Judge Hyman
Sentencing in California Domestic Violence Cases

California sentencing law provides a structured approach to sentencing.  True, there is still discretion left in the hands of the sentencing judge, but the amount of discretion depends on the particular crime and the criminal history, if any, of the defendant.
A discussion of sentencing options starts with a review of the charges.  Certain charges are probation ineligible or limited probation eligible.  For example, attempted murder is probation ineligible. The sentencing judge has little discretion as the punishment is prescribed by statute.
A charge of theft with the amount of the taking in excess of $150,000 is an example of a case where there is limited probation eligibility depending upon the defendant’s unique circumstances with consideration of the crime’s circumstances and the defendant’s criminal history.  
Charges are not required to describe the crime as domestic violence for them to qualify as a crime of domestic violence.  California first looks to the relationship between the victim and the defendant.  The “relationship test” is a broad one and includes having or having had a dating relationship.
Hypothetically, if the defendant damages the victim’s car maliciously and they have or have had a dating relationship, the crime is considered domestic violence under the California sentencing scheme.
Domestic violence cases are a class of criminal cases with very special conditions required if a defendant is granted probation. Therefore, the crime’s classification as a crime of domestic violence is of great importance.
Most domestic violence cases are misdemeanors and carry a maximum county jail sentence of up to one year.
Felony cases are made up of crimes that may be filed as felonies or misdemeanors or composed of crimes that are straight felonies and incapable of reduction to a misdemeanor.  This distinction is of significance for part of the sentencing may be a promise to reduce the crime from a felony to a misdemeanor if the defendant performs well on probation.
Misdemeanor cases are usually sentenced at the time of plea.  If granted probation, the defendant will be required to pay certain fines and fees as well as attending a domestic violence intervention that is approved by the probation department lasting one year.
In addition, the judge must order a protection order, in favor of the victim, that may allow for a complete stay-away order or for “peaceful contact” under certain conditions as the judge feels are appropriate under the circumstances.  The order may be modified at the request of the parties or the judge.  The judge is not required to make order as the parties request but must evaluate the specific situation and order what safety requires.
If the couple has children together, the judge may order that the family court custody orders, if any, be followed or may make different orders completely.  Criminal protection orders that contain child custody and visitation orders trump family court orders and must be followed.
Sentencing decisions may be reached in a number of ways.  The prosecutor may make a proposal and the defendant may accept or suggest alternatives.  Local culture determines the party making the first offer and the usual terms of the offer including jail or prison time.
Judges also make settlement suggestions and proposals.  Here again, local culture is very important for a sentence in one county might be perceived as harsh and in a different county as lenient.
Judges do not dictate the charges that the defendant will plead to.  That is the sole providence of the executive branch, the prosecution.  Therefore the judge may make a sentencing offer that the prosecution does not approve of but the defendant will be required to plead to all of the charges listed in the charging document.  The judge may not dismiss charges without the prosecution’s approval.
Judges also have an independent duty to review a settlement reached by the defendant and prosecution and may refuse to honor an agreement that the judge thinks is not in the best interest of justice.
The most important decision that is usually made during a domestic violence sentencing pertains to the amount of custody time a defendant will receive.
A felony sentence may include a prison or county jail commitment.  Any term of custody longer than a year is served in a state prison.
Unless prohibited by statue, a judge is not required to impose jail or prison as a condition of a probation sentence.
A defendant is required to be advised of the maximum sentence that may be received for his case even is he is to be given probation without any custody requirement.  In the event of a proven probation violation, the sentencing judge may continue probation on the same or new conditions or may give a sentence up to the maximum provided for the criminal statute that was the basis for the conviction.
The probation term for a felony may be for a period up to five years.  The probation term and its conditions may be modified based upon a change of circumstances.  Domestic violence cases require a minimum period of probation of three years by statute.
Most urban counties in California have probation departments with specialized domestic violence units which supervise domestic violence probationers closely while maintaining contact with victims to help insure safety.

Anatomy of Domestic Violence Preliminary Examinations in California

Chris Brown is scheduled to attend, on Monday afternoon, a preliminary examination regarding his two felony counts of assault against Rihanna that is alleged to have occurred on February 8, 2009.

This blog posting describes the preliminary hearing process in California.

Most court cases settle. Only about 5% of cases, whether civil or criminal, actually go to a trial.  This figure suggests that there is a strong likelihood that Mr. Brown’s case will settle as well.  Every court appearance is an opportunity for a case to settle regardless of whether the proceeding is a pre-trial or settlement conference.

Since most cases settle, the preliminary examination may be the only opportunity for the public to gain knowledge about the case’s merits through testimony and other forms of evidence including pictures, if available.

There is also a possibility that the case may be continued. Absent an emergency or settlement, the proceeding can be expected to proceed.

Usually continuance requests require a motion which allows review by a judge for the necessity of the continuance.

Under both the Federal and California Constitution, a person accused of committing a felony offense is entitled to either a grand jury indictment or a preliminary examination before being required to face a felony trial and its potential expense and embarrassment. 

A defendant is not entitled to both forms of review. Under the Federal Constitution, a preliminary examination is not specifically required leaving only a grand jury preceding that is defined as a minimum requirement that a state must provide.  The California Constitution allows for either method.  Many states follow the Federal view.

The People have the burden of proof at a preliminary examination. The burden required is probable cause that a felony has occurred and that the accused is the person who committed it.  A judge, sitting as a magistrate, determines if this burden has been met.  If it has not, the defendant is discharged.  The People then have the option of appealing the magistrate’s decision or they are allowed to file the charge a second time.

If the People have met their burden of proof, the defendant is bound over for trial.  The defendant has the right to file a motion testing the magistrate’s finding.  If the motion is granted the defendant is discharged and the People have the right of appeal or to file another petition.

Many people mistakenly believe that the evidence standard at a preliminary hearing is proof beyond a reasonable doubt which is instead the required burden of proof in a criminal trial of the charges.

The people are not required to call the actual victim as a witness in order to prove their case and to meet their burden of proof.  In 1990 state Proposition 115 was passed which made significant changes to the legal scheme of preliminary examinations.

As codified, a preliminary examination is not for defense discovery.  California criminal rules do not allow for depositions or interrogatories so the Proposition changes were very significant ones.

The victim’s statement may be read by a qualified police officer and will suffice as testimony for purposes of proof.  Obviously if this occurs, the defense is unable to cross examine the complaining witness.

In most cases of sexual assault, molest, and domestic violence, the prosecutor will call the actual victim as a witness.  It is realized that if the actual victim does not appear and is therefore not subject to cross examination, it is less likely that the case will settle.

What happens if the alleged victim refuses to testify?  In the past a person could be held in contempt of the court and be taken into custody.  A new law now requires that there be a three day period of delay in the contempt process to allow for appellate review of the court’s order to testify.  Subsequent refusal may result in detention.

If a witness recants, effectively denying what was said to the police, other witnesses may be called to impeach the witness with prior statements made to the police, medical personnel, or others who were present.

The defendant has a right to testify at the hearing but almost always declines to do so. 

Most preliminary hearings end with a finding that the People have met their required burden and the defendant is bound over for trail.

The defendant is again arraigned and this time the charging document is called an information and may contain any charges proved by the evidence given at the preliminary examination.  The ultimate charges may be the same or different from the arrest charges.

The defendant has the right to question the sufficiency of the evidence to support the charges brought by the information by filing a sufficiency motion to strike part or all of the information.

The Brown preliminary examination is estimated to take one half day to conduct.