Before becoming a criminal defense attorney and family lawyer Attorney Michaels was a front line Prosecutor in Los Angeles during the mid 1990s when the entire landscape around criminal and civil domestic violence changed. The death of Nicole Brown Simpson brought to the forefront the under prosecution of domestic violence and related crimes between spouses and laws were literally re-written overnight and Prosecutors were re-tasked with taking extreme levels of aggression in prosecuting these cases to the point where government lawyers were many times forced to arrest their own victims to come to court in search of convictions.
This dynamic has not changed much since then and Domestic Violence related crimes receive higher levels of scrutiny and punishment. Our restraining order cases often come tangled with criminal liability or the threat of criminal liability which makes our firm stand out from the pack who are mostly family lawyers and who have little to no understanding of or training in the criminal courts.
You could be facing both a restraining order and a criminal case and the interplay between the two can be tricky and an inexperienced lawyer could walk you into even more trouble then you were in before when your case was just a restraining order. Misdemeanor charges for Domestic Violence, Battery, Terrorist Threats and other charges come out of these same fact patterns. Similarly its important your lawyer know and understand the severe criminal consequences of receiving one of these orders which can involve years of jail. When the facts don't bode well for our client many times we will try to negotiate their way out of the order, often with success.
Similarly victims of spousal violence may also be a witness in a pending or active criminal case in which they may be working with law enforcement and the DA and we have been very successful in putting our old prosecutorial hat on to help police and prosecutors to build a better case and have often been successful in helping victims who are not being adequately assisted by the system to get criminal charges filed where none had been before. We do this with great satisfaction when the allegations are righteous and the extra benefit of having your own "private prosecutor" can go a long way to help you or your family member get justice in their criminal matter.
This seems a good place to talk about one other form of Protective Order not previously mentioned. The Emergency Protective Order of (EPO) is a very short term order that is largely a tool of law enforcement which can be and are often issued in conjunction with the arrest of someone charged with a violent domestic crime. They are very short term sometimes as little as ten days and meant to provide a brief window for a victim to seek the help of a Restraining Order lawyer who can quickly apply for a an emergency Civil Temporary Restraining Order. Many times these will overlap.
The most common charge coming out of civil restraining order can be found in Penal Code Section 273.6
California Penal Code section 273.6 makes it illegal to violate a protective order, including a domestic violence restraining order, elder abuse restraining order, workplace violence restraining order, or civil harassment restraining order. Violation of this section is a misdemeanor offense.
Under California Penal Code section 273.6, a person can violate a protective order in several ways, including:
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Contacting or attempting to contact the protected person: This includes contacting the protected person directly or indirectly, such as through a third party or social media.
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Coming within a certain distance of the protected person: This includes coming within a certain distance of the protected person's home, workplace, school, or other locations.
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Engaging in any other behavior prohibited by the protective order: This can include behaviors such as stalking, harassing, or threatening the protected person.
To be convicted of violating California Penal Code section 273.6, the prosecution must prove that the defendant knew about the protective order and intentionally violated its terms. The penalties for violating this section can include up to one year in county jail, a fine of up to $1,000, or both. Repeat offenders or those with prior convictions for domestic violence or related offenses may face harsher penalties.
In California, battery is a criminal offense that involves the intentional and unlawful use of force or violence on another person. Specifically, battery is defined under California Penal Code Section 242 as "any willful and unlawful use of force or violence upon the person of another."
To be charged with battery in California, the prosecution must prove that the accused person willfully touched another person in a harmful or offensive manner. The harm can be physical, such as hitting or pushing, or it can be offensive, such as spitting or throwing something at the victim.
Battery can be charged as a misdemeanor or a felony depending on the severity of the harm caused to the victim. If the battery causes serious bodily injury, permanent disability, or disfigurement, it is considered a felony and can result in a prison sentence.
It's important to note that the victim of a battery does not need to sustain any physical injury in order for the accused person to be charged with the crime. The mere act of touching someone in a harmful or offensive way can constitute battery under California law.
Prosecutors can also look to Penal Code Section 166 commonly known as contempt.
In California, to prove criminal contempt of court, the prosecutor must show that the defendant willfully violated a court order in a way that obstructed the administration of justice or disrespected the authority of the court. The prosecutor must also prove that the defendant had the ability to comply with the court order and that the defendant was given notice of the court order.
To be found guilty of criminal contempt of court, the prosecutor must prove the following elements:
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The court issued a valid and lawful order: The order must be legally binding, clear, and specific.
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The defendant had notice of the court order: The defendant must have been properly notified of the order and had a chance to comply with it.
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The defendant willfully violated the court order: The violation must have been intentional and not due to mistake or misunderstanding.
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The defendant had the ability to comply with the court order: The defendant must have had the ability to comply with the order and chose not to do so.
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The violation obstructed the administration of justice or disrespected the authority of the court: The violation must have harmed the administration of justice or disrespected the authority of the court.
If the prosecutor can prove all of these elements beyond a reasonable doubt, the defendant may be found guilty of criminal contempt of court. The penalties for criminal contempt of court can include fines, imprisonment, or both. The specific penalties will depend on the circumstances of the case, including the severity of the violation and the defendant's prior criminal record.
In California, to find someone guilty of criminal domestic violence, the prosecutor must prove beyond a reasonable doubt that the defendant committed a criminal act of violence against an intimate partner or family member. The Domestic Violence Criminal Statute is found at Penal Code Section 273.5
The specific steps to find someone guilty of criminal domestic violence in California are as follows:
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Establish the relationship: The prosecutor must show that the victim and defendant have an intimate relationship, such as a current or former spouse, dating relationship, or family member.
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Prove the act of violence: The prosecutor must prove that the defendant committed an act of violence against the victim. Acts of violence can include physical assault, sexual assault, stalking, or other abusive behaviors.
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Show the act of violence was willful: The prosecutor must prove that the defendant acted willfully, meaning that the act of violence was intentional and not accidental.
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Prove the act of violence caused injury or harm: The prosecutor must show that the act of violence caused injury or harm to the victim. This can include physical injuries, emotional harm, or other damages.
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Demonstrate that the act of violence was not in self-defense: The prosecutor must prove that the act of violence was not done in self-defense or to protect the defendant from harm.
If the prosecutor can prove all of these elements beyond a reasonable doubt, the defendant may be found guilty of criminal domestic violence. The penalties for criminal domestic violence in California can include fines, imprisonment, probation, counseling, and a protective order. The specific penalties will depend on the severity of the offense, the defendant's prior criminal history, and other factors.
While there are certainly other charges we see in combination with restraining order cases this is by no means a complete list.
In California, the criminal statute for elder abuse is Penal Code section 368. This statute defines elder abuse as the physical, emotional, or financial abuse, neglect, or abandonment of a person age 65 or older, or a dependent adult age 18 to 64 who has certain mental or physical disabilities that prevent them from providing for their own care or protection.
Penal Code section 368 sets forth a range of criminal offenses related to elder abuse, including:
- Felony elder abuse: Willfully causing or permitting an elder or dependent adult to suffer, resulting in death or great bodily injury, or inflicting unjustifiable physical pain or mental suffering on an elder or dependent adult. This offense is punishable by up to four years in prison.
- Misdemeanor elder abuse: Willfully causing or permitting an elder or dependent adult to suffer, resulting in physical harm or pain or mental suffering. This offense is punishable by up to one year in jail and/or a fine of up to $6,000.
- Financial elder abuse: Theft or embezzlement of an elder or dependent adult's property, or any other conduct resulting in the loss of the elder or dependent adult's property by fraud or undue influence. This offense can be charged as either a misdemeanor or a felony, depending on the value of the property stolen, and is punishable by up to four years in prison.
In addition to these criminal penalties, the court may also order an abuser to pay restitution to the victim, and may impose additional penalties if the victim is particularly vulnerable due to age or disability.
There is a criminal statute in California for harassment. Harassment is a criminal offense that is defined under Penal Code section 646.9.
Under this statute, harassment is defined as a knowing and willful course of conduct directed at a specific person that would cause a reasonable person to suffer substantial emotional distress and that actually causes the person to suffer such distress.
Examples of conduct that may constitute harassment under this statute include repeatedly following someone, making harassing phone calls, sending harassing messages or emails, or engaging in other behaviors that are intended to intimidate, annoy, or alarm someone.
Harassment can be charged as either a misdemeanor or a felony, depending on the severity of the conduct and whether the defendant has any prior convictions for harassment or other crimes. A misdemeanor conviction for harassment can result in up to one year in county jail and/or a fine of up to $1,000, while a felony conviction can result in up to three years in state prison.
It's important to note that there are also civil remedies available for victims of harassment, including obtaining a restraining order or filing a lawsuit for damages.
California has several criminal statutes that address stalking, including:
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Penal Code section 646.9: This statute defines criminal stalking as a willful and repeated course of conduct directed at a specific person that would cause a reasonable person to feel fearful or harassed. The conduct must actually cause the person to feel fearful or harassed, and it must serve no legitimate purpose. Criminal stalking can be charged as either a misdemeanor or a felony, and penalties can include up to one year in jail or up to five years in prison.
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Penal Code section 1708.7: This statute prohibits stalking through the use of electronic devices or the internet. It applies to conduct such as cyberstalking, or using social media or other online platforms to harass or intimidate someone. Like Penal Code section 646.9, this offense can be charged as either a misdemeanor or a felony, and penalties can include up to one year in jail or up to five years in prison.
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Civil Harassment Restraining Orders: Victims of stalking can also seek a civil harassment restraining order under California Code of Civil Procedure section 527.6. This is a court order that prohibits the stalker from contacting or coming near the victim, and can include other provisions as well, such as orders to stay away from the victim's home or workplace.
It's important to note that stalking is a serious crime in California, and victims should take steps to protect themselves and report any incidents to law enforcement. If you or someone you know is being stalked, you should contact your local law enforcement agency or seek the assistance of a qualified attorney.
In California, making a terrorist threat is a criminal offense that involves threatening to commit a violent act that is intended to intimidate or coerce the government or a civilian population. Specifically, the law is defined under California Penal Code Section 422 as "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."
The law includes a broad range of threats that are intended to terrorize, such as threatening to bomb a school or public building, to shoot up a place of worship, or to harm a group of people based on their race, religion, or other characteristics.
Making a terrorist threat is a felony offense in California, and the penalties can include a significant prison sentence and hefty fines. The punishment can also include a strike under California's Three Strikes Law, which means that if a person is convicted of a second serious or violent felony, they will face mandatory life imprisonment.
It's important to note that the intent to carry out the threat is not necessary for a person to be charged with making a terrorist threat. As long as the prosecution can prove that the threat was made with the specific intent to terrorize or intimidate, the person can be found guilty of the offense.
In California, witness intimidation is a criminal offense that involves attempting to influence or prevent the testimony of a witness in a legal proceeding. Specifically, the law is defined under California Penal Code Section 136.1, which makes it a crime to knowingly and maliciously attempt to prevent or dissuade any witness or victim from attending or testifying in any legal proceeding.
Examples of witness intimidation include threatening a witness with physical harm or violence, offering bribes to prevent the witness from testifying, or destroying evidence that might incriminate the accused.
Witness intimidation can be charged as either a misdemeanor or a felony depending on the circumstances of the offense. If the intimidation involves a threat of harm or violence, it is considered a felony offense and can result in significant prison time and fines.
It's important to note that the offense of witness intimidation is taken very seriously in California, and the prosecution may use a variety of tactics to prove that the accused person attempted to intimidate or prevent a witness from testifying. This can include testimony from the witness themselves, as well as other evidence such as recordings, text messages, or social media posts that demonstrate an intent to intimidate or dissuade a witness.
In California, mandatory minimum sentences for domestic violence are imposed under the state's Domestic Violence Sentencing Enhancements law, which requires judges to impose additional penalties on defendants convicted of domestic violence offenses.
Under this law, if a person is convicted of a misdemeanor domestic violence offense in California, the court must impose a minimum sentence of 30 days in jail. If the person has a prior domestic violence conviction within the previous seven years, the mandatory minimum sentence increases to 45 days in jail.
For felony domestic violence offenses, the law requires a mandatory minimum sentence of two, three, or four years in state prison, depending on the severity of the offense and the defendant's criminal history.
It's important to note that mandatory minimum sentences are the minimum penalties that a defendant must face, and judges have the discretion to impose longer sentences based on the specific circumstances of the case. In addition, California law allows for alternative sentencing options, such as probation or community service, in some cases.
It's also important to note that domestic violence offenses can have long-lasting consequences beyond the criminal penalties imposed by the court. For example, a conviction for domestic violence can result in the loss of a person's right to own firearms, affect their immigration status, and impact their ability to find employment or housing in the future.
If you have been charged with domestic violence in California, it's important to consult with an attorney who can help you understand the potential penalties you may face and develop a strong defense strategy to protect your rights and freedom.
Fact patterns that lead to the imposition of restraining orders often have criminal implications. While the above list is not complete it represents a fair amount of the cross over criminal theories often seen in cases that also may give rise to restraining orders.