Investigation and Prosecution of DOMESTIC VIOLENCE

SANFORD & CHRISTY HOROWITZ1032 SANTA BARBARA STREET

SANTA BARBARA, CA 93101(805) 452-7214

HOROWITZFORLAW.COM

DOMESTIC VIOLENCE

• PC 273.5(a) – PC 243(e)

• PC 273.6(a)

• PC 166(c)(1)/(a)(4)

• PC 245

• PC 653m - PC 136.1

• PC 422 – PC 646.9

• PC 262

• PC 594 - 459

ABUSE + RELATIONSHIP = DOMESTIC VIOLENCE

PC 273.5(a)

• Spouse or former Spouse, Cohabitant or former cohabitant, mother or father of a child;

• Corporal injury

• Resulting in a traumatic condition.

AND….D did not act in self-defense

PC 243(e)(1)• Spouse or former

spouse

• Cohabitant

• Parent of D’s child

• Current or former dating relationship

• Harmful or offensive touching

AND……D did not act in self-defense.

PC 273.5(a)vs.

PC 243(e)(1)?

A traumatic condition is a wound or other bodily injury, whether minor or serious,

caused by physical force.

Did the injury cause a traumatic condition?

*soreness and tenderness are not enough for “traumatic condition,” but look for a “continuous course

of conduct”

Did the injury cause a traumatic condition?

PC 273.6(a)

• 1 year Misd

• Charge if there is an existing:– EPO– DVPO

(Domestic Violence Prevention or Protective Order)

INDICATE IF A VIOLATION IS ACCOMPANIED BY VIOLENCE.

PC 166(c)(1) – (a)(4)• 1 year Misd

• Charge if there is an existing:– CPO for DV

– If CPO is for non-DV, charge 166(a)(4)

INDICATE IF A VIOLATION IS ACCOMPANIED BY VIOLENCE.

PC 245• PC 245(a)(1)

• ADW• It’s a “Strike”

• PC 245(a)(4)• Assault w/

force likely to cause GBI

• Non-Strike

• Don’t Forget about GBI enhancement

AND….D did not act in self-defense

Why charge it?•It’s a strike!

PC 422

• Willful threat to kill or cause great bodily injury;

• Threat made orally – in writing – or by electronic device;

• Intent that it be understood as a threat; and intent that it be communicated to victim;

• Threat is clear, immediate, unconditional, and specific – a serious intention and immediate prospect to carry it out

• VICTIM is in sustained fear; and FEAR is reasonable!

PC 422

General Threats?•“I’m going to beat your fucking ass.”

•“I’m going to hurt you.”

Unlawfully kill or threaten GBI

No credible threat?

“I ASKED THE VICTIM IF SHE BELIEVED JOHN DOE WOULD CARRY OUT THE THREAT TO KILL HER AND SHE REPLIED ‘I DID NOT.’”

No sustained fear?

Try 664/422 or PC 653m

• PC 653m – Sending Harassing Text Messages

• PC 646.9(a) - Stalking

PENAL CODE 646.9(a)

• Willful and malicious harassing OR repeatedly following; AND

• D made a credible threat with the intent to place the VIC in reasonable fear for her safety or immediate family

• If there is a restraining order in place at the time of the stalking? Charge PC 646.9(b)

DEFINITIONS - STALKING

• Credible Threat: – one that causes the target of the threat to reasonably fear

for his or her safety [or for the safety of his or her immediate family] and one that the maker of the threat appears to be able to carry out.

• (look for past conduct that can be used to explain why the vic is so afraid!)

• orally, in writing, or electronically or may be implied by a pattern of conduct or a combination of statements and conduct.

• Harassing:• means engaging in a knowing and willful course of conduct directed

at a specific person that seriously annoys, alarms, torments, or terrorizes the person and that serves no legitimate purpose.

PC 136.1 SEVERAL WAYS TO VIOLATE:

• PREVENT

• DISCOURAGE

• REPORT VICTIMIZATION

• CAUSING ARREST

• CAUSING PROSECUTION

DO NOT FORGET THAT AN ATTEMPT TO DO ANY OF THE ABOVE IS ENOUGH FOR PC 136.1

PC 136.1

• Attending or giving testimony

• Reporting a crime to law enforcement

• Maliciously tried to prevent/discourage/

• prevented/discourage victim from:

PC 136.1

• Cooperating or providing information so that a complaint, indictment, probation or parole violation could be sought and prosecuted

• Causing arrest

PC 136.1

Victim was a witness or a crime victim

AND

He knew he was

preventing or discouraging orattempting

and he intended to

ENHANCEMENTS• PC 12022.7(a): Great Bodily Injury (“GBI”)

• PC 12022.7(e): GBI Involving D.V.

• PC 667.5(a): Violent Felony w/Violent Fel. Prior

• PC 667.5(b): Prison Priors

• PC 667: Strikes

• PC 12022: Armed Enhancement.

• PC 12022.1(b): Out on Bail Enhancement

HISTORY OF VIOLENCE

Obtain specific information of prior incidents of domestic violence:

– Mutual combat?– Who was the aggressor?– Description of assault– Injuries

HISTORY OF RELATIONSHIP

EVIDENCE• PHOTOGRAPHS

• AUDIO RECORDINGS

• STATEMENTS FROM WITNESSES INCLUDING CHILDREN PRESENT

ASSUME THE VICTIM WILL

• RECANT!

• MINIMIZE!

• FAIL TO APPEAR!

How will you prove it without the victim???

ASSUME THE VICTIM WILL

• RECANT!

• MINIMIZE!

• FAIL TO APPEAR!

How will you prove it without the victim???

Investigation and Prosecution of DOMESTIC VIOLENCE

SANFORD & CHRISTY HOROWITZ1032 SANTA BARBARA STREET

SANTA BARBARA, CA 93101(805) 452-7214

HOROWITZFORLAW.COM