Often, clients come to me having recently been charged with domestic violence, surprised that what they considered a small spat has resulted in such serious charges.  What they fail to realize is that any "minor or serious injury" can give rise to criminal charges under Penal Code (PC) Section 237.5.  This “injury” could be a little as a reddening of the skin or a scratch.  Basically, if you’ve made physical contact with a person with which you have a certain type of relationship, you open yourself up to Domestic Violence charges, which can be filed as either a misdemeanor or a felony, depending on the circumstances.  The type of relationships that are covered under PC 273.5 are those in which the victim is any of the following:

• The offender's spouse or former spouse,
• The offender's cohabitant or former cohabitant,
•  The offender's fiance or fiancee, or someone with whom the offender has, or previously had, an engagement or dating relationship, or
• The mother or father of the offender's child.

​Law enforcement agencies take domestic violence calls seriously and so does the District Attorney’s Office.  In some cases, where there is probable cause to do so, the police can arrest both participants in the altercation, especially where there are young children living in the house.  And even when the victim doesn’t want to press charges or later has a change of heart, the District Attorney’s Office can still move forward with the case.

If the crime is charged as a misdemeanor, the potential sentence can be as severe as up to a year in jail. And if it’s charged as a felony, the maximum exposure goes up to a potential four years in prison. 

In addition to filing criminal charges, you might be subject to an immediate restraining order (called an Emergency Protective Order, or EPO), preventing you from contacting the victim or, potentially, even going back into your own home.  In some cases, this short-term, EPO can evolve into a longer-term restraining order. Further, in those cases in which children are present, it is not uncommon for Child Protective Services to become involved. Further still, if the injury is serious enough, a conviction under PC 273.5 can have immigration consequences as the crime can be considered a crime of moral turpitude. 

Here in Sonoma County, after conviction offenders are often required to participate in what is known as the Domestic Violence Court Program, aimed at helping offenders understand their triggers, and develop stress and anger management skills. As part of this program they are required to complete 20 hours of Community Service, a 52-week batterer’s program, abstain from alcohol and/or other drug use, and complete thirty-six months of formal probation.

Given these potential consequences, if you’ve been charged with domestic violence having a lawyer who understands the law is crucial.  Not only can a lawyer evaluate the case against you, he or she can work to have the charges reduced, or in some cases even dismissed.  As always, feel free to contact Devina if you are facing a DV-type charge. 

Most people have a basic understanding that federal law makes it illegal to possess a firearm if you have been convicted of a (1) state or federal felony, (2) any state felony for which you were in jail for longer than one year, (3) any misdemeanor crime involving domestic violence, or (4) any misdemeanor offense potentially punishable by imprisonment for more than two years.  Unfortunately, your rights to possess a firearm can also be limited in certain situations that do not involve a conviction.  These situations include (1) having been adjudicated to be "mentally defective" within the past five years, (2) having been committed involuntarily to a mental institution within the past five years, (3) your being subject to a restraining order, TRO, or stay way order that prohibits you from stalking, harassing or threatening either your partner, child or your partner's child, (4) you being an undocumented immigrant, (5) you receiving a dishonorable discharge from the military, (6) being currently charged with a felony, (7) having an active criminal warrant, and (8) having an addiction to any controlled substance.  
​
California law again furthers bans you from ever[1] possessing a firearm if you (1) have been convicted of any felony, unless it was later reduced to a misdemeanor, (2) have two or more convictions for brandishing a firearm, (3) are addicted to any narcotic, or (4) have been convicted of any number of "violent" offenses, including murder, rape, lewd acts on a child under the age of 14 years, and felony in which a gun was used, or great bodily injury was inflicted.[2]  Additionally, in California you face a ten-year ban on possessing a gun if you have a misdemeanor conviction for crimes such as assault, battery, assault with a deadly weapon, witness intimidation, threatening public officials, discharging a firearm in a grossly negligent manner, or drawing or exhibiting a firearm in a deadly manner.

The list of crimes, above, affecting your gun rights is not meant to be exclusive, but are merely the most common crimes seen in our area.  If you have a criminal conviction and would like to know for sure whether you are allowed to purchase or possess a firearm you can file an application with the Department of Justice. Once you have completed this form, you need to submit it to the Department of Justice with a copy of your fingerprints. 

What do I need to know if I have a conviction for one of the crimes mentioned above?
If you have a conviction for one of the crimes mentioned above, the first thing you need to understand is what the prohibition on gun possession means.  What it means is that, first and foremost, you should not purchase or attempt to purchase guns or ammunition. You should not live in or stay at a house in which anyone has guns or ammunition on the property.  You should not get into a car with anyone who has guns or ammunition with them.

Further, be aware that having your conviction expunged does not reinstate your right to possess a firearm.

The laws surrounding gun ownership and possession in California can be complex.  In short, if you are unsure if your criminal conviction has affected your rights to own or possess firearms, do not attempt to purchase a gun.

For more information, see www.ag.ca.gov/firearms


[1] If you were convicted of any of the offenses listed here as a juvenile, you are prohibited from possession of firearm until you are 30 years old.

[2] For a complete list of “violent offenses” see California Penal Code § 29905.

​We’ve all heard it before: ignorance of the law is no defense. Police officers, prosecuting attorneys and judges alike utter the phrase to hold criminal defendants accountable in cases where the defendant had no idea he or she was breaking the law. But what happens when it is a law enforcement official, not a defendant, who is mistaken about the law?
            U.S. case law and common sense has long held that the courts will not impose criminal liability for a police officer’s mistaken understanding of the law.[1]  For example, the courts would never find you guilty of speeding for driving 45mph in a 50 mph-zone, even if the officer who pulled you over thought the speed limit there was 40 mph. But a U.S. Supreme Court, Heien v. North Carolina, case decided this past year held that the officer’s mistake of the law in the above scenario would still allow him to lawfully pull you over.[2] 
             To understand this decision, one first needs to understand the difference in the legal significant between a traffic stop and a criminal conviction.  While a criminal conviction potentially exposes a person to a significant loss of their freedom or their property, a temporary stop, like a traffic stop, only exposes the person to a brief delay.[3]  Because of this difference, the police need to prove beyond a reasonable doubt that you are guilty of a crime, but only need reasonable suspicion you have committed a crime in order to stop you.  The reason the police need to have a reasonable suspicion, as opposed to “just a hunch” is that the Fourth Amendment states that citizens have the right to be free from unreasonable searches and seizures.[4]  Without a doubt, a traffic stop is a seizure within the meaning of the Fourth Amendment,[5] so the next issue that needs to be addressed is whether it was reasonable for the police to stop a citizen when the citizen was not breaking any laws, yet the officer honestly believed the citizen had.[6]
In Heien, the defendant was driving down a North Carolina street when he was pulled over because he only had one working brake light.  It turned out, however, that in North Carolina, a driver only needs one working brake light and so the defendant had not committed a driving offense.  Once the defendant was pulled over, the police officer discovered cocaine in the car, and the defendant was prosecuted for, and subsequently convicted of, attempting to traffic cocaine.  The defendant appealed his conviction, knowing that if he could prove to a higher court that the traffic stop was unreasonable, the drugs the police found should have been ruled inadmissible, and therefore should not have been used against him.  Claiming that common sense dictates that it must be unreasonable for the police to pull you over for committing what turns out to be a non-crime, he argued the his stop was unreasonable.[7]
A majority of the Supreme Court disagreed.[8]
As there is a strong interest in ensuring the community is adequately protected, the court cited much precedent that supported the idea that even where the police make a mistake of fact, their actions could still be reasonable.[9] For example, if a police officer sees a person driving in the carpool lane, but cannot see anyone else in the car, the officer is allowed to pull the car over, even if the turns out that there are two small children sitting in the back seat, making the driver’s presence in the carpool lane legitimate. But the court here was not faced with determining the outcome of a case based on a mistake of fact, but instead based on a mistake of law.[10]  Because of this difference, the defendant asserted that the reasonableness of a potential mistake not be treated the same way.[11]  While the officers are forced to “mak[e] factual assessments on the fly” and thus are allowed some leeway to make mistakes, the defendant argued that officers should know the law, and therefore should not have to make decisions “on the fly.”[12]  Nevertheless, the Court still held that “to be reasonable is not to be perfect,” especially as the law is often  open to interpretation.[13]
What this means for us is that the police now a little more leeway in deciding whether or not there is probable cause to stop you. It remains to be seen how much leeway the courts are willing to give officers in determining if their mistake of law was “reasonable.”
____________

[1] Heien v. North Carolina, 574 U.S. ___ (2014).

[2] Heien v. North Carolina, 574 U.S. ___ (2014).

[3] See Terry v Ohio, 392 US 1 (1968).

[4] U.S. Const. Amend IV.

[5] Brendlin v. California, 551 U.S. 249, 255–259 (2007).

[6] See Heien v. North Carolina, 574 U.S. ___ (2014).

[7] Heien v. North Carolina, 574 U.S. ___ (2014).

[8] Heien v. North Carolina, 574 U.S. ___ (2014). Justice Sotomayor dissented.

[9] Id.

[10] Heien v. North Carolina, 574 U.S. ___ (2014).

[11] Heien v. North Carolina, 574 U.S. ___ (2014).

[12] See Heien v. North Carolina, 574 U.S. ___ (2014) (Sotomayor, J., dissenting) (quoting Cheek v. U.S., 498 U.S. 192, 199, which stated “the notion that the law is definite and knowable” sits at the foundation of our legal system.)

[13] Heien v. North Carolina, 574 U.S. ___ (2014).