What is a domestic violence offense?

The term “domestic violence” is a term of art, meaning that the legal meaning is different from what the term may mean to you. In the eyes of the law, domestic violence means there is a relationship between the person alleged to have committed the crime, and the alleged victim. That means that domestic violence is not a classifier of the type of crime that occurred, but only a designator of the relationship between the parties.

Who qualifies as a victim of domestic violence?

• a family member

• a person you live with

• an “intimate partner”, which may be any of the following:

• a current or former spouse or domestic partner

• someone you currently are, or were in a dating relationship with.

• someone that you have or had a child with

• someone you previously lived with

What types of offenses are considered domestic violence?

Domestic violence crimes are classified by the relationship, not by the type of offense. So, there are various types of crimes that can be considered domestic violence crimes. Some of these charges may sound surprising. For example, a vandalism charge may not sound like what you would expect in a domestic violence offense. However, if the offense is alleged to be committed against a spouse it can be charged that way; for example, damaging your partner’s property during an argument, can be considered a domestic violence offense.

Violating a Restraining order

Violation of a court order is usually a misdemeanor, but can be charged as a felony

Violating a Restraining Order in Washington State is a misdemeanor under RCW chapter PC 273.6. However, there are circumstances that can make this offense chargeable as a felony. An intentional and knowing violation of a restraining order is charged as a misdemeanor. However, it may be charged as a felony if it is your second violation and the violation involved an act of violence.

What it means to violate a court order

There are two types of restraining order :

• Civil, which are the result of a request by the victim at a civil hearing in which you can appear and dispute the issuing of the order

• Criminal, which are standard issue in criminal cases and can be issued even over the victim’s objections.

When the court issues a restraining order or other anti-harassment order it comes with set conditions of what type of contact is not allowed. When an order says no contact, it means no contact. Some court may provide exceptions (for example they may allow you to have contact with your spouse, but you may not discuss the case, harass, or harm them). Exceptions of contact that is allowed would be listed in the order itself. When a restraining order has been issued you cannot contact that party in person, through electronic means, or pass messages through a third party. The order can also restrict you from going to places such as the victim’s residence, place of work, or school. They also usually come with a distance provision of how far away from the victim you must stay - which means should you run into the protected party somewhere in public you are required to leave immediately.

What qualifies as stalking?

The offense of Stalking is defined under PC 646.9 as threatening, harassing, or following another person, to a point where that person fears for their safety.  Stalking can be charged based on contact that is in person, or electronic or telephonic means as well.

Behaviors that can lead to stalking charges are:

• following someone

• going to somebody’s home or place of work

• surveilling someone

• making repeated contact that is unwanted or uninvited

• repeated harassment

Is stalking a misdemeanor or a felony?

This charge is a “wobbler” that can be charged as a misdemeanor or a felony, depending on the severity of the allegations. The consequences for this charge can be more severe if it is also in violation of a restraining order; or if you have a history of these types of offenses. Stalking charges are also a potential strike offense.

What is an Aggravated Trespass?

Aggravated Trespass is defined under PC 601. An aggravated Trespass occurs after first making a Criminal threat, read more abour Criminal Threats here. PC 601 prohibits you from following up making a criminal threat with then entering someone’s home or place of work without permission to carry out the threat.  Because of the previous threat, these charges are considered more serious than a regular trespass charge.

Is an Aggravated Trespass a misdemeanor or a felony?

As a “wobbler”, this offense can be charged as either a misdemeanor or a felony. The more serious the conduct, the more likely it is to be charged as a felony.

How soon after the threat must the trespass occur to be an Aggravated Trespass?

Under PC 601, the trespass must occur within 30 days of the Criminal Threat being made to prove an Aggravated Trespass.

What qualifies as Criminal Threats?

Criminal Threats, as defined by PC 422, makes it is a crime to threaten someone with great bodily harm or death when those threats are either:

• intended to create fear,

• or actually do create a reasonable or sustained fear in that person.

What if I did not mean to carry out the threat?

Note that the statute does not require that you carry out the threat, or even intend to carry out the threat. If the above factors are met, then just the threat alone is sufficient to charge Criminal Threats. However, there are defenses to a Criminal Threats charge beyond just proving the above elements do not exist, for example if the threat was one that was vague, or a mere gesture then the argument can be made that the threat was never communicated.

Is Criminal Threats under PC 422 a misdemeanor or felony?

This charge is a “wobbler” meaning that it can be charged as a misdemeanor or a felony. Most seriously this charge is also a strike if you are convicted of it as a felony. If convicted of a strike offense in California, you will be eligible for less “good time” credit while serving your sentence. You also could be subject to life in prison upon conviction of a third strike.

What is Elder Abuse under the law?

The Elder Abuse statute, PC 368, makes it a crime in California to inflict physical abuse, emotional abuse, or neglect on someone who is older than 65.  This is an offense which is a wobbler, meaning it can be charged as a misdemeanor or a felony, depending upon the extent of the allegations. If the conduct was likely to produce great bodily injury or death, it may be charged as a felony. The crime of Elder Abuse can be proved by establishing the person acted willingly, or even just negligently.

Some examples of situations that could lead to these charges are:

• failing to provide care necessities to an elderly person you are caring for

• benefitting financially from an elderly person by fraudulent means

• physically abusing an elderly person

What are the potential punishments for elder abuse?

Jail or Prison Time

As a misdemeanor, Elder Abuse is punishable by up to one year of jail time; but as a felony it is potentially punishable by multiple years of prison time.

Mandatory Consequences of a Domestic Violence Conviction

As a crime of domestic violence, if convicted you would be subject to the mandatory conditions of a domestic violence offense. You can read more about those conditions here under “Mandatory consequences of Domestic violence convictions”. Those mandatory conditions include: community service, probation, fines, domestic violence classes, a protective order, and a loss of your firearms rights.

What qualifies as Child Abuse?

Child Abuse, under PC 273(d) is defined as willingly inflicting corporal injury or punishment on a child. Child Abuse is a “wobbler offense”, meaning that this offense can be charged as a felony or a misdemeanor, depending on the injury. If the injury is severe, it may be charged as a felony. Child Abuse charges typically stem from physical punishments on children.

What kinds of punishments are Child Abuse? Can I spank my child in California?

Child Abuse usually involves allegations serious physical punishment, for example:

• using an object to inflict punishment on a child

• hitting a child with a closed fist

• inflicting punishment to the point of causing an injury to the child.

• shaking a child

• throwing an object at a child

Reasonable spankings are excluded from being charged as this crime. A reasonable spanking is considered one that is both: for a disciplinary purpose, and is not excessive under the circumstances.

DOMESTIC VIOLENCE BATTERY CHARGES

Corporal Injury - PC 273.5 and Domestic Battery - PC 243(e)(1) are both crimes of domestic violence. For a detailed overview of what makes a charge a domestic violence charge, and what the consequences are, please read our article on them, here.

What makes these charges domestic violence?

Domestic violence only means that the alleged victim of the crime is in intimate partner - someone who you had a relationship with in the past or present, whether that relationship was one of dating, domestic partnership, marriage, someone you had a child with, or simply someone you lived with. Domestic violence is only a marker of that relationship, and not a description of the crime itself.

What is a battery?

Both Corporal Injury - PC 273.5 and Domestic Battery - PC 243(e)(1) involve the commission on a “battery”. In California, a battery is defined by PC 242 as a willful and unlawful use of force on another person. All of the elements must be proved to convict of a battery, which means it must be proved that the act was: willful, unlawful, and that force was used.

• Willful means it must be proved that the force was not a mere accident

• Unlawful means it was unconsented to, harmful, or offensive.

• The use of force required for a battery charge can be as small as a touch. It can also be accomplished by touching a person with an object, such as throwing an object.

What is a domestic violence offense?

The term “domestic violence” is a term of art, meaning that the legal meaning is different from what the term may mean to you. In the eyes of the law, domestic violence means there is a relationship between the person alleged to have committed the crime, and the alleged victim. That means that domestic violence is not a classifier of the type of crime that occurred, but only a designator of the relationship between the parties.

Who qualifies as a victim of domestic violence?

• a family member

• a person you live with

• an “intimate partner”, which may be any of the following:

• a current or former spouse or domestic partner

• someone you currently are, or were in a dating relationship with.

• someone that you have or had a child with

• someone you previously lived with

What types of offenses are considered domestic violence?

Domestic violence crimes are classified by the relationship, not by the type of offense. So, there are various types of crimes that can be considered domestic violence crimes. Some of these charges may sound surprising. For example, a vandalism charge may not sound like what you would expect in a domestic violence offense. However, if the offense is alleged to be committed against a spouse it can be charged that way; for example, damaging your partner’s property during an argument, can be considered a domestic violence offense.

California’s tier system

In 2021, California drastically changed the sex offender registry requirements and mandates. As of January of 2021, Senate Bill 384 replaced the old registry system and California became a tiered system. Under the tiered system, you may have to register as a sex offender for ten years, twenty, or a lifetime depending on the crime that you are convicted of.

Here are the details on each tier level:

Tier One

• This is a ten year registration requirement

• This tier is for people convicted of :

  • misdemeanor sex offenses; or

  • some felony sex offenses that are not serious or violent felonies.

Tier Two

• This is a twenty year registration

• This tier is for:

  • some felony sex offenses; or

  • a second conviction for some other sex offenses.

Tier Three

• This is a lifetime registration

• This tier is for all other registrable sex offenses that do not fall within tiers one and two.

What is the effect of an expungement?

Having your case expunged means that if someone were to pull your criminal history, where previously it would have listed the charge and next to it “guilty”, it will now say “dismissed”. When asked, you can lawfully say that your case was dismissed, because that is what an expungement does.

Here are some potential reasons people want their case expunged:

• If your case has been expunged, you would not have to disclose it to a potential employer

• An expungement can help in avoiding some negative immigration consequences that can come with a conviction

• Removing the conviction from your record can make you eligible to work in certain professions the conviction prohibited you from

What does a certificate of detention do?

What is a certificate of detention?

If no charges were filed with the court - then no records with the court exist. Therefore there is nothing within the court to seal or expunge. What does exist is a record of your arrest within the law enforcement system. A certificate of detention converts the arrest to only a detention in those records.

What is the value of having a certificate of detention?

While the word detention may sound similar to an arrest, there is an important legal distinction. Converting your arrest to a detention means that law enforcement is saying you were never arrested, merely detained. The effect of that means that if anyone were to ask you “have you ever been arrested?” for example in a job interview, legally you can truthfully answer “no”. Many people want the certificate of detention for that reason.

When do I need a sealing of my record?

Sealing is for a crime you were charged with, but not convicted of.

If your goal is to clean up your criminal record, the process you need depends on what happened in your case. You need a sealing if you were arrested for a crime, and charged in court, but not convicted. If you were charged as a juvenile, never charged with the crime, or you were convicted of the crime, then you will need a different process. Please review this article to understand what process you need.

Examples of situations where a sealing would apply are:

• Your case was dismissed before going to trial (under PC 851.8)

• You earned a dismissal by successful completion of a diversion program (under PC 851.87)

• You were acquitted following a trial (under PC 851.8)

• Your conviction was reversed on appeal

Automatic sealings vs. A sealing you must request

Will your record seal automatically or do you need to request a sealing?

Some juvenile records are sealed automatically. Your case would have been automatically sealed if it meets these requirements:

• The case was a non-serious offense under WIC 707(b) (go here to read a list of disqualifying offenses)

• You successfully completed probation

• The case was dismissed in juvenile court post January 1st of 2015

How can I get my record sealed if it was not automatic?

If your case did not qualify for an automatic sealing, you will need request a sealing of your record from the court, and this is best done with the help of an attorney who understands the process.

To qualify for a sealing you must meet the following requirements under WIC 781 :

• Either:

  • you are 18 or older (for a serious offense under WIC 707(b) you may need to be 21 years of age);

  • OR, the jurisdiction of the juvenile court has expired (usually 5 years)

• Either:

  • Your offense was not a sex offense under WIC 707(b) that was committed at 14 years or older;

  • OR if it was, you have completed probation, and have been released by the Department of Corrections if you were committed. Please note, if you were committed to the DOC, the will need to be 21 years or older.

  • You have not been convicted of a crime of moral turpitude (these are usually crimes of violence or dishonesty)

How can I clean up my criminal record?

There are many ways of cleaning up your criminal record, and the process that you will need depends upon what happened in the criminal case that you are looking to have removed from your record.

The process will differ depending on the following factors:

• whether you were an adult or juvenile

• whether you were arrested

• whether the case was charged

• whether you were convicted, or the case was dismissed

A jury trial is your right

One of the rights afforded to you under the Constitution is the right to a fair and speedy trial by a jury of your peers. Because this is your right, you and only you can decide whether or not you want to resolve your case by way of a jury trial. Your attorney is there to help advise you in making that decision, and of course to handle that trial for you as your counsel.

Should I take my case to trial?

This a complex question, and the answer to it completely depends upon the facts and evidence in your case, as well as the other options that are available to you; so there is no straightforward answer. To answer this question you will need an attorney who has reviewed all of the evidence to walk you through what that trial would look like. At Keith & Highland Law, we take pride in our years of jury trial experience. While we are happy to take a case to trial, we want you to assess all of your options before deciding to do so. We can help you understand what to expect from a trial, and the likely and possible outcomes of one; then we can compare that to the best possible options you have of resolving your case without a trial. That way, we can help you make the absolute best decision for you and your case.

What happens when you are convicted of a crime?

After a conviction, either by jury trial or plea, several things can happen:

• you may be placed on probation

• you may be sentenced to jail or prison

• you may enter into a formal or informal diversion.

• you may have to pay fines, fees, or restitution

• you may be required to perform community service

• you may be ordered to complete classes or treatment

• How much jail or prison time may I be looking at?

Jail time vs. Prison time

Jail and a prison are not the same. A jail is a smaller, local facility, only used to hold people who are sentenced to time that is under one year. Prisons are larger facilities that are intended to house people for stays longer than one year. Because they are long term, prisons have more amenities and resources available to inmates than jails do.

If I have been charged with a crime, what happens next?

Prepare for your court date

The first thing that will happen in your case is you will be given a court date. That date will be sooner if you are in custody, and a bit farther out if you are out of custody. You are entitled to an attorney for that court date, so it is best to start your search for an attorney in advance so that they can prepare for that date. A lot of people wait until last minute to start making calls because of the stress associated with doing so. The good news is that at Keith & Highland Law, we are used to working on short timelines. So we will still be able to help you even if your court date is quickly approaching. However, our clients tend to feel more at ease once they have us on board, because part of our job is to handle the stress of that court date for you. This may be new for you - but it’s not for us. We will walk you through your next steps and options and handle your court date for you.

What will happen at my first court date?

Your first court date is just one of many to come. The ultimate issues of your case - for example, what actually happened, or what the punishment should be, if any- will not be decided on that day. You do not need to present any evidence on that date. Your first court date is to take up initial important issues. Firstly, at that court date we would request the police reports so that we can review the evidence with you and make a gameplan. Secondly, we will take up conditions of your release with the court. That concerns whether you will be out of custody, or in custody while your case is pending, and what conditions you must follow. For more information on release conditions, read about them here under “after I get out of jail, what next?”

What you can do if you or a family member have been arrested

Once someone has been arrested and taken into custody there are three things that can happen next:

• they may be released on their own recognizance

• they may be held until they post an amount of bail

• they may be held without the possibility of bail

Immediate steps that can be taken to get someone out of custody

After an arrest, the person who has been arrested must be put before the court within 48 hours for their first appearance. At the first appearance one of the issues that will be addressed is whether or not that person can be released, or whether there will be bail imposed and if so - how much?

In making this determination the court will consider whether the person is a risk of flight, and whether there is a risk to the community if they are released. The court will also consider the allegations being made, and the person’s criminal history in making those determinations. You are entitled to have an attorney at this hearing so that we can make the arguments to get you or your loved one out of custody while the case is pending.

What does it mean if police want to speak with me?

If you are asking this question, then you likely are concerned that you have been accused of, or have done something that could have criminal implications. If police are looking to speak with you, that means they are conducting an investigation. If you have done anything, or have been accused of anything that could be a crime - it is safe to assume that you are subject to the investigation. If this is the case, it is time to consult with an attorney before moving any further. Even if you are innocent, you may be subject to an investigation and could unknowingly give information that could be used against you.