Best San Jose Domestic Violence Lawyers

California Penal Codes 243(e), 273.5

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Charged with Domestic Violence?

California Domestic Violence Laws

If you or your loved one has been arrested for domestic violence or been served with a restraining order, you need an experienced domestic violence attorney on your side. Ginny Walia law offices has handled a number or domestic violence cases. Schedule a free in-office or phone consultation with our San Jose domestic violence attorneys today to discuss your legal options. Our office phone number is 408-724-9200.

In California, domestic violence charges involve assault or battery upon a spouse, former spouse, cohabitant, former cohabitant or the mother or father of one’s child. Additional forms of domestic violence include:

  • Attacking, striking or battering
  • Sexual assault
  • Harassment
  • Stalking
  • Harassing or threatening telephone calls
  • Destroying personal property
  • Disturbance of the peace
  • Threatening to do any of the above

There are a number of special legal issues related to domestic violence charges. After a domestic violence incident, “no contact” or a similar order such as an Emergency Protective Order may be issued to prohibit the offender from contacting the alleged victim by any means for a period of time. A civil protection order may also be issued, ordering the offender to stay away from the victim, leave a shared residence, and the like.

Avoiding/Fighting the Restraining Order

If you have been charged with domestic violence, the judge can issue a restraining order requiring you to stay away from the alleged victim, your place of residence if you share that with alleged victim and alleged victim’s school or place of business. The judge can issue a restraining order even if the alleged victim does not want one. For these reasons, it becomes very important to hire a criminal defense attorney before you go to court for such charges. A good domestic violence attorney should fight that order to allow you to remain at your residence and/or work things out with your partner if both parties desire as such.

Immigration Consequences for Non-Citizens

Misdemeanor domestic violence charges can carry severe immigration consequences that can strip one away from legal status, trigger removal, inadmissibility and/or denial of naturalization. Your domestic violence defense attorney should be knowledgeable regarding the potential immigration consequences of your charges. A good defense attorney should try to negotiate a different charge, modify the current charge to make it immigration safe and/or be willing to fight your case through a jury trial. San Jose domestic violence attorneys at Ginny Walia Law Offices make excellent negotiators because they have already developed a reputation for being unafraid to go to trial if the client does not receive a fair plea bargain.

Risks to Alleged Victims

Domestic violence cases are particularly difficult because there can be consequences for the alleged victim as well if he or she disobeys a court order in order to protect the defendant. In domestic violence cases, people often make up and try to repair the relationship. So, if the alleged victim decides that she does not want to testify against her boyfriend, husband or father of her child and does not show up to court after being served a subpoena to appear, she can face contempt charges. It is advisable that the alleged victim hire a separate lawyer to advise her if she does not wish to cooperate with the prosecution. Alleged victims have certain rights if asserted properly can help both parties.

Understanding California Domestic Violence Laws and Penalties

Penal Code Section 243(e)(1) requires the willful and unlawful use of force or violence against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.

Penal Code Section 273.5 requires the willful infliction of a corporal injury on a spouse, a former spouse, cohabitant, former cohabitant, or the mother or father of one’s child. A violation of a CPC 273.5 can be charged as a misdemeanor or a felony. A misdemeanor violation is punishable by imprisonment in county jail for not more than one year and a felony violation shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one or a fine or by both the fine and punishment.


Self Defense

The law allows one to use force against a partner in a domestic dispute and considers it lawful self-defense or defense of others if:

  1. One reasonably believes that he or she or another person was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;
  2. One reasonably believed that the immediate use of force was necessary to defend against that danger;
  3. The defendant used no more force than was reasonably necessary to defend against that danger.

Act was not willful

If the act was accidental, it cannot be willful and therefore does not constitute assault. Although, it is not necessary that the individual intend to break the law.


One of the defenses to domestic violence can simply be that the accuser is lying. A simple assault charge does not require an injury; therefore it is easy for people to fabricate charges for ulterior motives such as jealousy, revenge etc.

Domestic Violence Frequently Asked Questions (FAQ)

How long after an alleged domestic violence incident can charges be filed?

The law allows a statute of up to a year for most misdemeanor charges including domestic violence. In certain misdemeanor matters, the law allows longer than a year for commencement of charges. In felony matters, the statute of limitations for commencement can range from 3 years to upwards depending on the charges. For example. Under California Penal Code 799, prosecution for an offense punishable by death or by imprisonment in the state prison for life or for life without the possibility of parole, or for the embezzlement of public money, may be commenced at any time. If charges are filed after the period allowed for commencement, a criminal defense attorney can and should file a SERNA motion to dismiss charges for lack of timely prosecution.

What if I was simply defending myself?

It is possible to successfully assert self-defense as long as one reasonably fears imminent danger and believes that immediate force is necessary to defend oneself or another person and uses no more force than reasonably necessary.

Can there be a civil case in addition to criminal case?

A person can sue the aggressor for money damages for injuries sustained as a result of domestic violence in a civil court.

What if the alleged victim wasn’t really hurt?

While some domestic violence charges require an injury, others do not. For example, Penal Code 243(e)(1) does not require an injury. However, if the infliction of injury is a required element of the domestic violence charge, the lack of injury would mean that an element of the charge is missing. If a required element of a particular charge is not satisfied, it is a complete defense to that charge.

Can the alleged victim drop the charges?

In California, one cannot simply drop the charges. However, if an alleged victim is unwilling to cooperate with the prosecution, it weakens the prosecutor’s case. Most prosecutors will factor an unwilling witness into their calculation of a plea offer and their ability to win at trial.

I have never been in trouble before, so am I eligible to participate some type of a first-time offender program for my domestic violence charges?

It is possible to negotiate significantly reduced charges, diversion programs and/or Deferred Entry of Judgment programs in most bay area counties for most first offenses that are minor. However, if the alleged victims sustained moderate or serious injuries, it becomes less likely that one would be offered some sort of a program instead of jail time. You may have other defenses to the charges such as self-defense, defense of others or mistaken identity etc. Contact our offices for a free consultation if you have been charged with domestic violence in any of the bay area counties.

Can domestic violence charges be expunged in California?

If one has complied with all the terms and conditions of probation, misdemeanor domestic violence charges can be expunged provided that you meet the other criteria for expungment under Penal Code Section 1203.4. Certain felonies can be reduced to misdemeanors under California Penal Code Section 17(b) if you were not sentenced to state prison. Further, they can also be dismissed pursuant to CPC 1203.4 if you have finished your probation and/or jail time.