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.