Domestic Violence

prosecutors should continue to consider charging strangulation as attempted murder, assault with the intent to cause great bodily injury, unlawful restraint, kidnapping, restraining order violations, criminal threats, assault with a deadly weapon, sexual assault, witness intimidation, animal abuse, child endangerment, and other related crimes.

prosecutors should continue to consider charging strangulation as attempted murder, assault with the intent to cause great bodily injury, unlawful restraint, kidnapping, restraining order violations, criminal threats, assault with a deadly weapon, sexual assault, witness intimidation, animal abuse, child endangerment, and other related crimes.

When a victim is threatened with death and strangled multiple times—whether manually and/or with a use of a ligature—and loses consciousness, prosecutors should consider charging attempted murder. There is no reason to continue applying pressure to a limp and unconscious individual unless you intend to kill the person. Continuing to apply pressure after loss of consciousness significantly increases the chances of brain damage and/or death.

Mission Statement

CDAA training material suggests the following mission statement:

The Family Protection Division ethically and aggressively promotes public safety by prosecuting domestic violence, crimes against children, and elder abuse. We are partners with the community we serve. We strongly support victims of crime and work closely and fully cooperate

with criminal justice agencies and community partners who support our efforts. We are dedicated to the long-term professional development of every member of this division who contributes to our mission.

Written protocols

CDAA training material suggests the following written protocols:

Every district attorney’s office should have written protocols for handling domestic violence cases, which should identify the philosophy of the office and the policies that guide victim contacts, charging, and case disposition decisions. Some prosecutors may choose not to enunciate all policies of the unit, while others may choose to be extremely detailed in written protocols.

Protocols may also address questions and topics such as:

• Does charging depend on the victim participating?

• What type of pleas will be acceptable plea bargains (e.g., guilty versus no contest.)?

• What is the policy of the unit if the victim is subpoenaed and fails to appear in court?

• What type of counseling programs will be used pursuant to any plea agreement?

• Should victim contacts be treated as confidential communications pursuant to Evidence Code section 1037 et seq.?

• Who is authorized to negotiate dispositions in domestic violence cases?

• How is the victim notified of charging decisions and case dispositions?

• What is the relationship between domestic violence prosecutors and others in the local domestic violence community?

• What is the policy when a victim claims a privilege not to testify?

• Will immunity be granted to domestic violence victims or witnesses? If yes, under what circumstances?

• What is the timeframe for issuing decisions? Language could include, “An issuing decision should be made as soon as reasonably possible on out-of-custody cases, but no later than 45 days after the case is received.”

• What materials should be reviewed prior to issuance?

• How should prosecutors communicate with domestic violence victims when they want to drop the charges?

Investigation

Emergency 911 recordings should be reviewed in every case prior to disposition. They accurately capture the victim’s emotional state and often include: (1) statements about the incident; (2) the domestic violence history in the relationship; (3) the victim’s physical condition; (4) the suspect’s level of intoxication and/or use of drugs; (5) the presence of witnesses; (6) the presence of weapons; and (7) the existence of protective orders. The 911 call is a microphone into the violent incident and often records statements from children, witnesses, and/or the abuser.

Spontaneous statement under Evidence Code section 1240

BWCs can also capture the subtle signs and symptoms of strangulation such as redness to the face and neck, voice changes, and/or difficulty breathing.

Evidence of unconsciousness includes loss of memory, an unexplained bump on the head, and bowel or bladder incontinence.

Relationships

Family Code section 6211

“Domestic violence” is abuse perpetrated against any of the following persons:

(a) A spouse or former spouse.

(b) A cohabitant or former cohabitant, as defined in Section 6209.

(c) A person with whom the respondent is having or has had a dating or engagement relationship.

(d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).

(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.

(f) Any other person related by consanguinity or affinity within the second degree.

Penal Code 13700: “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship.

Father was not a person “related by consanguinity or affinity” within the second degree to his child's stepfather, and thus was not entitled to seek a Domestic Violence Protection Act (DVPA) injunction against stepfather, even though stepfather was married to the child's mother.  Riehl v. Hauck (App. 2 Dist. 2014) 168 Cal.Rptr.3d 795, 224 Cal.App.4th 695.

Prosecution witness Ivan Scott does not qualify as “a person within the third degree of relationship” to Judge Morrow. In Robinson v. Southern Pacific Co. (1895) 105 Cal. 526, 557–558, 38 P. 94, this court explained when someone is within such a relationship. There, the plaintiff moved to disqualify an associate justice of this court, Justice W.C. Van Fleet, on the ground that a first cousin or “cousin-german” of the justice's wife was a stockholder of the defendant corporation. We denied the motion because the relationship between the justice and his wife's cousin was not one within the third degree. We explained: “ ‘In the collateral line the degrees are counted *653 by generations from one of the relations up to a common ancestor, and from the common ancestor to the other relations. In such computation, the decedent is excluded, the relative included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins-german in the fourth, and so on.’ ” (Robinson, supra, 105 Cal. at p. 557, 38 P. 94, italics added.)

Here, witness Ivan Scott is the nephew of Judge Morrow's son-in-law. Thus, as uncle and nephew, the relationship between the witness and the son-in-law is in the third degree. But the relationship between the witness and Judge Morrow is not within the third degree. Either the two are not related at all because there is no blood relationship between them (see Code Civ. Proc., § 170. 5, subd. (d) [“The third degree of relationship shall be calculated according to our civil law system.”]; 26A C.J.S., Descent & Distribution § 22, pp. 562–563 [civil law only recognizes relationships of consanguinity] ), or their relationship is in the fifth degree (see former Code Civ. Proc., § 170.1 [recognizing relationships based on marriage but providing that spouses are separated by one degree] ). Accordingly, the disqualification premise of Code of Civil Procedure section 170.1, subdivision (a)(1) does not apply here. (People v. Williams (1997) 16 Cal.4th 635, 652-653.)

Prior domestic violence

People v. Kiger (2022) 76 Cal.App.5th 1147

Attempted domestic violence

People v. Kiger (2022) 76 Cal.App.5th 1147

Domestic Violence for Sentencing Purposes

Penal Code section 1203.097

People v. Cates (2009) 170 Cal.App.4th 545

Strangulation

People v. Sexton (2019) 37 Cal.App.5th 457

People v. Covino (1980) 100 Cal.App.3d 660 where the force of the defendant’s assault by strangulation was likely to produce a serious injury although the victim only had redness to her neck and pain to her throat under section 245.

"The significance of manual strangulation is not a matter of common knowledge and is the proper subject of expert testimony." (People v. Jackson (2013) 221 Cal.App.4th 1222, 1240.)

People v. Steger (1976) 16 Cal.3d 539 (Steger ), his conduct toward Doe during the incident was “ ‘an irrational and unjustifiable attempt’ to control her feelings and demeanor towards him (just as it was in Steger), but the specific, overriding purpose of his conduct was not to cause her extreme pain and suffering, even though pain and suffering resulted from that conduct.”

Victims may protect themselves by pulling the suspect’s hair, pushing, biting, scratching, kicking, or attempting to use a weapon to defend themselves. Depending on the method of strangulation being used or other factors, the suspect may be the only individual with visible injuries.

Penal Code section 273.5

Traumatic condition

Pen. Code, § 273.5, subd. (d): As used in this section, “traumatic condition” means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, “strangulation” and “suffocation” include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.

People v. Beasley (2003) 105 Cal.App.4th 1078, where the victim had been beaten with a rod on three separate occasions causing bruising. Although the assault did not involve strangulation, the court found that bruising constituted a traumatic condition and that there was sufficient evidence to support the defendant’s felony conviction for that incident. However, as to the other incidents, the victim did not testify to any injury and there were no other witnesses who had observed injuries.

United States v. Hall (9th Cir. 2005) 419 F.3d 980

People v. Silva (1994) 27 Cal.App.4th 1160, 1166 [cert. for part. pub.]. “[Penal Code] Section 273.5 applies to ‘corporal injury resulting in a traumatic condition.’ ... Thus, a defendant who inflicts only ‘minor’ injury violates the statute.” See People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [The victim had redness about her face, and her neck and nose were sore from being hit a few times in her face.].

Absence of traumatic condition

People v. Abrego (1993) 21 Cal.App.4th 133 [cert. for part. pub.], where the defendant slapped or punched the victim five times to the head. At trial, the victim testified she felt no pain and was not injured or bruised. Before trial, the victim reported to police that she felt pain and tenderness where the defendant struck her. The officer did not observe any injury. Pain alone was held insufficient to be a traumatic condition. However, a sore throat—with medical testimony—in a strangulation case proved to be sufficient evidence of a traumatic condition in People v. Romero (discussed below).

Causation of traumatic condition

People v. Jackson (2000) 77 Cal.App.4th 574.

Attempted PC273.5

People v. Kinsey (1995) 40 Cal.4th 1621

General intent

People v. Thurston (1999) 71 Cal.App.4th 1050.

Single or multiple charges

People v. Thompson (1984) 160 Cal.App.3d 220

People v. Healy (1993) 14 Cal.App.4th 1137