Domestic Violence (DV) Cases:
When the arrested person makes his or her first court appearance at the arraignment, most judges will issue a restraining order preventing the arrested person from going back home. This can create havoc with the children and totally disrupt the family dynamics.
One of the major things attorneys at the Ace Law Firm try to accomplish is to convince the judge to let the arrested person return home (assuming the other person wants him or her back). We are very successful in getting the restraining order modified so that the arrested person can go back home and we get what is called a “no negative contact” order which simply means the arrested person cannot again commit any act of violence against the other party.
How much jail time for domestic violence? Depending upon the circumstances of your incident, you could be charged with different degree of offenses. Judges typically require that you serve a minimum of 30 days for a misdemeanor domestic violence conviction, however this is “typical”, and not set in stone. Some judges may allow you to serve probation if this is your first offense, or if the victim’s injuries are not significant. A felony conviction can carry up to four years in custody.
What Is Domestic Violence?
Domestic violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.
The domestic violence laws say “abuse” is:
Physically hurting or trying to hurt someone, intentionally or recklessly;
Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.
The physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of the family pets.
Also, keep in mind that the abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused. Read more about domestic violence and abuse. If you live in a tribal community in California and are experiencing domestic violence, click to get more information.
If you are being abused in any of these ways or you feel afraid or controlled by your partner or someone you are close with, it may help you to talk to a domestic violence counselor, even if you do not want (or are not sure if you want) to ask for legal protection. Find domestic violence resources in your county.
Read about domestic violence laws starting with California Family Code section 6203. You can find criminal domestic violence laws in the California Penal Code, like Penal Code section 273.5, Penal Code section 243(e)(1), and others.
Domestic Violence Restraining Orders
A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone they have a close relationship with
If you are not sure what kind of restraining order you should get, talk to a a lawyer at The Ace Law Firm.
What a restraining order CAN do
A restraining order is a court order. It can order the restrained person to:
Not contact or go near you, your children, other relatives, or others who live with you;
Stay away from your home, work, or your children’s schools;
Move out of your house (even if you live together);
Not have a gun;
Follow child custody and visitation orders;
Pay child support;
Pay spousal or partner support (if you are married or domestic partners);
Stay away from any of your pets;
Transfer the rights to a cell phone number and account to the protected person (read more);
Pay certain bills;
Not make any changes to insurance policies;
Not incur large expenses or do anything significant to affect your or the other person's property if you are married or domestic partners;
Release or return certain property; and
Complete a 52-week batterer intervention program.
Once the court issues (makes) a restraining order, the order is entered into a statewide computer system (called CLETS) that all law enforcement officers have access to. And your restraining order works anywhere in the United States. If you move out of California, contact your new local police so they will know about your orders.
If you move to California with a restraining order from another state, or if you have a restraining order issued by a tribal court (in California or elsewhere in the U.S.), your restraining order will be valid anywhere in California and the police will enforce it. If you want your restraining order to be entered into California’s statewide domestic violence computer system, you can register your order with the court. Fill out and take an Order to Register Out-of-State or Tribal Court Protective/Restraining Order (CLETS) (Form DV-600) to your local court. Take a certified copy of your order with you. But keep in mind that you are not required to register your out-of-state or tribal court restraining order. A valid order is enforceable even if you do not register it.
What a restraining order CANNOT do
A restraining order cannot:
End your marriage or domestic partnership. It is NOT a divorce.
Establish parentage (paternity) of your children with the restrained person (if you are not married to, or in a domestic partnership with, him or her) UNLESS you and the restrained person agree to parentage of your child or children and agree to the court entering a judgment about parentage. Read and use Agreement and Judgment of Parentage (Form DV-180) to do this.
Read the section Divorce and Legal Separation for information on getting divorced or legally separated.
Read the section Parentage for information on parentage (paternity) when the parents of a child are not married and are not domestic partners.
Effect of a restraining order on the restrained person
For the person to be restrained, the consequences of having a court order against him or her can be very severe.
He or she will not be able to go to certain places or to do certain things.
He or she might have to move out of his or her home.
It may affect his or her ability to see his or her children.
He or she will generally not be able to own a gun. (He or she will have to turn in, sell or store any firearms he or she has, and will not be able to buy a gun while the restraining order is in effect.)
The restraining order may affect his or her immigration status. If you are worried about this, talk to an immigration lawyer to find out if you will be affected.
If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both.
Types of Domestic Violence Restraining Orders
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So, a police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night.
The emergency protective order starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim and any children for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.
To get an order that lasts longer than an EPO, you must ask the court for a temporary restraining order (also called a “TRO”).
Temporary Restraining Order (TRO)
When you go to court to ask for a domestic violence restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order. Temporary restraining orders usually last between 20 and 25 days, until the court hearing date.
“Permanent” Restraining Order
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years.
At the end of those 3 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.
Criminal Protective Order or “Stay-Away” Order
Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.
If a restraining order has been placed against you read, http://www.courts.ca.gov/documents/CPO2.pdf
Domestic Violence Prevention Programs: https://www.cdph.ca.gov/HealthInfo/injviosaf/Documents/Los%20Angeles.pdf
The term “sex crimes” encompasses everything from misdemeanors like a violation of California Penal Code Section 314 (Indecent Exposure) or Penal Code Section 647.6 (Annoy or Molest a Child Under 18), to felonies that are categorized as “serious and violent,” like Penal Code Section 261 (Rape). There are few things in our society that carry such a badge of shame as being charged with a sex crime. The only thing worse is being convicted of a sex crime.
A sex crime conviction almost always results in having to register as a sex offender every year for the rest of your life. If that happens, you will have to walk into a police station to register as a sex offender within five days of your birthday every year and for the rest of your life. And that will be the least of your worries.
Your ability to work and live in most decent neighborhoods will be just about over. It gets worse from there. Most felony sex crimes carry very long prison sentences, and some of them carry life sentences. And what is worse than all of this, is that if you plead guilty or a jury convicts you of a sex crime and you are sentenced to prison, you will be a pariah in prison, a target for other inmates. That is the unvarnished truth.
Sex crime accusations often come from very unreliable sources or from persons that have an agenda. Nothing brings out accusations and allegations of a sex crime like divorce, child custody disputes, or when a man simply breaks up with his girlfriend. Unfortunately, the criminal justice system is full of falsely accused men that were set up by people they once loved and trusted. These cases often lack physical evidence and overzealous prosecutors rely solely on circumstantial evidence. Yet defendants frequently plead guilty or are convicted at trial because their lawyer lacked the proper expertise.
One of the most serious crimes is rape. Rape involves sex through the use of force or fear, coercion and/or violence. The most common sex crimes include rape either by force or coercion, marital rape, statutory rape (rape of an under age person), child molestation, prostitution, sexual assault, lewd conduct, indecent exposure, pimping and pandering and some Internet crimes involving pornography. Sex crimes may be either a misdemeanor or a felony.
Prosecutors and judges take sex crimes very seriously and one of the consequences of a conviction is mandatory reporting, pursuant to Megan’s Law. Since the passage of Megan’s Law, the District Attorney’s Office has set up specific units to prosecute these crimes. Law enforcement agencies have established specific units to vigorously investigate and prosecute these individuals. Added resources have been allocated to assist law enforcement in their investigations. In addition to the consequences imposed by the Court, a person convicted of a sex crime risks loosing his or her job and peer friendships. Due to Megan’s Law and mandatory reporting, the person’s home residence will be placed on the Internet for anyone to look up.
Anyone facing charges or being investigated for a sex crime should hire an experienced lawyer immediately. A lawyer with experience in defending sex crimes cases will have your best interest. If you or a loved one has been charged with a sex crime, then you need to know that a conviction of any sex crime can have profound and serious effects on someone’s life and reputation. The person may be imprisoned if convicted of certain sex crimes, and in many cases, the person will need to register as a sex offender for the rest of his or her life. Other penalties a person faces for being convicted of a sex crime include imprisonment in jail or prison, probation or parole, lifetime registration as a sex offender, a criminal conviction on his or her record for life, counseling, fines, as well as victim restitution, which may be significant.
Some of the most common examples of sex crimes include:
Statutory rape is defined as sexual intercourse by a person older then 18 with a female or male who is below the legal age of 18 years old but older then a child (usually 14 years old). Even if the underage person voluntarily and with full consent and knowledge has sexual intercourse with an adult, a crime has still occurred. The prosecution can charge a person with this crime, even if the underage person refuses to cooperate with the government. If the adult is a teacher or a priest, then there can be enhanced penalties.
Prostitution, pandering or pimping and solicitation - Penal Code 647(b) PC are considered sex crimes that may be filed as either felonies or misdemeanors in the State of California. Prostitution is defined as when one person receives payment in money or anything else of value for any sexual act, including sexual intercourse. Pimping is defined as any person soliciting acts of prostitution or pandering on behalf of another.
Lewd conduct - Penal Code 647(a) PC covers a wide range of offenses; most have to do with sexual activity in public. These acts include receiving or giving oral sex in public, exposure of genitals in public and public masturbation. Most often, police target public rest rooms and beaches. In fact, many times the undercover officer is the only other person in the restroom at the time the act is committed. The result is two conflicting statements, one by the officer and the other by the person charged with the offense. A solid defense is crucial to a successful resolution to these charges. Often, the officer will have been accused in the past of either “planting evidence” or falsifying reports. A good defense attorney will investigate those accusations and attempt to show that the current crimes did not occur or that a defendant has been overcharged.
All lewd conduct charges are misdemeanors, meaning that a maximum sentence is one year in prison. In some cases, the prosecution may require that the person register as a sex offender. This label would last a lifetime.
There are two types of lewd conduct offenses: engaging in lewd conduct and soliciting another to engage in lewd conduct.
If a person is charged with engaging in lewd conduct, the prosecution must prove that the person willfully engaged, while in a public place, in touching their, or another person’s, genitals, buttocks or female breast with the intent to sexually arouse or gratify themselves or another person, or for the purpose to annoy or offend another person. There must be another person in the public place who might be offended by the conduct. Finally, the prosecutor must prove that at the time the person committed the conduct, the person knew or should have known that someone might be offended by the conduct.
In order for the prosecution to prove a crime of soliciting lewd conduct, they must prove that the person charged with the crime must have requested that another person, who is in a public place, engage in the touching of genitals, buttocks or female breast. Further, the prosecution must prove that the person charged intended that the offending conduct occur in a public place and that the act was done intentionally to gratify themselves or another person, and that a third person who is present might have been offended by the conduct.
The following are California laws associated with committing a lewd act:
California Penal Code Section 288 PC states that any individual who knowingly commits a lewd act on a child for the purpose of sexual arousal is in violation of the law and is guilty of a felony. The penalty is a prison sentence of 3, 6 or 8 years.
California Penal Code Section 314 PC states that if an individual knowingly exposes his or her genitals or breasts in public, offending others, he or she has violated the law and will be punished accordingly. This crime is a misdemeanor and is punishable by up to one year in custody.
California Penal Code Section 289(a)(1) PC states that if a person uses a verbal threat or harms another person to make them have sexual intercourse, and the victim does not consent to the sex has violated this section of the penal code. The typical punishment for this crime is a prison term of up to 8 years. In California, the penalty for a sex crime conviction is very harsh and consists of a prison term and registration as a sex offender. The penalty is a prison sentence of 3, 6 or 8 years.
California Penal Code Section 261(a)(1) PC states that if a person has sexual intercourse with a person they are not married to, and the victim is not able to give consent because they have a mental disease or a developmental or physical disability and knew, or should have known, of the condition. The penalty is a prison sentence of 3, 6 or 8 years.
California Penal Code Section 261.5(c) PC states that if a person who engages in sexual intercourse with a minor who is three years younger then them has violated the law, and will face either a misdemeanor or felony charge depending upon the specifics of the situation. If the penalty may include up to one year in jail and the person could have to register as a sexual offender.
California Penal Code Section 266(e) PC states that any person who trades money or valuables in exchange for sexual services has violated the law and is guilty of a felony.
California Penal Code Section 653.22(a) PC states that it is illegal for a person to loiter in a public area with the purpose of prostitution. This crime is a misdemeanor punishable for up to one year in prison.
California Penal Code Section 653.23(a) (2) PC states that it is illegal for someone to knowingly accept money that was earned from prostitution. The crime is a misdemeanor.
Date Rape is forcible sexual intercourse by a male acquaintance of a woman, during a voluntary social engagement in which the woman did not intend to submit to the sexual advances and resisted. The fact that the engagement was voluntary and the parties were acquainted is not a defense to this type of charge. This may include the use of “date rape” type drugs, which make the victim unable to either consent or object to the sexual conduct.
Rape is the act of using violence, threats, malice fear tactics, and/or force to have sexual intercourse with an unwilling participant. Sexual intercourse with a person, who is intoxicated, unconscious or asleep, and therefore unable to resist, is also rape. This also includes the use of date rape drugs.
There are many times when completely innocent people are wrongly accused or charged of a sex crime. Sometimes being in the wrong place at the wrong time has resulted in the arrests of many innocent people. A more controversial situation in which people are arrested for lewd conduct or prostitution-related crimes is called a “sting operation.”