Can I be Charged with Domestic Violence in California?

Domestic violence describes a range of harm committed in the context of a domestic, family, or intimate relationship, usually between spouses, intimate partners, siblings, or parents and children. Physical acts, not surprisingly, can be domestic violence, such as punching, hitting, slapping, or shoving. We have seen quite a few clients arrested for blocking someone else's way, or struggling over a cell phone. Even minimum physical contact can be charged as domestic violence if it is unwelcomed and a domestic relationship exists.

Can I be Arrested for Domestic Violence for Making Phone Calls or Sending Text Messages? 

 "Domestic Violence" need not include actual physical contact. Under California law, it can extend to harassing phone calls or text messages, stealing from a partner, damaging their property, or refusing to leave their home. If there is a restraining order in place, the very act of calling or texting somebody, even if being nice, can result in criminal charges.  Any number of misdemeanor and felony crimes become categorized under the law as Domestic Violence if an incident occurs and there is a domestic relationship. This means that the Court has to treat the case in a certain way in procedural and sentencing matters.  In essence, the stakes for any crime become much higher if it is considered a domestic violence case. This is why it is so important to hire a pro domestic violence attorney in Los Angeles or Orange County.. 

Can a Court Issue a Restraining Order on a Criminal Domestic Violence Case in California? Can my Attorney Fight it?  

When a defendant is charged with a domestic violence offense in criminal court, the court has the power to order a protective order, also referred to as a restraining order or a no-contact order, at the very beginning of the case. In essence, when it comes to domestic violence, you can suffer certain consequences before a judge or jury has even found you guilty.

When a protective order is issued, it can result in two significant consequences, though there may be other penalties or restrictions imposed:

1. It can restrict a someone's contact with the victim and their children; and
2. It can require the someone to leave the family home.

A person subject to a protective order or convicted of a domestic violence offense is also prohibited from owning or possessing a firearm under federal law. 

What is the Difference Between a Domestic Violence Restraining Order (DVRO) Issued in Family Court and a Protective Order Issued in a Criminal Case in California?

In California, both domestic violence restraining orders in civil family court and protective orders in criminal court aim to provide protection to victims of domestic violence, but they differ in several key aspects:

A Domestic Violence Restraining Order is issued in Family Court and is Civil in nature. The person seeking protection, known as the petitioner decides whether they wish to file for a restraining order or DVRO. On the other hand, a Protective Order is issued in Criminal court and can only be issued if criminal charges are filed by the prosecutor. In this situation, the prosecutor or District Attorney is actually the plaintiff who decides what they wish to seek on behalf of protected party, often the alleged victim in the criminal case. 

1. Purpose and Process:

   • Civil Domestic Violence Restraining Order: In civil family court, a domestic violence restraining order is typically sought by an individual (petitioner) who has been a victim of domestic violence. The purpose is to obtain legal protection from the restrained party (respondent), including orders to stay away, cease contact, and other appropriate restrictions.
   • Criminal Protective Order: A protective order in criminal court is issued as part of a criminal case against the alleged abuser. It is initiated by law enforcement or the prosecutor handling the criminal case. The purpose is to protect the victim and any other individuals named in the order during the criminal proceedings.

2. Issuing Authority:

   • Civil Domestic Violence Restraining Order: Issued by a judge in civil family court based on evidence and testimony presented by the petitioner (the victim) during a hearing.
   • Criminal Protective Order: Issued by a judge in criminal court as part of the criminal case against the defendant. It may be issued even if the victim does not request it.

3. Violation Consequences:

   • Whether it is a violation to a family court civil restraining order or a criminal protective order, violation of a court domestic violence order is its own criminal offense, which a possible penalty of up to a year in jail, or more, if the violation was a part of another felony offense.What are the Consequences of a Domestic Violence Charge?

Besides the possibility of going to jail or having a restraining order issued, a conviction for domestic violence in California carries other significant consequences. If you have an ongoing child custody dispute, a domestic violence conviction can create a presumption that you should not  be awarded custody. Criminal convictions of any nature, but especially for domestic violence offenses, can impact someone's ability to find work or housing. Domestic violence convictions are problematic especially for non-citizens, who could be deported and found inadmissible to the United States. Also, potential employers who run a background check may refuse an applicant with a domestic violence conviction. 

Can Domestic Violence Charges Be Dropped in California?

Domestic violence charges can be dropped, but it is critical to know that they will not be dropped only because the alleged victim of the violence no longer wants charges brought. Charges are brought by the prosecutor, known in California as the District Attorney, not by the affected person.

The same is true about the restraining order. Even if the victim no longer wants the protection order, the order can remain in effect. Any person who has a restraining order against them must abide by the order or risk further criminal charges and subsequent consequences. Violating a protective order is a serious offense.

What are the Domestic Violence Charges that can be Filed in California?

There are several California Penal Code sections that cover different aspects of domestic violence. Here are some of the key ones:

1. Penal Code 243(e)(1) - Domestic Battery: This section prohibits the willful and unlawful use of force or violence upon an intimate partner. It is a misdemeanor offense.

2. Penal Code 273.5 - Domestic Violence: This section covers corporal injury resulting in a traumatic condition, in other words, an injury inflicted upon a spouse, cohabitant, or fellow parent. It can be charged as a misdemeanor or felony. 

3. Penal Code 273.6 or Penal Code 166(c)(1) - Violating a Protective Order: If someone violates a restraining order or protective order related to domestic violence, they can be charged under this section. If charged on its own, usually a misdemeanor, though this conduct could be rolled into a felony if there is accompanying violence or is part of a larger pattern of stalking.

4. Penal Code 422 - Criminal Threats: Threatening to kill or harm an intimate partner or their family members can lead to charges under this section. This can be charged as a misdemeanor or felony.

5. Penal Code 368 - Elder or Dependent Adult Abuse: If the victim of domestic violence is an elder or a dependent adult, this section may apply.

6. Penal Code 273a - Child Endangerment: If children are present during an act of domestic violence or are otherwise put at risk, or otherwise actually harmed, charges of child endangerment can apply. This can be a misdemeanor or a felony, depending on the risk to the child involved risk of greath bodily injury our death.

7. Penal Code 653(m) - Harassment by Telephone or Electronic Device: Prohibits repeated calls or electronic communications or communications that are obscene or threatening, or communications with the intent to harass. Generally a misdemeanor, but could be a felony if wrapped up with other stalking-like activity. 

     8. Penal Code 236 - Unlawful Restraint - Involves not allowing someone to leave, or holding                         somebody in place. Criminalizes conduct where someone's freedom of movement is restrained,                   such as blocking someone's way.

     9. Penal Code 591.5- Interference or Tampering With Communication Device - Prohibits                           preventing another person from seeking assistance from law enforcement for a crime. An example               often seen in domestic violence cases is one person tries to pull the phone out of another person'  s           hands as they try to call the police. 

What are Defenses to Domestic Violence Allegations in California:

A person can defend against a domestic violence charge in California. However, the specific defenses available to a defendant will depend on the circumstances of their case. 

Some common defenses include:

• Self-defense, defense of others, or mutual combat, where reasonable force was used to prevent an attack.
• Lack of evidence, if the prosecution fails to present enough evidence to prove each element of the offense beyond a reasonable doubt. This could mean no proof of injuries, no witnesses, or conflicting statements. 
• Uncooperative Witness, if the prosecution needs a witness, including a victim, and the witness cannot be found and does not go to court. However, if the prosecution is able proceed to trial without the witness, they will likely try to do so without the witness. 
• False allegations, where the victim has lied about what happened
• Accident, where the defendant unintentionally caused the injury

A conviction for a domestic violence offense can have a long-lasting impact on many aspects of a defendant's personal life, including their personal relationships, parenting, and employment. It is always in your best interests to, at a minimum, consult with a domestic violence defense lawyer about any allegations.

Contact a Domestic Violence Defense Attorney in Orange County Today

If you've been charged with a domestic violence offense, you should speak to an experienced domestic violence defense attorney at Klugman Law PC immediately. We will listen to your version of events, assess the strength of the evidence against you, and advise you of any defenses that may be available to you.

Fill out an online submission form or call us at  to schedule a consultation.