How A Domestic Violence Mitigation Packet Helps You
A mitigation packet consists of documentation that puts an individual in a positive light in the eyes of the beholder or in this case the prosecutor who is issuing the domestic violence case in the family protection unit in San Diego. Often times it is difficult for the prosecutor to get an idea of who they are prosecuting based on the police reports they review before issuing the case. As a criminal defense attorney practicing in San Diego and seeing a lot of clients cases get dismissed, we believe the most important part of the criminal stage in getting the case dismissed is the filing of the mitigation packet with the district attorney's office or city attorneys office. These cases can either be filed as a felony or a misdemeanor. The idea is to get the charges reduced or dismissed at an early stage by making sure the mitigation outweighs the reasons to prosecute in the instant case. If there are serious injuries and the prosecutor is debating on filing as a felony and mitigation packet can help get the formal charges reduced to a misdemeanor and misdemeanor conduct can even be dismissed outright based on the mitigation packet submitted. The idea of the mitigation packet is to put someone on a pedestal amongst all the thousands of defendants that they are reviewing cases on a daily basis.
The following consists a mitigation packet for a domestic violence case in San Diego:
- Supporting documentation for Resume
- Employment certificates and achievements (to show prosecutor consequences will have devastating affects to individuals with good jobs)
- Academic certificates and achievements (to show prosecutor will lose scholarships or further education and employment opportunities in the future)
- Character Letters from people in the community that know defendant for a long time (Letters from friends and family to support the character of the person is important to understand how others feel about issues surrounding the case)
- Non-profit volunteer work (shows the prosecutor defendant is actively engaged and is a productive member of the community)
- Any rehabilitation completed on own accord (this does not admit guilt just shows that defendant can rehabilitate himself without the involvement of the court which consists of counseling or anger management classes)
- Any medical history documentation or psychological evaluation (to show defendant is not a violent person or issues regarding certain health concerns the prosecutor should take into consideration before filing any charges)
We often are able to get cases dismissed or reduced based on the information provided above. This must be done early on in the case when the issuing attorneys at the prosecutors office is reviewing the case. We submit the mitigation packets to the prosecutors in the family protection unit that we have built close relationships with over the years.
Imagine police knocking at your door saying that they are there for a welfare safety check and storm into your home without a warrant and take you into custody for domestic violence! This happens every single day in San Diego County. The policy for San Diego law enforcement is that if a domestic call is made to 911, then they have to arrest someone regardless if there is any visible injuries or incriminating statements made against you. The main reason is that there was a 911 call made and that alone can be used as evidence against you in a Domestic Violence case.
Domestic Violence in San Diego
This offense occurs under PC 273.5 when one partner tries to maintain control of the other partner by using physical force, intimidation, and threats. The abuse can be physical, sexual, emotional, or verbal.
Domestic violence is not only harmful to the person being abused, but is also harmful to those who know of the abuse. For example, a husband who physically beats his wife is not only hurting his wife, but is also harming the kids who have to witness the beatings. In addition, this could mean more charges could be filed such as child endangerment.
Using Your Family Against You in a DV Case
It is not uncommon for the prosecutor to attempt to use your family against you in order to get a conviction. Often times this happens when a subpoena is served on behalf of family members mandating them to be at court and produce certain information at a hearing against you. If you hire an experienced criminal defense attorney, the best advice to prevent any harassment to your family would be to have all of them be represented by an attorney of their choice. There is a civil code section 1219 that prevents sanctions against victims in criminal cases when a judge orders them in contempt of court for not following a subpoena. This is something you may want to discuss further with your attorney.
Understanding Penal Code Section 273.5
In consideration of the seriousness of domestic abuse, California has criminalized it under Penal Code section 273.5. Under this law, “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 or by both that fine and imprisonment.”
Domestic Violence: Prosecution's Burden of Proof
- The defendant willfully and unlawfully inflicted bodily injury upon:
a. a current or former spouse,
b. a current or former cohabitant, or
c. the mother or father of the defendant’s child,
2. The injury resulted in a traumatic condition.
A traumatic condition can be described as simple as offense touching or as serious as great bodily injury. This really makes the difference of how a prosecutor chooses to file the case against you. Most of the time when the issuing attorney at the District Attorney’s Office looks at the police reports they will review the 911 calls, witness statements, and any pictures of injuries collected at the scene. The pictures are what will make or break a case for the prosecutor. Most of the time they are looking for injuries that can be substantiated by an expert medical opinion. Depending on the seriousness of the injuries it will make the difference between filing the case as a misdemeanor or felony.
Domestic Violence Can Be Filed as a Felony or Misdemeanor
Infliction of a corporal injury on a cohabitant or a spouse is a wobbler. A wobbler is a charge that can be filed as either a misdemeanor or a felony. The prosecutor chooses. Prosecutors tend to decide this based on the facts surrounding the specific offense, which means the pictures of injuries that is direct evidence against you that cannot be refuted easily by the defense. Also, if injuries are minor and there is prior criminal history or prior bad acts it will give the prosecutor discretion to increase the severity of the charge.
Evidence Used Against You in a Domestic Violence Trial
In most Domestic Violence cases in San Diego, the victims in the case end up recanting their original statements made to the police officers at the time of arrest. The only way the prosecution will have a better chance at winning at trial without the victim is through the pictures and prior criminal acts. Also, it is impossible to suppress the 911 call made at the time that it was recorded because it was made during an ongoing emergency. No hearsay rule will keep these 911 calls out at trial because they are non-testimonial. The court looks at 911 calls as present sense impressions that were made at a time while the domestic violence was occurring. This can be strong evidence against you depending on what was said on that call and if your voice can be heard in the background.
Evidence Code 1108 and 1109: Prior Bad Act Evidence and Prior Convictions
Every domestic violence case considers all prior bad act evidence and prior convictions.If your spouse has ever called the police before, but you were never charged, this is prior bad act evidence. If you were charged within the past 10 years and were convicted of a violent act, then that conviction will be used against you. Most of the time prior acts of violence are sufficient impeachment evidence to show that you are in fact an aggressive person.
What to Expect at the First Court Appearance for a DV Charge
The court tends to act as a mediator while the case in ongoing. After the court has set the bond amount and you plead not guilty to the charges, the judge will give you and your attorney an opportunity to argue for a no negative contact order or a full protective order.
No Negative Contact Order vs. Criminal Protective Order
The main difference between a no negative contact order and a full criminal protective order is that the former allows you to still be around your spouse during the duration of the case. A full protective order prevents you from coming into contact with your spouse within a certain amount of feet or else you are looking at additional charges for violating this order. Also, full protective orders and no negative contact orders can be modified at any time.
Usually, if the evidence is strong against you it is in your best interest to start doing anger management classes or parenting classes to get the court to minimize the restrictions. Also, a mitigation packet including all the things that show you are a productive member of society helps in arguing for a no negative contact order as well. A full criminal protective order is a way to separate families for long periods of time. They are similar to Temporary Restraining Orders in the civil courts.
Protective Orders: An Attempt to Gain Advantage in Divorce Proceedings
Often times family law cases play a huge role in criminal domestic violence cases. This is what drives the agenda of the criminal courts. The burden of proof in a family law case is lower compared to the burden in the criminal courts. However, if a judge makes an order against you in a criminal court it is likely that the judge in the family law court will follow that same order.
More often than not, these domestic violence cases are frivolous in nature but are brought due to some child custody dispute, visitation issues, spousal support.
If you find yourself in a situation facing criminal domestic violence charges that stems from a dispute arising at home, contact an experienced attorney that handles hundreds of these cases and knows the best way to maneuver the judicial process.
Penalties for Domestic Violence
Misdemeanor Domestic Violence
If a person is convicted of misdemeanor domestic violence under PC section 273.5, he or she will face any of the following:
- A minimum 3 years of informal or “summary” probation,
- Up to a 1 year sentence to county jail
- Up to $6,000.00 in fines
- Payments to a battered women’s shelter not to exceed $5,000.00 and/or reimbursement to the alleged victim for any medical and/or counseling services he/she reasonably incurred as a result of the offense,
- A protective order that protects the alleged victim from further acts of violence, threats, sexual abuse, stalking, harassment, and possibly a residence exclusion and/or stay-away conditions,
- A restraining order that prohibits you from having any contact with the alleged victim for up to ten years,
- Notice to the victim of disposition of the case,
- Successful completion of at least a year’s worth of batterer’s classes that meet for at least two hours on a weekly basis,
- Any other type of counseling services that the court determines might be beneficial.
Felony Domestic Violence
If a person is convicted of felony domestic violence under PC section 273.5, he or she will face any of all of the following:
- Formal probation,
- Up to 2, 3, or 4 years in California State Prison,
- An additional and consecutive 3, 4, or 5 year prison sentence if the alleged victim or anyone other than the convicted person sustained a “great bodily injury”,
- A possible “strike” on the convicted person’s record under California's Three Strikes Law, and
- All of the probation requirements listed above under the misdemeanor penalty section.
There are different variations of domestic violence classes and if you find yourself looking at serious domestic violence charges, then contact an attorney that will tell you what needs to be done to prevent you from getting a serious punishment in your case. In every case you should always be looking for the best possible outcome and that is getting the case either reduced or dismissed.
Even if the domestic violence charge is a felony, the court may be willing to reduce the charge from a felony to a misdemeanor as long as you get your attorney to file a 17(b) motion with the court. The court may also grant an early termination of probation under 1203.3 if the convicted person complies with all the terms and conditions of probation for the first year or two.
If you do not think the criminal charges are strong and the evidence is weak against you then the best approach would be to start preparing for trial early in your case. This means getting your attorney to get an investigator to interview your spouse after the incident to draft a report in regards to any statements that is incorrect in the police report and pictures of yourself immediately after if it is a self-defense claim.
Contact San Diego Domestic Violence Attorney Vik Monder for a FREE consultation today at: 619-405-0063
Q: What are the elements for domestic violence?
A: Domestic Violence under California Penal Code section 273.5 is the:
- infliction of corporal injury
- upon a person who is a current or former partner
- resulting in a traumatic condition
Q: What is a wobbler?
A: A wobbler is an offense that can be filed as either a misdemeanor or a felony. The severity of the charge will depend on the prosecution. The prosecutor makes this determination based on the specific facts of the offense and the criminal history of the defendant.
Q: Is the infliction of a corporal injury on a partner a wobbler?
A: Yes, the infliction of a corporal injury on a cohabitant or a spouse is a wobbler offense in California. This means that the prosecution will have the choice to file it as either a misdemeanor or a felony. In a domestic violence case, the prosecutor will look at your criminal history, any prior bad acts and any photographs of the alleged victim’s injuries to decide the severity of the charges against you.
Q: Can I still be charged if the victim recants the statement?
A: Yes, the prosecution does not necessarily require the alleged victim to prosecute you for domestic violence. In fact, it is quite common for victims of domestic violence cases to recant the statements made to law enforcement at the time of the arrest. When this occurs, the prosecution relies on the other evidence that law enforcement collected during the investigation that followed the arrest. This evidence is made up of statements by third party witnesses, pictures taken at the scene of the incident, images of the victim’s injuries, and pictures of you and any marks you might have. A lot of times they are looking for injuries that can be substantiated by an expert medical opinion. This evidence in addition to any prior bad acts or criminal history you might have will be used by the prosecutor to file charges against you.
Q: What if I was acting in self-defense?
A: If you are being charged with domestic violence and you were acting in self-defense, you cannot be convicted in California. Your legal defense is that you only committed violence in order to protect yourself. For a successful self-defense claim you must have reasonably believed that you were in imminent danger and needed to use force to prevent the danger from happening. It is important however, that you only used the force that was necessary to prevent the danger from happening.
Q: What must the prosecution prove for domestic violence?
A: The prosecution has the burden of proving beyond a reasonable doubt that you willfully inflicted bodily injury upon a current or former spouse, fiancée, cohabitant or the mother or father of your child and that the injury resulted in a traumatic condition.
Q: Will my prior bad acts be considered in a domestic violence case?
A: Yes, all prior bad acts will be considered by the prosecution against you in a domestic violence case. Bad act evidence consists of any prior incidents or reports of violence made against you, even if they did not result in charges being filed. However, if charges were filed and you were convicted of a violent act within ten years of your new domestic violence charge, the prosecution will be allowed to use that conviction against you.
Q: Is there any way I suppress the 911 calls?
A: No, you will not be able to suppress the 911 calls at trial. The evidentiary rules of hearsay will not exclude the 911 calls because they are considered non-testimonial. Since the recording was made during an ongoing emergency, the court allows 911 calls to come in as present sense impressions. It is important that you understand that the statements made to the 911 operator and anything heard in the background will come into evidence.
Q: What can I expect at my arraignment?
A: During your arraignment, you will hear the formal charges the prosecution has filed against you. You will be asked to enter a plea, you must make sure to plead not guilty until your attorney has had an opportunity review all the evidence against you. At this time, the court will set the bond amount and conditions for you to post bail. For domestic violence cases, the court also has discretion to issue a criminal protective order to protect the alleged victim from you. The court will make the determination whether to order a full protective order, a no negative contact order or no order at all. It is important to note that these orders can be modified by the court at any time.
Q: What is full protective order?
A: A full protective order is a restraining order issued by the court to prohibit you from having any contact with the alleged victim. This means that you are not allowed to talk, text, email, or come within a certain number of feet from the alleged victim. A full protective order may be in effect for up to ten years. Any violation of a full protective order will result in additional charges being filed against you.
Q: What is a no negative contact order?
A: A no negative contact order is less severe because it allows you to still be around the alleged victim during the duration of your case. A no negative contact order simply requires you not to have any negative contact with the alleged victim. In effect, it protects the alleged victim from further acts of violence, sexual abuse, threats, stalking, and harassment. Any violation of a no negative contact order will result in the court issuing a full protective order.
Q: How can a mitigation packet help my case?
A: A mitigation packet is your opportunity to inform the prosecutor who will be issuing the domestic violence case in the family protection unit of the positive characteristics and personal circumstances in your life. Our firm’s legal analyst will look thru your family and social history to put together documentation that puts you in the best position to mitigate. Our attorney will then draft a letter explaining how this mitigation evidence outweighs the reasons to prosecute in your case and file it with the City or District Attorney’s Office. In our firm’s vast experience, a mitigation packet is crucial to your defense because it can get a felony charge reduced to a misdemeanor or get misdemeanor conduct to be dismissed outright at the early stages of your case.
Q: Can the prosecution use my own family against me in a domestic violence case?
A: Yes, domestic violence cases are known for having the prosecutors turn family members against each other in order to obtain a conviction. This occurs by having a subpoena served on your family members ordering them to show up at your court hearing as a witness for the government. By harassing your family with threats of being held in contempt of court, the government is able to get them to testify against you in court.
Q: How can I protect my family from the prosecution in a domestic violence case?
A: The best way to prevent the harassment of your family by the prosecution is to have your family members hire an experienced criminal defense attorney to represent their own interests in your criminal case. As the alleged victim in the case, your family member is protected by California Civil Code section 1219. This law prevents sanctions against victims in criminal cases when the judge orders them in contempt of court for not following the subpoena.
Q: What penalties am I looking at if convicted of misdemeanor domestic violence?
A: A misdemeanor domestic violence conviction in California can result in a fine of up to $6,000 and/ or up to one year in county jail, a minimum of three years of summary probation, one year of batterer’s classes and payments to a battered women’s shelter not to exceed $5,000.
Q: What penalties am I looking at if convicted of felony domestic violence?
A: A felony domestic violence conviction in California can result in a fine of up to $6,000 and/or up to two, three or four years in California state prison, formal probation, a possible strike on your record, one year of batterer’s classes and payments to a battered women’s shelter not to exceed $5,000.
Q: Will I lose my right bear firearms if convicted of domestic violence?
A: Yes, whether you receive a misdemeanor or felony conviction for domestic violence, you will not be allowed to own, have in your possession, under your custody or control any firearm for 10 years from the date of your conviction pursuant to California Penal Code section 29805.
Q: Are there going to immigration consequences if I am convicted of domestic violence?
A: Yes, in addition to the criminal penalties under the California Penal Code, if you are not a U.S. citizen you may be and you are convicted for domestic violence, you may be rendered inadmissible. Inadmissibility means that you will not be eligible for permanent residency, citizenship or be allowed to re-enter the U.S. For immigration purposes, crimes of domestic violence include domestic violence, stalking, violating a protective order, and crimes against minors.
Q: What is a crime of moral turpitude?
A: Crimes of moral turpitude are offenses that the federal government considers to go against our society’s standards of morality. For immigration purposes, the willful infliction of an injury sufficient to cause traumatic condition upon a person who is in a relationship of trust with the defendant is considered a crime of moral turpitude.
Q: What is an aggravated felony?
A: Aggravated felonies are offenses that the federal government considers to be crimes of violence. For immigration purposes, if you are facing felony domestic violence charges and are sentenced to a term of imprisonment of at least one year, it may be considered an aggravated felony subjecting you to removal or deportation proceedings.