In almost every case, where someone calls 911 to report a domestic violence incident someone is going to go to jail. It doesn’t matter if the person that called doesn’t want the person arrested, it doesn’t matter if there are no injuries or other corroborating evidence, it doesn’t matter if it was self-defense or you were trying to protect the person from harming themselves or driving drunk. Once the police arrive they make a determination who they think the aggressor was and make an arrest based on that analysis.
If the victim requests, an Emergency Protective Order (EPO) will be served on you by a police officer at the time of arrest. The judge will issue the EPO if there are reasonable grounds to believe that there is an immediate and present danger of abuse and the EPO is necessary to prevent the recurrence of abuse (Fam C §6251; Pen C §646.91). An EPO may include personal conduct restraints, residence exclusion, and stay away orders (Fam C §§6218, 6252). An EPO is effective for 5 judicial business days after its issuance or 7 calendar days maximum after its issuance if a weekend or holiday falls within the time period (Fam C §§6256).
After your arrest, 1 of 3 things can happen: (1) you post bail or are OR released with a promise to appear for a later arraignment date, (2) you stay in jail until your first court date, or (3) you are released at your first court date if the prosecutor has decided not to file charges against you.
After the police arrest you, they write a report. This report summarizes the events leading up to the arrest and provides witnesses’ names and other relevant information. Defendants generally don’t have a right to get a copy of the arrest report, but their lawyers do. This is to protect the identity of witnesses.
In almost all first-time domestic violence cases, the complaining witness doesn’t want charges filed. Unfortunately, once the case gets sent to the prosecutor for review it is out of the complaining witness’s hands. Although the prosecutor will take into consideration whether the victim wants to pursue the case, the charging decision is still made based on the facts of the case and not the request of the parties. Prosecutors are trained to recognize “battered woman syndrome” so the prosecutor always expects the victim to not want to file charges against the abuser.
Once the prosecutor receives the police reports, they first decide if they are going to file charges and second what charges to file. The prosecutor decides whether to charge the crime as a felony or a misdemeanor. The prosecutor can file charges on all of the crimes for which the police arrested you on or can decide to file fewer charges or more charges than were included in the arrest report. Important factors relevant in the charging decision include extent of physical injuries, nature of threats, and prior criminal or domestic violence history.
Because defendants have a right to a speedy trial, the prosecutor must file charges within 48 hours of arrest when the defendant is in custody. Weekends, court holidays, and mandatory court closure days do not count against the 48 hours. If you are released from jail, the prosecutor has up to 1 year to file charges against you on a misdemeanor DV charge.
The arraignment is the first time you appear in court. In a domestic violence case, you must personally appear in court even in misdemeanor cases. At the arraignment, the judge tells you the charges you are facing, advises you about your constitutional rights, and appoints the public defender if you can’t afford an attorney. The court also reviews bail and release conditions and decides if a protective order should be issued.
At the arraignment, you will typically enter a plea of guilty, not guilty or no contest. Guilty means you admit you committed the crime and the judge enters a conviction in the court record. Not Guilty means you deny committing the crime. Even if you did commit the crime, you enter a not-guilty plea at the beginning of the case to allow your attorney to negotiate with the prosecutor and judge for a better resolution to your case. No Contest means you do not contest the charges against you. A no-contest plea has the same effect as a guilty plea, except the conviction cannot be used against you in a civil lawsuit.
In some cases, the prosecutor may ask for an increase in bail at the arraignment especially in cases where there are significant injuries, the defendant has DV priors, or the victim fears the defendant. If you are not prepared for the bail motion, you will be taken into custody in court. The court may also impose bail release terms and/or “Supervised Release” while your case is pending. Supervised release requires you to report to probation to be monitored during the pendency of your case.
In all DV cases, the prosecutor will ask for a criminal protective order (CPO) to be put in place to protect the victim or witnesses from harm or intimidation (Pen C §136.2). In almost all cases, the judge will order the CPO to be issued and served on the defendant in court. The CPO includes personal conduct restraints, stay away orders, and firearm prohibitions. During the term of the protective order the defendant cannot own, possess, purchase or receive any firearms (Pen C §12021(g)). The CPO remains in effect until the defendant is no longer subject to the court’s jurisdiction. The only way not to have a CPO issued is to have the victim appear in court and tell the judge they do not want the protective order to issue. Even if the judge agrees, a judge may still issue a no harassment order which means the defendant is ordered not to harass, strike, or annoy the victim.
After the arraignment, there are several pre-trial settlement conferences where the judge and lawyers from both sides talk about resolving the case prior to trial. During this time, the prosecution and defense exchange information which is called discovery. This includes any investigative statements obtained by the defense from the victim or other witnesses which might get the case dismissed. Either side can file pre-trial motions including motions to set aside the complaint, to dismiss the case, or to prevent evidence from being used at trial. If a settlement is reached the defendant can change his or her plea to guilty or no contest. If no settlement is reached, a trial date is set.
After the arraignment, there may be several pre-preliminary hearing settlement conferences where the judge and lawyers from both sides talk about resolving the case prior to a preliminary hearing. If the case does not settle or get dismissed, a preliminary hearing also called a “probable cause” hearing is held. At the preliminary hearing, the prosecutor has the burden of showing through witness testimony that there is evidence that the defendant committed each of the crimes charged in the complaint. Witnesses include the police who investigated and sometimes the victim who made the initial report. After the hearing, the judge decides if there is enough evidence that the defendant may have committed each of the charged crimes and that a trial should take place where the jury decides. If the judge decides there is not enough evidence, the judge can dismiss some or all of the charges. If the judge decides that there is enough evidence for a trial, the judge will hold the defendant to answer the charges. The prosecutor will then file an “Information” with the court and the defendant will be arraigned, a second time, on the charges in the “Information.” After arraignment on the “Information,” the defendant will enter a not-guilty plea and a trial date will be set.
Before trial, there are several pre-trial settlement conferences where the judge and lawyers from both sides talk about resolving the case prior to trial. During this time, the prosecution and defense exchange information which is called discovery. This includes any investigative statements obtained by the defense from the victim or other witnesses which might get the case dismissed. Either side can file pre-trial motions, including motions to set aside the information, to dismiss the case, or to prevent evidence from being used at trial. If a settlement is reached, the defendant can change his or her plea to guilty or no contest. If no settlement is reached, trial is confirmed.
Defendants in criminal cases have the right to have a jury decide their guilt or innocence. Everyone accused of a crime is presumed to be innocent until they are convicted. It is the prosecutor who has to convince the jury that the defendant is guilty and must provide proof of guilt beyond a reasonable doubt. Since the burden of proof is on the prosecutor, the defendant has the right to remain silent and that silence cannot be used against them.
In a misdemeanor case an in-custody defendant must be brought to trial within 30 days of arraignment or plea, whichever is later. If the defendant is out of custody, the trial must start within 45 days of arraignment or plea, whichever is later. In a felony case, the prosecutor must file the Information within 15 days of the date the defendant was “held to answer” at the preliminary hearing. The trial must start within 60 days of the arraignment on the Information.
The defendant can “waive” the right to a speedy trial. This means the defendant agrees to have the trial after the required deadline. But even if the defendant waives time, the law says the trial must start within 10 days after the trial date is set. It is important for defendants to get advice from an attorney before they agree to waive time.
Before the trial starts, the lawyers choose a jury through a process called “voir dire.” The attorneys on both sides ask questions of the potential jurors to make sure the jurors will be fair and impartial. Before the lawyer’s present evidence and witnesses, both sides give an opening statement about the case. During the trial, lawyers present evidence through witnesses who testify about what they saw or know. After all the evidence is presented, the lawyers give their closing arguments. At the end of the case, the jury decides if the defendant is guilty or not guilty. The jury must find the defendant guilty beyond a reasonable doubt.
If the jury finds the defendant not guilty, it is called an “acquittal” and the defendant will be released. Because of “double jeopardy,” the defendant can never be tried again for the same crime. A finding of not guilty is not the same as a finding of innocence. It simply means that the jury was not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show on the defendant’s record, along with the acquittal. If the defendant is found guilty, the defendant will be sentenced.
Whether you plead guilty, enter a no contest plea or are convicted at trial, at some point in time you will be sentenced in your DV case. You must be present at your sentencing even in misdemeanor cases because the court is going to order specific probation terms applicable to DV cases including a mandatory batter’s treatment program, gun prohibition, and issuance of a criminal protective order.
Every county handles domestic violence sentences differently. Some counties don’t allow alternative sentencing for DV cases while others allow alternative sentencing. If the county allows you to complete your sentence through alternative sentencing, you can complete it by doing work furlough, community service, medical home detention or work project. If the county doesn’t allow alternative sentencing, you must do your time in jail.
In many counties, you will be placed on informal probation for a misdemeanor DV conviction. However, in some counties, you will be placed on formal misdemeanor probation on DV offenses because of the mandatory probation conditions. All felony DV cases are formal probation. The difference is that on informal probation you do not have a probation officer while on formal probation you must report to a probation officer who will supervise you. Formal probation can include regular drug/alcohol testing, probation searches, and regular contact with your probation officer.
If a person is granted probation for a domestic violence crime, the terms of probation are found in penal code section 1203.097 and include:
The program shall immediately report any violation of the terms of the protective order, including any new acts of violence or failure to comply with the program requirements, to the court, the prosecutor, and, if formal probation has been ordered, to the probation department. The probationer shall file proof of enrollment in a batterer’s program with the court within 30 days of conviction.
Requires defendants convicted of domestic violence offenses, to provide proof that they sold or transferred their firearms within specified timeframes after conviction. It also requires assigned probation officers and courts to verify that the defendant complied with this requirement before final disposition of the defendant’s case and authorizes the court to issue search warrants to recover illegally retained firearms from defendants who fail to comply.
You will be in violation of probation if you fail to comply with the court ordered probation terms including failing to enroll/complete domestic violence classes, complete community service requirements, appear in court when ordered, or completing your jail sentence. If probation is violated, the judge will issue a bench warrant which will be sent to law enforcement. You will then be arrested and brought back to court to answer for the violation of probation.
Violating DV probation results in additional punishment. This could include actual jail time instead of alternative sentencing, a longer sentence for the VOP that is added to your original sentence, extending your probation term, moving from informal probation to formal probation, and adding additional terms like treatment or community service.
You can expect to pay fines and fees if you are convicted of a DV charge. Most courts will allow you to make payments. If you fail to make payments, you will be referred to collections. If you are referred to collections, your license will be suspended for failing to make payments and you will not be able to get your license reinstated until you pay off the amount you owe. You may also have your probation violated for not making payments. In some jurisdictions, you may be able to convert your fines/fees to alternative sentencing which can save you a lot of money.
Even if you are convicted, all is not lost because you can still get your case expunged. All misdemeanors and most felonies can be expunged. An expungement allows you to lawfully answer that you have never been convicted of a crime. To be eligible, you must have successfully completed probation, paid all your fines and fees, and completed the terms of your probation. It is important that you present the best case to the judge hearing your request for a dismissal to give yourself the best opportunity to get the dismissal you deserve. When you hire our law firm we will help you with your expungement when you become eligible so that your criminal record and history are as clean as possible moving forward in life.
We have successfully represented many individuals accused of domestic violence charges. Even in tough cases, we are almost always able to get a better resolution in a case then if you handled it yourself, had the public defender, or other private attorney. Our experienced and aggressive negotiating efforts usually result in dismissed or reduced charges and lesser punishment including less jail days, shorter classes, and smaller fines. Call out office today at (916) 939-3900 for a free consultation.
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