Trial considerations that may affect a California domestic violence stalking case

California’s domestic violence laws apply to all crimes where the victim of the crime is an intimate partner of the perpetrator of the crime. Intimate partners are persons who are married, divorced, living together, have children together, dating or formerly dating. Intimate partners may be heterosexual partners or same-sex partners. Although the crime of stalking doesn’t have to be a domestic abuse crime, if committed against one’s intimate partner, it will be prosecuted as such.

Stalking may be filed as an intimate partner abuse crime if the suspect followed or harassed his or her intimate partner and threatened that partner, placing that partner in fear for his or her safety or for the safety of his or her family. Depending on the circumstances that surrounded the charged incidents, the crime may be filed as a misdemeanor or as a felony. When a defendant is charged and knows the penalties that he or she faces, he or she must decide whether to accept the charge or whether to take the case to trial. If he or she decides to take the case to trial, there are certain evidentiary issues that frequently arise in almost all domestic violence related cases, including D.V. stalking. The experienced attorneys at the Kavinoky Law Firm are familiar with and know how to effectively deal with any of the following trial issues should they come into play in a stalking trial.

Physical evidence can play a major role in a stalking case. Physical evidence includes evidence that can be seen (like a video recording or an injury), heard (like an audio recording) or scientifically analyzed (like DNA). If and when it exists, physical evidence can help to convict or acquit the accused, depending on what it reveals.

Eyewitness testimony may also be helpful in proving or disproving one’s innocence in a stalking trial. If someone other than the alleged victim were present during one of the alleged stalking incidents, he or she would be able to provide information that could either lead a jury to believe that the accused violated the law or that his or her actions were, in fact, lawful. A skilled criminal defense lawyer knows how to examine or cross-examine an eyewitness to elicit testimony that will ultimately favor his or her client’s side of the story.

In an intimate partner violence trial, the prosecution frequently tries to introduce hearsay evidence, including 911 calls. When such is the case, it is up to a good defense attorney to either argue for their exclusion or to downplay their significance. The knowledgeable attorneys at the Kavinoky Law Firm have experience with this type of evidence and understand how to handle it when it becomes an issue in a stalking trial.

Recanting victims and battered person’s syndrome are commonplace in domestic abuse trials. When the alleged victim recants his or her story, an expert witness is usually called by the prosecution to testify that the witness has recanted because he or she suffers from battered person’s syndrome.

The laws of evidence that pertain to stalking and, more specifically, to stalking charged as a California domestic violence crime, are technical and complex. In order to put forth the best possible defense, it is imperative that a defendant contacts the unparalleled criminal defense attorneys at the Kavinoky Law Firm who have successfully defended countless individuals from domestic abuse crimes. They receive training in this specific area of the law, which is directly responsible for their outstanding results. Click here for a free consultation and for the best representation.

Violating a Protective Order

Protective orders are issued by courts in California domestic violence cases to prohibit an offender from committing specific acts of abuse, re-entering his or her own home or even behaving in a certain way. 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 any type of intimate partners – whether they are married, divorced, cohabiting, have children in common, dating or were formerly dating. These laws apply to both heterosexual and homosexual couples.

Any violation of a protective order is a misdemeanor punishable by a maximum sentence of one year jail time 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. In addition, if the accused has prior convictions for violating a protective order, he or she will also likely serve mandatory jail time. California courts may even punish an offender for violating an order in California that was issued in another state.

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.” In order to find the accused guilty of violating a protective order, the prosecutor must prove five elements:

The first element is that the court issued an order that prohibited the defendant from taking a specific action. In order to prove this element, the prosecution must only show that the court issued an order, which is available in the court file. The second element is that the order was issued in a domestic violence case (which means that the named parties were intimate partners), prohibiting the accused from certain conduct. The third element is that the defendant knew about the order and what it said. The prosecutor doesn’t have to prove that the accused actually read the order, only that he or she had the opportunity to read it or to learn about its contents. The fourth element is that the defendant had the ability to follow the order. This means that he or she didn’t face an obstacle that made it impossible to follow the court’s instructions. The final element that the prosecutor needs to prove is that the accused willfully violated the court’s order, which means that the violation wasn’t the result of a mistake or an accident.

In addition, if the prosecution alleges that the defendant’s violation of the court order resulted in physical injury to the protected party, the prosecutor must prove an additional element that states that it was the accused party’s violation of that specific order that caused the victim’s injury.

In California, a conviction for violating a court order is no joke, as a conviction carries severe penalties. To best avoid these consequences, it is imperative that an accused hires a skilled criminal defense lawyer who knows the most effective ways to refute this crime’s elements. In order to secure the best representation from a firm who has successfully defended countless intimate partner abuse cases, contact the experienced attorneys at The Kavinoky Law Firm for a free consultation.

Domestic battery, also called “spousal battery” and “spousal abuse,” is a California domestic violence offense involving intimate partners. The term “intimate partners” can include individuals who are heterosexual or homosexual, who are married, divorced, living together, have children in common, or who are dating or were formerly dating.

Under California law, domestic battery is a “wobbler,” which means that the offense can be charged as either a misdemeanor or a felony depending on the facts of the case. Willfully and unlawfully inflicting force or violence upon an intimate partner is typically charged as misdemeanor battery and carries a maximum penalty of a one year jail sentence and a $2,000 fine. This charge can be brought against a defendant even if he or she used the slightest force. Any unwanted physical touching could lead to a battery charge.

However, if serious bodily injury occurs, such as broken bones, loss of consciousness or a concussion, the offense likely will be charged as a felony punishable by a maximum of four years in state prison.

When an individual is convicted of this domestic abuse crime, there are several mandatory penalties that will be imposed, and other penalties that may be imposed. One of the possible consequences that a defendant convicted of battery may face is a restriction on his or her professional license.

Under California law, a licensing board may suspend or revoke a 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. It does not matter whether the conviction was the result of a jury trial, a Guilty plea, or a No Contest plea. This suspension or revocation may take place once the defendant is placed on probation, once the conviction has been affirmed on appeal, or once the timeframe within which to file an appeal has ended. In addition, there are several professional licensing boards that maintain their own standards and practices related to disciplining their license-holders that may be even more restrictive.

In order to defend against a professional license restriction, it is very beneficial to have an attorney to argue against its application. An attorney has the knowledge and available resources to articulate why a domestic battery conviction (under most circumstances) is not substantially related to the “qualifications, functions, or duties” of the defendant’s job. In addition, the skilled attorney will recognize when the defendant’s employer is unlawfully imposing such a restriction in an effort to inappropriately fire their otherwise competent employee.

If either facing a battery charge or if recently convicted of the charge, hiring an experienced, knowledgeable criminal defense lawyer to help guard against a conviction and/or a possible professional license restriction is by far the smartest defense strategy. The skilled attorneys at The Kavinoky Law Firm have successfully defended countless individuals who have been charged with intimate partner abuse and have helped them keep their families, careers, freedom and dignity intact. When things are at their worst, the attorneys at The Kavinoky Law Firm are at their best! To discuss a potential professional licensing restriction, or any other legal matter, click here for a free consultation.

Domestic violence and the military

California has tough domestic violence laws that include a variety of offenses. These offenses used to be charged only when there was a dispute between married couples or parents of a child. However, the laws have expanded to include disputes between any intimate partners: cohabiting couples, former spouses or fiancés/fiancées, people who are or were dating, and same-sex partnerships. The military, however, limits intimate partners to current spouses and has their own way of handling the problem. Although most military cases involve husbands abusing wives, there are cases where the husband is the victim.

A family abuse case will usually go one of two ways if a member of the military is involved: The case will either be handled by the military justice system or by the Family Advocacy Program.

Under the military justice system, the military commander is in charge of enforcing order and discipline. He or she does so within each unit by using methods ranging from mild administrative measures, including formal or informal counseling, to full-blown General Court Martial, where an individual can be sentenced to severe disciplinary action, including military discharge. This system is penalty driven.

The more common route, the Family Advocacy Program, is an identification, intervention, and treatment program, not a punishment system. It should be noted that information obtained under the Family Advocacy Program may be used as evidence in the military justice system if the case isn’t first settled within the program.

Under family advocacy, military officials assess the alleged abuser to determine whether the individual would benefit from treatment and, if so, what treatment would be appropriate. As for the victim, an advocate is assigned to assess his or her safety and to help develop a safety plan for the family. Throughout the process, victim advocates ensure that the victim’s medical, mental health and protection needs are being met.

In a number of situations, spouses have reported being afraid to report abuse because of financial concerns about the implications of a discharge. Federal law has taken that into account and has set aside financial protections for spouses and children of members of the military who are discharged for committing domestic violence crime.

Although a domestic abuse conviction can end a service member’s military career, it doesn’t have to. Department of Defense officials state that most military spousal abuse is reported early, when chances of successful treatment are good. Some abusers even self-report before the problem becomes chronic or severe. Taking quick action means that an abuser’s military career isn’t necessarily impacted.

The bottom line is that the military is taking a stand against intimate partner abuse. For years, victims of abuse by members of the military complained that they weren’t taken seriously or that their complaints were “swept under the rug.” This is no longer the case. The military is following the rest of the nation in trying to combat this epidemic. Domestic violence victims are now being heard and abusers, whether civilians or military personnel, are being held accountable.

For more information, please contact The Kavinoky Law Offices for a free consultation about this or any other criminal matter. When things are at their worst, the attorneys at The Kavinoky Law Firm are at their best!

Prior Convictions and Violating a Protective Order

Prior domestic violence convictions can increase the penalties of a California conviction for violation of a protective order. Protective orders are issued by the court in domestic abuse cases involving intimate partners, and prohibit the offender from engaging in specific acts of abuse, re-entering his or her own home or even behaving in a specified way. Under California law, any relationship is considered an intimate partnership – heterosexual and gay couples who are married, divorced, cohabiting, have children in common, or who are currently or formerly dating.

Intentional violation of a protective order is a misdemeanor punishable by a maximum of one year in jail 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 accuser suffered physical injury, the offender faces mandatory jail time of at least 30 days and the fine may rise to $2,000.

A one year jail sentence is the maximum amount of jail time that a defendant convicted of violating a court order could possibly serve. Absent physical injury to the protected party, the law says nothing about mandatory jail time for an offender. This means that if the facts surrounding this allegation aren’t too horrifying, an experienced criminal defense lawyer may be able to convince a court to impose probation conditions that don’t include imprisonment.

However, if a defendant is convicted of violating a protective order and has been previously convicted of violating a court order, he or she will likely serve mandatory jail time. If the defendant’s current case involves an act of violence or a credible threat of violence and he or she has a prior conviction for a violation of a protective order that occurred within seven years of the current case, he or she faces up to one year in jail or prison. Although there is no mandatory jail or prison sentence with these facts, the court will most likely issue a sentence that includes jail or prison time, because it will reason that the defendant should have known better, having previously been in a similar situation.

Similarly, if the accused is convicted of violating a protective order that resulted in physical injury to the protected party and he or she has a prior conviction for violating a protective order within one year of the current case, he or she will face at least six months in jail or prison, possibly up to one year, and a fine of up to $2,000. There are circumstances, however, where the defendant would only have to serve 30 days in jail, which is another reason why it is important to have professional legal representation. A skilled defense attorney will aggressively defend his or her client by arguing that imprisoning the defendant does not serve the best interests of justice. He or she further knows what facts and circumstances will help convince the judge accordingly.

Unfortunately, the judge is not the only one who hears about the defendant’s prior domestic abuse convictions. While most criminal cases exclude prior conduct from evidence, domestic abuse crimes are an exception. Evidence of the defendant’s prior acts of intimate partner violence is admissible against the accused in a jury trial. This means that a jury will be allowed to hear that the accused has committed similar offenses in the past and, as a result, they are likely to conclude that he or she did so again.

When charged with violating a protective order – especially when one has a history of prior violations – it is imperative to hire a qualified criminal defense attorney who is familiar with all of the issues that prior acts of domestic violence raise. The attorneys at The Kavinoky Law Firm have successfully defended countless individuals who were facing domestic abuse charges. A skilled defense lawyer 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.