Each domestic violence case is looked at on a case-by-case basis, with an assigned deputy district attorney looking at the facts of each case to determine whether misdemeanor or felony charges are more appropriate given the circumstances. Several factors go into the consideration of whether a domestic violence incident qualifies as a misdemeanor or a felony.  Among the factors to be considered are the severity of the conduct, the severity of the injury, and whether a weapon was used.

A case will generally be filed as a felony where the conduct of the abuser is considered severe.  Severe conduct by an abuser can include striking a victim multiple times with significant force, threatening a victim with death or great bodily injury, or a number of other acts that can create a significant danger of harm to a victim.

A use of force that results in a serious injury can also result in the filing of a felony offense, rather than a misdemeanor offense.  A serious injury can include significant bruises, a cut requiring sutures, broken bones, loss of consciousness, or permanent physical damage or scarring.

The use of a weapon can also increase a domestic violence incident from a misdemeanor offense to a felony offense.  Common weapons seen in domestic violence incidents include guns, knives, blunt objects (i.e., bats, curtain rods, broomsticks, pipes, cars, etc.).  An abuser does not actually have to cause an injury with the weapon in order for there to be a felony charge filed; rather, the abuser only needs to use the weapon in such a way that it could have directly resulted in force being used on the victim.

In addition, a defendant’s criminal history and history of prior incidents of domestic violence are also considered.  Should an abuser have a prior history of committing domestic violence or should the abuser have a significant criminal history, these factors can result in a case being filed as a felony offense, rather than a misdemeanor offense.

Generally, a domestic violence case begins when a victim contacts law enforcement officers to report a domestic violence incident.  Law enforcement officers then carry out an investigation. During an investigation, law enforcement officers interview and record not only the statement of the victim, but also statements of any witnesses to the incident and, if possible, the abuser.  During the course of their investigation, law enforcement officers may also collect other pieces of evidence.  This can include photos of any injuries, photos of the scene, weapons used during the altercation, text messages between the victim and the abuser, recordings of the domestic violence incident, etc. Upon the completion of their investigation, law enforcement officers will write a report summarizing their investigation.  This report is then forwarded to the district attorney’s office for review.  The reports initially submitted to the district attorney’s office do not generally include the photos or recordings associated with the case. The reports do include a copy of the abuser’s criminal history.

Upon receiving the report from law enforcement, a deputy district attorney from the San Bernardino County District Attorney’s Office will review the report submitted by the law enforcement agency. In reviewing the report, the assigned deputy district attorney must decide whether he or she believes that the case can be “proved beyond a reasonable doubt” based upon the facts and evidence included in the report. “Proof beyond a reasonable doubt” means “an abiding conviction that the charge is true.”  If a deputy district attorney reads a report and believes the victim’s account, but does not feel that he or she can prove the case to a jury beyond a reasonable doubt, then that deputy district attorney is ethically bound to turn down the case against the abuser despite their personal belief that the abuser committed a crime.  However, if the deputy district attorney believes the case can be proved beyond a reasonable doubt after reviewing the report, then criminal charges in the form of a criminal complaint will be filed against the abuser.

After a case is filed, the deputy district attorney assigned to prosecute the case will then receive any additional evidence collected by law enforcement officers, such as the photos and recordings.  These items of evidence can later be used by the deputy district attorney against the abuser in court.

After criminal charges are filed against an abuser, an abuser must be brought to court to be arraigned before a judge on the charges filed against him or her.  At this arraignment, the abuser can either enter a plea of “Guilty” or “Not Guilty.”  For a variety of reasons, many abusers will plead “Not Guilty” when they are first arraigned.  At that point, if the abuser cannot afford to hire his or her own attorney, the judge will appoint an attorney to represent the abuser.  A second court date will then be scheduled for the abuser.  In a misdemeanor case, this second date will be called a pretrial hearing, while in a felony case it is called a pre-preliminary hearing.

At either the pretrial or pre-preliminary hearing, the abuser will meet with his or her assigned or paid-for defense attorney to go over the case and discuss the abuser’s options.   This attorney will then speak with the deputy district attorney handling the case to discuss whether or not both sides think they can reach a resolution via a plea deal. Generally, a plea deal begins when a deputy district attorney provides an offer to the defense attorney representing the abuser.  Depending on the facts and circumstances of each case, this offer can range from diversion, to probation, to prison time.  The defense attorney will discuss the offer with the abuser.  At this point, the abuser has the options of accepting the offer, making a counteroffer to the deputy district attorney to continue negotiations, continuing the case to consider the offer or to do further investigation, or rejecting the offer and proceeding toward trial. Most domestic violence cases will resolve with a plea deal at the pretrial/pre-preliminary hearing stage of criminal proceedings.

If the parties are unable to reach a resolution, then the abuser’s case will proceed through the criminal justice system.  In a misdemeanor domestic violence case, this means that the abuser’s case will be scheduled for a trial.  In a felony domestic violence case, the case must first be set for a preliminary hearing prior to going to trial.

A preliminary hearing is a probable cause hearing where evidence is presented before a judge by the assigned deputy district attorney to prove to the judge that it is more likely than not that a crime has been committed by the abuser.   During a preliminary hearing, the deputy district attorney will call certain witnesses to testify as evidence that a crime was committed.  These witnesses often include the victim, as well as the law enforcement officers who investigated the domestic violence case.  The deputy district attorney handling the preliminary hearing may also provide additional evidence to the judge, including photos of any injuries received or weapons used, in order to show the judge that it is more likely than not that a crime occurred and that the abuser was the one who committed the crime.  During the course of a preliminary hearing, the defense attorney for the abuser also has an opportunity to question witnesses and present their own evidence to dispute that a crime occurred.  At the end of the hearing, the judge will determine if there is sufficient evidence for the case to proceed to a trial before a jury.  If the judge finds that there is sufficient evidence, then the judge will allow the case to proceed to the next step of the criminal justice system.

Once either a misdemeanor or felony domestic violence case reaches the trial stage of criminal proceedings, both the deputy district attorney and the abuser have a final chance to see if they can reach a plea deal without going to trial; however, if no resolution can be reached, the case will be set for a trial.

A trial is heard before a judge and jury.  The jury, which is made up of 12 individuals from within the community, will hear the evidence presented by both the deputy district attorney and the defense attorney for the abuser.  Evidence usually includes the testimony of the victim, any witnesses to the domestic violence, as well as the law enforcement officers who carried out the investigation of the domestic violence case.  During these witnesses’ testimonies, both attorneys can present photos, audio recordings, and video recordings for the jury to consider.  After both sides have had an opportunity to present their evidence and make their arguments to the jury, the jury will decide if they believe that the abuser is guilty or not guilty of the crimes with which he or she is charged.  If the jury returns a verdict of guilty, the suspect will be sentenced accordingly by the judge.  If the jury comes back not guilty, then the case against the suspect ends.  If the jury is unable to make a unanimous decision as to guilty or not guilty, then a mistrial can be declared and the deputy district attorney handling the case will make a decision as to whether there should be a second trial to determine the abuser’s guilt. There is no set timeline for how long it will take a case to make its way through the criminal justice system.  While some cases resolve at the first pretrial or pre-preliminary hearing appearance, other cases can take multiple years to move through the criminal justice system.  The assigned deputy district attorney will do his or her best to make sure that the case moves forward at an appropriate speed. 

A domestic violence victim will only have to testify against his or her abuser at a preliminary hearing or at trial.  If the deputy district attorney assigned to an abuser’s case feels it is necessary that a domestic violence victim testify in court, the deputy district attorney will have a subpoena sent to the victim, ordering the victim to appear in court to testify against their abuser at a set time and place. If a victim receives a subpoena to testify, they are required to come to court to testify unless otherwise notified.  Failure to come to court after receiving a subpoena can result in a bench warrant being issued for the victim’s arrest.

In addition, if the San Bernardino County District Attorney’s Office has good contact information for a domestic violence victim, an assigned victim advocate from the San Bernardino County District Attorney’s Office will reach out to a domestic violence victim to give them updates regarding the case and to inform them ahead of time as to when to come to court. These victim advocates will also escort the victim through the courthouse and potentially sit with the victim as the victim testifies, as a form of moral support.

It is important to know that just because a domestic violence victim is subpoenaed and ordered to come to court, does not necessarily mean that the victim will have to testify once they arrive at the courthouse.  Even if a preliminary hearing or trial date is set, an abuser can still change his plea on the date of the preliminary hearing or trial date to take a plea deal.  If an abuser agrees to a plea deal just prior to the preliminary hearing or trial, then the victim will not have to testify.

No, domestic violence victims do not need to hire an attorney to ensure that a criminal case is prosecuted against an abuser.  The assigned deputy district attorney is responsible for prosecuting the criminal domestic violence case.

The punishments for abusers of domestic violence can vary from case to case.  Most individuals convicted of domestic violence offenses will either receive probation or a state prison sentence. 

Should an abuser receive a probation sentence for a domestic violence offense, the abuser will be required to adhere to certain terms and conditions.  These terms and conditions include violating no law and paying certain fines and fees.  Some abusers may be sentenced to up to 365 days in county jail or on weekend work release.  Most abusers will also be required to complete a 52-week domestic violence batterer’s treatment program.  Although these courses vary based upon their provider, the 52-week domestic violence batterer’s treatment program consists of hour-long weekly sessions where abusers are taught coping mechanisms to avoid finding themselves in future domestic violence situations.  These courses attempt to address some of the causes that lead to domestic violence incidents, including stress, substance abuse, and anger management issues.

Should an abuser receive a prison sentence, that abuser will receive a minimum of 16 months to be served in either county or state prison.  The amount of prison time an abuser could receive varies from case-to-case.  Should an abuser be sentenced to prison, he or she will receive some good conduct credits, meaning that the amount of time the abuser will actually serve in prison will be less than the total amount.  The number of good conduct credits an abuser could receive varies from case-to-case.

It should be noted that in any case where an abuser is convicted of a domestic violence charge, the deputy district attorney will issue a criminal protective order protecting the domestic violence victim.  For information on criminal protective orders, please see “What is a criminal protective order and how does it work?” below.

A criminal protective order is a type of restraining order issued by a criminal court to protect victims of crimes from contact and harassment by their abusers. It is different from a civil restraining order that can be obtained in a family law court. A criminal protective order can be issued while the abuser’s case is pending in criminal court or at the time that the abuser is sentenced.   A criminal protective order will generally last between 3 to 10 years.  It should be noted that a criminal protective order can only be issued for the victim of a crime; they cannot be issued for children or family members of the victim who were not themselves victims in the same case.

There are generally two types of criminal protective orders that can be issued in a domestic violence case.  These are “no contact” criminal protective orders and “no negative contact” criminal protective orders.  The difference between a “no contact” versus “no negative contact” order is as follows:

• “No Contact” Criminal Protective Order: Prevents an abuser from having contact with the victim for the duration of the order – i.e., 3 to 10 years.  Under this order, “no contact” means that the abuser must have no personal, electronic (i.e., text messages, emails, or direct messages), telephonic, or written contact with the victim.  The abuser must not come within 100 yards of the victim and the abuser cannot send a third party to contact the victim.
• “No Negative Contact” Criminal Protective Order: Allows the abuser and the victim to have contact with one another; however, the abuser is not allowed to harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block the movements of the victim.

If the abuser violates a criminal protective order, the victim is allowed to record the prohibited contact and submit that information to their local law enforcement agency.  A violation of a criminal protective order can not only violate an abuser’s probation or parole, but could also result in additional criminal charges being filed against the abuser.

As a default, the assigned deputy district attorney to a domestic violence case will issue a “no contact” criminal protective order in a domestic violence case, unless the victim indicates that they want a “no negative” contact order. If a victim desires a “no negative contact” order prior to a case resolving, then that victim needs to contact the assigned victim advocate from the San Bernardino County District Attorney’s Office to let the victim advocate know.  That victim advocate will then communicate that information to the assigned deputy district attorney.

If a “no contact” criminal protective order has already been issued and a victim wants that “no contact” criminal protective order reduced to a “no negative contact” criminal protective order, the victim must put the case on the court’s calendar and go before a judge to explain why they believe a reduction in the criminal protective order is necessary.  It should be noted that while a “no contact” criminal protective order can potentially be reduced to a “no negative contact” criminal protective order, a “no negative contact” criminal protective order cannot be increased to a “no contact” criminal protective order.

No, it is not up to a domestic violence victim as to whether or not criminal charges can be dropped against his or her abuser.  This is because it is the San Bernardino County District Attorney’s Office, not the victim, who filed the case and is pursuing charges.    Remember, it was a deputy district attorney who reviewed the evidence contained in the police report and determined that the abuser had committed a crime against the victim, thus violating the laws of the State of California.  The deputy district attorney assigned to a domestic violence case represents the People of the State of California and must ensure that an abuser lives within the laws that society has created.  That includes holding an abuser accountable for his or her acts of violence against a domestic violence victim, regardless of whether or not that victim desires prosecution of the case.  The People of the State of California, through the assigned deputy district attorney, are prosecuting the abuser for what he or she has done.  As a result, a victim cannot simply have charges against their abuser dropped because the victim no longer desires prosecution of the case.

While abusers may sincerely promise to stop continuing abuse, oftentimes these abusers will still commit acts of violence again in the future against their victims.  This is due to the “cycle of violence” that surrounds many domestic violence cases. 

If a domestic violence victim has additional evidence or information, such as additional photographs, recordings, medical records, etc., regarding his or her domestic violence case, the victim should contact the law enforcement agency that took the original report and submit said information to the law enforcement agency.  The law enforcement agency can then write a supplemental report and submit that supplemental report with the additional evidence to the assigned deputy district attorney.