Domestic Violence Defense Lawyer in Fremont

In California, the alleged victim can't drop a domestic violence case. Once police make an arrest, the prosecutor decides whether to file charges, and a single 911 call can lead to a protective order that keeps you out of your own home and a case that follows you for years. Whether it was a misunderstanding, an exaggeration or a false accusation, you need a criminal defense lawyer on your side right away.

Domestic violence means abuse or attempted abuse against a spouse, partner, co-parent, or someone you've dated or lived with. In California, it may be charged as domestic battery or corporal injury on a spouse or cohabitant, and the penalties range from probation and a year-long class to years in state prison.

Our domestic violence defense team examines the evidence, challenges witness accounts, handles police contact for you, and builds a strategy aimed at getting your charges reduced or dismissed, or winning at trial.

On this page:

• What counts as domestic violence, and the charges that come with it
• What to do if you're accused
• What happens after a domestic violence arrest
• How restraining orders and custody cases overlap with the criminal case
• Penalties, probation, and collateral consequences
• Immigration consequences for noncitizens
• Diversion, reductions, and expungement
• What happens if the alleged victim won't testify
• Defense strategies
• How our defense process works
• Why choose the Law Offices of David S. Chesley
• Frequently asked questions

If you've been accused of domestic violence, don't wait. Call our criminal defense lawyers at (800) 755-5174 or contact us online now for a free, confidential consultation.

Attorney licensing information: David S. Chesley, SBN 236611.

What Counts as Domestic Violence in California?

California Penal Code § 13700 defines domestic violence 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."

Family law uses a broader definition. For restraining orders, Family Code § 6211 also covers close relatives such as a parent, child, sibling or grandparent. That's why an argument with a family member can lead to a domestic violence restraining order even when it isn't charged as domestic battery.

In criminal court, domestic violence is most often charged as one of two crimes: domestic battery or corporal injury on a spouse or cohabitant. To convict you of either one, the prosecutor must prove beyond a reasonable doubt that:

• You willfully touched the alleged victim in a harmful or offensive way (and, for corporal injury, that the touching caused a "traumatic condition");
• You did not act in lawful self-defense or in defense of someone else; AND
• The alleged victim was your current or former spouse; current or former fiancé(e) or dating partner; someone you live with (or, for corporal injury, used to live with); or the other parent of your child.

Domestic Battery

• Statute: PC § 243(e)(1)
• What it means: Willfully using force or violence against a current or former partner. Even the slightest offensive touch counts, and no injury is required.
• Misdemeanor or Felony: Misdemeanor

Inflicting Corporal Injury on a Spouse or Cohabitant

• Statute: PC § 273.5
• What it means: Willfully inflicting an injury on a current or former partner that results in a "traumatic condition": any wound or internal or external injury, minor or serious, including injury from strangulation or suffocation.
• Misdemeanor or Felony: Wobbler (can be charged either way)

The Key Difference: Was There an Injury?

The line between the two charges is injury. A push that leaves no mark is typically charged as domestic battery, a misdemeanor. The same push that leaves a bruise, scratch or swelling can be charged as corporal injury, a potential felony. Prosecutors also commonly file PC 273.5 when there's any allegation of choking or strangulation, even when marks are hard to see. That's one reason early investigation of the medical evidence matters.

Charges Often Filed With Domestic Violence

Domestic battery and corporal injury are the core domestic violence charges, but prosecutors often add related violent crime charges:

• Criminal Threats (PC § 422): Threatening to kill or seriously injure someone in a way that causes them reasonable, sustained fear. A felony conviction is a strike.
• Dissuading a Witness (PC § 136.1): Trying to stop someone from reporting a crime, cooperating with police or testifying, including asking an alleged victim to "drop the charges."
• Damaging a Phone Line or Phone (PC §§ 591, 591.5): Cutting or disconnecting a phone line, or taking or breaking a cell phone to keep someone from calling for help.
• False Imprisonment (PC § 236): Restraining someone or keeping them from leaving, such as blocking a doorway.
• Assault With a Deadly Weapon or Force Likely to Cause Great Bodily Injury (PC § 245(a)): An assault with an object or with force likely to cause serious injury.
• Stalking (PC § 646.9): Repeatedly following or harassing someone and making a credible threat that puts them in reasonable fear for their safety.
• Restraining Order Violations (PC § 273.6): Violating the terms of a court-issued protective or restraining order.
• Child Abuse (PC § 273d): Willfully inflicting cruel or excessive physical punishment or injury on a child, sometimes charged when a child is hurt during a domestic incident.
• Elder Abuse (PC § 368): Abusing or neglecting someone 65 or older, or a dependent adult, such as an elderly parent.
• Sexual Battery (PC § 243.4): Touching an intimate part of another person against their will for sexual arousal, gratification or abuse.
• Revenge Porn (PC § 647(j)(4)): Intentionally distributing private intimate images of someone without consent, knowing it will cause them serious emotional distress.

What to Do if You've Been Accused of Domestic Violence

If you've been arrested for or accused of domestic violence, the most important things are to stay silent, stay away from the alleged victim, and call a defense lawyer immediately:

1. Exercise your right to remain silent. That includes with friends, family and on social media.
2. Ask for a lawyer, and don't answer questions until you have one.
3. Work with your attorney to get released on bail or your own recognizance.
4. Follow every term of any emergency or criminal protective order.
5. Preserve evidence: photos of your own injuries, texts, emails, call logs, doorbell or security camera video, and the names of witnesses.
6. Tell your defense attorney the full story. The conversation is confidential.
7. Don't contact the alleged victim, even to apologize or to ask them to drop the case. That contact can violate a protective order and lead to a separate charge for dissuading a witness. If they reach out, talk to your lawyer before responding.

Following these steps gives your case the best chance of a positive outcome. Our domestic violence defense attorneys are ready for your call, day and night: (800) 755-5174.

If a loved one has been arrested, use the arresting agency and custody information on the case papers to identify where they are being held. The local guidance above identifies court and records resources. An attorney can help you understand custody and release procedures.

What Happens After a Domestic Violence Arrest?

Domestic violence cases move fast. Here's how a domestic violence case may proceed after an arrest:

1. Arrest: Officers only need probable cause. In California, they can arrest for misdemeanor domestic violence without a warrant even if they didn't see the incident (PC § 836(d)). When both people claim they were attacked, officers are directed to identify the "dominant aggressor" rather than arrest both (PC § 13701).
2. Booking: You'll be fingerprinted, photographed and processed into jail.
3. Emergency Protective Order: Officers can request an emergency protective order from an on-call judge, often the same night. It can order you to stay away from the alleged victim and move out of the home for up to 5 court days or 7 calendar days, whichever comes first.
4. Interrogation: Police may try to question you in custody. Politely decline to speak without an attorney.
5. Bail and Release: Bail usually starts from the county bail schedule. For many domestic violence charges, including PC 273.5, stalking and felony criminal threats, a judge must hold a hearing in open court before setting bail above or below the schedule or releasing you on your own recognizance (PC § 1270.1). Your attorney can argue for your release at that hearing.
6. Filing Decision and Arraignment: Prosecutors review the police report and decide what to file. If you're in custody, you must generally be arraigned within 48 hours, not counting Sundays and holidays (PC § 825). At arraignment you'll hear the charges and enter a plea, and the judge will usually issue a criminal protective order.
7. Pretrial Stage: Your attorney reviews discovery, investigates, files motions and negotiates with the prosecutor while preparing for trial.

Can You Go Home After a Domestic Violence Arrest?

Often, not right away. An emergency protective order can require you to move out immediately, and the criminal protective order issued at arraignment frequently orders you to stay away from the alleged victim and the shared home for as long as the case is open. That's true even if the alleged victim wants you back. Violating the order, even with their consent, can lead to new charges. Your attorney can ask the judge to modify the order, for example to a "peaceful contact" order that allows you to return home or co-parent as long as there's no harassment or violence.

Domestic Violence, Restraining Orders, and Custody

Domestic violence cases often overlap with restraining orders and custody disputes. A single incident can lead to a criminal case, a restraining order case and a custody fight at the same time, and what you say in one can be used in the others. Your defense attorney should coordinate all three.

Types of Restraining Orders in Domestic Violence Cases

Restraining orders (also called protective orders) come in several types:

• Emergency Protective Orders: Requested by police from an on-call judge right after an incident. No arrest is required. They last up to 5 court days or 7 calendar days, whichever comes first, giving the alleged victim time to request a longer order.
• Criminal Protective Orders: Issued by the criminal court, usually at arraignment and at the prosecutor's request. They last while the case is pending, and after a domestic violence conviction the judge can issue one for up to 10 years (PC § 136.2).
• Domestic Violence Restraining Orders (DVROs): Requested by the alleged victim in family court. A temporary order can be issued the same day without notice to you and lasts until a hearing, usually within about three weeks. After the hearing, a DVRO can last up to 5 years and can be renewed for 5 or more years, or permanently (Family Code § 6345).

A DVRO also requires you to surrender any firearms, and it can include orders about custody, visitation and the family home. Your domestic violence lawyer can help you fight a restraining order and defend you against alleged violations.

Domestic Violence Accusations and Custody Cases

Domestic violence findings can reshape a child custody case. Under Family Code § 3044, if a family court finds that a parent committed domestic violence against the other parent, the child or the child's siblings within the past five years, the law presumes that giving that parent sole or joint custody is not in the child's best interest. No criminal conviction is required. A finding in family court, including one made when a DVRO is granted, can trigger the presumption.

The presumption can be overcome. The judge will weigh factors such as:

• Whether giving that parent custody is in the child's best interest
• Completion of a batterer's intervention program
• Completion of alcohol or drug counseling, if appropriate
• Completion of a parenting class
• Compliance with probation and any protective orders
• Whether there have been any further acts of domestic violence

A parent subject to the presumption usually still has visitation, though it may be supervised or restricted. When there are only allegations and no finding, the presumption doesn't apply. The judge decides custody based on the child's best interest, and if the judge gives custody to a parent who has been accused of abuse, the judge must explain the reasons on the record.

Domestic Violence Penalties in California

The table below shows the potential sentences for domestic violence and commonly related charges in California.

*These are statutory ranges, not predictions. Prior convictions and aggravating factors can increase them. For example, causing great bodily injury in a domestic violence incident adds 3, 4, or 5 years and makes the offense a strike, and sexual battery convictions require sex offender registration. Talk with your domestic violence attorney about the penalties you are actually facing.

Domestic Violence Probation

Many domestic violence convictions end in probation instead of jail, but PC § 1203.097 sets mandatory terms, including:

• At least 36 months of probation
• A criminal protective order protecting the alleged victim
• Completion of a 52-week batterer's intervention program
• A minimum $500 payment to domestic violence programs (the court can reduce or waive it if you can't pay)
• Community service
• Surrender of firearms
• No new law violations

California's 2021 law capping most probation terms at one or two years (AB 1950) does not shorten domestic violence probation, because the domestic violence probation statute sets its own length.

Collateral Consequences of a Domestic Violence Conviction

On top of the criminal penalties, a domestic violence conviction can lead to:

• Loss of Gun Rights: A misdemeanor domestic battery conviction brings a 10-year California firearm ban (PC § 29805). A qualifying misdemeanor domestic violence conviction can also trigger a federal firearm prohibition under 18 U.S.C. § 922(g)(9); its duration depends on the relationship, conviction and applicable exceptions. A misdemeanor PC 273.5 conviction on or after January 1, 2019 is a lifetime ban under California law, and any felony is a lifetime ban.
• Immigration Consequences: Domestic violence convictions can lead to deportation or block a green card or citizenship. See the immigration section below.
• Custody: A conviction can trigger the Family Code § 3044 presumption against custody.
• Long-Term Protective Orders: The court can issue a criminal protective order lasting up to 10 years, and the alleged victim may also seek a DVRO.
• Employment and Licensing: A conviction appears on background checks and can affect professional licenses, security clearances and jobs working with children or vulnerable adults.
• Relationships and Reputation: A conviction can strain your current relationship and follow you socially and professionally.

Domestic Violence Charges and Immigration

For noncitizens, including green card holders, a domestic violence case can be more dangerous than the criminal penalties themselves. Under federal immigration law (INA § 237(a)(2)(E)), two things can make a noncitizen deportable:

• A conviction for a "crime of domestic violence" (a crime of violence against a current or former spouse, partner, co-parent or similar protected person)
• A court finding that you violated the parts of a protective order that protect against threats of violence, repeated harassment or bodily injury, even without a separate criminal conviction for the violation

Some domestic violence offenses can also be treated as crimes involving moral turpitude, which carry their own immigration consequences. The exact statute and the facts in the record of conviction matter. Federal courts have generally treated a PC 243(e)(1) domestic battery conviction as less damaging for immigration purposes than a PC 273.5 conviction, but the analysis depends on the specific case.

Because our firm practices both criminal defense and immigration law, our criminal defense team and immigration attorneys can work together to pursue a resolution that protects your status where possible. Never accept a plea in a domestic violence case without immigration advice. If you're already facing removal, learn about cancellation of removal.

Diversion, Reductions, and Clearing Your Record

A domestic violence arrest doesn't have to end in a permanent conviction. Standard misdemeanor diversion under PC § 1001.95 is not available, because the law expressly excludes domestic violence and stalking charges. But depending on your case, other options may include:

• Pre-Filing Intervention: Before charges are filed, your attorney can present evidence to the prosecutor and argue that the case shouldn't be filed at all, or should be filed as a lesser charge.
• Mental Health Diversion (PC § 1001.36): If a diagnosed mental health condition played a role in the alleged offense, the judge may pause the case while you complete treatment (up to 2 years for a felony or 1 year for a misdemeanor). If you complete it successfully, the charges are dismissed.
• Military Diversion (PC § 1001.80): Current and former service members charged with a misdemeanor may qualify if they suffer from service-related PTSD, traumatic brain injury, sexual trauma, substance abuse or mental health problems.
• Reduction to a Misdemeanor (PC § 17(b)): A felony PC 273.5 conviction can be reduced to a misdemeanor, either at sentencing or after probation.
• Expungement (PC § 1203.4): After you complete probation, you can generally petition to dismiss the conviction. Expungement helps with most private employers, but it doesn't restore gun rights and doesn't erase the conviction for immigration purposes.

What if the Alleged Victim Doesn't Want to Testify?

It's common for an alleged victim to recant, refuse to cooperate or ask the prosecutor to drop the case. That can help your defense, but it rarely ends the case on its own:

• Prosecutors can sometimes proceed without the alleged victim. They may try to use 911 calls, statements made to officers at the scene, body-camera video, photos and medical records. Whether those statements can be used without live testimony is a complex constitutional question, and challenging them is one of the most important tools in a domestic violence defense.
• Prior incidents can come in. Evidence Code § 1109 allows prosecutors to introduce evidence of other alleged acts of domestic violence, generally from the past 10 years.
• Spousal privilege doesn't apply. Normally a spouse can refuse to testify against the other, but that privilege has an exception for crimes against the spouse (Evidence Code § 972(e)).
• Victims can't be jailed for refusing to testify. Under Code of Civil Procedure § 1219, a domestic violence victim who refuses to testify about the abuse can't be jailed for contempt.

For related constitutional and contempt provisions, see the Sixth Amendment and Penal Code § 166. The domestic violence victim protection discussed above appears in Code of Civil Procedure § 1219.

Neither you nor anyone acting for you should ask the alleged victim to stay away from court, which can be charged as dissuading a witness. Your attorney can lawfully present the alleged victim's account, challenge the use of out-of-court statements, and use inconsistencies in the evidence to your advantage.

Defense Strategies Your Domestic Violence Attorney May Use

Your domestic violence lawyer will evaluate the specifics of your case and choose the defense that fits it best. Some cases are best defended by challenging how the evidence was gathered. Others hinge on actual innocence, such as a false accusation. And others concede that someone was hurt but dispute intent or who started it.

Here are defense strategies our domestic violence attorneys may use in your case:

• False Accusation: Some domestic violence charges arise from false accusations, often during a breakup or custody dispute. We investigate the accuser's motives and challenge their credibility.
• Self-Defense or Defense of Others: You can lawfully use reasonable force to protect yourself or someone else from imminent harm.
• Dominant Aggressor: When both people were physically involved, the key question is who was the primary aggressor. Injuries, prior history, witness accounts and 911 recordings can show that you were defending yourself, not the one who started it.
• Lack of Intent or Accident: Both domestic battery and corporal injury require a willful act. Accidental contact, like bumping someone while trying to leave, is not domestic violence.
• No Traumatic Condition: For a PC 273.5 charge, the prosecutor must prove the touching caused an injury. Where an injury is minimal, unexplained or existed beforehand, that can mean a reduction to misdemeanor battery or a dismissal.
• Alleged Victim Recants: The alleged victim can't drop the charges, but a recantation can weaken the prosecution's case and support a dismissal or a better plea offer.
• Reasonable Doubt: Sometimes the strongest defense is showing that the prosecution's evidence doesn't prove the charge beyond a reasonable doubt.
• Alibi: When available, an alibi shows you could not have committed the alleged offense.
• Constitutional Violations: If police violated your rights during the investigation, we challenge the evidence and file motions to suppress it.

How the Law Offices of David S. Chesley Defends Domestic Violence Charges

When you call the Law Offices of David S. Chesley, our domestic violence defense team gets to work right away. Here's how the process works:

If charges have not been filed, ask about pre-filing investigation and a conference with the prosecutor.

1. Initial Consult: Everything starts with a free, confidential case review.
2. Release and Protective Orders: We work to get you released and, where appropriate, ask the court to modify protective orders so you can return home or see your children.
3. Interview Management: If police want to question you, we'll handle that contact and advise you on how to respond.
4. Defense Investigation: Between discovery, 911 recordings, body-camera video, medical records and our own investigation, we'll examine the available evidence in your case.
5. Strategy Development: After reviewing the evidence, we'll build a defense strategy tailored to your case.
6. Pretrial Motions: Motions give us a chance to challenge evidence and push for charges to be reduced or dismissed.
7. Plea Negotiations: We evaluate the evidence and available options when pursuing reduced charges, diversion where available, or a dismissal.
8. Trial Representation: If your case goes to trial, we'll present your defense to the judge and jury.
9. Sentencing Advocacy and Appeals: If your case ends in a conviction, we can advocate for a lighter sentence and help with appeals, reductions and expungement.

Discussing Domestic Violence Defense With the Law Offices of David S. Chesley

The Law Offices of David S. Chesley handles domestic violence defense matters. Our team includes former prosecutors who know how the state builds these cases, and where they tend to break down.

The firm describes the following areas of support:

• Former prosecutors on our team with firsthand knowledge of how domestic violence cases are charged and negotiated.
• Case preparation based on the filed charges, evidence, protective orders and applicable probation requirements.
• Criminal defense and immigration under one roof, so noncitizen clients get advice on both before any plea.
• Available 24/7, because domestic violence arrests rarely happen during business hours.
• Results for clients. Read about our recent case results, including domestic violence cases.

In one case, our client was accused of attacking his girlfriend while she was removing his belongings. We showed that the accusation was false and that another person caused the injury.

Prior results do not guarantee a similar outcome.

California Domestic Violence FAQs

Discuss a Domestic Violence Charge With a Lawyer

Whether it was a mistake, an exaggeration or a false accusation, you have rights and deserve a strong defense. The Law Offices of David S. Chesley is ready to provide one.

Call us at (800) 755-5174 or use our contact form to set up a free, confidential case review with a domestic violence lawyer.