ARSANY LAW CRIMINAL DEFENSE ATTORNEY

Criminal Defense Attorney


DOMESTIC VIOLENCE AND CHILD ENDANGERMENT

PENAL CODE 243el PC- DOMESTIC BATTERY

243.  

(a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.

(b) When a battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, security officer, custody assistant, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, security officer, custody assistant, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

(c) (1) When a battery is committed against a custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a nonsworn employee of a probation department, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.

(2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment.

(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(e) (1) When a battery 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, 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. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer’s treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.

(2) Upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:

(A) That the defendant make payments to a battered women’s shelter, up to a maximum of five thousand dollars ($5,000).

(B) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.

For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. If the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property shall not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.

(3) Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously convicted of a violation of this subdivision or Section 273.5, the person shall be imprisoned for not less than 48 hours in addition to the conditions in paragraph (1). However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence.

(4) The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society’s condemnation for these crimes of violence upon victims with whom a close relationship has been formed.

(5) If a peace officer makes an arrest for a violation of paragraph (1) of subdivision (e) of this section, the peace officer is not required to inform the victim of his or her right to make a citizen’s arrest pursuant to subdivision (b) of Section 836.

(f) As used in this section:

(1) “Peace officer” means any person defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

(2) “Emergency medical technician” means a person who is either an EMT-I, EMT-II, or EMT-P (paramedic), and possesses a valid certificate or license in accordance with the standards of Division 2.5 (commencing with Section 1797) of the Health and Safety Code.

(3) “Nurse” means a person who meets the standards of Division 2.5 (commencing with Section 1797) of the Health and Safety Code.

(4) “Serious bodily injury” means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.

(5) “Injury” means any physical injury which requires professional medical treatment.

(6) “Custodial officer” means any person who has the responsibilities and duties described in Section 831 and who is employed by a law enforcement agency of any city or county or who performs those duties as a volunteer.

(7) “Lifeguard” means a person defined in paragraph (5) of subdivision (d) of Section 241.

(8) “Traffic officer” means any person employed by a city, county, or city and county to monitor and enforce state laws and local ordinances relating to parking and the operation of vehicles.

(9) “Animal control officer” means any person employed by a city, county, or city and county for purposes of enforcing animal control laws or regulations.

(10) “Dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations.

(11) (A) “Code enforcement officer” means any person who is not described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 and who is employed by any governmental subdivision, public or quasi-public corporation, public agency, public service corporation, any town, city, county, or municipal corporation, whether incorporated or chartered, who has enforcement authority for health, safety, and welfare requirements, and whose duties include enforcement of any statute, rules, regulations, or standards, and who is authorized to issue citations, or file formal complaints.

(B) “Code enforcement officer” also includes any person who is employed by the Department of Housing and Community Development who has enforcement authority for health, safety, and welfare requirements pursuant to the Employee Housing Act (Part 1 (commencing with Section 17000) of Division 13 of the Health and Safety Code); the State Housing Law (Part 1.5 (commencing with Section 17910) of Division 13 of the Health and Safety Code); the Manufactured Housing Act of 1980 (Part 2 (commencing with Section 18000) of Division 13 of the Health and Safety Code); the Mobilehome Parks Act (Part 2.1 (commencing with Section 18200) of Division 13 of the Health and Safety Code); and the Special Occupancy Parks Act (Part 2.3 (commencing with Section 18860) of Division 13 of the Health and Safety Code).

(12) “Custody assistant” means any person who has the responsibilities and duties described in Section 831.7 and who is employed by a law enforcement agency of any city, county, or city and county.

(13) “Search and rescue member” means any person who is part of an organized search and rescue team managed by a government agency.

(14) “Security officer” means any person who has the responsibilities and duties described in Section 831.4 and who is employed by a law enforcement agency of any city, county, or city and county.

(g) It is the intent of the Legislature by amendments to this section at the 1981–82 and 1983–84 Regular Sessions to abrogate the holdings in cases such as People v. Corey, 21 Cal. 3d 738, and Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, and to reinstate prior judicial interpretations of this section as they relate to criminal sanctions for battery on peace officers who are employed, on a part-time or casual basis, while wearing a police uniform as private security guards or patrolmen and to allow the exercise of peace officer powers concurrently with that employment.(Amended by Stats. 2015, Ch. 626, Sec. 1. (AB 545) Effective January 1, 2016.)

PENAL CODE 646.9 PC- STALKING

646.9. (a) Any person who willfully, maliciously, and repeatedly follows or willfully
and maliciously harasses another person and who makes a credible threat with the
intent to place that person in reasonable fear for his or her safety, or the safety of his
or her immediate family is guilty of the crime of stalking, punishable by imprisonment
in a county jail for not more than one year, or by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the
state prison.
(b) Any person who violates subdivision (a) when there is a temporary restraining
order, injunction, or any other court order in effect prohibiting the behavior described
in subdivision (a) against the same party, shall be punished by imprisonment in the
state prison for two, three, or four years.
(c) (1) Every person who, after having been convicted of a felony under Section
273.5, 273.6, or 422, commits a violation of subdivision (a) shall be punished by
imprisonment in a county jail for not more than one year, or by a fine of not more
than one thousand dollars ($1,000), or by both that fine and imprisonment, or by
imprisonment in the state prison for two, three, or five years.
(2) Every person who, after having been convicted of a felony under subdivision
(a), commits a violation of this section shall be punished by imprisonment in the state
prison for two, three, or five years.
(d) In addition to the penalties provided in this section, the sentencing court may
order a person convicted of a felony under this section to register as a sex offender
pursuant to Section 290.006.
(e) For the purposes of this section, “harasses” means engages in a knowing and
willful course of conduct directed at a specific person that seriously alarms, annoys,
torments, or terrorizes the person, and that serves no legitimate purpose.
(f) For the purposes of this section, “course of conduct” means two or more acts
occurring over a period of time, however short, evidencing a continuity of purpose.
Constitutionally protected activity is not included within the meaning of “course of
conduct.”
(g) For the purposes of this section, “credible threat” means a verbal or written
threat, including that performed through the use of an electronic communication
device, or a threat implied by a pattern of conduct or a combination of verbal, written,
or electronically communicated statements and conduct, made with the intent to place
the person that is the target of the threat in reasonable fear for his or her safety or the
safety of his or her family, and made with the apparent ability to carry out the threat
so as to cause the person who is the target of the threat to reasonably fear for his orher safety or the safety of his or her family. It is not necessary to prove that the
defendant had the intent to actually carry out the threat. The present incarceration of
a person making the threat shall not be a bar to prosecution under this section.
Constitutionally protected activity is not included within the meaning of “credible
threat.”
(h) For purposes of this section, the term “electronic communication device”
includes, but is not limited to, telephones, cellular phones, computers, video recorders,
fax machines, or pagers. “Electronic communication” has the same meaning as the
term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.
(i) This section shall not apply to conduct that occurs during labor picketing.
(j) If probation is granted, or the execution or imposition of a sentence is suspended,
for any person convicted under this section, it shall be a condition of probation that
the person participate in counseling, as designated by the court. However, the court,
upon a showing of good cause, may find that the counseling requirement shall not be
imposed.
(k) (1) The sentencing court also shall consider issuing an order restraining the
defendant from any contact with the victim, that may be valid for up to 10 years, as
determined by the court. It is the intent of the Legislature that the length of any
restraining order be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim and his or her immediate
family.
(2) This protective order may be issued by the court whether the defendant is
sentenced to state prison, county jail, or if imposition of sentence is suspended and
the defendant is placed on probation.
(l) For purposes of this section, “immediate family” means any spouse, parent,
child, any person related by consanguinity or affinity within the second degree, or
any other person who regularly resides in the household, or who, within the prior six
months, regularly resided in the household.
(m) The court shall consider whether the defendant would benefit from treatment
pursuant to Section 2684. If it is determined to be appropriate, the court shall
recommend that the Department of Corrections and Rehabilitation make a certification
as provided in Section 2684. Upon the certification, the defendant shall be evaluated
and transferred to the appropriate hospital for treatment pursuant to Section 2684.
(Amended by Stats. 2007, Ch. 582, Sec. 2.5. Effective January 1, 2008.)