In California, domestic violence laws cover a wide variety of crimes, which include -- but are certainly not necessarily limited to – the following criminal offenses:
Domestic Battery (California Penal Code section 243(e)(1));
Corporal Injury to Spouse, Cohabitant, or Fellow Parent (California Penal Code section 273.5(a));
Elder Abuse (California Penal Code section 368);
Child Abuse (California Penal Code section 273d);
Child Endangerment (California Penal Code section 273a);
Child Abduction (California Penal Code section 278);
Making a Criminal Threat (California Penal Code section 422);
Stalking (California Penal Code section 646.9);
Revenge Porn (California Penal Code section 647(j)(4)); and
Posting Harmful Information on the Internet (California Penal Code section 653.2).
The victims also vary widely, but typically consist of the following individuals:
spouse (current or former);
romantic/intimate partner (“dating relationship” – same);
roommate (“co-habitant” – current or within the last six months);
child (biological or adopted);
The same goes for the nature of the criminal charges (misdemeanors and felonies) and punishments resulting from convictions, which can range anywhere from informal/summary probation to life in prison (with the possibility of parole).
It should go without saying that California has among the most stringent domestic violence (“DV”) laws in the nation, and a victim does not even need to be physically injured in any way to secure a criminal conviction.
Similarly, following the 1995 O.J. Simpson double-murder trial, a defendant can be arrested, charged and tried for domestic violence crimes even in the absence of the purported victim’s cooperation, including his or her refusal to press charges, much less testify, against the defendant.
Domestic Violence “Wobblers”
Prosecutors in California – particularly in Los Angeles County – are given wide latitude in deciding whether to charge a defendant with a misdemeanor or felony for DV crimes, most of which are known as “wobblers” for this reason. The sentences will be commensurate with the nature of the criminal conviction but in general, misdemeanors can land you in the county jail for a maximum of twelve months, while a felony could potentially result in a state prison sentence of life in the most extreme cases.
FYI, the California Penal Code doesn’t use the term wobbler, but when reading any particular criminal statute, you’ll know the crime is a wobbler when the potential incarceration sentences range from one year in county jail to one or more years in a state penal institution.
Please note, however, that if you’re convicted of a misdemeanor or felony, you might not get any time in custody and, instead, receive probation – typically informal (“summary”) probation for misdemeanors and formal probation for felonies. Also, a felony conviction could land you in the county jail as opposed to state prison.
Domestic Violence “Strikes”
Speaking of extreme cases (i.e., where you allegedly inflicted severe physical injuries on the purported victim), many DV crimes can be charged as “strikes”, which according to California Penal Code section 667 requires the following:
you were previously convicted of a “serious felony” as defined by California Penal Code section 1192.7(c)(1) or a “violent felony” as defined by California Penal Code section 667.5(c), which are both included in the following offenses (as they relate to domestic violence-related charges):
(a) Spousal Rape (California Penal Code section 262);
(b) Sodomy Through Force, Violence, or Fear (California Penal Code section 286(c));
(c) Oral Copulation by Force or Fear (California Penal Code section 287);
(d) Lewd Acts with a Minor Child Under 14 (California Penal Code section 288);
(e) any felony in which the victim suffers severe physical injury (e.g., Corporal Injury to Spouse, Cohabitant, or Fellow Parent (California Penal Code section 273.5);
(f) any felony in which you use a gun (e.g., Discharging a Firearm from a Moving Vehicle (Drive-By Shooting) (California Penal Code section 26100);
(g) assault with intent to rape (specifically, Assault with Intent to Commit a Felony (California Penal Code section 220);
(h) any felony in which you use a dangerous weapon (e.g., Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1));
(i) Continuous Sexual Abuse of a Child (California Penal Code section 288.5);
(j) Intimidating/Dissuading a Witness or Victim (California Penal Code section 136.1);
(k) Making a Criminal Threat (California Penal Code section 422); and
you are currently being charged with a serious or violent felony.
In general, a first-strike conviction will get you at least a five-year prison-sentence enhancement; a second will get you double the prison sentence that you would otherwise receive on the current serious- or violent-crime conviction; and a third will get you a minimum of twenty-five years to life.
Repeat Domestic Violence Clients
Unfortunately for many of our clients, they are often charged with domestic violence offenses multiple times over the years, particularly when they remain in toxic relationships with the same purported victim (despite our repeated warnings against them doing so). One of the primary perils of facing another case with the same purported victim involves sentencing enhancements.
Fortunately, however, we have a great deal of experience and skill in navigating this type of alleged recidivism – including defending against new criminal cases brought by the same prosecutor’s office (i.e., either the DA’s Office or the City Attorney’s Office).
Actor Joshua Allen (2010’s Step Up Three)
The multiple DV cases that Allen (Fox Television’s So You Think You Can Dance? fourth season’s first-place contestant) has faced in the not-too-distant past illuminate this type of escalation in charges and sentencing terms for alleged recidivists.
On or about January 15, 2016, Allen was convicted of violating California Penal Code section 273.5, corporal injury on a spouse or co-habitant, which is always charged as a felony (i.e., never as a wobbler). Despite being sentenced as a felon, however, Allen was lucky enough to receive a zero-incarceration sentence (no jail or prison), and only thirty-six months’ formal probation.
Less than five months later that year (in April), however, Allen was once again arrested for the same charge against the same victim (he allegedly tried to choke her). Then, while awaiting trial on this latest charge, a mere eight weeks later (June), he was once against arrested (a third time) – this time for multiple charges involving the same victim, as well as another person.
(According to LAPD and the DA’s Office, Allen had trailed his ex-lover – a woman – into a restaurant where he assaulted her, then tried to injure a good Samaritan by flinging a bottle at her. Allen was then allegedly held down by other diners until LAPD showed up.)
These last two felony arrests ultimately resulted in Allen taking no-contest pleas on or about August 1, 2017. Specifically, he received two more section 273.5 convictions (again, corporal injury on a spouse). Considering the fact that he was facing at least a decade in state prison (including enhancements), the one year in jail he received was an excellent result for him. In addition, he was ordered to successfully complete sixty months of formal probation and one year of weekly DV therapy sessions, and subjected to a ten-year restraining order. See people.com.
Domestic Violence Restraining Orders
Speaking of R.O.s, if you are charged with a DV crime – and even if you haven’t been convicted of it (yet) – you will quite possibly be subjected to one or more of the following protection orders:
an Emergency Protective Order (California Family Code section 6251);
a Temporary Restraining Order (California Code of Civil Procedure section 527.6); and/or
a Permanent Restraining Order (see, e.g., California Penal Code section 649.9(k) – stalking R.O.).
Domestic Violence Pre-Files/Early Dismissals
One of the criminal defense areas wherein we’ve enjoyed particularly outstanding results in representing domestic violence clients is our ability to:
convince the investigating detective not to refer a domestic violence case to either the DA’s Office (felonies and some misdemeanors) or the CA’s Office (misdemeanors only) for prosecution;
if the case has already been referred, to convince the prosecutor – again, either the assistant DA or the assistant CA in charge of the matter – from actually filing a criminal complaint;
if the case has already been filed, then to dismiss it outright; or
if it’s been filed, to agree to a highly favorable plea agreement for our client.
The Los Angeles Defense Attorney Law Firm (LADALF) calls these types of matters “Pre-Files” – a cursory review of our case results will confirm the excellent outcomes we’ve achieved for our clients. We’ve been able to achieve this incomparable track record by throughly investigating every allegation and relevant fact in each particular matter, as well as uncovering every possible piece of exculpatory evidence.
Examples of Celebrities Who Benefited from Domestic Violence Pre-Files/Early Dismissals
Arrest of actor Mike Smith (Netflix’s Trailer Park Boys)
On or about April 1, 2016, Smith was arrested by Los Angeles Police Department uniformed officers after he allegedly tried to strangle his date, a woman named Georgia Ling, following a heated altercation at a nightclub near the Sunset Strip. Police claimed that the actor grabbed Ling by the throat and slammed her against the wall in front of numerous eyewitnesses. As a result, he was arrested and charged with misdemeanor Domestic Battery (California Penal Code section 243(e)(1)).
Fortunately for Smith, however, during the subsequent month, he was able to present evidence that directly contradicted the criminal allegations, including a statement from the purported victim herself who attested that not only was the entire incident a simple misunderstanding, but that the supposed eyewitnesses were in fact nowhere near them at the time (and, thus, could not have possibly seen anything that had transpired).
Smith’s efforts paid off four weeks later when the Los Angeles County District Attorney’s Office, after reviewing his exculpatory evidence, declined to pursue prosecution. See nydailynews.com.
Accusations against actor Ryan Phillippe (2011’s The Lincoln Lawyer)
On July 4, 2017, Los Angeles PD officers arrived at the Los Angeles estate of Phillipe (ex-husband of actress Reese Witherspoon) to investigate an allegation of domestic battery made against him earlier that day by his romantic partner, social-media model Elsie Hewitt. Specifically, according to Hewitt, Phillipe attacked her when she showed up to his home to pick up her personal effects following their break-up. She told police she drove straight to an E.R. in Beverly Hills to have her injuries treated.
However, while being questioned by police – which Phillipe, nor anyone else for that matter, should ever respond to, at least not without an attorney present – the actor insisted that Hewitt, in fact, had assaulted him and, therefore, he had used force against her to protect himself. Notwithstanding, LAPD issued an Emergency Protective Order (EPO) (Family Code section 6251) against him, requiring him to remain at least 100 feet from her at all times (the EPO lasted five court days).
Fortunately, for Phillippe, after reviewing the conflicting evidence presented by him and the purported victim, the Los Angeles County District Attorney’s Office declined to prosecute. However, they did refer the matter to the Los Angeles City Attorney’s Office, which also declined to pursue charges (against either person), again, after reviewing the parties’ evidence.
Domestic Violence Defenses
The following are only a few of the defenses we are able to effectively employ on behalf of clients alleged to have committed DV offenses:
defense of others;
the purported victim was actually the initial and/or dominant aggressor;
the purported victim does not fall under any of the definitions set forth in the DV statutes (and, therefore, must be charged under different, more lenient criminal statutes);
the incident was unintentional (i.e., the result of an accident or mere negligence); and
the purported victim actually injured him/herself in order to press charges against our client (yes, this has actually happened more than a few times to our clients, which we were able to prove to the court).
See, e.g., Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 840 (“Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition”). See also CALCRIM number 841 (“Simple Battery: Against Spouse, Cohabitant, or Fellow Parent”).
Domestic Violence Convictions
As mentioned above, if you are convicted of simple domestic violence battery – a misdemeanor – you might only receive informal probation (a.k.a. “summary probation”), a small fine, and counseling sessions. At most, you would face twelve months in a county jail.
On the other hand, a felony conviction for, say, willfully inflicting a traumatic injury on a spouse can result in a state penitentiary term of two, three, or even four years (excluding any other possible enhancements, such as for prior DV convictions or violating DV restraining orders). We once successfully represented a client who was facing forty years in prison for allegedly stabbing his girlfriend multiple times, including enhancements with prior convictions.
Despite overwhelming evidence, we were able to plead him down to nine years, so with time served and good time credits, he would be out in less than four-and-a-half.
Regardless of whether you are convicted of a misdemeanor or a felony (which, of course, means you either pled guilty or no contest to the DV charge, or were found guilty by a jury), and as long as you were not sentenced to prison (for felonies), you will receive either three or five years’ probation.
In addition, you can expect to be required to perform community service (misdemeanors), and attend domestic violence counseling for one year (misdemeanors and felonies).
Further, you will likely be subjected to a domestic violence restraining order with a term of three, five, or ten years.
Finally, a DV conviction – regardless of its nature – will adversely affect your ability to obtain or maintain a professional license; enlist in the military; obtain permanent residency status in the U.S.; your right to own and possess firearms; and child-custody cases.
A Sampling of Domestic Violence Cases Handled by the LADALF
– Defendant facing seven domestic violence charges & seven years in prison -- jury acquitted him of all charges
People v. N.H.: Defendant was prosecuted for seven domestic violence crimes with a maximum sentence of seven years, at the LAX courthouse. The entire case was a false set-up; specifically, his wife purposefully cut and injured her body and face, resulting in numerous lacerations and contusions, then dialed 9-1-1. She claimed that the defendant had stabbed and beat her, resulting in him being apprehended.
As many of our innocent clients do, he rejected ever reduced plea made by the DA's Office and insisted he never touched her. Thus, Ninaz Saffari forced the prosecution to try the case before a jury. During the trial, Ninaz provided video footage from a security camera from a previous domestic violence instance that proved in that case, the wife was obviously the aggressor, assaulting the client.
Ninaz was also able to prove that her statements to the police contradicted what she testified to at the prelim, and that her prelim testimony contradicted what she testified to at trial. As a result, the jurors clearly saw that she had falsely accused the client. Based on this undeniable impeachment, Ninaz filed a motion to dismiss (based on a lack of evidence). The presiding judge agreed to dismiss a single charge so the jurors voted on the rest of the six charges, ultimately acquitting him of everything.
– Defendant facing two domestic violence charges -- jury acquitted him of both charges based on self-defense
People v. M.H.: This DV case was also tried at the Los Angeles Int'l Airport superior court. The defendant was prosecuted for two DV crimes and was looking at serious time behind bars, but also as with the preceding example, he remained adamant that he was innocent.
Ninaz provided the jury irrefutable proof that he only used force against the purported victim to protect himself from her attack. The defendant's story was so credible and moving that Ninaz had him testify before the jury (an uncommon tactic for her since a defendant's testimony often, if not usually, will expose him/her to cross-examination and self-incrimination). The tactic work, resulting in the jurors acquitting him of the two charges.
– Defendant facing numerous domestic violence felony counts -- LADALF convinced the prosecutor to reject the case (self-defense)
People v. A.S.: As with the first example above (and as is the case with many of Ninaz's clients), this client's girlfriend falsely alleged to officers from the Los Angeles Police Dept that he had violently battered and seriously injured her. As a result, he was apprehended and incarcerated for various domestic violence felonies. When the defendant hired Ninaz, the investigating detective had already sent the case for prosecution to the District Attorney.
Ninaz instantly jumped on putting together a package of exculpatory evidence proving he was being falsely accused, and that there was otherwise insufficient proof to convict him of the charges. Ninaz thereafter had an in-person meeting with the Assistant DA in charge of the case, and went over all the evidence, which clearly showed the girlfriend had actually first attacked the defendant.
As a result, the prosecutor quickly dropped all charges; however, he did forward the case to the CA's Office to consider prosecuting the defendant on misdemeanor domestic violence counts. Fortunately, after reviewing the Pre-File evidentiary package, the CA's Office also dropped the case. Almost unbelievably (or perhaps not), approximately sixty days later, the girlfriend repeated her false claims to LAPD based on new domestic violence allegations. As before, he was apprehended and jailed.
Because Ninaz had been previously retained, she was able to act more quickly this time -- she immediately had another in-person meeting, but now with the investigation detective. Despite reviewing the new Pre-File package, which proved the girlfriend had once again attacked the client, the detective nevertheless sent it to the District Attorney's Office. Fortunately, the District Attorney's Office declined to prosecute based on the latest evidence.
-- Defendant facing multiple misdemeanor DV counts -- facing consecutive sentences/years and loss of prof. license -- dismissed first day of trial
People v. M.M.: Client had been charged with multiple counts of domestic violence with each one carrying a max sentence of 12 months in county jail (thus, potentially multiple years if convicted and sentenced to consecutive terms). In addition, he held a professional license issued by the state of California so it would have been automatically revoked with this "moral turpitude" conviction. Fortunately, we were able to get the case dismissed at the outset of his trial.
The Los Angeles Criminal Defense Attorney Law Firm (LADALF)
Ninaz Saffari has defended hundreds of clients for almost sixteen years (beginning in 2005) who have been charged with every possible type of domestic violence charge (including elder abuse and child abuse cases), including those involving deaths.
In fact, DV cases form one of the cores of her practice areas. Aside from her vast trial experience (more than sixty trials to date), incomparable legal skills, and profound knowledge of California’s domestic violence laws, her male clients have particularly benefitted from having a strong but compassionate woman defending them in court – especially before juries largely composed of women.