California Criminal Defense Blog

You violate Penal Code 422 PC California’s criminal threats law anytime you threaten to kill or physically harm another person when (1) your threat is specific and unequivocal, (2) you communicate that threat to the intended recipient verbally, in writing, via an electronic device or through a third person, and (3) the intended recipient reasonably fears your threat.

And because domestic violence often involves highly-charged, emotional outbursts, people who are involved in domestic disputes are frequently charged not only with acts of violence but with violating Penal Code 422 PC California’s criminal threats law as well.

In the heat of the moment, couples (or better yet, ex-couples) will threaten things they don’t mean. Unfortunately, that doesn’t matter when it comes to criminal threats. It’s the alleged victim’s reaction that controls this crime…not your intent. Even if you have no intention of carrying out your threat, you could still be convicted of this offense if the alleged victim reasonably fears that you can and will execute the threat. This also means that someone can falsely accuse you of making criminal threats…a very serious charge…with absolutely no proof.

So as difficult as it may be, if you know that you tend to have a temper with your significant other…or ex-significant other…be mindful of your words. They can get you in every bit as much…and oftentimes more…trouble than even using physical force.

Playboy playmate, Shauna Sand, and her husband, Laurent Homburger, were both arrested last night on suspicion of domestic violence. The two reportedly got into a heated argument after Sand told Homburger that she wanted a divorce. As the argument escalated, Sand locked herself in the bedroom. When Homburger kicked in the door, Sand sprayed him with pepper spray.

When the Beverly Hills police arrived, both were arrested – Sand on felony domestic violence charges based on the visible marks she left on Homburger, and Homburger for spousal battery and making criminal threats.

Many people incorrectly believe that it is only men who can be arrested for domestic violence. Clearly, this isn’t the case. While it’s true that most allegations of domestic violence are directed at men, women are just as likely to lash out at their partners. And when…in a case such as this…both parties report abuse, both the man and woman would likely be arrested. Once the prosecuting agency receives the case, it will consider the circumstances to decide who to file charges against, if against anyone at all.

When there are no witnesses to a domestic dispute, it may be difficult for the prosecution to prove the case. “He-said, she-said” allegations without more are a nightmare for the prosecutor. And in this type of situation, if charges are filed, they will likely be reduced to misdemeanors.

Michael Lohan may be the next member of the Lohan clan to face time behind bars. He was arrested in West Hollywood last night in connection with an alleged domestic violence incident.

Among the possible charges he faces is California Penal Code 273.5 (infliction of corporal injury on a cohabitant). Section 273.5 is a “wobbler,” which means it can be charged as either a misdemeanor or felony, depending on the circumstances and criminal history of the defendant.

As part of a Section 273.5 case, prosecutors must show the victim suffered a “traumatic condition” – a visible injury such as a broken nose, a concussion or even a bruise.

Penalties for corporal injury on a cohabitant can be stiff, including prison time (in the case of a felony), but there are defenses to the charge. Defenses include accident, self-defense and false accusations.

As prosecutors decide whether to file a criminal complaint against Mr. Lohan, his celebrity daughter, Lindsay, mulls over a plea deal in her grand theft case. The agreement in that case would include up to 90 days in county jail.

California’s laws against domestic violence are serious and comprehensive. But a conviction doesn’t just subject you to fines, community service and/or therapy, and potential incarceration. Because California defines domestic violence as a crime of moral turpitude (CIMT), a conviction actually exposes you to much more severe penalties.

A crime of moral turpitude (CIMT) is one that involves either (1) dishonesty or fraud, or (2) reprehensible, anti-social behavior that harms or corrupts other people. California courts have held that domestic violence falls into this second category.

As a result of being declared a crime of moral turpitude, a domestic violence conviction subjects you to

• impeachment,
• discipline by your employer (if you are a California state employee),
• discipline by the state if you hold a California professional license, and/or
• deportation (whether you are an illegal alien or even a lawful permanent resident).

And again, these penalties are all in addition to the criminal penalties that you necessarily face by being convicted of domestic violence. If you find yourself susceptible to this type of abusive behavior, it is in everyone’s best interest to seek help. Treatment can not only save a life, a marriage, or a relationship, but it can save you from the devastating consequences that are imposed in connection with crimes of moral turpitude.

The Orange County District Attorney’s Office announced last week that they were rejecting domestic violence charges that were brought against Tito Ortiz – the boyfriend of former porn star Jenna Jameson. Initially Jameson reported that Ortiz had “attacked her” but then later took back the allegations. The D.A.’s office couldn’t corroborate the charges, which is why they rejected the case.

If the D.A.’s office had filed charges…and subsequently obtained a conviction…Ortiz would have faced a jail or prison sentence, substantial fines, probation, counseling, a protective order instructing him to stay away from Jameson and, perhaps a less publicized penalty, the loss of his California and federal gun rights.

People convicted of felony domestic violence charges lose their California and federal gun rights for life. People convicted of misdemeanor crimes of domestic violence lose their California gun rights for ten years. But because a federal restriction imposes a lifetime firearms ban on these convictions, that ten-year ban is essentially moot, as federal laws trump conflicting state laws.

Contrary to popular belief, it is the prosecutor, not the victim who determines whether to file or drop California domestic violence charges. Many California prosecuting agencies go so far as to subscribe to a “no drop” policy. This means that even if the victim doesn’t want to “press charges”, the prosecutor will not “drop” the case.

There are two main reasons why prosecutors follow this protocol. The first is purely political. Due in large part to the O.J. Simpson murders trial, this state has vowed to take an aggressive stance on domestic violence charges.

The second has to do with a common phenomenon known as the recanting victim. “Recanting victims” are alleged victims of domestic abuse who change their stories once charges are officially filed.

The fact is that many victims initiate false spousal abuse charges and then decide they want to come clean. Unfortunately, by then it’s too late. Prosecutors and the “no drop” policy oftentimes proceed on the incorrect assumption that the original report is true and that the victim is only changing her mind because (1) she is scared of the abuse she will face after testifying, and/or (2) she doesn’t want to lose her financial support.

Because of this policy, it is a good idea for all parties involved in a domestic abuse case to consult with a skilled California domestic violence lawyer who knows the most effective ways to reconcile spousal battery cases before they get out of hand.

While celebrity stalking seems all the rage, it actually only comprises a small fraction of all California stalking charges. In fact, most California stalking charges involve domestic violence…that is, instances of stalking that involve intimate partners. “Intimate partners” include those who are or were:

1. Married


2. Dating


3. Living together

Nonetheless, celebrity stalking is what grabs our attention...and is actually what drove the California Legislature to pass California’s anti-stalking laws in 1990. These laws were based on two very high-profile celebrity stalking cases involving actresses Theresa Saldana and Rebecca Schaeffer.

Continue reading "Celebrity Stalking" »

California domestic violence laws make it illegal to use violent force (or threats of bodily harm) against an intimate partner. An intimate partner is usually defined as a current or former fiancé, spouse, cohabitant, boyfriend, girlfriend or the parent of your child.

Following a domestic violence arrest, it's not uncommon for the alleged victim to "recant." For example, suppose neighbors call the police to report that Tom and Sue are in a heated argument. The cops come. Sue has redness on her cheek and tells the officers that Tom had slapped her. Tom gets arrested for domestic battery.

A week later, Sue goes to the police station and changes her story. "I made the whole thing up. Tom never slapped me. I got that swollen cheek when I fell. I don't want to press charges." Is the case over? Not if prosecutors believe that Sue told the truth the first time.

California domestic violence prosecutions proceed all the time, even with recanting "victims." It's commonly believed that DV victims are prone to false recantations...because they change their mind, they make up with the accused, and they no longer want to see him prosecuted.

Continue reading "Recanting Victims Don't Stop Domestic Violence Prosecutions" »

The Bible tells us that "He who spares the rod hates his son, but he who loves him is careful to discipline him."(Proverbs 13:24). But in California, adhering to this Scripture can land a parent in jail.

Stated in Penal Code 273d, California child abuse law makes it a crime to "inflict on a child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition." The law defines a "traumatic condition" simply as any visible injury, whether serious or slight.

Unfortunately, Penal Code 273d doesn't give parents a great deal of guidance as to when a justifiable "spanking" or "belting" crosses the line into criminal child abuse. Whipping an 8-year-old for misbehavior may seem proper parenting to one person, but cruel and abusive to another.

This quandary is made all the more difficult by our society's vast differences in cultures, religious beliefs and traditions...all of which influence peoples' views on this topic. Some groups within our society embrace corporal punishment as appropriate and even a moral duty...while others feel that an adult should never be allowed legally to beat a child.

Continue reading "When Does a Spanking Become a Crime?" »

There are three ways someone can be prosecuted for battery under California’s domestic violence laws. “Simple domestic battery”, “willful infliction of corporal injury” and “aggravated battery” each has a slightly different angle on when and how it would be filed. Below is a brief description of these differences.

California Penal Code 242 battery is "any willful and unlawful use of force or violence upon another person." This offense is usually charged when the person committing the battery has no domestic-type relation to the alleged victim.

California Penal Code section 243 (e) (1) “simple domestic battery” is the misdemeanor charge and, therefore, the least serious of these three domestic violence offenses. To be convicted here, all you have to do is intentionally “touch” your “intimate partner” in an offensive or angry manner…that’s it…he/she doesn’t even need to be injured, only offended. 243 (e) (1) also has a broad definition of “intimate partners”. Here, your “intimate partner” includes your fiancé or fiancée, your current or former spouse, someone with whom you live or lived, anyone you are or were dating, or the parent of your child.

California Penal Code section 273.5 “willful infliction of corporal injury” is a bit more serious, in that it requires the accuser to at least suffer some type of injury. The accuser must sustain a “traumatic condition” which can actually be as insignificant as a red-mark or scratch. Here, your “fiancé/fiancée” and “people you are or were dating” do not qualify as “intimate partners”. Although this section could be filed as either a misdemeanor or a felony, it would typically only be filed over the 243(e)(1) above if prosecutors were pursuing the felony allegation.

California Penal Code section 243 (d) “aggravated battery” is the felony “catchall” for domestic battery purposes. This section, too, can be filed as either a misdemeanor or a felony, but would typically only be used in a spousal abuse situation if there was a “serious bodily injury” -- rising to felony level -- and the accuser didn’t meet the definition of “intimate partner” in 273.5 above.