(California Penal Code sections 243(e)(1) P.C. & 273.5 P.C.)
If you commit any act of violence against, or otherwise touch, a family member (parent, child or legal ward), spouse (current or former wife or husband), sexual and/or romantic partner (current or former), roommate, or domestic partner, you could be tried for this crime.
It bears repeating that the contact need only be offensive to a reasonable person, and, therefore, no physical injury need occur for you to be convicted of domestic violence (“DV”).
Since the 1995 OJ Simpson double-murder trial, you can still be prosecuted and convicted for DV offenses even if the victim refuses or, for whatever reason, decides not to press charges or testify against you, or later changes his/her mind to do so.
DV usually breaks down into two separate categories: battery against a parent, child or co-habitant; or battery against an intimate partner, although the latter typically (but certainly not always) requires some physical injury to have been inflicted on the victim.
DV cases often fall into the wobbler category, meaning the prosecutor tasked with the specific matter is empowered to charge the defendant with either a misdemeanor or, in the case of apparent bodily harm, a felony. The felony might even be charged as a strike under Cal. Pen. C. § 667 if the injuries are sufficiently grievous, or permitting other relevant circumstances.
Repeat DV Offenders
One of the primary challenges many of our clients face when being prosecuted for a DV crime is that they are often repeat offenders (and often with the same complainant/purported victim, who is usually a spouse or lover), which always means sentencing enhancements.
Take the case of Joshua Allen, an actor (feature film Step Up 3D) who was the Season Four (2008) winner on Fox’s hit TV show So You Think You Can Dance? In mid-January 2016, Allen was convicted of felony corporal injury to a spouse (Pen. Code section 273.5 P.C.), but received no jail and only three years’ formal probation. Four months later, he was arrested for allegedly attempting to strangle the same purported victim. Two months after this second arrested, he was arrested a third time, again for allegedly attacking her – an incident in which he allegedly chased her into a coffee shop, hurled a glass vase at a female intervenor, and was restrained by the patrons until police arrived.
In early August 2017, Allen was sentenced by a Van Nuys Superior Court judge to twelve months in the county jail after pleading no contest to two felony charges: corporal injury to a spouse, and willfully injuring a spouse with a prior DV conviction (Pen. Code section 273.5 P.C.), and assault with a deadly weapon. If he had gone to trial and lost, he would have been facing ten years in state prison, which would include sentencing enhancements triggered by a second DV case (and against the same purported victim). He was also ordered to complete five years of formal probation (weekly in-person check-ins) upon his release, attend fifty-two weeks of domestic violence counseling, and faithfully observe a decade-long victim stay-away order. There is no doubt that if Allen were convicted a third time for DV, he would receive many years in state prison.
Domestic Violence Pre-Files/Early Dismissals
DV cases can often be resolved favorably for the defendant, either before or shortly after charges are filed. The Los Angeles Defense Attorney Law Firm has enjoyed much success in obtaining early dispositions for our clients, including dismissals, after we presented the prosecutor (or, if charges have not yet been filed, to the investigating detective) with the results of our own investigation. Our exculpatory evidence typically includes witness statements, and sometimes even polygraph-exam results. We call these matters Pre-Files, where, again, ideally our client walks away without even an arrest on his or her record. The following incidents involving celebrities emphasize the fact that these early dispositions are entirely feasible in many cases:
At the beginning of April 2016, LAPD patrol officers arrested actor Mike Smith (Netflix’s fake documentary series Trailer Park Boys) at a famous nightspot in Hollywood for allegedly grabbing and squeezing the throat of his companion, Georgia Ling, after a shouting match. According to an LAPD spokesperson, witnesses saw Smith push Ling up against a bar before throttling her. Smith was arrested and booked on suspicion of misdemeanor domestic battery. During the next four weeks, Smith reportedly presented exculpatory evidence that the witnesses had misunderstood what had transpired, including a statement from Ling that she had not been assaulted and that the supposed eye witnesses were not even in the same room at the time. As a result, one month later, the DA’s Office announced that it would not be proceeding with any charges against Smith, citing a lack of evidence.
Similarly, on the Fourth of July 2017, Instagram model Elsie Hewitt claimed that her then-boyfriend, actor Ryan Phillippe (a.k.a. Matthew R. Philippe, ex-husband of actress Reese Witherspoon), viciously assaulted her when she went to his Beverly Hills mansion to retrieve some of her personal belongings. After leaving, she allegedly went to the emergency room at Cedars-Sinai to be examined and treated. That same night, LAPD officers interviewed Phillipe, who claimed he had been acting in self-defense. Nevertheless, Hewitt was granted an emergency protective order prohibiting Phillipe from coming within a hundred feet of her. Over the course of the next few weeks, each party reportedly presented contradictory evidence of what had occurred. As a result, neither the DA’s Office nor the City Attorney’s Office chose to proceed with charges.
Examples of Simple Domestic Battery Against an Intimate Partner (Misdemeanors)
– On August 2, 2010, actor Charlie Sheen (star of the hit CBS TV series Two and a Half Men and once the highest paid actor on TV) pled guilty to misdemeanor domestic battery in an incident linked to a turbulent ski trip he took the previous Christmas holiday with his then-wife, actress Brooke Mueller. In consideration for the plea, the DA’s Office dropped several other charges against him, including a felony (stemming from Mueller’s supposed allegation that Sheen had pulled a knife on her – made during a “nine-one-one” call). His sentencing terms included thirty days’ in-patient treatment at a mental health facility; thirty-six anger management classes; and thirty days of probation. According to prosecutors, Sheen’s relatively mild sentence resulted from the fact that this was his first conviction for a violent crime.
– In mid-March 2011, actor Mel Gibson (Braveheart) pled no contest to misdemeanor domestic battery against his former live-in girlfriend, Oksana Grigorieva. (By pleading no contest, Gibson was able to dispose of the case without actually admitting fault, which would have exposed him to a potential civil lawsuit by Grigorieva.) The original physical altercation had allegedly occurred ten months earlier at Gibson’s Malibu home, resulting in significant facial injuries to Grigorieva. Although Gibson was arrested for felony battery, he was apparently able to plea bargain to the reduced charge in exchange for him opting not to pursue an extortion charge against Grigorieva, who, according to Gibson, had been attempting to shake him down for a substantial amount of money.
– In early December 2019, eighteen-year-old local high school wrestling champion, Temecula resident Ryan A. Cosio, pled guilty to a single misdemeanor count of inflicting corporal injury on a spouse or co-habitant. In exchange, the San Diego County DA’s Office dropped the felony corporal injury charge he had been previously facing, as well as one felony count of false imprisonment. According to prosecutors, in mid-June 2019, Casio body-slammed his then-girlfriend. His sentence included almost 120 days in a sheriff’s work-release program, twenty hours of volunteer work, fifty-two weeks of DV counseling, a permanent no-contact order to protect the victim, and a $500 fine.
– In late December 2019, Orange County resident and actress Vanessa Cloke (who appeared on Seasons Six and Seven of AMC’s The Walking Dead) was arrested for misdemeanor domestic battery after an alleged physical confrontation stemming from her ex-boyfriend’s attempt to remove his personal possessions from her residence. The police, who were allegedly present during the entire time, having been called by her ex-boyfriend who feared trouble during the move-out, arrested Cloke after she attacked the victim in a fit of rage.
– In January 2016, actor Orlando Brown (he Disney Channel’s That’s So Raven TV series) was arrested for simple domestic battery (a misdemeanor) after he allegedly punched his girlfriend behind the LAPD station in Torrance. According to police, Brown was arrested after he got into his vehicle to flee – a search of which they claimed they discovered crystal meth. Thus, he was also charged with a second misdemeanor for obstruction of justice, plus two felonies relating to the drugs.
Examples of Domestic Battery (Felonies)
– In late May 2016, LAPD responded to a domestic-disturbance call at a residence that turned out to be owned by the actor Johnny Depp (Pirates of the Caribbean). His wife at the time, actress Amber Heard (Aquaman), claimed that Depp had thrown an iPhone at her face and injured her. However, because no injuries were visible, the police officers did not arrest or even cite Depp. Several days later, Heard posted photos on social media that purported to show photos of this injury, but apparently LAPD did not believe her claim and so did not arrest Depp. However, if Heard did have those injuries when the police arrived, Depp would have been taken into custody and charged with felony battery on a spouse.
– Just after midnight on February 8, 2009, Chris Brown (a.k.a. Christopher M. Brown), the famous R&B singer, was arrested for allegedly beating up his girlfriend at the time, the also-famous singer Rihanna (a.k.a. Robyn Fenty). According to the LAPD, the couple had just left famous music producer Clive Owens’ annual Grammy’s-eve party in Windsor Square. (Each were nominated for two awards but would not make the ceremony.) Police alleged that Brown had flown into a rage after Rihanna had discovered a text message to Brown from another woman with whom he was secretly dating at the time. Brown then allegedly pulled over his rented Lamborghini, unsuccessfully tried to pull Rihanna out of the car, shoved her head against the passenger-side window, punched her several times in the face, bit her at least once, then choked her until she almost passed out. As a result, one month later, he was charged with two felonies: assault with force likely to result in great bodily injury and making criminal threats – allegedly because he threatened further harm to Rihanna if she reported the assault to authorities. At the time, Brown was facing a maximum sentence of seven years in prison. In late June 2019, Brown pled guilty to a single felony for assault with force likely to result in great bodily injury. For his sentence, he was ordered to perform six months of community service, complete five years of probation, undergo a year of domestic-violence counseling, and observe a five-year/one-hundred-yard victim stay-away order.
– In late December 2019, noted Oakland civil rights attorney Wayne J. Johnson was sentenced to six years in prison after being convicted of felony domestic battery and felony stalking. According to prosecutors, in late 2018, Johnson spent months stalking and harassing his ex-girlfriend. In December 2018, they claimed he caught up with the victim in Danville (Contra Costa County) and shot her in the face with a BB gun. During the sentencing hearing, the judge explained that the relatively harsh sentence was due to two aggravating factors: the vulnerability of the victim, and the fact that Johnson had been an attorney for many years and, therefore, should have upheld the law. His law license was suspended on December 3, 2019.
– In late June 2019, Matt Kirschenheiter, the ex-husband of Bravo TV’s Real Housewives of Orange County reality TV star Gina Kirschenheiter, was arrested for felony corporal injury on a spouse or co-habitant, as well as for felony false imprisonment effected by violence, menace, fraud, or deceit. If convicted, Kirschenheiter faced a maximum of four years in state prison for the corporal injury and three years for false imprisonment, for a total of seven years. The Orange County District Attorney’s Office claimed that on that day, the defendant attacked his ex-wife, assaulted her, dragged her back into her own house, and tore off her bra. His ex-wife thereafter gained sole custody of their three minor children, and he was ordered by the judge to seek counseling and stay away from the alleged victim.
– In mid-November 2019, actor Chris Tavarez (best known for playing “Darien” on the Disney Channel TV show K.C. Undercover) was arrested for felony domestic violence with a prior DV conviction after he allegedly pushed his girlfriend with such force that she struck her head and suffered a concussion. Tavarez allegedly fled the scene – a residence in Hollywood – before police and paramedics arrived. The alleged victim refused to press charges and refused medical treatment despite allegedly exhibiting physical injuries. Tavares was arrested two days later. He was allegedly on probation at the time of the incident, stemming from a previous 2018 plea for two counts of spousal battery. For that charge, he pled no contest, served six months in county jail, and was placed on thirty-six months’ probation. Thus, Tavarez now faced a second series of criminal proceedings relating solely to his alleged probation violation.
Possible Defenses to a DV Charge
We’ve been able to successfully defend many domestic abuse cases by proving at trial (or even during the preliminary hearing) that the defendant was acting in self-defense at the time of the alleged incident.
On other occasions, we have even been able to convince the prosecutor by providing evidence that the victim had actually injured him/herself, then blamed it on our client.
Or, in instances where the supposed victim is unavailable or unwilling to testify, we will try to discredit the police report or the evidence gathered by police that purportedly proves our client was the culprit.
Cal. Pen. Code § 243(e)(1) P.C., § 273.5(a) P.C.; CALCRIM 840 & 841 (Cal. Crim. Jury Instructions).
What to Expect with a Domestic Violence Conviction
With a felony DV on your record, assuming there was some traumatic injury involved, you might be sentenced to do a prison stretch of twenty-four, thirty-six, or even forty-eight months.
But a misdemeanor domestic abuse sentence can never exceed a year in jail.
If you are not sentenced to serve time, or even if you are but your sentence was only in county jail (and not a state correctional facility), you will be sentenced to a three- or five-year probationary period, regardless of the nature of the DV conviction.
As an additional alternative to jail or prison, the sentencing judge may also order community service, anger-management counseling, in-patient rehab, and 12-step meetings.
Those convicted of domestic battery will also typically result in a protective order to prevent you from contacting or approaching the victim for a specific period of time, or even forever. DV counseling will also be mandatory in most cases, and if there are children involved, you may face adverse custody problems. Loss of gun rights and professional licenses may also be direct ramifications of such a conviction/plea.
Pen. C. §§ 243(e)(1) & 273.5(a) P.C.
Examples of Our Firm’s Past DV Cases:
Seven DV charges, 7 years in prison – found not guilty on all counts by jury after trial
People v. N.H.: Client was facing seven DV charges and seven years in prison pursuant to a case prosecuted at the Los Angeles International Airport superior courthouse. Our client’s wife intentionally slashed herself and banged up her own face, leaving bloody gashes and obvious bruises. She then called Nine-One-One and reported that our client had viciously attacked her. He was immediately arrested. Throughout the prosecution, he refused to accept any type of plea offer, always proclaiming his innocence. So we fought the case all the way through jury trial, where we presented as evidence CCTV footage from a prior DV inciden that clearly showed the wife to be the attacker (and not the other way around). We also showed the jury that she had given LAPD statements, and had given testimony at the preliminary hearing, that directly contradicted her trial testimony and proved that she had been lying the entire time. After successfully impeaching her, we filed a motion to have the entire case dismissed due to insufficient evidence. The judge only dismissed one charge so the remaining six counts were deliberated by the jury, which acquitted (voted not guilty) on all counts.
Two DV charges – result: not guilty by virtue of self-defense following jury trial
People v. M.H.: In another DV trial held at the LAX Courthouse, our client was facing two domestic violence charges and, therefore, substantial jail time. Also once again, we took the case all the way through jury trial based on our client’s insistence and evidence we had gathered that he had only acted in self-defense against the purported victim. We felt that the client was so compelling that we put him on the witness stand to testify on his own behalf. The defense evidence was overwhelming and irrefutable, so the jury voted to acquit on both counts.
Multiple DV felonies – result: convinced DA’s Office not to prosecute based on self-defense
People v. A.S.: As has been the case with a surprising number of our clients, this defendant’s romantic partner claimed to police that he had brutally assaulted and wounded her, and thereby had him arrested and jailed for several DV felonies. At the time the client hired us, an LAPD detective had referred the case to the LA County DA’s Office for prosecution. We immediately began preparing what we call a “Pre-File package”, which consists of evidence that supports the client’s innocence (or, in other cases, the weakness of the prosecutor’s evidence). We then met with the assigned prosecutor and presented our exculpatory evidence that proved the purported victim was, in fact, the aggressor during the subject incident. Almost immediately thereafter, the DA’s Office notified us that they had rejected the case, but that they would refer the case to the City Attorney’s Office for possible prosecution of misdemeanor DV charges. But after review of our mitigation package, they, too, declined to prosecute. Incredibly, several months later, the same woman once again had our client arrested on DV charges. This time we were able to meet with the LAPD detective in charge of the case before he referred it to the DA. Unfortunately, however, the detective did just that – despite our evidence that – just as with the initial incident – the woman had been the attacker. But after reviewing our most recent mitigation package, the DA rejected this second case as well.