Everything You Ever Wanted to Know about Domestic Violence
(And Maybe a Little More)
Robert C. Phillips
Deputy District Attorney (Ret)
April, 2020
In November, 2011, thirty-four year-old Kathy Scharbarth was murdered on her birthday by her ex-boyfriend, Michael David Robles (later to hang himself while in jail).[1] A restraining order, commanding that Robles stay away from Kathy, was not enough to protect her as he repeatedly and openly continued to stalk and harass her, eventually strangling her to death and dumping her body in a remote area of San Diego County.[2]
In 2012, Assembly member Ben Hueso (D-San Diego) introduced Assembly Bill 2467. Effective January 1, 2013, AB 2467, amending Penal Code § 136.2, gave judges the authority to order electronic monitoring of certain domestic violence perpetrators in conjunction with the issuance of a restraining order tailored to the domestic violence situation.
In enacting AB 2467, now known as “Kathy’s Law,” it was noted that in California, about 70,000 women had been subjected to domestic violence in one form or another; a number three times higher than the national average. At the time of the signing of AB 2467 into law, there were more than 220,000 active restraining orders in California, most of which involved intimate partner violence. An estimated 50% of such orders had already been violated. AB 2467 was intended to provide law enforcement with a little more power and authority in protecting domestic violence victims.[3]
Even before Kathy Scharbarth’s senseless death, domestic violence has long been recognized as a serious social issue in today’s society. From a law enforcement standpoint, domestic violence in general constitutes a particularly difficult category of crime to enforce and to prosecute. The victims in such crimes are often unwilling to cooperate. Often fearing retaliation or recrimination, many domestic violence victims feel they are without any really viable options, not sure how they can escape the situation in which they have found themselves, not knowing where to go in order to seek protection or refuge and what to do if he comes after her. With the “known,” as bad as it may be, seemingly preferable to the “unknown,” the typical domestic violence victim tends to take the path of least resistance; remaining with her abuser.
“Domestic violence,” however, is not a crime in itself, but rather a simple descriptive phrase used to describe a not-so-simple broad spectrum of crimes involving violence or other forms of abuse in the domestic setting; i.e., in a marriage, during cohabitation, or otherwise as a participant in an intimate relationship. Domestic violence is often used as a synonym for “intimate partner violence” which may be committed by a spouse or partner in an intimate relationship against the other spouse or partner, and can take place in heterosexual or same-sex relationships, or between former spouses or partners. In the broadest sense, domestic violence can also involve violence against the abuser’s children or parents, or, in some cases, the elderly. Domestic violence takes a number of forms, including physical, verbal, emotional, economic, religious, reproductive, and sexual abuse, which may range from various subtle, yet coercive acts, to more overt forms of violent physical abuse such as rape, choking, beating, female genital mutilation, and acid throwing that results in disfigurement or death. Domestic murders historically include stoning, bride burning, honor killings, and dowry deaths (i.e., the murder or suicide of a married woman caused by a dispute over her dowry.), which may sometimes involve non-cohabiting family members.[4]
Domestic Violence; Defined:
While historical examples of what constitutes an act of domestic violence are instructive, it still remains unclear, under today’s statutes, spattered all over various codes, what specific physical or psychological acts performed by an abuser actually fall into this broad category of “domestic violence.” It is important, however, for prosecutors to be familiar with the legal parameters for inclusion into the broad list of domestic violence-related incidents for the simple reason that what specific occurrences, perpetrated against which specific victims, can be labeled as “domestic violence”—or “domestic violence-related”—will often dictate the in-court evidentiary admissibility, or relevance, of a prosecutor’s proposed evidence. In evaluating these issues, and in defining the phases “domestic violence,” we must take into consideration who the victim is, his or her relationship to the defendant/abuser, the nature of the defendant’s acts, and when, in the scheme of events, the defendant perpetrated them.
A good place to start is by considering the California’s Legislature’s various attempts to define “domestic Violence.” Such attempts are contained in a number of separate codes.
California’s Family Code § 6211 provides its definition of “domestic violence” as follows: “‘Domestic violence’” is abuse perpetrated against any of the following persons:
(a) A spouse or former spouse.
(b) A cohabitant or former cohabitant, as defined in Section 6209.
(c) A person with whom the respondent is having or has had a dating or engagement relationship.
(d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).
(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
(f) Any other person related by consanguinity or affinity within the second degree.”
Not to be outdone, the Penal Code, at subdivision (b) of section 13700, makes a similar—even if more simplistic—attempt at defining “domestic violence,” describing it as “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.”
Both of these definitions, however, use some significant terms (i.e., “abuse,” “cohabitant,” and “dating . . . relationship”) that themselves require further examination.
Abuse:
Importantly, “abuse” is defined in subdivision (a) of Penal Code § 13700 as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”
Although Section 13700 fails to specifically identify any particular “bodily injuries” that might come within this category, case law has helped. For instance, in a case where defendant broke into his spouse’s residence and “falsely imprisoned” her (per Penal Code § 236), putting her in reasonable apprehension of imminent serious bodily injury, it was held that this was sufficient for the court to make an implied finding that defendant committed “abuse” against his spouse within the meaning of Section 13700, thus supporting an allegation of domestic violence.[5]
California’s Family Code, however, also supplies its own definition to the term “abuse.” Family Code § 6203, for instance, defines abuse a little more broadly, while limiting its definition to “for (the) purposes of this act” (referring to the “Domestic Violence Protection Act”[6]). Per subdivision (a) of Section 6203: “‘abuse’ means any of the following: (1) To intentionally or recklessly cause or attempt to cause bodily injury. (2) Sexual assault. (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. (4) To engage in any behavior that has been or could be enjoined pursuant to (Family Code) Section 6320.” Subdivision (b) further provides: “Abuse is not limited to the actual infliction of physical injury or assault.”
Delving into specific crimes, the Penal Code sometimes provides more offense-specific—and often significantly broader—definitions for the term “abuse.” For instance California’s “Elder Abuse” statute (Penal Code § 368) provides in subdivision (d): “‘As used in this section: (1) Abuse of an elder or dependent person’ means physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering.”
Under the category of “Child Abuse” (Penal Code §§ 273a, 273d), California’s Legislature has defined “abuse” even more broadly, making it a felony for “(a)ny person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, . . .”[7] Doing the same, but “under circumstances or conditions other than those likely to produce great bodily harm or death,” is designed a misdemeanor.[8]
Further, the actual infliction upon a child of any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is a felony under the provisions of Penal Code section 273d. For the purposes of this statute, a “traumatic condition” has been defined in the case law as “a wound or other abnormal bodily condition resulting from the application of some external force.”[9]
Sometimes, a domestic violence victim may be wise to seek civil damages instead of (or in addition to) proceeding with a criminal prosecution. California’s Civil Code includes a description of the “tort” version of an act of domestic violence. Pursuant to Civil Code § 1708.6, a plaintiff/victim is entitled to civil damages if he or she can prove both; (1) “(t)he infliction of injury upon the plaintiff resulting from abuse, as defined in subdivision (a) of Section 13700 of the Penal Code, and (2) (t)he abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in subdivision (b) of Section 13700 of the Penal Code.”[10]
There is a three-year statute of limitations for domestic violence civil suits.[11] However, if the plaintiff can show that she was the victim of a continuous course of abusive conduct lasting up until less than three years before the filing of the civil suit, she is entitled to compensation for all the domestic violence she endured during that course of conduct, including the abuse that occurred before the three-year cut off period.[12]
Further, in civil child custody battles, one must be concerned as well with what constitutes abuse in a domestic violence context. Family Code section 3044, for instance, creates a rebuttable presumption against finding a parent to be entitled to sole or joint custody of a child when that parent has perpetrated an act of domestic violence within the previous five years against the other party seeking custody of the child, or against the child, or the child’s siblings. The act of domestic violence itself triggers this rebuttable presumption that to allow that person to have custody of a child is “detrimental to the best interest of the child.” This presumption dissolves only upon proof to the contrary, with the standard of proof being by a preponderance of the evidence.[13]
Cohabitants:
This all brings us full circle and back around to Penal Code § 13700 again, where, in subdivision (b), the Legislature included among the list of potential victims of domestic violence to include “cohabitants.” California’s Family Code § 6211, at subdivision (b), also lists “(a) cohabitant or former cohabitant, as defined in Section 6209,” as a potential domestic violence victim
Penal Code § 13700(b) provides its own definition of “cohabitant,” noting that “(f)or purposes of this subdivision, ‘cohabitant’ means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship.”
The Family Code also provides its own definition of “cohabitant.” Per Family Code section 6209, “cohabitant” is defined as “a person who regularly resides in the household.” Further, “(f)ormer cohabitant” means a person who formerly regularly resided in the household.”
The importance of understanding who is, and who is not, a cohabitant, is illustrated by the fact that pursuant to Penal Code § 836(d), a law enforcement officer is authorized to make a misdemeanor arrest for “an assault or battery upon a current or former spouse, fiancé, fiancée, a current or former cohabitant as defined in Section 6209 of the Family Code,” even though the offense occurred outside the officer’s presence. This, of course, constitutes an exception to the general rule that for an officer to arrest a person accused of having committed a misdemeanor, the crimes must have occurred in the officer’s presence.[14] If, in a given situation, an officer, faced with a misdemeanor situation, isn’t familiar with what it takes to qualify as a “cohabitant” (assuming none of the other domestic violence victim categories apply), he has set himself up to violate the “misdemeanor in the presence” rule.
The victim being a cohabitant is also one of the alternate elements of a number of criminal offenses. For instance, Penal Code § 273.5 (spousal abuse) describes the felony offense of inflicting corporal injury resulting in a traumatic condition on a specific list of victims; i.e., a present or former spouse, present or former cohabitant, present or former fiancé or fiancée, someone with whom the offender has, or previously had, an engagement or dating relationship as defined in Penal Code § 243(f)(10), or the mother or father of the offender’s child.[15] Again, if none of the other qualifying relationships apply, an officer may have to make the decision as to whether the victim is “(t)he offender’s cohabitant or former cohabitant.”[16]
Pursuant to subdivision (d) of section 273.5, by the way, “‘traumatic condition’ means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, ‘strangulation’ and ‘suffocation’ include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.”
The available case law gives us some common sense factual situations that help us interpret the above statutes.
In People v. Ballard, [17] for instance, decided by California’s First District Court of Appeal, the defendant appealed his conviction for spousal abuse pursuant to Penal Code § 273.5, arguing, among other issues, that absent evidence of having had sexual relations, it was not proven that he and the victim were “cohabitants.”
The Court had no difficulty finding that aside from defendant being a “‘hard core violator,’ who cannot be heard to complain,” the evidence showed that defendant and the victim were in fact cohabitants. The evidence relied up by the court was to the effect that he and she “lived together in one bed” for two years.[18] Citing some older California Supreme Court authority, the First District Court noted that “living together and cohabitation mean the same thing.”[19] In a more descriptive, albeit equally ancient, decision, the First District noted that the High Court has ruled that; “by cohabitation is not meant simply the gratification of the sexual passion, but ‘to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also?’”[20] Moving into the 20th century (albeit barely), the Supreme Court described a commonly accepted definition of “cohabiting” as; “living together of a man and woman ostensibly as husband and wife.”[21] More modernly, however, it is now recognized that to be cohabitants, it need only be proved that the defendant and his victim “simply . . . live or dwell together in the same habitation . . . (and that) evidence of lack of sexual relations is irrelevant.”[22]
Similarly, in People v. Dallas,[23] where the defendant was accused of purposely injuring his girlfriend’s 9-month-old baby and was charged in state court with violations of both Penal Code §§ 273a(a) (felony child abuse) and 273d(a) (felony infliction of an injury on a child), the Fourth District Court of Appeal held that both the charges involved "domestic violence" within the meaning of Family Code § 6211. This is because the baby regularly resided in defendant's household and was therefore a "cohabitant" within the meaning of Family Code § 6209.[24]
In considering the varying definitions of the term “cohabitant” as contained in the Penal and Family Codes, the Dallas Court determined that under Family Code §§ 6209 and 6211, as “a person who regularly resides in the household,” and because a sexual relationship is not a necessary element, that the victim baby was in fact a “cohabitant” with the defendant, and entitled to the protections of the domestic violence-related statutes.[25]
But there are limits to the above. In O'Kane v. Irvine,[26] for instance, the First District Court of Appeal came to the opposite conclusion in a case where two combatants merely lived under the same roof, with one subletting from the other, but otherwise were not involved in any form of close family relationship.
In O’Kane, it was noted that the domestic violence statutes used the term “household,” which has been interpreted by the courts as meaning “a collection of persons, whether related or not, who live together as a group or unit of permanent or domestic character, with one head, under one roof or within a common curtilage, who direct their attention toward a common goal consisting of their mutual interests.”[27] Simple unrelated roommates do not meet these requirements.
Therefore, because the parties in O’Kane were not shown to be living together as a group or family unit—that they lived in the same house but without a common goal—they were not living as “cohabitants,” and could not be described as a social unit living together. It was not established, therefore, that the victim of an assault by the other was a protected person under the Domestic Violence Prevention Act, pursuant to Family Code §§ 6200 et seq.[28]
Another criminal offense is described in Penal Code § 243(e)(1). Pursuant to this section, “battery” is a felony when it is “committed 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.” Again, knowing what “cohabiting” refers is instrumental in knowing whether a suspect is in violation of this section.
Dating Relationship:
Penal Code § 243(f)(10), as referred to above, as well as Family Code section 6210, both define a “dating relationship” as involving “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations.” (Statutes and cases often refer to a “dating ‘or engagement’ relationship,” as noted above. “Engagement,” being self-explanatory and never in issue, is not discussed.)
Finding that Penal Code § 243(f)(1)’s definition for a “dating relationship” is the same as it is under Family Code §§ 6200 et seq. (the Domestic Violence Prevention Act), the Fourth District Court of Appeal has held that to constitute a dating relationship “does not require ‘serious courtship,’ an ‘increasingly exclusive interest,’ ‘shared expectation of growth,’ or that the relationship endures for a length of time. [Citation.] The statutory definition (does require, however,) ‘frequent, intimate associations,’ a definition that does not preclude a relatively new dating relationship.” A “dating relationship” applies to a “range of dating relationships.”[29]
At the other end of the spectrum, however, a “dating relationship does not include ‘a casual relationship or an ordinary fraternization between [two] individuals in a business or social context’”[30]
Restraining/Protective Order Requirements:
Domestic violence victims have at their disposal a number of types of restraining or protective court orders, intended to help shield them from abusive conduct perpetrated by others. While argued by some that such orders are often of a limited value, and, to the contrary, may only serve to anger and embolden a victim’s abuser, such orders will at the very least provide responding law enforcement officers with an additional, and often more effective tool to use to stop the abuser in his tracks.
Penal Code § 136.2:
Penal Code § 136.2, for instance (also known as “Kathy’s Law,”[31] as referenced above), largely geared to the domestic violence situation, provides a court, “(u)pon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur . . .”, with the power to issue “(a)n order . . . pursuant to Section 6320 of the Family Code” (enjoining harassment, threats, or violence; see below), to the effect that a defendant or anyone else before the court shall not prevent or dissuade a witness or a victim from testifying, in violation of Penal Code section 136.1, and/or to order a person not to communicate “whatsoever with a specified witness or a victim, except through an attorney under reasonable restrictions that the court may impose.”[32]
For purposes of this section, a minor, even if not technically a victim, but who is present during any domestic violence-related incident, “is a witness and is deemed to have suffered harm within the meaning” of the above.[33]
Under section 136.2, the court also has the authority to order a “particular law enforcement agency” to “provide protection for a victim, a witness, or both, or for immediate family members of a victim or a witness who reside in the same household as the victim or witness or within reasonable proximity of the victim’s or witness’ household.” This authority is dependent upon the law enforcement agency’s consent, “except for limited and specified periods of time.” The court is also required to make, on the record, “express findings . . . of a clear and present danger of harm to the victim or witness or immediate family members. . . .” “Immediate family members” is defined to “include the spouse, children, or parents of the victim or witness.”[34]
An example of the use of a Penal Code § 136.2 protective order is illustrated in the relatively recent case of People v. Caceres.[35] In Caceres, defendant was charged with making a criminal threat (per Penal Code § 422) by standing at his estranged girlfriend’s locked front door, pounding on it while threatening to kill her if she didn’t open the door. Upon conviction, defendant argued that Penal Code § 422 was not a “crime involving domestic violence,” as required in order to subject him to a protective order under section 136.2(i)(1). The Court disagreed, ruling that criminal threats are among the acts subject to injunction under Family Code § 6320(a), they are “abuse” under Family Code 6203(a)(4), and constitute “domestic violence” under Family Code section 6211 when perpetrated against a person with whom the defendant has had a child or a dating relationship. Defendant here admitted that the person he threatened was someone he had dated and with whom he had a child. Thus, under Family Code § 6211, he committed an act of domestic violence, subjecting him to a protective order authorized by section 136.2(i)(1).[36]
Whether or not the court actually issues such an order as described above, the court has the authority to at least issue a protective order to the effect that “(t)he defendant shall not (or attempt to) own, possess, purchase, or receive . . . a firearm while the protective order is in effect.” Upon issuance of such an order, the defendant is required to relinquish any such firearms. Even if no restraining order is issued, the court may still prohibit a defendant from possessing firearms so long as the court finds a “good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur.” [37]
Pursuant to Penal Code § 29825, failure to relinquish one’s firearms after such an order is punishable by imprisonment in a county jail not exceeding one year or in the state prison for 16 months, two or three years, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
And while on the topic of firearms, it is important to also note that as dangerous as domestic violence incidents tend to be, it has been held that merely because an officer suspects that an incident with which he is confronted is domestic violence related, that fact alone, without more, is insufficient to justify a patdown of the suspect for weapons.[38]
Even most significantly, however, a trial court also has the authority under Penal Code § 136.2 to issue a protective order requiring the defendant to be placed on electronic monitoring, at least so long as the local government, with the concurrence of a county sheriff or the chief probation officer, has a policy authorizing electronic monitoring of defendants, specifying the agency with jurisdiction for this purpose. If financially able—while perhaps adding insult to injury—the defendant can even be ordered to pay the costs of his own monitoring.
A defendant who violates a restraining order pursuant to the above is subject to the punishment provisions of Penal Code § 136.1; i.e., a felony ranging from a year in county jail up to two, three, or four years in state prison,[39] or for contempt of court, or for both.[40]
If the defendant has been charged with a crime involving domestic violence, as defined in Penal Code § 13700 or Family Code § 6211, or a violation of Penal Code §§ 261 (rape), 261.5 (sexual intercourse with a minor), or 262 (spousal rape), or a crime that requires the defendant to register as a sex offender pursuant to Penal Code § 290(c), the court has the authority to issue any of the above-described orders on its own motion.[41]
Also, upon conviction of a crime involving domestic violence, as defined in Penal Code § 13700 or Family code § 6211, or of a violation of Penal Code §§ 236.1(a) (human trafficking), 261 (rape), 261.5 (sexual intercourse with a minor), 262 (spousal rape), 266h(a) (pimping), 266i(a) (pandering), 186.22 (active participation in a criminal street gang), or a crime that requires the defendant to register as a sex offender pursuant to Penal Code § 290(c), the court, at the time of sentencing, has the discretionary authority to issue an order restraining the defendant from any contact with a victim of the crime for up to ten years.[42]
Where a court’s record establishes that a defendant has unlawfully restrained his spouse (or other qualifying victim) using force and/or violence, a trial court may reasonably conclude that defendant intentionally or recklessly caused or attempted to cause his victim bodily injury, or placed her in reasonable apprehension of imminent serious bodily injury. That’s sufficient for a court to conclude that the record supports an implied finding that defendant committed “abuse” against his spouse or other qualifying victim within the meaning of section Penal Code § 13700, therefore committing a domestic violence-related crime. Upon such a record, issuing a protective order under authority of subdivision (i) of Penal Code § 136.2, is justified.[43]
A court’s authority to impose a 10-year stay-away protective restraining order is available for the benefit of anyone who was a victim of a defendant’s assaultive actions during a domestic violence incident, even if that person him or herself does not legally qualify as a domestic violence victim (e.g., where a co-victim does so qualify).[44] For example, in People v. Beckemeyer,[45] a case decided by the Fourth District Court of Appeal, defendant’s adult son, who was assaulted during the commission of an act of domestic violence committed against his mother, and defendant’s girlfriend, qualified for the protection of a 10-year stay away protective order.
A conviction for any of the above (except pimping or pandering) also gives the court the authority to restrain the defendant from any contact with a percipient witness to the crime if it can be established by clear and convincing evidence that the witness has been “harassed,” as this term is defined in the Code of Civil Procedure § 527.6(b)(3), by the defendant.[46]
Emergency Ex Parte Protective Orders:
The “Domestic Violence Protection Act,” as contained in Family Code §§ 6200 et seq., provides an officer at the scene of a domestic violence incident with a means of seeking an ex parte court order, on an emergency basis, for the purpose of providing a domestic violence victim immediate protection whenever an officer can assert “reasonable grounds” for believing any of the following:
(a) That a person is in immediate and present danger of domestic violence, based on the person’s allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought.[47]
(b) That a child is in immediate and present danger of abuse by a family or household member, based on an allegation of a recent incident of abuse or threat of abuse by the family or household member.[48]
(c) That a child is in immediate and present danger of being abducted by a parent or relative, based on a reasonable belief that a person has an intent to abduct the child or flee with the child from the jurisdiction or based on an allegation of a recent threat to abduct the child or flee with the child from the jurisdiction.[49] To “abduct” is defined elsewhere as to “take, entice away, keep, withhold, or conceal.”[50]
(d) That an elder or dependent adult is in immediate and present danger of abuse as defined in Section 15610.07 of the Welfare and Institutions Code, based on an allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought, except that no emergency protective order shall be issued based solely on an allegation of financial abuse.”[51]
A specific judge is required by statute to be on call and available to orally issue such an order.[52] But before issuing an emergency protective order, the judge must specifically find at the very least “reasonable grounds” for believing that at least one of the above four listed alternatives (occurrence or recurrence of domestic violence, child abuse, child abduction, or abuse of an elder or dependent adult) applies to the situation.[53]
Also, a judicial officer may issue an ex parte emergency protective order to a peace officer where such an order is consistent with an existing memorandum of understanding between a college or school police department, where the peace officer seeking the order is employed and the sheriff or police chief of the city in whose jurisdiction the peace officer’s college or school is located, and the peace officer asserts reasonable grounds to believe that such an order is necessary in order to avert a demonstrated threat to campus safety.[54]
In order for an emergency protective order be valid, a judicial officer must first make the findings as required by Family Code § 6251 and pursuant to a specific request by a law enforcement officer.[55] The required Section 6251 findings are:
“(a) That reasonable grounds have been asserted to believe that an immediate and present danger of domestic violence exists, that a child is in immediate and present danger of abuse or abduction, or that an elder or dependent adult is in immediate and present danger of abuse as defined in Section 15610.07 of the Welfare and Institutions Code;” and
“(b) That an emergency protective order is necessary to prevent the occurrence or recurrence of domestic violence, child abuse, child abduction, or abuse of an elder or dependent adult.”
Welfare and Institutions Code § 15610.07, referred to above, defines elder or dependent adult abuse as “(1) (p)hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (2) (t)he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; (and/or) (3) (f)inancial abuse, as defined in Section 15610.30.”
Family Code § 6252 lists the types of emergency protective orders that the judge is authorized to issue, depending upon the circumstances:
(a) A protective order, as defined in Section 6218, which includes orders enjoining specific acts of abuse, excluding a person from a dwelling, and enjoining other specific behavior.[56]
(b) An order determining the temporary care and control of any minor child of the endangered person and the person against whom the order is sought.
(c) An order authorized in Section 213.5 of the Welfare and Institutions Code (providing a juvenile court with the authority to issue protective orders in favor of dependent children and others in dependency proceedings), including provisions placing the temporary care and control of the endangered child and any other minor children in the family or household with the parent or guardian of the endangered child who is not a restrained party.
(d) An order determining the temporary care and control of any minor child who is in danger of being abducted.
(e) An order authorized by Section 15657.03 of the Welfare and Institutions Code (protective orders in favor of elder or dependent adults; see below).
Upon its issuance, such an order is required to state on its fact the date of expiration of the order along with something similar to the following: “This order is effective when made. The law enforcement agency shall enforce it immediately on receipt. It is enforceable anywhere in California by any law enforcement agency that has received the order or is shown a copy of the order. If proof of service on the restrained person has not been received, the law enforcement agency shall advise the restrained person of the terms of the order and then shall enforce it.”[57]
In these cases, a law enforcement officer has a duty to explain to an endangered person the availability of an emergency protective order, and then to request such an order whenever he or she believes that the person is in fact in “immediate and present danger.”[58] But the officer’s responsibilities do not end there. In addition to the requesting officer having the responsibility of reducing an order to writing and signing it,[59] the officer must also serve the order on the restrained person, if possible, give a copy of the order to the protected person (or, in the case of an endangered child, to a parent or guardian of the child who is not a restrained person, or to a person having temporary custody of the endangered child), file a copy of the order with the court as soon as practicable after issuance, and then ensuring that the order is entered into the computer database system for protective and restraining orders maintained by the Department of Justice.[60]
Also note that “(t)he fact that the endangered person has left the household to avoid abuse does not affect the availability of an emergency protective order.”[61]
Lastly, it must also be noted that emergency protective orders are of very limited duration, expiring at the close of judicial business on the fifth court day following the day of its issuance, or the seventh calendar day following the day of its issuance, whichever occurs first.[62] Victims should be advised, therefore, that they need to seek a more permanent solution to the problem giving rise for the need of such an order in the first place, whether that is a permanent injunction as issued by a court (e.g., see Penal Code § 136.2, above), or some other means of separating the abuser from his victims.
Miscellaneous Restraining and Protective Orders:
Other statutory provisions for restraining or protective orders that can be used to shield a domestic violence victim from her or his abusive partner include the following:
Penal Code § 646.91; providing for an “emergency protective order” in any case where a victim relates to a peace officer “reasonable grounds to believe that a person is in immediate and present danger of stalking based upon the person’s allegation that he or she has been willfully, maliciously, and repeatedly followed or harassed by another person who has made a credible threat with the intent of placing the person who is the target of the threat in reasonable fear for his or her safety, or the safety of his or her immediate family, . . .”
Penal Code § 1203.097(a)(2); for the granting of a protective order as a condition of probation for one having been convicted of a domestic violence-related offense against anyone as described in Family Code § 6211 (see above), “protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions.” (See also Welfare & Institutions Code § 213.5, providing a juvenile court with the authority to issue protective orders in favor of dependent children and others in dependency proceedings.)
Code of Civil Procedure § 527.6; providing for a temporary restraining order in favor of a person who is the victim of “harassment,” a “credible threat of violence,” or a “course of conduct” (i.e., “a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email”).[63]
Code of Civil Procedure § 527.8; for an employer to seek a workplace protective order where an employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace.
Code of Civil Procedure § 527.85; empowering “any chief administrative officer of a postsecondary educational institution, or an officer or employee designated by the chief administrative officer to maintain order on the school campus or facility, a student of which has suffered a credible threat of violence made off the school campus or facility from any individual which can reasonably be construed to be carried out or to have been carried out at the school campus or facility, may, with the written consent of the student, (to) seek a temporary restraining order and an order after hearing on behalf of the student and, at the discretion of the court, any number of other students at the campus or facility who are similarly situated.”[64]
Family Code § 6320: During the pendency of any court proceeding, the court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Penal Code § 528.5, falsely personating as described in Penal Code § 529, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Penal Code section 653m, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.[65] The court also has the statutory power to protect and determine the fate of the family’s pets, as far as who is to get custody.[66]
Welfare and Institutions Code § 15657.03; providing for protective orders in favor of elder or dependent adults who have suffered abuse such as “(1) (p)hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (2) (t)he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering,” and “(3) (f)inancial abuse, as defined in (Welfare and Institutions Code) Section 15610.30.” The act of “abduction” is defined elsewhere as to “take, entice away, keep, withhold, or conceal.”[67]
Sanctions for Violating a Protective Order:
Violation of any of the protective orders is generally punishable as a misdemeanor, although the sentence may be enhanced upon a determination that the defendant’s actions resulted physical injuries,[68] or if he committed one or more prior protective order violations within the recent past (seven years, and involving an act of violence or “a credible threat” of violence ,[69] or one year, with a physical injury to a victim,[70] as specified in the specific subdivisions).
Generally, a person subject to a restraining or protective order is going to be required to relinquish any firearms he owns or possesses.[71] Possessing, purchasing, or receiving a firearm while knowing that he or she is prohibited from doing so by the provisions of a California court-issued protective order, is punishable as a felony (wobbler).[72] Doing the same in violation of a court order issued by a court in another state is a misdemeanor.[73]
Evidentiary Issues; Character Evidence:
The general rule, as provided for in Evidence Code § 1101, is that evidence of a criminal defendant’s character is inadmissible at trial, absent an exception: “(E)vidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”[74] In practice, this prevents a jury from hearing any evidence related to a defendant’s prior, uncharged, bad acts, requiring them instead to decide the charged criminal accusation on the evidence directly related to that accusation by itself, without hearing anything related to the fact that the defendant may just be a bad person in general; commonly referred to as “character evidence.”
Subdivision (b) provides an exception to Section 1101(a)’s general exclusion of character evidence: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” This exception was found to be applicable by California’s First Appellate District in the domestic violence context in the case of People v. Kerley.[75]
In Kerley, it was held that sufficient circumstantial evidence, including the discovery of the victim's unclothed body in a remote location and defendant’s history of domestic violence and threats toward the victim, allowed the jury to find that the victim had been murdered and defendant was the killer. In this case, prior incidents of domestic violence were properly admitted under subdivision (b) of Evidence Code § 1101 (as well as Evidence Code § 1109; see below), because the definition of abuse in Penal Code § 13700 encompassed murder and, in weighing admissibility under Evidence Code § 352 (balancing the evidence’s probative value with its potential for prejudice), prior domestic violence was highly relevant and probative.[76]
Another recognized exceptions to the exclusionary rule of Evidence Code § 1101(a), and particularly taking into account the value of prior domestic violence-related incidents, is contained in Evidence Code § 1109.[77] Per subdivision (a)(1) of Section 1109: “Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Subdivision (e)’s exception to the above limits this rule to events that occurred within the last ten years. Pursuant to subdivision (d)(3), however (see below), just to complicate this all a bit more, the admissibility of character evidence in domestic violence cases (as defined in Penal Code § 13700) is subject to a hearing conducted pursuant to Evidence Code § 352 (taking into account a consideration of any corroboration and remoteness in time), and for which the term “domestic violence” is to be given the additional meaning as set forth in Family Code § 6211 if the act occurred no more than five years before the charged offense.
Subdivision (f)’s exception to the admissibility of Section 1109 evidence refers to “findings and determinations of administrative agencies regulating the conduct of health facilities licensed under Section 1250 of the Health and Safety Code,” noting that such evidence “is inadmissible under this section.”
Evidence Code 352, as mentioned a couple of times above, requires the court to balance the prejudicial effect of a piece of evidence with its probative value, allowing the jury to hear the evidence only if the court finds the latter (probative value) to outweighs the former (prejudicial effect).
Subdivision (d) of Section 1109 also provides its own necessary definitions:
“(1) ‘Abuse of an elder or dependent person’ means physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering.’”
“(2) ‘Child abuse’ means an act proscribed by Section 273d of the Penal Code.’” (See above, under “Abuse.”)
“(3) ‘Domestic violence” has the meaning set forth in Section 13700 of the Penal Code’” However (as already noted above), this subdivision also provides: “Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.”
Continuing on, Evidence Code § 1109(a)(2) provides that; “(e)xcept as provided in subdivision (e) or (f) (see above), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant’s commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
And lastly, subdivision (a)(3) of Evidence Code section 1109 adds: “Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352 (again, see above), which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant’s commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
A number of important cases (in addition to People v. Kerley, above) have discussed the applicability of Evidence Code § 1109 to the admissibility of character evidence.
In People v. Dallas,[78] for instance, the defendant was accused of purposely injuring his girlfriend’s 9-month-old baby. Charged and convicted of both Penal Code §§ 273a(a) (felony child abuse) and 273d(a) (felony infliction of an injury on a child), one of the issues on appeal was the admissibility of evidence of prior acts of abuse committed against both a former girlfriend and her 4-year-old son.
The Fourth District Court of Appeal held in Dallas that because defendant lived with the baby, this was not only a prosecution for “child abuse” so that prior acts of child abuse were admissible under subdivision (a)(3) of Evidence Code § 1109, but also a prosecution for “domestic violence” so that prior acts of domestic violence were likewise admissible under subdivision (a)(1) of Evidence Code § 1109.[79] The Court had no difficulty finding that Section 1109 clearly allowed for the alleged prior acts of child abuse and domestic violence as highly relevant and probative evidence as to the truth of the current charges.
In People v. Flores,[80] the Second District Court of Appeal addressed the “ex post facto” issues of using prior bad acts pursuant to Evidence Code § 1109 against a defendant charged with a domestic violence-related crime that occurred prior to 1109’s enactment.
In Flores, defendant was charged with the murder of his former girlfriend and the attempted murder of her new boyfriend. Convicted of both charges, defendant argued that admission of prior acts of domestic violence (i.e., two misdemeanor convictions for spousal battery against a previous girlfriend with whom he had a child) violated the constitutional ex post facto protections[81] in that the Evidence Code § 1109’s exception to the Section 1101’s prohibition on using evidence of prior bad acts did not exist when the current offenses were committed.
Rejecting defendant’s arguments, the Appellate Court ruled that that there was no violation of the constitutional prohibition against the ex post facto application of laws in admitting evidence of prior domestic violence committed by defendant. The enactment of Section 1109 did not reduce or otherwise change the sufficiency of evidence needed to support defendant’s murder and attempted murder convictions in the instant case. Section 1109 merely made evidence of prior domestic violence admissible for a purpose for which it had previously (before enactment of Section 1109) been inadmissible; i.e., the propensity of a spousal batterer to commit other crimes of domestic violence. Admission of defendant's history of domestic violence did not change the elements of the crime of murder or lower the prosecution’s burden of proving those elements beyond a reasonable doubt in order to achieve a conviction.[82]
It is also interesting to note that the application of Evidence Code § 1109 is not limited to what we commonly assume to be domestic violence crimes. It is enough, as specified in subdivision (a)(1) of Section 1109, that the charged offense is one “involving domestic violence.”
For instance, in People v. James,[83] where the defendant was charged with first degree burglary for breaking into his girlfriend’s house intending to assault her, the Appellate Court held that Section 1109 character evidence was properly admitted into evidence against defendant in that the charged offense—residential burglary—was a crime “involving domestic violence.” Per the Court: “Although burglary is not, in every instance, an offense involving domestic violence, under the facts of this case, where defendant broke into his girlfriend’s residence with the intent to assault her, the crime of burglary was an offense “involving domestic violence,” thus allowing the People us use propensity evidence under Section 1109.[84]
Similarly, while using the same reasoning, California’s Fifth Appellate District held in People v. Brown[85] that Evidence Code § 1109 character evidence was admissible in a murder case where the defendant murdered his former girlfriend. The murder being a crime “involving domestic violence” under the facts unique to this particular case, with the Court noting that “murder . . . (being) the ultimate form of domestic violence,” the prior character evidence was held to be admissible.[86]
Another important quirk related to Evidence Code § 1109 evidence is the ten-year limitation on such evidence. In a trial arising from a defendant’s use of a gun to threaten the mother of his child and her mother as well, the Fourth District Court of Appeal held in People v. Megown[87] that it was proper to admit evidence of past uncharged acts of domestic violence against the cohabitant that occurred some 16 years earlier in that they were shown to be part of a continuous reoccurring pattern of abuse, continuing on into the 10-year limitation period, relevant to the current charges in that they created a strong inference that defendant had a propensity to commit the acts described.[88]
The Court also held in Mcgown that it was proper to admit evidence of past uncharged acts of domestic violence against the cohabitant—the victim’s mother—to prove the crimes against the mother because the charged crimes took place in the cohabitant’s presence and thus were crimes “involving” domestic violence for purposes of Evidence Code § 1109.[89]
Other Statutory Duties Relative to Domestic Violence Incidents:
Domestic violence being such an important area of the law, and the protection of its victims having perhaps a higher priority than maybe some other assaultive-type crimes, the California Legislature has imposed a number of statutory obligations upon responding police officers as well as an officer’s employing agency whenever confronted with a domestic violence
Penal Code § 836(b) mandates that any time a peace officer is called to the scene of a domestic violence incident, the officer shall make a good faith effort to inform the victim of his or her right to make a citizen’s arrest[90] unless the peace officer is able to lawfully make the arrest him or herself pursuant to Penal Code sections 243(e)(1) (felony battery) or 273.5 (felony spousal abuse). This information shall include advising the victim how to safely execute the arrest.
Also, as already noted above, subdivision (d) of Penal Code § 836 allows a peace officer to make an arrest at the scene of a misdemeanor assault or battery, even though the offense involved did not occur in the officer’s presence, whenever the crime victim is the suspect’s “current or former spouse, fiancé, fiancée, a current or former cohabitant as defined in Section 6209 of the Family Code, a person with whom the suspect currently is having or has previously had an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243, a person with whom the suspect has parented a child, or is presumed to have parented a child pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code), a child of the suspect, a child whose parentage by the suspect is the subject of an action under the Uniform Parentage Act, a child of a person in one of the above categories, any other person related to the suspect by consanguinity or affinity within the second degree, or any person who is 65 years of age or older and who is related to the suspect by blood or legal guardianship.”
Should upon arrival at the scene, the officer discover that a suspect is in violation of an already existing domestic violence protective or restraining order (“issued under Section 527.6 of the Code of Civil Procedure, the Family Code, Section 136.2, 646.91, or paragraph (2) of subdivision (a) of Section 1203.097 of (the Penal Code), Section 213.5 or 15657.03 of the Welfare and Institutions Code, or of a domestic violence protective or restraining order issued by the court of another state, tribe, or territory”[91]), and upon a determination that probable cause exists to believe that the suspect has notice of the order and has committed an act in violation of the order, then the officer “shall” arrest the suspect, without a warrant, whether or not the violation occurred in the officer’s presence.[92]
As soon as practical after the arrest, however, the arresting officer is to take steps to confirm that the arrestee did in fact have prior notice of the restraining or protective order. This can be done either through the Domestic Violence Protection Order Registry maintained pursuant to Family Code § 6380m from the victim upon presentation to the officer of proof of service,[93] confirmation with the “appropriate authorities” that a true copy of the proof of service is on file, or evidence that the arrestee had been present at the protective order hearing or was otherwise informed by a peace officer of the contents of the protective order.[94]
Pursuant to Penal Code § 13701, all law enforcement agencies are required to have in place written policies and standards for their officers’ responses to domestic violence calls. Countermanding the historically common practice of purposely avoiding the making of arrests in domestic violence situations, an agency’s policies are required to reflect that domestic violence constitutes criminal conduct and “that a request for assistance in a situation involving domestic violence is the same as any other request for assistance where violence has occurred.”[95] Arrests are “encourage(d),” at least whenever probable cause exists.[96]
It is also required under section 13701 that whenever a protective order exists, an officer “shall” make an arrest of the offender absent some “exigent circumstance” dictating otherwise. Dual arrests, while not prohibited, are “discourage(d).” Rather, officers are to make reasonable efforts to identify the dominate aggressor, taking into account who was the “most significant,” rather than necessarily the first, aggressor. “In identifying the dominant aggressor, an officer shall consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense.”[97]
These written policies are to be available to the public, upon request, and are to include a long descriptive list (ten of them) of specified topics, factors, and standards related to the handling of domestic violence calls.[98]
Among the polices to be adopted and included in a law enforcement agency’s written standards for domestic violence incidents are requirements for police dispatchers, as specified in Penal Code § 13702. Specifically, an agency’s written polices shall reflect that calls reporting threatened, imminent, or ongoing domestic violence, including the violation of a protection or restraining order, shall be ranked among the highest priority of radio calls sent out to officers in the field.
Other statutory requirements are imposed upon law enforcement (and others) for the maintaining of records related to domestic violence-related protective and restraining orders,[99] the distribution of information pamphlets by the clerk of the superior court to persons under the protection of a domestic violence-related protection and/or restraining order,[100] the development of a system for the recording of all domestic violence-related calls for assistance made to a law enforcement agency, including whether weapons are involved, or whether the incident involved strangulation or suffocation,[101] annual reports by the Attorney General to the Governor, the Legislature, and the public, to include the total number of domestic violence-related calls received by California law enforcement agencies, the number of cases involving weapons, the number of cases involving strangulation or suffocation, and a breakdown of calls received by agency, city, and county,[102] and a requirement for all law enforcement agencies to develop an incident report form for domestic violence calls, which must contain information such as indications that drugs or alcohol were involved, prior calls involving the same participants, the involvement of firearms, and whether there were indications that the incident involved strangulation or suffocation.[103]
Pursuant to Penal Code §13731, in subdivision (a), the Legislature has dictated that the San Diego Association of Governments may serve as the regional clearinghouse for criminal justice data involving domestic violence. Suggestions for how this association is to go about this responsibility are contained in the section, and what may be included. Subdivision (b) dictates the creation of a standardized “intake form” (i.e., referred to as a “Compilation of Research and Evaluation Intake Instrument,” or “C.O.R.E.”), and provides for the collection and analyzing of these forms, specifying that the use of the collected client–based data be used to identify the nature and scope of violence from the perspective of domestic violence shelter clients and to determine the service needs of clients and what gaps in service delivery exist. Lastly, an advisory committee is to be established in order to facilitate the above efforts.
Lastly, and perhaps most significantly, Penal Code § 13732 summarizes the Legislature’s findings and declarations, tying together domestic violence with the obviously related social and criminal problem of child abuse. Per the Legislature; “It is the intent of the Legislature in enacting this section to improve preventative and supportive services to families experiencing violence in order to prevent further abuse of children and the victims of domestic violence.”[104]
After encouraging “child protective services agencies (to) develop a protocol which clearly sets forth the criteria for a child protective services response to a domestic violence related incident in a home in which a child resides,”[105] the Legislature continues on, mandating the following:
“Commencing January 1, 2003, child protective services agencies, law enforcement, prosecution, child abuse and domestic violence experts, and community–based organizations serving abused children and victims of domestic violence shall develop, in collaboration with one another, protocols as to how law enforcement and child welfare agencies will cooperate in their response to incidents of domestic violence in homes in which a child resides. The requirements of this section shall not apply to counties where protocols consistent with this section already have been developed.”[106]
Conclusion:
Law enforcement is obligated to be familiar with—and understand—the above, able to differentiate a domestic violence incident from all others, so that officers and others can handle such situations appropriately and as required by the law. Just as importantly, prosecutors must be conversant with the statutes and cases dealing with domestic violence so that these cases get the attention, and the priority, their victims need and deserve.
Kathy Scharbarth is not, and will not be, the only victim of domestic violence. Prosecutors are tasked with the legal and moral responsibility to insure that Kathy’s tragic death is not forgotten, and that some good is to come of it. That’s Kathy Scharbarth’s legacy: That all future domestic violence victims should benefit from the advances made in the law, geared towards preventing reoccurrences where possible, protecting domestic victims when required, and appropriately punishing violators when it happens. For these reasons, if no other, Kathy Scharbarth will not be forgotten.
[1] http://www.sandiegouniontribune.com › sdut-region-suspect-in-scharbarth-s...
[2] http://www.signonsandiego.com/news/2...d-stalked-her/
[3] https://sd40.senate.ca.gov/news/2012-09-27-hueso-s-bill-protect-victims-domestic-violence-becomes-law
[4] https://en.wikipedia.org/wiki/Domestic_violence
[5] People v. Therman (2015) 236 Cal.App.4th 1276.
[6] Fam. Code §§ 6200 et seq.
[7] Subd. (a) of Pen. Code § 273a.
[8] Subd. (b) of Pen. Code § 273a.
[9] People v. Stewart (1961) 188 Cal.App.2nd 88, 91.
[10] See Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1448-1456.
[11] Code Civ. Proc., § 340.15
[12] Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444
[13] E.g., see Celia S. v. Hugo H. (2016) 3 Cal.App.4th 655.
[14] See Pen. Code §§ 836(a)(1), 837.1; Jackson v. Superior Court (1950) 98 Cal.App.2nd 183.
See also V.C. § 40300.
[15] Subd. (b) of P.C. § 273.5.
[16] Subd (b)(2) of P.C. § 273.5.
[17] (1988) 203 Cal. App.3rd 311
[18] Id, at p. 317.
[19] Ibid, quoting Sharon v. Sharon (1888) 75 Cal. 1, 56, 61.
[20] Ibid, quoting Kilburn v. Kilburn (1891) 89 Cal. 46, 50.
[21] Ibid, quoting Estate of Mills (1902) 137 Cal. 298, 301.
[22] Id., at pp. 317-318, quoting Michael H. v. Gerald D. (1987) 191 Cal.App.3rd 995, 1006.
[23] (2008) 165 Cal. App.4th 940.
[24] Id, at pp. 952-953.
[25] People v. Dallas, supra, at p. 953.
[26] (1996) 47 Cal.App.4th 207.
[27] Id, at p. 212.
[28] Ibid.
[29] People v. Upsher (2007) 155 Cal.App.4th 1311, 1322; citing People v. Rucker (2005) 126 Cal.App.4th 1107, 1116;
[30] People v. Upsher, supra, at p. 1323; quoting People v. Rucker, supra, at p. 1117
[31] See fns. 1-3, above.
[32] Subd. (a)(1)(A)-(D) of P.C. § 136.2.
[33] Subd. (a)(2) of P.C. § 136.2.
[34] Subd. (a)(1)(F)(i) & (ii) of P.C. § 136.2.
[35] (2019) 39 Cal. App.5th 917.
[36] Id., at pp. 921-922.
[37] Subd. (a)(1)(G)(ii)(I) & (d) of P.C. § 136.2.
[38] Thomas v. Dillard (9th Cir. 2016) 818 F.3rd 864.
[39] See Pen. Code § 136.1(a), (b), & (c).
[40] Pen. Code § 136.2(b).
[41] Subd. (e)(1) of P.C. § 136.2.
[42] Subd. (i)(1) of P.C. § 136.2.
[43] People v. Therman (2015) 236 Cal.App.4th 1276.
[44] People v. Beckemeyer (2015) 238 Cal.App.4th 461, 464-467.
[45] Ibid.
[46] Subd. (i)(2) of P.C. § 136.2.
[47] Subd. (a) of Fam. Code § 6250.
[48] Subd. (b) of Fam. Code § 6250.
[49] Subd. (c) of Fam. Code § 6250.
[50] Fam. Code § 6240(c).
[51] Subd. (d) of Fam. Code § 6250.
[52] Fam. Code § 6241.
[53] Fam. Code § 6251.
[54] Fam. Code § 6250.5.
[55] Fam. Code § 6250.3.
[56] Fam. Code § 6218.
[57] Fam. Code § 6224.
[58] Fam. Code § 6275.
[59] Fam. Code § 6270.
[60] Fam. Code § 6271.
[61] Fam. Code § 6254.
[62] Fam. Code § 6256.
[63] CCP § 527.6(b).
[64] Subd. (a) of Fam. Code § 527.85.
[65] Subd. (a) of Fam. Code § 6320.
[66] Subd. (b) of Fam. Code § 6320.
[67] Fam. Code § 6240(c).
[68] Subds. (a), (b), & (c), of Pen. Code § 273.6.
[69] Subd. (d) of Pen. Code § 273.6.
[70] Subd. (e) of Pen. Code § 273.6.
[71] Code of Civil Proc. § 527.9.
[72] Subd. (g)(1) of Pen. Code § 273.6, referencing Pen. Code § 29825(a),
[73] Pen. Code § 29825(b),
[74] Subd. (a) of Evid. Code § 1101.
[75] (2018) 23 Cal.App.5th 513
[76] Id, at pp. 530-541
[77] People v. Merchant (2019) 40 Cal.App.5th 1179, 1192.
[78] (2008) 165 Cal.App.4th 940
[79] Id, at pp. 942-943, 949-958.
[80] (2009) 176 Cal.App 4th 1171.
[81] U.S. Constitution, Art 1, §§ 9 & 10.
[82] Ibid., at pp. 1175-1181.
[83] (2010) 191 Cal.App.4th 478.
[84] Ibid., at p. 483.
[85] (2011) 192 Cal.App.4th 1222.
[86] Id., at pp. 1232-1237.
[87] (2018) 28 Cal.App.5th 157.
[88] Id, at pp. 167-169.
[89] Id. at pp. 165-167.
[90] See Martinez v. City of Clovis (2019) 943 F.3rd 1260, 1267.
[91] Subd. (c)(1) of P.C. § 836.
[92] Ibid.
[93] Subd. (c)(1) of P.C. § 836.
[94] Subd. (c)(2) of P.C. § 836.
[95] Subd. (a) of P.C. § 13701.
[96] Subd. (b) of P.C. § 13701.
[97] Ibid.
[98] Subd. (c) of P.C. § 13701.
[99] Pen. Code § 13710.
[100] Pen. Code § 13711.
[101] Subd. (a) of P.C. § 13730.
[102] Subd. (b) of P.C. § 13730.
[103] Subd. (c) of P.C. § 13730..
[104] Subd. (a) of Pen. Code § 13732.
[105] Ibid.
[106] Subd. (b) of Pen. Code § 13732.
