Pelta Law defends domestic violence cases in San Francisco, Alameda, Santa Clara, San Mateo, Contra Costa, Marin, Solano, Napa and Sonoma counties. Marc Pelta is a former prosecutor and has practiced criminal defense privately since 2008.
Office: 1390 Market Street, Suite 200, San Francisco. Appointments by arrangement. Call 415-963-1152 or email marc@peltalaw.com.
01The two charges most often filed
California prosecutes most intimate-partner cases under one of two Penal Code sections. Which one is filed depends on whether there is a visible injury, the history between the parties, and the charging policy of the county.
Penal Code 273.5, corporal injury to a spouse or intimate partner
Section 273.5 applies when a person willfully inflicts a physical injury resulting in a traumatic condition on a current or former spouse, cohabitant, fiancé or fiancée, dating partner, or the other parent of the person's child.
A traumatic condition is a wound or other bodily injury, minor or serious, caused by physical force. Strangulation and suffocation are included by statute.
Section 273.5 is a wobbler. A misdemeanor carries up to one year in county jail. A felony carries two, three or four years in state prison. Either form can carry a fine of up to $6,000.
A prior conviction within seven years for corporal injury, aggravated battery, sexual battery or assault raises the felony range to two, four or five years and the fine to $10,000.
Penal Code 243(e)(1), battery on a spouse or intimate partner
Section 243(e)(1) is a misdemeanor. It covers any willful use of force on a spouse or former spouse, a current cohabitant, the other parent of the person's child, a fiancé or fiancée, or a current or former dating partner.
No injury is required, and a push or a grab can be enough. It carries up to one year in county jail and a fine of up to $2,000.
Consequences that follow either conviction
Probation on a domestic violence conviction runs at least 36 months by statute and requires a criminal protective order and a batterer's program of weekly two-hour sessions for at least one year, normally completed within 18 months. A $500 fee applies unless the court reduces or waives it.
A misdemeanor conviction under 243(e)(1) brings a ten-year California firearm prohibition. A misdemeanor conviction under 273.5 entered on or after January 1, 2019, and any felony conviction, brings a California prohibition with no end date.
02Two tracks at once: the criminal case and the restraining order
The criminal case is brought by the district attorney in the name of the People of California. The alleged victim is a witness, not a party, and does not control whether the case is filed or dismissed.
Separately, the other party can ask a family court for a domestic violence restraining order. A temporary order can be granted without notice to the respondent, and a hearing is held within 21 days, or 25 days when the court finds good cause.
The criminal court can also issue its own protective order at arraignment, and on a conviction that order can run for up to ten years.
The two tracks feed each other. Testimony at a restraining-order hearing is sworn and can be used in the criminal case. A restraining order can last up to five years, can be renewed for five years or permanently without any new incident, and carries into custody proceedings.
Pelta Law handles both tracks together and weighs how a statement made in one court can be used in the other. See restraining orders.
03How allegations arise in divorce and custody disputes
Many domestic violence reports arrive during or just before a separation, and an allegation carries real weight in the family case.
Some allegations are accurate, some are exaggerated, and some are timed. The defense does not begin by assuming any of those. It begins by collecting what exists: texts, call logs, photographs, medical records, prior filings in the family case, and the accounts of people who were present.
People facing both a family case and a criminal case are often advised by counsel before answering questions in either forum, because declarations filed in family court are signed under penalty of perjury and are routinely read by the prosecutor.
04How Pelta Law approaches these cases
A conflict check comes first, before any case detail is shared. Begin with your name, callback number and county, and mention custody status or an approaching court date. Do not send facts of the case by email.
Pelta Law reads a domestic violence report from the prosecutor's side first, then builds the defense from what the report leaves out: who called, what the 911 recording actually says, what the body camera shows, and whether the injury described matches the account given.
05Where these cases are heard
Criminal cases in San Francisco are heard at the Hall of Justice, 850 Bryant Street, and some at the Civic Center Courthouse and Community Justice Center. Domestic violence restraining order requests are filed at the Family Law window in Room 402 of the Civic Center Courthouse, 400 McAllister Street.
In the other eight counties, criminal calendars are heard at courthouses including these:
- Alameda: Wiley W. Manuel Courthouse and Rene C. Davidson Courthouse, Oakland; East County Hall of Justice, Dublin
- Santa Clara: Hall of Justice, San Jose; Palo Alto Courthouse
- San Mateo: Hall of Justice and Records, Redwood City; Northern Branch, South San Francisco
- Contra Costa: A.F. Bray Courthouse, Martinez; George D. Carroll Courthouse, Richmond
- Marin: Marin County Superior Court, San Rafael
- Solano: criminal division clerk's offices at the Hall of Justice, Fairfield, and the Solano Justice Building, Vallejo; which building hears a given calendar is confirmed with the clerk
- Napa: Criminal Courthouse, Napa
- Sonoma: Hall of Justice, Santa Rosa
Which building hears a particular case depends on the county's calendar assignment.
Can the person who called the police drop the charges?
No. The district attorney, not the complaining witness, decides whether a case is filed and continues. A reluctant witness is one factor, but prosecutors can go forward on 911 recordings, body camera footage, photographs and statements from the scene, within the rules of evidence.
Will I be able to go back to my home?
Not always right away. A protective order can bar a person from the shared home and from contact with the other party, even when both want to talk. Violating it is a separate offense, so belongings are retrieved through a police civil standby.
06Contact
Office: 1390 Market Street, Suite 200, San Francisco. Appointments by arrangement. Call 415-963-1152 or email marc@peltalaw.com. Attorneys referring a matter can reach Marc Pelta through the For Attorneys page.
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