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When Love Goes Wrong: Criminal Consequences to a Messy Divorce

Featured in the September 2018 issue of Contra Costa Lawyer Magazine found here:

(In response to fact pattern found here.)

If police and prosecutors get involved, Veronica and Albert’s situation is what is called a “domestic violence” case. Criminal defense attorneys call it “DV” for short. There are several charges likely to be filed against Albert including: sexual battery (Penal Code section 243.4), stalking (Penal Code section 646.9(a)), criminal/terrorist threats (Penal Code section 422), corporal injury to spouse (Penal Code section 273.5), assault likely to cause great bodily injury (Penal Code section 245(a)(4)), and assault with intent to commit rape (Penal Code section 220). Since only the government may prosecute a criminal complaint, Veronica would have to make a police report and the local prosecutor, the Contra Costa County District Attorney’s Office, would have to act. A criminal defense firm could provide no assistance to Veronica on this fact pattern unless she is charged with violating a court order for not allowing Albert his visitation with the children. Violating a court order is contempt of court (Penal Code section 166(a)(4)). Since Albert is the one most likely to be prosecuted, a criminal defense firm would advise Albert if he were to seek legal assistance.

First, Albert must cease and desist all communication with Veronica. Every threatening message or unwanted physical contact is a separate count. Additional counts lead to increased criminal penalties, i.e. longer jail or prison sentences.

Second, a criminal defense attorney would go over the charges, or, in this case, the potential charges Albert is facing. The most challenging charges will relate to the text messages and emails. One can assume Veronica will provide copies to the police, should she decide to go that route. Since the past cannot be undone, the messages provide objective “proof” of Albert’s threats, these are the most difficult charges to overcome. There are two ways the prosecution could charge the threats. The first is via Penal Code section 422. A 422 charge can be filed as either a misdemeanor or a felony.

As a result, we call this a “wobbler.” If it is charged as a misdemeanor, Albert is facing up to one year in county jail. If it is charged as a felony, it is a serious felony also known as a “strike” under Penal Code section 1192.7. Albert could face 16 months, two years, or three years in state prison, if convicted. The second way these allegations could be charged is as stalking. Like criminal threats, stalking is also a wobbler. He faces the identical amount of jail and prison time for stalking but it is not a strike. If Albert is convicted of stalking, the judge could impose registration as a sex offender under 646.9(d). This would require Albert to register with his local police department annually on his birthday and within 30 days of moving. There are also limitations to where he can live and he may have his name, address and photo published on the Megan’s Law website. Starting in January of 2021, however, there will be different tiers of offenders that are required to register for 10 years, 20 years or life. The defense could potentially defend against these charges by arguing the threats were not “credible” or specific enough, as required by law. While some of the messages say Veronica is going to “regret the separation” and others are “violent and/or aggressive” it is not clear what this means. Further investigation is necessary to determine what can be done to help.

With regard to the sexual battery charge, this too, could be a felony or misdemeanor. Penal Code section 243.4(a) is a wobbler if Albert touched an intimate part while “unlawfully” restraining Veronica for the purpose of sexual gratification, sexual arousal, or sexual abuse. The primary focus of this charge would be grabbing her “buttocks,” “slamming his pelvis into her backside,” and “touching her in a sexual manner.” Albert could face up to a year in county jail if the charge is a misdemeanor or, two, three or four years in state prison. This is not a strike though it would lead to registration as a sex offender as outlined above. It seems from the fact pattern that no one saw him do these things. If that is the case, it’s a “he-said-she-said” case. Given the fact she did not report it right away and interfered with Albert’s visitation rights under a court order, the defense could argue she is making these allegations in an attempt to get sole custody of the children. This is a viable defense as long as Albert does not confess.

Since Veronica is Albert’s former spouse and since she received physical injuries in the assault, Albert could be charged with violating Penal Code section 273.5. Like the other charges discussed above, this too, is a wobbler. Albert could face up to a year in the county jail or two, three, or four years in state prison. Section 273.5 is not a strike. A “lessor” offense for the kissing and tripping, which did not result in injuries, would satisfy Penal Code section 243(e)(1), domestic battery. Section 243(e)(1) is a misdemeanor that carries up to one year in the county jail. The fact pattern does not say anyone else witnessed these encounters so, this too, is a “he-said-she-said” allegation. The defense could make the same arguments about bias described above.

Finally, the June 6, 2018 encounter is, perhaps, the most serious. The potential for a sexual battery charge was discussed above but there are additional charges such as Penal Code section 245(a)(4), assault likely to cause great bodily injury for choking her. This charge is also a wobbler so Albert could face up to one year in county jail or two, three, or four years in state prison. Section 245(a)(4) is not a strike under this fact pattern. Albert could also be charged with Penal Code section 220, assault with intent to commit rape. This is a straight felony and carries a potential sentence of two, four, or six years in state prison. It also carries registration as a sex offender and it is a strike. Assault with intent to commit rape requires the specific intent to commit rape.

While Veronica feared she would be raped, it is not clear this was Albert’s intention. With regard to the choking, it is not clear the warehouse worker saw it since she called for help afterward. It is also not clear whether he saw the sexual touching. If he just witnessed a physical confrontation, the defense could argue he did not see how it started and does not know whether Veronica attacked Albert first. The medical documentation lends credibility to Veronica’s claims so this is a potential pitfall.

Albert is likely in quite a bit of trouble but with the right legal representation, he can preserve his liberty.

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