side to help you navigate the world of restraining orders will help you avoid the most restrictive orders. According to State of California domestic violence laws, there are several types of restraining orders. They include:

Emergency Protective Order: When the police are called to a domestic dispute, they can request that a judge immediately issue an emergency protective order. The order takes effect immediately and can stay in effect for up to seven days. The order may require you to leave your home until the next step in your legal journey.

Temporary Restraining Order: If your accuser files for a temporary restraining order, they will tell their side of the story and the judge will decide whether or not the restraining order is warranted. If the judge decides in your accuser’s favor, the restraining order will stay in effect until your court hearing. That can be three weeks or more.

Permanent Restraining Order: At the hearing following a temporary restraining order, the judge can determine that the order should stay in effect. If so, they can order that the restraining order remain in place for up to five years. After that five years, your accuser can ask for a new order.

Criminal Protective Order: If the district attorney files criminal charges against you, the judge may order a criminal protective order for the duration of your case. If you plead or are found guilty, the restraining order will remain in place for three years.


Find an Oakland Domestic Violence Attorney to Craft the Best Legal Defense

Domestic violence charges – whether for bodily injury, battery, stalking, or rape – are extremely serious. Many of these crimes are called “wobblers” because they can be charged as either misdemeanors or felonies. Having a knowledgeable Alameda County domestic violence attorney at your side can mean the difference between being charged with a misdemeanor and a felony. It can mean the difference between having the charges dismissed and being tried and sentenced to state prison. It can mean the difference between having a temporary restraining order lifted and having an order in place that prevents you from seeing your kids, living in your home, or driving your car. In other words, the stakes are extremely high.

In addition to dealing with wobblers, an Oakland domestic violence attorney can help guide you through the labyrinth of the criminal justice system. They can help you decide how to plead to the charges, and, if you decide to plead guilty, can likely negotiate a plea agreement. This can help you avoid a criminal trial and can possibly result in probation rather than jail time. Your attorney can also help by advocating for the most lenient probation conditions possible.

If you decide to go to trial, your Alameda County domestic violence lawyer can mount a vigorous defense. There are a number of legal defenses that can lead to a successful outcome in a domestic violence case. For example, your lawyer might argue that you didn’t cause the injury, but rather that it was an accident. They can assert that you were falsely accused because your intimate partner was jealous or was trying to take your children away from you. They might maintain that you were acting in self-defense and that the charges should be dismissed.

Following your arrest, finding a skillful domestic violence attorney in Oakland should be your first priority. The earlier you retain an attorney to defend you, the better your chances for a favorable outcome.

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