Modification or Termination of a Criminal Protective Order?

The following article lists our twelve considerations a defendant should review before seeking a modification or termination of a criminal protective order. Defendant should also be aware that if the protective order was issued in a domestic violence case, defendant must give the prosecutor five days’ notice before the hearing, to permit the prosecutor time to talk with the victim or victims about modifying or ending the protective order. To read more about this issue and read the list of twelve considerations, please click on the following link –

What One Should Know About Own Recognizance (OR) Release

Being released on one’s own recognizance (OR) from jail or court is quite limited and there are many factors that may bar this. To read about the considerations a judge must make and the procedures for setting bail in specific cases, please click on the following link to read a short article about OR release and bail –

When Must a Noticed Bail Hearing Be in Open Court?

A judge must hold a bail hearing in open court when there are offenses relating to domestic violence, which includes a broad range of crimes wherein the victim’s relationship to the defendant is generally familial in nature. The hearing itself may not proceed unless notice to the victim is given to be present to be heard on public safety issues. For more information on noticed bail hearings, please click on the following link –

How’s Obscene Defined in P.C. 653m, Harassing Calls?

In the legal context, the word obscenity is usually associated with the famous quote by U.S. Supreme Court Justice Potter Stewart, who said “I know it when I see it.” However, that quote was actually about what is hard core pornography that does not merit First Amendment protection. Obscenity is also understood within the context of “obscene matter” in Miller v. California wherein it was defined as “principally appealing to a prurient interest in sex.” Is this how obscenity is defined under Penal Code § 653m? To find out, please click on the following link –

Five Requirements for Criminal Threats (PC § 422)

If you are charged with criminal threats, it is valuable to slow down and look closely at the elements of the crime and then evaluate if your conduct really meets the requirements. Of the five requirements, the third requirement is the most commonly challenged part. What is the third requirement? To read more about criminal threats, please click on the following link –

Domestic Violence: What Facts Establish Cohabitation?

As the reader of this blog may be aware, domestic violence can also be committed against one who is not one’s spouse, but another person with whom defendant cohabitates or cohabitated. Is living in the same house enough to cohabitate? Is a romantic or amorous relationship required? What if the relationship was very brief, i.e., just one night? To read more about this alternative to battery upon one’s spouse to suffice for domestic violence, please click on the following link –

Stalking – How Are the Terms of the Crime Defined?

Stalking is a crime that has been legally tested quite rigorously, reflecting perhaps the determined nature of defendants themselves. Consequently, seemingly each word and phrase within the statute has a case or two that further explains the word or phrase and provides examples of conduct that is and is not stalking. To read more about this frequently challenged crime, please click on the following link –

Examples of Domestic Violence that May Surprise You

Does the law consider vandalism to be domestic violence if the property vandalized is a spouse’s property, i.e., a car or clothing, is such vandalism is committed by the other spouse? How about disturbing the peace of another spouse? Yes, but only in a civil (not criminal) context. What about threatening to release private information on the other spouse’s cell phone? Yes, but only in a civil (not criminal) context. To read more about certain conduct that one may not realize is treated as domestic violence, please click on the following link –

What Can a Judge Consider in Striking the Gun Enhancement?

A judge can consider the facts of the case, defendant’s prior criminal history and defendant’s post-conviction conduct and rehabilitation efforts in prison. In the following case, the appellate court looked deeply into the facts of the case in affirming the trial court’s denial of defendant’s motion to strike the gun enhancement under SB 620 (Penal Code 12022.53(h)). To read the summary, please click on the following link –

In DV Case, Can Victim Have Support Person in Court?

In a domestic violence case, a victim of the alleged crime may have a “support person” seated with her in court. As criminal defense attorneys, we do not like this law, as it draws attention to the victim and lends credibility to her claims, lowering the burden of proof for the prosecution. Even worse, if the victim cannot attend trial, two people may be present on her behalf to represent her. To read more about this rather shocking law and laws, please click on the following link –