Domestic Violence: When Does Violence Become “Domestic Violence”

Domestic Violence Attorney in Orange County

 

The California Penal law makes it a crime to commit an
assault on anyone. Any Orange
County criminal defense lawyer will tell you that an assault is an unlawful
attempt, coupled with a present ability, to commit a violent injury on the
person of another. (California Penal Code Section 240) So, when someone tries,
whether successfully or unsuccessfully, to harm another, they commit an
assault. A battery is any willful and unlawful use of force or violence upon
the person of another. (CPC 242) So a battery is essentially a successful
assault. Someone who commits a battery almost always also commits an assault.
Thus the charges of “assault and battery”. A battery can be charged as a felony
or a misdemeanor. Moreover, Penal Code Section 422 makes it a crime to threaten
to harm another person, even if they don’t intend to actually carry out the
threat. A criminal
threat can also be a felony or a misdemeanor.

So if we have all these laws criminalizing violent behavior,
when does violent behavior become “domestic violence” and what are the
consequences does the distinction of “domestic violence” bear. To determine
whether violent conduct is domestic violence, Irvine domestic
violence lawyers turn to California Penal Code Section 16490. That section
says that domestic violence means abuse perpetrated against any of the
following persons:

 

1)     
A spouse of former spouse of the defendant.

2)     
A person the defendant is presently living with, or who
they have lived with in the past.

3)     
A person the defendant is or has dated or a person the
defendant is or has been engaged to.

4)     
A person with whom the defendant has had a child with.

5)     
A child of the defendant, of a former or present spouse,
of a person defendant lives with or has lived with, of a person the defendant
is dating or has dated, or has been engaged to.

6)     
Any person related to the defendant by blood within the
second degree.

If a crime of violence, abuse or neglect is perpetrated against
any of the above victims, then the crime becomes “domestic violence” under the
penal laws of California. In this case, the defendant needs to be represented
by a Mission Viejo
domestic violence lawyer. Domestic violence sentencing laws have harsher
penalties where the crime is classified as domestic violence. Moreover,
conditions of probation, if probation is granted, will contain mandatory
provisions requiring the defendant to attend a “domestic batterer’s treatment
program” which is 52 weeks in length.

Of course, Newport Beach domestic
violence lawyers know that in order to elevate a crime to a domestic
violence offense, the district attorney needs to prove that the victim falls
into one of the categories above. For example, in order to prove that the
defendant and the victim were living together, the DA must prove that there was
a “substantial relationship” manifested by permanence and sexual intimacy.
People v. Belton 168 Cal.App.4^th 432. So the fact that two people
are living together is NOT enough, by itself, to elevate a crime to domestic
violence.

If you face charges for domestic battery, criminal threats,
inflicting Corporal
Injury, or any other domestic violence offense, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an
experienced Orange
County Domestic Violence Lawyer. You can also visit us online at www.ejesquire.com. We have offices at 1901
Newport Blvd., Suite 350, Costa Mesa, CA 92627 and at 32072 Camino Capistrano,
2^nd floor, San Juan Capistrano, CA 92675.