investigation & prosecution of domestic violence
TRANSCRIPT
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Investigation and Prosecution of DOMESTIC VIOLENCE
SANFORD & CHRISTY HOROWITZ1032 SANTA BARBARA STREET
SANTA BARBARA, CA 93101(805) 452-7214
HOROWITZFORLAW.COM
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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
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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
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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.
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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?
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*soreness and tenderness are not enough for “traumatic condition,” but look for a “continuous course
of conduct”
Did the injury cause a traumatic condition?
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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.
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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.
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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!
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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!
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PC 422
General Threats?•“I’m going to beat your fucking ass.”
•“I’m going to hurt you.”
Unlawfully kill or threaten GBI
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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?
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Try 664/422 or PC 653m
• PC 653m – Sending Harassing Text Messages
• PC 646.9(a) - Stalking
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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)
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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.
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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
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PC 136.1
• Attending or giving testimony
• Reporting a crime to law enforcement
• Maliciously tried to prevent/discourage/
• prevented/discourage victim from:
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PC 136.1
• Cooperating or providing information so that a complaint, indictment, probation or parole violation could be sought and prosecuted
• Causing arrest
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PC 136.1
Victim was a witness or a crime victim
AND
He knew he was
preventing or discouraging orattempting
and he intended to
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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
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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
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EVIDENCE• PHOTOGRAPHS
• AUDIO RECORDINGS
• STATEMENTS FROM WITNESSES INCLUDING CHILDREN PRESENT
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ASSUME THE VICTIM WILL
• RECANT!
• MINIMIZE!
• FAIL TO APPEAR!
How will you prove it without the victim???
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ASSUME THE VICTIM WILL
• RECANT!
• MINIMIZE!
• FAIL TO APPEAR!
How will you prove it without the victim???
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Investigation and Prosecution of DOMESTIC VIOLENCE
SANFORD & CHRISTY HOROWITZ1032 SANTA BARBARA STREET
SANTA BARBARA, CA 93101(805) 452-7214
HOROWITZFORLAW.COM