San Jose Domestic Violence Attorneys: Domestic Violence FAQs

San Jose and Palo Alto domestic violence attorneys serving Cupertino, Los Gatos, Mountain View, Redwood City, San Mateo, Santa Clara, Saratoga & Sunnyvale

The information contained on this page is meant for general informational purposes only. This information should not be considered legal advice for any individual. Legal advice for each situation can only be obtained by conferencing directly with an attorney.

1. Do I have to be married to be convicted of domestic violence?

No. California Penal Code Sections 243(e) and 273.5 (the most commonly used prosecution sections for domestic violence), provide that any one who is cohabiting, has had a dating relationship with, is a former spouse of, or who is the parent of a child in common with the other person is subject to these charges
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2. What if I never hit anyone—all I did was push, shove, or just slightly touch the other person?

You can still be found guilty. The most minor conduct is now subject to a domestic violence prosecution.
As a demonstration of what can be sufficient to allow a conviction for a misdemeanor, this is what the jury is told at the conclusion of the trial:

CALJIC 141 (in part): "As used in the foregoing instruction, the words ‘force’ and ‘violence’ are synonymous and mean any [unlawful] application of force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act. The slightest unlawful touching, if done in an insolent rude or angry manner, is sufficient..."

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3. Would the case against me (or my spouse/friend) automatically go away if the alleged victim refused to press charges?

No. In California and most other states, there is no such thing as having a victim press charges. The alleged victim has no power over the prosecution of these cases.

The prosecution of these cases is performed by the district attorney's office, whether or not the victim wants the matter to be prosecuted.

In fact, the district attorney expects that in over 80 percent of cases, the alleged victim will not only want the prosecution to stop, but will recant or change his or her testimony. In spite of that, all district attorney's offices now continue the prosecution until they are faced with serious difficulties of proof or are convinced that an alternative to prosecution may be preferable.
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4. Should I talk with the police to tell them "what really happened"?

Generally, no.

There are a number of reasons for that answer, some of which are technical or legal and must be discussed in the office, but the general reasons that apply are as follows:

  • The authorities either have enough evidence to charge you, without your statement, or they do not have enough evidence and the district attorney will not charge you. Your statement will usually not stop this prosecution, no matter what you say. You merely give the district attorney an additional bit of evidence that can be used against you.
  • If the officer has sufficient evidence to arrest you, your "cooperation" will not stop that arrest. And, things will not "go better for you."
  • If you talk with the police, you give them the opportunity either to take down what you say incorrectly or to fail to take down everything you say. Either way, if you go to court, it will be your word against the officer's.
  • Also, and this is important: neither you nor the so-called victim should tell a false story to the police or district attorney. You have a constitutional right not to talk with them. Remember, the prosecutor has the burden of proving you guilty without your help or statement. Regardless of whether you committed the offense, if the prosecution cannot prove the case against you with admissible evidence, you should be found "not guilty."

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5. Should the alleged victim--who is on my side--contact the district attorney to explain that it didn't really happen the way he or she originally said it did?

Generally, no. Unfortunately, the authorities expect the alleged victim to change his or her story and are usually unconvinced by any new statement. Additionally, the alleged victim may just downplay the event and usually does not say that he or she gave completely wrong information to the police. Therefore, contacting the district attorney may just result in another statement validating the charge, even if it does make it more minor.
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6. I was arrested for a felony, but I have not yet been to court. Does this mean that I will have to face felony charges when I go to court?

Not necessarily. Frequently the police--who cannot arrest for a misdemeanor unless it is actually committed in their presence--will find probable cause to arrest for a felony. This is particularly true if there is any evidence at all of an injury, no matter how slight (slight bruising or redness). However, once the case is reviewed by a deputy district attorney, the formal charges that are filed may well be misdemeanor charges if the district attorney concludes that the conduct alleged is not that serious.
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7. What happens to me if I am convicted of domestic violence?

Obviously there are a number of variables depending upon the severity of each case. If you are charged with a felony (because the alleged violation appears to be serious), you could be subject to state prison or a lengthy county jail sentence. If convicted of the most minor kind of domestic violence, you may be subject to a relatively minor jail sentence, which could be served on a "weekender work" basis. In many cases, a jail sentences can be avoided.

However, in California, if you are convicted of anything involving domestic violence, certain mandatory conditions must be imposed if probation is granted, namely:

  • a three-year period of formal probation
  • required attendance at a domestic violence batterer's class, a one-year program with court supervision
  • disqualification from owning a firearm for 10 years.
  • a "peaceful contact" or "stay away" restraining order naming the alleged victim.

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8. I am not a citizen of the United States.  What effect will a conviction have on me?

Although you should always confer with an immigration attorney, a conviction for this offense could result in potentially serious immigration problems. You could be denied admittance, be subject to deportation, or suffer other immigration consequences if convicted of domestic violence.

However, if you make sure that you tell us that you are not a United States Citizen, we can frequently work our way around that problem during the settlement phase of the case.
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9. Is there anything special that I should do for my first court appearance?

Yes. If you and the alleged victim do not want to have the court issue a "no contact" restraining order (preventing you from having any physical, telephone, or written contact), the alleged victim must come to court and tell the judge that he or she wants to have contact. There is a great likelihood that the judge in that case will then issue an order requiring the two of you to have "peaceful contact" rather than "no contact."

Otherwise, if the alleged victim fails to appear, the court will issue a "no contact" restraining order.
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10. What are the exact charges I could be facing for domestic violence in California?

The usual domestic violence charges are Penal Code Sections:

  • 243(e): Misdemeanor Battery.
  • 273.5: Felony Battery (Battery with Injury, no matter how slight the injury). This section may be charged by the district attorney as either a felony or a misdemeanor.
  • 422: Threat to commit crime involving death or great bodily injury. This may be charged as either a felony or misdemeanor.
  • 273.6: A misdemeanor. Violation of a restraining order.

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11. How long will the court process take?

Usually two to four months. Although each case is different (and the procedure for misdemeanors and felonies is different) you can expect a number of court appearances, many of which you need not be present for if we represent you. You should expect that for most cases it will take a number of months before there is a resolution.

For example, it is rare that a case is settled at the first court appearance (called the "arraignment"), where there is no opportunity to discuss the case. Usually there are multiple court appearances and conferences that occur before cases are resolved. In a very few cases, no resolution is possible, and a trial must be held.

Although there are different time-line requirements designed to speed up the processing of your case, it is usually (but not always) in your best interest to waive (or give up) these requirements. This is a matter that should be discussed with your attorney.
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12. If I actually did commit the offense with which I'm charged, do I need a lawyer?

Yes! Although an office consultation is needed to describe for you what can be done, most people have much better results if they are represented by a lawyer who is expert in domestic violence.

First, you must remember that the district attorney has to prove the case against you. To do that, the district attorney needs the kind of evidence that will be allowed in court. In many cases, this is difficult to find. Only a consultation with an experienced attorney who has obtained the police reports and spoken with you and other witnesses can advise you about your chances of success.

Second, each case is unique. Even in cases that the district attorney can prove, an experienced attorney can often get a reduced charge or a charge that will not entail a jail sentence, a requirement for taking a year-long class, or a permanent record of the charge.

It is unlikely that any one charged with these offenses would be able to negotiate with the district attorney as successfully as an attorney experienced in this field.
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Our San Jose and Palo Alto domestic violence defense lawyers serve all of Northern California and the Bay Area with particular emphasis in domestic violence defense for Cupertino, Los Gatos, Mountain View, Redwood City, Saratoga, Sunnyvale, Santa Clara County, San Mateo County, and Alameda County.

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