Eyewitness Accounts and Infliction of Injury

Infliction of injury, more commonly called “spousal abuse,” is a California domestic violence crime that applies to intimate partners. These partners may be heterosexual or homosexual and married or divorced, living together or formerly living together, or have children in common. If an individual willfully inflicts any injury, no matter how minor, upon the body of an intimate partner, he or she can be charged with a felony, punishable by up to four years in prison and a fine of up to $6,000. This charge can be brought against a defendant even if he or she barely touched the intimate partner.

Because of the intimate nature of domestic abuse, most violent situations occur outside the presence of witnesses. As a result, many infliction of injury cases are based on “he said, she said” allegations. Eyewitnesses, therefore, play a vital role in helping to prove or disprove an alleged victim’s charge of abuse.

The job of an eyewitness is to simply tell the judge and/or jury what he or she saw with no inherent bias. Easily said, rarely done. Eyewitnesses almost always have a bias either for or against one of the parties, depending on his or her relationship with them. As a result, the truth generally gets lost in translation.

There is a common misconception that a witness testifies for either the prosecution or the defense, but that is truly not the case. Since both parties have a chance to examine the witness, witnesses essentially testify for both parties. A skilled criminal defense lawyer knows how to take an eyewitness who is presented by the prosecution and turn him or her into a witness who ultimately helps prove the defendant’s version of the events. Similarly, a good defense attorney will invest time in preparing an eyewitness that he or she intends to “put on the stand” in order to try to make sure that he or she is comfortable with answering questions and to ensure that the witness doesn’t get tripped up by the prosecutor’s cross-examination.

Infliction of injury cases are usually based on a highly charged, emotional incident that unfortunately took a turn for the worse. This means that even if there was an eyewitness to the abuse, that individual may not have witnessed all the events that led to the charged incident and may not have the accurate back-story on what took place before the charged incident. It is the attorney’s job to make sure that this type of information gets relayed to the jury. The experienced attorneys at The Kavinoky Law Firm have successfully defended countless individuals who faced infliction of injury charges. They are familiar with all aspects of California’s intimate partner abuse laws and know how to skillfully examine witnesses in ways that are beneficial to their clients. In conjunction with their private investigators, the attorneys not only interview all witnesses but also check the criminal history of each witness to uncover any past conduct that could be considered relevant in weighing that witness’s credibility. A knowledgeable attorney will effectively cross-examine witnesses in an infliction of injury case to bring out and highlight discrepancies in their accounts that may otherwise be overlooked.

An eyewitness could potentially be the “kiss of death” to a defendant facing a domestic abuse charge. When facing an infliction of injury charge (especially when there was an eyewitness), it becomes even more critical for the accused to hire an attorney who is competent and experienced in handling witness preparation and who excels in cross-examination. The attorneys at The Kavinoky Law Firm know how to handle diverse witnesses under a variety of circumstances. Keeping the jury in mind, they know when it is appropriate to examine a witness with care and compassion and they know when it is appropriate to “take the gloves off” to aggressively attack. They are in it to win! Don’t hesitate to contact them today. Click here for a free consultation and for the best representation.

DNA Evidence in a Violation of a Protective Order Case

Violation of a protective order is a California domestic violence offense that can be charged against an intimate partner. The term “intimate partners” includes every type of couple – straight, gay, married, divorced, cohabiting, individuals with children in common, or who are currently or were formerly dating.

Anyone who intentionally and knowingly violates a protective order in a California domestic abuse case can be charged with a misdemeanor punishable by a maximum of one year in jail and a $1,000 fine.

Protective orders issued by the court prohibit the offender from engaging in specific acts of abuse, re-entering his or her own home or even behaving in a specified way. California courts even punish domestic violence defendants for violating orders in California that was issued in other states. 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.

Unfortunately, there are many partners who are involved in mutually abusive relationships. This means that both partners are victims and abusers. In these troubling relationships, both partners will exert their power in a number of ways. One of the common ways that a partner will do this is by making a false allegation. An example of this is when the self-proclaimed “victim” accuses his or her partner of violating a protective order when he or she actually didn’t.

In a case alleging physical injury to the protected party or in a case where there may be some physical evidence, such as a letter, DNA evidence can play a vital role. When charged with violating a court order, it is important to hire an attorney who is experienced with all of the evidentiary issues that often arise in connection with this crime. The skilled criminal defense lawyers at The Kavinoky Law Firm receive ongoing training in intimate partner abuse trial strategies and evidentiary issues, such as DNA evidence, giving them a leg up on the competition.

In criminal courts throughout this country, DNA evidence is playing a larger role than ever before in helping to convict the guilty and to clear the falsely accused. DNA (deoxyribonucleic acid) evidence is particular to each individual and remains constant throughout one’s life. Virtually every cell in the body contains DNA and it is the same in each cell, whether it is found in one’s hair, saliva, blood, skin tissue or bone. This evidence is so powerful because, with the exception of identical twins, no two people share the same DNA. This means that if DNA can be collected from a crime scene, it can either link the accused to the crime or exclude the accused from the crime. For example, in a violation of a protective order case, if the defendant’s DNA evidence, such as saliva, blood or skin tissue, is found on the protected party’s body or clothes, or on a letter written to the protected party, it will be easier to assess blame to the accused. However, if someone else’s DNA is found on the alleged victim or on any other physical evidence, it may be easier to clear the suspect and possibly look at bringing a criminal charge against the “victim” for filing a false police report.

DNA evidence is clearly here to stay. Having an attorney who is well versed in DNA evidence and the ways that it can be admitted into and excluded from evidence in a domestic abuse case is of the utmost importance, especially when facing potential jail or prison time in connection with a conviction for violating a protective order. The knowledgeable attorneys at The Kavinoky Law Firm have experience with this complex and technical area of the law. An experienced lawyer can outline an effective defense strategy during a free consultation.

Hearsay and 911 Calls in a Sexual Battery Case

Sexual battery is a domestic violence offense that can be charged against any intimate partner in a California domestic abuse case. The term “intimate partners” is defined very broadly under California domestic violence law – the partners can be gay or straight, married, divorced, currently or formerly living together, have children together, or be dating or formerly dating.

Touching an intimate partner against that person’s will for the purpose of sexual arousal, sexual gratification or sexual abuse can result in a sexual battery charge. Any physical contact – however slight – can be considered touching, even if it occurs through the clothing of either partner. Even an individual involved in an ongoing relationship can face sexual battery charges. Depending on the circumstances, the crime can be charged as a misdemeanor or a felony with penalties of up to one-year in jail or up to four years in prison and fines of up to $10,000.

With such severe consequences, a sexual battery charge is no joke. That is why it is imperative for the accused to hire an attorney who is knowledgeable not only with respect to California domestic abuse crimes but with the types of evidentiary issues that frequently arise during these types of trials. The experienced criminal defense lawyers at the Kavinoky Law Firm have successfully defended countless individuals in sexual battery cases because they receive ongoing training and education about intimate partner abuse cases and the issues that commonly surround these types of cases. They know how to argue for admission or exclusion of hearsay and 911 evidence to provide the most effective defense for their clients.

“Hearsay” is a legal term that refers to statements that were made out of court that are later offered in court as evidence of their truth. Although hearsay evidence is generally inadmissible in criminal proceedings, there are exceptions to that rule, and intimate partner violence cases are one of those exceptions. Under California law, hearsay statements, including 911 telephone calls, are relevant in domestic abuse cases. This exception admits into evidence statements made by the complaining witness at the time when he or she was experiencing or witnessing the violent act or acts that are the subject of the case.

The rationale behind this exception is that the spontaneity of such statements and the lack of opportunity for reflection and deliberate fabrication provide an adequate guarantee of their trustworthiness. Clearly this isn’t the case in reality, as many 911 calls have been placed under false pretenses and based on underlying motives such as anger, revenge and jealousy. Nonetheless, these statements are admissible into evidence and, in a vigorous effort to convict the defendant, the prosecutor will seek to have the investigating officer read the alleged victim’s statements to the jury and will also ask the judge to play the recorded 911 call for the jury. However, even the exceptions have exceptions, which is why it is so important to have professional legal representation that is familiar with this area of the law.

Because of the highly complex and technical rules (and exceptions to those rules) that come into play in a California intimate partner abuse case, having a skilled and qualified defense lawyer who knows how to exclude or downplay this type of evidence is critical. The attorneys at the Kavinoky Law Firm have both the knowledge and experience to aggressively tackle any issue that may arise in a sexual battery case. Whether the allegation stems from an intense, emotional dispute that took a turn for the worse, from a false report, or from a simple mistake, professional guidance can help ease a difficult situation. When things are at their worst, the attorneys from the Kavinoky Law Firm are at their best! A defense lawyer experienced in California domestic violence cases can outline a strategic defense plan during a free consultation.

Battered person’s syndrome and its effects on the accused in a California domestic violence stalking trial

Stalking, in California, will be charged as a domestic violence crime when it is committed against one’s intimate partner. Intimate partners are persons, regardless of their sexual orientation, who are married, divorced, dating, formerly dating, living together or who have children in common. When an individual willfully and maliciously follows or harasses and threatens his or her intimate partner with the intent of placing that partner in fear, he or she will be charged with stalking as a domestic abuse crime.

In an intimate partner abuse stalking trial, a recognized psychological condition known as the battered person’s syndrome, more commonly called battered woman’s syndrome, battered women’s syndrome, B.W.S. or BWS, may be introduced as evidence against the defendant to explain the victim’s behavior or actions. This condition is commonly introduced when the victim either recants his or her allegations or refuses to cooperate with or testify for the prosecution.

Battered person’s syndrome is a theory that explains why abused individuals don’t leave their abusive intimate partners. Although the theory was developed with victimized women and abusive men in mind, it applies to both heterosexual and homosexual men and women who are victimized by their intimate partners. The syndrome explains that a severely or consistently victimized person will be unable to leave his or her partner because he or she will have been conditioned to feel helpless and will feel that escape is impossible and that the abuse is inevitable. The abused partner basically blames him or herself for the abuse.

In a stalking case that was filed as an intimate partner abuse crime, the prosecutor may hire an expert witness who will testify about the effects of the battered person’s syndrome if the alleged victim either refuses to testify or changes his or her story from the original allegations that were made to the police or prosecutor. When this type of evidence is introduced, it is against the accused and basically paints a picture for the jury that the defendant has repeatedly and severely abused his or her partner. This is one reason why it is critical for a person accused of D.V. stalking to hire a criminal defense lawyer who is familiar with battered person’s syndrome, should it and its effects be introduced at trial.

The experienced attorneys at the Kavinoky Law Firm specialize in intimate partner violence cases and have successfully defended countless individuals charged with stalking their intimate partners. They understand the many evidentiary issues that are frequently raised in these types of trials and know what arguments to make to try to exclude evidence that is damaging to their clients and how to downplay or refute the evidence if it is admitted. They work with a team of expert witnesses who they use to rebut battered person’s syndrome when it is introduced against their clients.

Battered person’s syndrome, the prosecutor’s expert will testify, is the reason that an alleged victim has recanted or refused to cooperate. The expert will tell the judge and jury that the defendant’s intimate partner has been so abused or threatened, that he or she has recanted out of fear for what the accused would do to that partner if he or she didn’t take back or deny his or her original accusation. If that testimony is given, a skilled defense attorney will have a defense expert witness rebut that testimony by offering the judge and jury the many legitimate reasons that an alleged victim may recant his or her original accusation.

The outstanding attorneys at the Kavinoky Law Firm receive training about battered person’s syndrome and how it can be introduced and refuted in an intimate partner stalking case, which has helped lead to their impeccable reputation. If charged with stalking an intimate partner, click here for a free consultation.

Stalking as a California Domestic Violence Crime

Stalking, when committed against one’s intimate partner, will be prosecuted as a domestic violence crime in California. California defines intimate partners as married, divorced, dating, formerly dated, having children together or living together, regardless of whether they are heterosexual or same-sex partnerships. When an individual willfully, maliciously and repeatedly follows his or her intimate partner and makes a threat, intending to place that partner in fear, he or she faces up to one year in jail and a $1,000 fine, depending upon whether it is charged as a misdemeanor or a felony. The prison time would be at least two years and as many as four years if the accused commits this crime while named in a protective order or may be raised to a maximum of five years if he or she has a prior conviction for stalking or prior convictions for infliction of injury, violation of a protective order or for making criminal threats.

California law prohibits an individual who has been charged with stalking to be released from custody without first having a bail hearing. At a bail hearing, a judge considers the defendant’s flight risk, his or her prior criminal history, the increased risk to the victim of the crime and the facts of the pending case to determine whether to release the defendant on his or her own recognizance (commonly called OR) or to increase or reduce the scheduled bail amount. The defendant is more or less presumed guilty by the judge during this phase of the proceedings, which is why it is imperative that the defendant hires an experienced criminal defense lawyer from The Kavinoky Law Firm to help persuade the court that either reducing bail or releasing the defendant O.R. will best serve justice.

In an intimate partner abuse case such as stalking, a judge will typically deny an OR release, thereby requiring the defendant to post bail in order to get released from custody. He or she can either post cash bail or post a bail bond. Posting cash bail is rare, because few people have enough money to pay the full amount of their set bail. When cash bail is posted, it will be returned to the defendant within 60-90 days after the case is resolved if the defendant attended every single court appearance. If, at any time, the accused failed to appear for court, the cash bond may be forfeited to the court.

A bail bond is more typically used to post bail than cash bail. When obtaining a bail bond, the defendant enters into a contract with a bail agent. In exchange for a fee (usually 10% of the bail amount), the bail agent (or bondsman) agrees to post the full bail amount for the defendant. The agent will usually require additional “collateral” which is an item of great value, usually a house or a car, to further secure the bond. If the defendant makes all of his court appearances, at the conclusion of the case, the bond will be exonerated and the collateral will be released. If the defendant flees, his or her collateral will become the property of the agent.

Because the consequences of a stalking conviction are so serious, it is vital that the accused hires a skilled defense attorney as soon after his or her arrest as possible so that the attorney can fight for the defendant throughout the entire criminal court process. The rules pertaining to a Domestic Violence stalking charge are specific and technical, which is why it is so important to retain representation that is experienced in this area of the law. The unparalleled attorneys at The Kavinoky Law Firm have successfully defended countless individuals accused of stalking. To secure the best representation, click here for a free consultation.

Aggravating Factors with Violating a Protective Order

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 crimes where the suspect and accuser are intimate partners. California domestic abuse laws define “intimate partners” very broadly – they may be married or divorced, cohabiting, have children in common, or be currently or formerly dating. These laws apply to both heterosexual and homosexual couples.

Any intentional and knowing violation of a protective order by an individual against his or her intimate partner is a misdemeanor punishable by a maximum of a one-year jail sentence and a $1,000 fine. Protective orders include orders issued by the court that prohibit the offender from engaging in specific acts of abuse, re-entering his or her own home or even behaving in a specified way. California courts may even punish an offender for violating an order in California that was issued in another state. In addition, if the accused has prior convictions for violating a protective order, he or she will also likely serve mandatory jail time.

There may be facts and circumstances that surround the alleged violation that could be considered “aggravating factors” and will, in turn, force a court to impose additional sentencing if the suspect is found guilty of the crime. This is simply another reason why an accused should always hire an experienced attorney when charged with a crime. The skilled criminal defense lawyers at The Kavinoky Law Firm have experience in defending California domestic abuse cases. They are familiar with this special area of the law and will both aggressively defend the charges and do their best to keep all penalties to a minimum by arguing the injustice involved in imposing additional penalties.

There are two common aggravating factors that are frequently connected to violating a protective order. The first deals with injury. If the protected party sustained any physical injury (no matter how slight) as a result of the defendant violating the protective order, the offender will serve mandatory jail time of at least 30 days, possibly up to one year, and the fine may rise to $2,000. There are circumstances, however, where the defendant would only have to serve 48 hours in jail, which is another reason why it is important to have professional legal representation. An experienced lawyer who is familiar with the intricacies of violating a protective order will attempt to persuade the court to reduce the mandatory 30-day sentence in the interests of justice, or may propose alternative sentencing as another option, based on the facts and circumstances of the individual case.

The other common aggravating factor seen in connection with violating a protective order is when the restrained individual owns, possesses, purchases or receives a firearm when his or her court order specifically prohibits such actions. The penalties are similar (a one-year maximum jail sentence and up to $1,000 in fines), with the difference being that the one-year sentence can be served in either jail or prison. Because of the seriousness that is inherent with firearm possession, a court may be more likely to impose a jail sentence under these conditions.

Before the court sentences a convicted defendant, it will hear from both parties as to whether there were any mitigating or aggravating circumstances that it should consider. When the prosecution presents aggravating circumstances, the court will generally impose the strictest available penalty unless a good defense attorney is able to dissuade it from doing so. When aggravating circumstances exist, it is critical that the accused contact an attorney who has the knowledge and skills to effectively convince the court that to add an additional sentence would be against the interests of justice. The attorneys from The Kavinoky Law Firm have successfully defended countless individuals who were facing intimate partner abuse charges. An experienced attorney can answer any questions about a charge of violating a protective order during a free consultation.

Domestic battery, which is also referred to as “spousal abuse” or “spousal battery,” is a domestic violence offense involving intimate partners. Intimate partners can include couples who are heterosexual or homosexual and may be married, divorced, living together, have children in common, or be dating or formerly dating.

Battery is referred to as a “wobbler,” meaning an offense that can be charged as either a misdemeanor or a felony depending on the circumstances. Anyone who willfully and unlawfully uses force or violence upon an intimate partner can be charged with misdemeanor battery punishable by a maximum 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.

However, any time an intimate partner suffers serious bodily injury, such as broken bones, loss of consciousness or a concussion, the battery will likely be charged as a felony with a maximum penalty of four years in state prison.

When a suspect is arrested on a felony battery charge, or most other California domestic abuse charges, the law forbids the defendant from being released on bail in an amount that is either higher or lower than that contained in the bail schedule or on his or her own recognizance (commonly called OR) without first having a court hearing.

If there is a bail hearing, the judge will consider the defendant’s prior criminal history, his or her flight risk, and the facts of the pending case to determine whether to raise or lower the set bail amount or to release the defendant OR. When the judge makes decisions about bail, he or she presumes that the accused is guilty and makes a decision keeping that in mind. With that being the case, it would be quite foolish for anyone to try and take on a bail hearing without first hiring a criminal defense lawyer who has experience with every phase of an intimate partner abuse case.

If the judge denies the defendant an OR release (which is common in intimate partner abuse cases) and the accused must post bail, he or she may be released through one of two different methods: Posting cash bail, or securing a bail bond. To be released on cash bail, the defendant must post certified funds (or cash) in the full amount of the bail with either the arresting agency or with the clerk of the court. If the accused attends every court appearance, the cash will be returned within 60-90 days after the case is resolved. However, if the defendant fails to appear, the cash bond is forfeited to the court.

A bail bond is a contract with a bail agent where the agent agrees to post a bond for the full bail amount. The bondsman will generally charge ten percent of the bond amount as his fee. The bondsman may also require “collateral” (which is usually a car, house or something else of great value) to secure the bond. This means that if the defendant doesn’t repay the bond, the bondman has the legal right to keep or sell the defendant’s collateral. Once the case is over, the bond is exonerated, and the collateral is then released.

A domestic violence arrest in California is no joke. An accusation can be devastating, emotionally and financially, and a conviction carries severe penalties. One’s reputation, career, family and freedom are jeopardized the minute the arrest is made.

California Battery Defense Attorney

Because California is so strict with its battery offenders, it is critical to contact a skilled California defense attorney immediately after being arrested so that the attorney can help the accused navigate through the criminal court system right from the start. In order to secure the best representation from a firm who has successfully defended countless individuals charged with domestic abuse crimes, contact the unparalleled attorneys at The Kavinoky Law Firm for a free consultation.

Professional license restrictions and their relationship to a California criminal threats domestic violence conviction

“Criminal threats” may be charged against an individual who threatens to commit a crime against someone that, if committed, would result in serious bodily injury or death to that person. When the person receiving the threat is the intimate partner of the person making the threat, the crime will fall under California’s domestic violence law. Domestic violence encompasses all crimes where the “victim” of the crime is an intimate partner of the offender. Intimate partners include persons who are married, divorced, dating, formerly dating, living together and who have children in common. These laws apply to same-sex partnerships and heterosexual couples. If, as a result of the threat, the intimate partner reasonably feared for his or her safety, regardless of whether the individual issuing the threat had any actual intent of seeing it through, a criminal threats charge would be filed and prosecuted as a domestic abuse crime, punishable as either a misdemeanor or felony by up to one year in county jail or state prison.

While many would assume that a jail or prison sentence would be the most severe punishment that an individual would face following a conviction for a D.V. related criminal threats conviction, there may be situations where they would be incorrect. California law allows a licensing board, under certain circumstances, to suspend or revoke an individual’s professional license upon a criminal conviction, which could, in effect, end an individual’s career. It is this type of situation that could potentially be more severe than imprisonment, as one’s livelihood could be threatened. Professional legal representation can help fight against such a restriction arguing, that in most cases, such a restriction would be illegal.

California law permits a suspension or the revocation of one’s professional license by the licensing board that issued the license if the license holder has been convicted of a crime that substantially relates to the duties, functions or qualifications of that individual’s profession. This restriction may be imposed following a guilty plea, a “no contest” plea, a verdict in a jury trial or a trial by judge and make take effect as soon as the defendant’s timeframe for appealing his or her conviction has lapsed, once his or her conviction has been affirmed on appeal or when he or she is placed on probation. Some professional boards maintain private standards that are even more restrictive with respect to disciplining their license holders.

Restrictions on one’s professional license can have a devastating impact on one’s career, family and life. In order to best defend against such a restriction, it may be beneficial to hire a skilled attorney who can make a case against its applicability. An attorney has the resources and knowledge to defend against a prejudiced board that tries to impose a restriction on one’s professional license that is, simply put, illegal and sought out of a desire to inappropriately punish an otherwise competent professional. A lawyer would likely be able to prove that a conviction for an intimate partner abuse case such as making criminal threats is not substantially related to the qualifications, functions or duties of the license holder’s profession.

When arrested for making a criminal threat against an intimate partner, it is imperative that the accused immediately hires a criminal defense lawyer who is familiar with domestic violence crimes, their special issues and their potentially overwhelming consequences. The experienced attorneys at the Kavinoky Law Firm have successfully defended many individuals who were charged with criminal threats and, in turn, have helped them keep their careers, families and freedom.

Hearsay and 911 Calls in a Violation of a Protective Order Case

Hearsay and 911 calls can be entered as evidence in violation of protective order prosecutions and other California domestic violence offenses involving intimate partners. California law defines intimate partners as heterosexual and gay individuals who are married, divorced, living together, have children together, or who are currently or were formerly dating.

Protective orders include orders issued by the court that prohibit the offender from engaging in specific acts of abuse, re-entering his or her own home or even behaving in a specified way. Anyone who knowingly violates a protective order can be charged with a misdemeanor, which is punishable by a maximum penalty 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 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.

With these consequences, violating a court order is a serious accusation. That is why it is imperative for the accused to hire an attorney who is knowledgeable not only with respect to California domestic abuse crimes but with the types of evidentiary issues that frequently arise during these types of trials. The experienced criminal defense lawyers at The Kavinoky Law Firm have successfully defended countless individuals who were charged with violating a protective order issued to protect their intimate partners. The attorneys receive ongoing training and education about intimate partner abuse cases and the issues that commonly surround these types of cases. They know how to argue for admission or exclusion of hearsay and 911 evidence to provide the most effective defense for their clients.

“Hearsay” is a legal term that refers to statements that were made out of court that are later offered in court as evidence of their truth. Although hearsay evidence is generally inadmissible in criminal proceedings, there are exceptions to that rule, and intimate partner violence cases are one of those exceptions. Under California law, hearsay statements, including 911 telephone calls, are relevant in domestic abuse cases.

This exception admits into evidence statements made by the protected party at the time when he or she was experiencing or witnessing the violation that is the subject of the case. The rationale behind this exception is that the spontaneity of such statements and the lack of opportunity for reflection and deliberate fabrication provide an adequate guarantee of their trustworthiness. Clearly this isn’t the case in reality, as many 911 calls have been placed under false pretenses and based on underlying motives such as anger, revenge and jealousy.

Nonetheless, these statements are admissible into evidence and, in a vigorous effort to convict the defendant, the prosecutor will seek to have the investigating officer read the protected party’s statements to the jury and will also ask the judge to play the recorded 911 call for the jury. However, even the exceptions have exceptions, which is why it is so important to have professional legal representation that is familiar with this area of the law.

Because of the highly complex and technical rules (and exceptions to those rules) that come into play in a California intimate partner abuse case, having a skilled and qualified defense lawyer who knows how to exclude or downplay this type of evidence is critical. The attorneys at The Kavinoky Law Firm have both the knowledge and experience to aggressively tackle any issue that may arise in a violation of a protective order case. A knowledgeable defense lawyer can answer any questions about a California domestic violence charge during a free consultation.

 

The Definition of Domestic Battery

Domestic battery, is a California offense also known as “spousal abuse” or “spousal battery.” Under California law, battery is a domestic violence crime that applies to intimate partners. Intimate partners can be of opposite or the same genders, married, divorced, living together, have children in common, or be dating or formerly dating.

Battery is a “wobbler” offense, meaning that it can be charged either as a misdemeanor or a felony depending on the facts of the individual case. When charged as a misdemeanor, battery is punishable by a maximum one-year jail sentence and a $2,000 fine.

An individual can be charged with domestic battery even if he or she used only the slightest force. Any unwanted physical touching can result in a misdemeanor battery charge. However, if an individual suffers serious injury, such as broken bones, loss of consciousness or a concussion, the offense will likely be charged as a felony punishable by a maximum of four years in state prison.

Every crime has specific elements 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 “spousal battery”, the prosecutor must prove three elements.

The first element is that the accused used force or violence upon another. Note that this element doesn’t make any mention of injury. This is because a battery is simply any unwanted touching and has nothing to do with whether or not an injury was sustained by the offended party. The jury must only find that the defendant actually touched the accuser.

The second element is that the use of the force or violence was willful. “Willful” means that the individual had the willingness or desire to use force. Willingness has nothing to do with the amount of force used or the physical result of the force, it only deals with the willingness to simply do the act. In a situation where the accused willfully used the force in self-defense or in the defense of others, he or she is not guilty of a battery. It is the prosecutor’s burden to prove that the willful force was unlawful and not for self-defense or in the defense of others.

The final element that must be proved is that the accused and the accuser were intimate partners at the time of the alleged offense. This means that as long as the parties met the definition of “intimate partners” as defined above (which includes being married, divorced, separated, living together or formerly living together, having children in common, dating or formerly dating) at the time of the battery, the defendant may be convicted of this charge. It is important to remember that the definition of intimate partners includes heterosexual relationships as well as same-sex partnerships.

In a domestic abuse battery case where the victim suffered from serious bodily injury, there is an additional element that must be proved. The prosecutor must be able to show that the injury that the victim sustained was a result of the force or violence that was used by the accused. In other words, it must be proved that the injury wasn’t self-inflicted or caused as the result of an accident.

A California domestic battery accusation is a very serious matter. Facing a domestic violence charge can be devastating emotionally and financially, and 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.