DOMESTIC VIOLENCE VICTIM’S RIGHTS IN CALIFORNIA

January 6, 2021

OVERVIEW OF DOMESTIC VIOLENCE CRIMES

California Domestic Violence crime is one of the most common crimes prosecuted in Los Angeles county. Depending on the city where the arrest took place and the level of injury, Los Angles City Attorney or Los Angeles District Attorney will be prosecuting Los Angeles Domestic Violence Arrest. Los Angeles District Attorney prosecutes Los Angeles Sheriff’s Department’s Arrest, most small cities arrests, and all serious arrests with “felony” type of injury. Los Angeles City Attorney prosecutes misdemeanor level LAPD arrest.

Almost any arrest for Los Angeles Domestic Violence will be a felony arrest. That means that police will not decide if the injury is minor and arrest should be for a misdemeanor. Statutory bail for domestic violence is $50,000.00 – which means that you can pay up to $5,000 in premium to bail out. Within 2 days of arrest, not counting the weekend, and if you are in custody, you will be taken to see a judge. If you bail out, you will be given a court-date several weeks or even months away. After the arrest, the prosecutor will file the criminal case (or reject it). The prosecutor will decide if a felony or misdemeanor is a proper charge. Often, a felony arrest will be filed as a misdemeanor. Therefore, LAPD felony arrest is not necessary will result in a felony criminal case.

The consequences of arrest and of filing of a criminal case are very severe.

1. Your husband or wife will be kicked out of your home (this will happen even if you live together for a long time).

2. Your kids can be taken away by DCSF (this can happen based because when the police will believe that kids are traumatized by witnessing domestic violence.

3. Your guns will be confiscated immediately by the police officers.

4. You can be disciplined and lose your professional license (such as nursing, doctor, security, real estate, etc license).

But, as a victim of Los Angeles Domestic Violence case, you can have influence over how the criminal case proceeds.

Legally, the prosecutor is obligated to listen to the wishes of the victim. Yet, often, the wish to dismiss the criminal case is ignored. This is so because the prosecutors are trained to believe that the victims are blinded by love and are enamored with the defendant and will not act in their own best interest. This point of view is based on “battered women” research which shows that victims of domestic violence keep coming back to their assailants despite the threat of domestic violence. If the victim plans to testify in court recanting the Los Angeles Domestic violence incident, the prosecutor will have an expert in “battered women” syndrome to testify that 95% of victims recant and say that they lied about the incident. The prosecutor will rarely believe the “I lied to police story”, and conclude that at the time of the incident you were honest and you are not honest later. It is best to be represented by an attorney who can help you put forward your position and protect your family from the prosecutor’s desire to prosecute your significant other. As a victim, you can insist on dismissal but often need the help of a Los Angeles Criminal Defense Lawyer to come up with a plan that helps you best achieve your goal.

Right To Recover Money To Compensate For Losses

As a victim, you can insist on prosecuting or not prosecuting the case. It is up to you how you want to proceed. You can get money from the State for some expenses (such as out of pocket expenses related to Los Angeles Domestic Violence, psychological treatment related to Los Angeles Domestic Violence, etc). That money comes from a “Victim Compensation Board”, a California state fund created to give money to victims of crimes. The application can be completed online (here).

In addition to the Victim Compensation Fund, you can get reimbursement for your direct expenses, job losses, and medical bills directly from the defendant. The compensation will be ordered after a guilty plea or verdict in a special hearing, aka, “the restitution hearing”. This restitution order is not dischargeable in bankruptcy and can earn interest on any unpaid amount at 10% per year.

If you applied to get money from the victim compensation board, the board will try to get that money back directly from the defendant later. If you plan to be with the defendant, consider that he or she eventually will have to pay back the money you get from the victim compensation board.

As a victim of the Los Angeles Domestic Violence case, you have rights including a right to have a private attorney represent you. Having a lawyer explain to you your rights and to represent you in court has many advantages including:

  1. Getting More Money from Defendant or State if you want it.
  2. Being able to refuse to answer questions.
  3. Being able to show to the court that you were not properly served and therefore you do not have to show up at the hearing
  4. Being able to review documents (including the probation report). The best way to protect yourself and your family is to have a Los Angeles Criminal Defense Attorney represent you as a victim in a criminal case.

California Code of Civil Procedure 1219 Right To Refuse To Testify

A victim of domestic violence can invoke his or her right not to testify in a criminal case against the defendant under California Code of Civil Procedure section 1219(b):

“Notwithstanding any other law, a court shall not imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime”.  

So, unlike other types of Los Angeles Criminal cases where the victim can be made to testify under a threat of jail, victims of Los Angeles domestic violence cannot be jailed when they refuse to testify. It is an exception, similar to a privilege. A Los Angeles Superior Court Judge can find the victim in contempt but only after a domestic violence counselor.  

Before finding a victim of a domestic violence crime in contempt as described in this section, the court may refer the victim for consultation with a domestic violence counselor.  All communications between the victim and the domestic violence counselor that occur as a result of that referral shall remain confidential under Section 1037.2 of the Evidence Code .

If you receive a subpoena to testify in a criminal proceeding against your husband or wife and do not want to do that, call Los Angeles Criminal Defense Attorney directly at (323) 464-6424 so that your rights can be explained.

5th Amendment Right Not To Incriminate (and not to testify)

It is not uncommon for police reports to contain information that is not true. An angry wife or husband, in the spur of the moment, can embellish the incident. Once some facts, even an embellished detail, makes it into the police report, it will be hard to prove to the prosecutor that it is not true. More than that, it can hurt the victim because telling a police officer a lie can be seen as filing a “false police report”. This is a violation of Penal Code section 148.5(a):

“Every person who reports to any peace officer …. hat a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor.”

When that happens, going to court to “tell the truth” can result in you being charged with filing a false police report. A better strategy is to remain silent by invoking the right to remain silent under the US 5th amendment right not to incriminate yourself.

…nor shall (any person) be compelled in any criminal case to be a witness against himself…

This is so because if you testify that you lied, you are a witness against yourself and you can not be compelled to do so.

So, instead of testifying you can refuse to answer questions by claiming the 5th when a truthful answer will contradict the police report.

As before, the best way to accomplish this is by having a lawyer represent you in a criminal case as a victim.

Los Angles District Attorney Policy Regarding Victims

On December 7, 2020, George Gascon was sworn in as a District Attorney for Los Angeles County. Immediately upon swearing-in, he introduced several special directives that provide new instructions to his deputies and change the policy and operating procedure of his office. For example, prior strikes and most special allegations (such as GBI under PC 12022.7 and use of a gun under PC 12022.53) will not be filed in most Los Angeles criminal cases. Special Directive 20-12 specifically addresses the victims of crimes.

Under Special Directive, 20-12 more resources will be directed to victims of all crimes. Within 24 hours of contact, the Bureau of Victim Services will reach out to the victims, and offer support and services including burial services, psychological counseling, immigration services. The Bureau will also provide money for services not covered by the Victim Compensation Board. The immigration status of the victim, cannot be asked. Cooperation with the investigation or prosecution is not required to obtain services. Lastly, DDA’s are instructed to no longer ask the courts to issue body attachments for victims.

Before Gascon, if you are subpoenaed to court and do not show up, the district attorney would ask the court to issue a body attachment. A body attachment is similar to a warrant. When this body attachment is issued, the detective (or any police officer) can arrest a victim and bring him or her to court to testify. Sometimes witnesses would be held in jail until they are willing to testify. Now the Los Angeles District Attorneys are no longer permitted to ask the court to issue the body attachment.

Thus, even if you are properly served, the District Attorney is instructed not to use the power of the court to bring the victims to court by force. It is best to contact Los Angeles Criminal Defense Attorney to explain the consequences of refusal to come to court after a subpoena. Here, we are not permitted by law to tell you to ignore the subpoena because we would be accomplices to the crime of “disobeying a court order”. Instead, we are explaining the current policy of the Los Angeles District Attorney Administration as it related to the issuance of the body attachments.

A subpoena to show up in a criminal court has to be personally served. However, to quash a subpoena not properly served you will need the help of the Los Angeles Criminal Defense Attorney.

The Right To Refuse A Protective Order

At the time of an arrest for Domestic Violence in Los Angeles, your husband or wife can be ordered to leave your home and stay away from it. This order is issued by a judge who gets a judge to authorize it. This order is good for 7 days and expires on its own.

Usually, the arresting officer tells the alleged victim that they should go to a civil court to obtain a TRO that will protect them from contact with the arrested person beyond 7 days. The police will not help you get the TRO from the civil court and if you do not want to stay away from arrested person, you can refuse to get TRO.

At the arraignment, the court will issue another restraining order. This order will stay in place until the case is resolved – no matter how long it takes. As a victim of domestic violence, you can refuse such stay-away orders and tell the court the reasons you need to be around your husband, wife, boyfriend, or girlfriend. Instead of a stay-away order, the court can order a “peaceful contact” restraining order, where you are not ordered to stay away, but just ordered to avoid aggression to each other.

Q and A: 

Q: CAN I REFUSE TO COME TO COURT:

A: A REFUSAL TO COME TO COURT AFTER A LAWFULLY SERVED SUBPOENA IS A VIOLATION OF A COURT ORDER AND CAN BE PUNISHED BY CONTEMPT PROCEEDINGS AND EVEN BY FILING OF A CRIMINAL CASE. IT IS THUS NEVER A GOOD IDEA TO IGNORE A SUBPOENA. A FAR BETTER APPROACH IS TO CONTACT A CRIMINAL ATTORNEY IN LOS ANGELES TO HELP YOU ACHIEVE YOUR GOAL..

Q: WHAT IF I SIMPLY TELL THE COURT THAT I CHANGED MY MIND AND I DON’T WANT TO PROSECUTE? 

A: DISTRICT ATTORNEY AND THE COURT WILL USUALLY IGNORE YOUR DESIRES IF THEY BELIEVE A CRIME HAS OCCURRED. THEY WILL SEE IT AS THEIR RESPONSIBILITY TO THE STATE TO PROTECT YOU AND OTHER CITIZEN OF THE STATE .

As you can see, it is far more complicated than simply telling the truth. Many families are negatively affected by the prosecution of Los Angeles Domestic Violence Cases. If your loved one is investigated or arrested for a Los Angeles Domestic Violence Case, contact our office to get legal advice and a free no-obligation consultation.

call DUI Attorney

If you have a DV case, call us  (818) 921 7744 for a free consultation.
We will gladly explain to you your rights and will help you advance your interests in court.

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