Violating Restraining Order – Penal Code 273.6

Criminal Protective Orders – Penal Code 136.2

When there is a domestic violence arrest, the arresting office may issue an Emergency Protective Order (EPO) that is good for 5 days.  Thereafter, the alleged victim may apply for a civil domestic violence order.  During the Defendant’s arraignment, the criminal restraining order will also be issued.  This restraining order may be a complete stay away or a peaceful contact restraining order depending on the circumstances.  The victim will be allowed to record the defendant and the order will also contain stay away orders with respect to the minor children.  The defendant all of a sudden is placed in a situation that prevents him or her from having access to the primary residence, no contact with the children, and no communication with the alleged victim.  Any communication will result in a violation of the criminal restraining order and additional charges will be filed. If the defendant owns a fire arm, they also need to relinquish the fire arm until the criminal case is resolved in his or her favor.  Referenced below are some of the most common domestic violence accusations that trigger a criminal protective order.

Applicable Code Sections for Domestic Violence

The District Attorney’s office and the Los Angeles City Attorney’s office routinely file domestic violence charges against individuals who confront domestic alteration with their significant other. There are several defenses in a domestic violence case. Self-defense, defense of others, accident, false accusation, exaggeration, or leverage in child custody matters are just some of the defenses to the following domestic violence charges:

California Penal Code Section 136.1 – Intimidation of a Victim and Witnesses

Penal Code Section 136.1 makes it a crime to attempt to intimidate a victim or a witness from testifying against a defendant in a criminal case. In a domestic violence case, a defendant may be subjected to additional charges if he or she knowingly and maliciously prevents or dissuades a victim from testifying against the defendant. Intimidation of a witness or a victim is punishable as a misdemeanor or a felony. Where the act of intimidation of a victim or a witness is accompanied by force or violence, the crime is punishable as a felony in state prison for two, three, or four years.

California Penal Code Section 240 – Assault

Penal Code Section 240 defines an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Assault is often times categorized as a missed battery. The prosecution has the burden to prove beyond a reasonable doubt that the Defendant engaged in a volitional act with the intent and the present ability to commit a harmful injury upon another person. Penal Code Section 241 makes the crime of assault in California punishable by a fine and/or imprisonment in the county jail. Assault on a peace officer enhances the fine and the jail time. Assault may be filed as a separate and independent count in a domestic violence case.

California Penal Code Section 242 – Battery

Penal Code Section 242 defines battery as any willful and unlawful use of force or violence upon the person of another. When the Defendant is charged with simple battery, the prosecution has the burden to prove that the defendant willfully and unlawfully touched the victim in a harmful or offensive manner and the defendant did not act in self-defense or in defense of someone else. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. The touching can be done indirectly by causing an object or someone else to touch the other person. It is no defense to this crime that the defendant was responding to a provocative act that was not a threat or an attempt to inflict physical injury. Words alone, no matter how offensive or exasperating, are not an excuse for this crime.

California Penal Code Section 243(e)(1) – Domestic Battery Against a Spouse or Cohabitant

Penal Code 243(e)(1) is the most common misdemeanor filed in California for domestic violence committed against a spouse, a cohabitant, a parent of the defendant’s child, former spouse, fiancé, or fiancee, or a person with whom the defendant currently has or previously had a dating or intimate relationship. The prosecution will evaluate the circumstances of the case in determining whether to file the case under this code section as a misdemeanor or a felony domestic violence code section. Usually, the filing deputy will evaluate the totality of circumstances, including but not limited to, prior criminal history of the defendant, injuries of the victim, prior bad acts, defendant’s injuries, intoxication, weapons, defendant’s size and weight, and victim’s size and weight.

California Penal Code Section 273a – Child Endangerment

Penal Code 273a makes it unlawfully for the defendant who responsible for the care or custody of a child to suffer harm. Child endangerment may be filed as a misdemeanor or a felony.

California Penal Code Section 273d – Child Abuse

Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine.

California Penal Code Section 273.5 – Abuse of Spouse, Cohabitant, Other Parent of Child

According to Penal Code Section 273.5, any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

California Penal Code Section 422 – Criminal Threats (formerly “Terrorists Threats”)

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

California Penal Code Section 591.5 – Destroying Cellular Phone or Telephone

A defendant who willfully and maliciously removes, injuries, destroys or damages any wireless communication with the intent to prevent the victim from summoning assistance or notification of law enforcement is guilty of a misdemeanor. Penal Code section 591.5 is commonly filed as an additional count in domestic violence cases involving destruction of the victim’s cellular phone (i.e. Defendant gets so mad he breaks the phone in anger, but does not intend to restrict the victim’s access to communication.

Contact a Los Angeles criminal lawyer from Arthur Khachatourians at 828-590-8294 for a domestic violence defense.