(a) Every law enforcement agency in this state shall develop, adopt, and implement written policies and standards for officers’ responses to domestic violence calls by January 1, 1986. These policies shall reflect that domestic violence is alleged criminal conduct. Further, they shall reflect existing policy that a request for assistance in a situation involving domestic violence is the same as any other request for assistance where violence has occurred.
(b) The written policies shall encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. These policies also shall require the arrest of an offender, absent exigent circumstances, if there is probable cause that a protective order issued under Chapter 4 (commencing with Section 2040) of Part 1 of Division 6, Division 10 (commencing with Section 6200), or Chapter 6 (commencing with Section 7700) of Part 3 of Division 12, of the Family Code, or Section 136.2 of this code, or by a court of any other state, a commonwealth, territory, or insular possession subject to the jurisdiction of the United States, a military tribunal, or a tribe has been violated. These policies shall discourage, when appropriate, but not prohibit, dual arrests. Peace officers shall make reasonable efforts to identify the dominant aggressor in any incident. The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense. Notwithstanding subdivision (d), law enforcement agencies shall develop these policies with the input of local domestic violence agencies.
(c) These existing local policies and those developed shall be in writing and shall be available to the public upon request and shall include specific standards for the following:
(1) Felony arrests.
(2) Misdemeanor arrests.
(3) Use of citizen arrests.
(4) Verification and enforcement of temporary restraining orders when (A) the suspect is present and (B) the suspect has fled.
(5) Verification and enforcement of stay-away orders.
(6) Cite and release policies.
(7) Emergency assistance to victims, such as medical care, transportation to a shelter or to a hospital for treatment when necessary, and police standbys for removing personal property and assistance in safe passage out of the victim’s residence.
(8) Assisting victims in pursuing criminal options, such as giving the victim the report number and directing the victim to the proper investigation unit.
(9) Furnishing written notice to victims at the scene, including, but not limited to, all of the following information:
(A) A statement informing the victim that despite official restraint of the person alleged to have committed domestic violence, the restrained person may be released at any time.
(B) A statement that, “For further information about a shelter you may contact ____.”
(C) A statement that, “For information about other services in the community, where available, you may contact ____.”
(D) A statement that, “For information about the California Victims’ Compensation Program, you may contact 1-800-777-9229.”
(E) A statement informing the victim of domestic violence that the victim may ask the district attorney to file a criminal complaint.
(F) A statement informing the victim of the right to go to the superior court and file a petition requesting any of the following orders for relief:
(i) An order restraining the attacker from abusing the victim and other family members.
(ii) An order directing the attacker to leave the household.
(iii) An order preventing the attacker from entering the residence, school, business, or place of employment of the victim.
(iv) An order awarding the victim or the other parent custody of or visitation with a minor child or children.
(v) An order restraining the attacker from molesting or interfering with minor children in the custody of the victim.
(vi) An order directing the party not granted custody to pay support of minor children, if that party has a legal obligation to do so.
(vii) An order directing the defendant to make specified debit payments coming due while the order is in effect.
(viii) An order directing that either or both parties participate in counseling.
(G) A statement informing the victim of the right to file a civil suit for losses suffered as a result of the abuse, including medical expenses, loss of earnings, and other expenses for injuries sustained and damage to property, and any other related expenses incurred by the victim or any agency that shelters the victim.
(H) In the case of an alleged violation of subdivision (e) of Section 243 or Section 261, 261.5, 273.5, 286, 287, or 289, or former Section 262 or 288a, a “Victims of Domestic Violence” card which shall include, but is not limited to, the following information:
(i) The names and phone numbers of or local county hotlines for, or both the phone numbers of and local county hotlines for, local shelters for victims of domestic violence and rape victim counseling centers within the county, including those centers specified in Section 13837, and their 24-hour counseling service telephone numbers.
(ii) A simple statement on the proper procedures for a victim to follow after a sexual assault.
(iii) A statement that sexual assault by a person who is known to the victim, including sexual assault by a person who is the spouse of the victim, is a crime.
(iv) A statement that domestic violence or assault by a person who is known to the victim, including domestic violence or assault by a person who is the spouse of the victim, is a crime.
(I) A statement informing the victim that strangulation may cause internal injuries and encouraging the victim to seek medical attention.
(10) Writing of reports.
(d) In the development of these policies and standards, each local department is encouraged to consult with domestic violence experts, such as the staff of the local shelter for victims of domestic violence and their children. Departments may use the response guidelines developed by the commission in developing local policies.
Medical Mandated Reporting Laws
Predominant/Dominant Aggressor Law
People v. Vanderwood, 2019 LEXIS 2345 Unpublished
Torture is defined: “Every person who with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose, inflicts great bodily injury as defined by PC 12022.7 upon the person of another is guilty of torture.
Great bodily injury does not require permanent, disabling or disfiguring injuries; abrasions, lacerations and bruising may suffice.
Cruel pain is the equivalent to extreme or severe pain.
Expert (Dr. Smock) testified he heard the victim gurgling in the recording. He explained that a person’s esophagus can be blocked while being strangled. This prevents a person from swallowing and causes saliva to pool in the back of the throat – “that’s where you gurgle and you feel like you’re going to drown because you’re having trouble breathing.”
He explained that persons being strangled can still yell out that they “can’t breathe” when the trachea is only partially collapsed.
However, because the airflow is significantly reduced, “you feel like you can’t breathe. But there is still a little bit of air that goes through that you can phonate and speak but it’s not the normal amount of air. So it’s that feeling that I can’t breathe and I’m going to die.”
People v. Bottenfield, 2017 WL 6547077 Unpublished
The defendant strangled the victim two times – there was a loss of consciousness, duct tape over mouth, wrists and ankles. The victim escaped and called 911. Guilty of 236, 273.5, Great Bodily Injury under PC12022.7, prior strike. Sentenced 14 years.
Officer Light responded, saw injuries around ankles, eyes were red and bloodshot and redness around her neck. He immediately had victim transported. Victim reported prior DV and strangulation but not reported. No report of sex play with defendant to Officer.
Treating physician ordered CTA and discovered carotid dissection. Victim was in the ICU and was hospitalized for 2 days
Defendant claimed she consented to be strangled, but no evidence was introduced.
The victim recanted. 1000 jail calls used to impeach V’s trial testimony – ”I was in the ICU – you did this to me.” The victim visited the defendant in jail frequently and talked to him every day.
Forensic Nurse Jayne Cohill was called as expert in NFS & Trauma. She gave testimony about NFS, power & control, & trauma.
Sgt Dennis Prizmitch from Sacramento County Sheriff’s Dept testified as an expert in DV – great job. Jail calls also used to establish cycle of violence/DV dynamics and consciousness of guilt
People v. Disa, 1 Cal.App.5th 655 (2016)
The court held as to the manner of killing, defendant used a carotid restraint hold, which can render a victim unconscious within a few seconds and dead in a minute. This manner of killing may be viewed as demonstrating “a calculated design to ensure death rather than an unconsidered explosion of violence”. Citing to Horning, 34 Cal.4th 871 (20040).
In re M.M., 2015, 240 Cal. App. 4th 703 Unpublished
Both Mom and Dad agreed on the facts. Both were violent towards each other, including Dad choking Mom while holding baby.
There was a history of prior domestic violence, including during pregnancy. Court found inconsistencies and minimization of prior abuse.
Military case. Both parties wanted MPO dismissed.
The finding that the ongoing risk of domestic violence between mother and father placed minor at substantial risk of serious harm under subdivision (a) of Welfare and Institutions Code section 300.
People v. Birse, 2014 WL 5148191, Unpublished.
DA investigator Mike Wallace was permitted to testify as an expert in a non-fatal strangulation case. He testified to DV dynamics and the mechanics of strangulation.
People v. Jackson, 221 Cal.App.4th 1222 (2013)
The victim was strangled to death by her husband. There was a history of domestic violence and the day before she was killed she told a friend she wanted to leave the defendant and get a divorce.
DNA evidence tying the defendant to the victim was found under her nails. He had bruises and scratches on his body which indicated there was a struggle.
The victim was found in her car which was abandoned after several days. The defendant had reported her missing. Said she was drinking and stormed out of the house, leaving her two children 8 years old and an 8 month old. She was wearing jogging clothes, but the victim never jogged, and the baby seat was out of the car.
FBI crime scene expert Mark Safarik was hired to analyze the scene and the behavior. In order to manually strangle someone to death, a significant amount of pressure must be applied for a continuous time period, usually several minutes. When there is a struggle, many offenders often resort to blunt force trauma to subdue the victim to make it easier to strangle. When a victim has minimal blunt force injuries, it usually suggests that the victim did not perceive a risk to which she was exposed until it was too late or did not possess the strength to resist Manual strangulation is considered a personal crime with the notable exception of serial offenders. The reason an offender resorts to strangulation has to do with the rapidly increasing escalation conflict situation and an absence of a weapon. Nothing that happened was consistent with her personality, pattern. The victim was not sexually assaulted or robbed.Offenders often kill for financial gain. No evidence to suggest that. Thrill killing was also considered and eliminated. A common cause for murder is interpersonal conflict between two individuals such as domestic violence. Three common behaviors for murders: modus operandi, ritual or staging.
Expert believed the extensive and unnecessary staging was suggestive of someone who knows the victim. They do it to confuse police because they know they are the logical suspect (in DV the husband is always the no 1. suspect)
Offender acted alone and knew the victim. The defendant denied everything .
Defense called Brent Turvey as an expert who said crime scene analysis and profiling can be helpful when there is NO known suspect and rarely used when there is a known suspect.
The defendant was convicted and appealed the admission of Safarik’s expert testimony
Crime scene analysis is appropriate testimony in a criminal case. Crime scene reconstruction is also admissible and the jury need not be totally ignorant on the subject. But profiling is different as it tend to be prejudicial towards the D’s guilty.
Expert opinion is admissible to help the jury understand the evidence even when common sense would explain it’s meaning.
Manual strangulation is not a matter of common knowledge and is proper subject of expert testimony.
People v. Romero, 2011 WL 322393, Unpublished.
Evidence of a sore throat due to strangulation coupled with expert testimony was sufficient for a finding of a traumatic condition under Penal Code Section 273.5.
People v. Diaz, 2011 WL 1753041; Unpublished
The defendant convinced a 15 year old to go back to his apartment after meeting her at the store. As soon as he got her there, he kissed her. The victim said no.
The defendant then proceeded to repeatedly sexually assault and rape the victim. When the victim tried to escaped, he hit her with a rock and strangled her. The defendant claims the rock is not a dangerous weapon. But evidence showed that the victim was fearful of the rock and being strangled to death. Both were sufficient to meet the requirement of a dangerous or deadly weapon.
People v. Covino 100 Cal.App.3d 600 (1980)
Force of defendant’s assault by “choking” was likely to produce a serious injury although the victim only had redness to the neck and pain to her throat.
People v. Sanders, 268 Cal. App.2d 802 (1969)
Officer testified that the use of choking technique to keep a suspect from swallowing evidence is a very common judo hold. It is used in competing. It is a very humane hold. It doesn’t leave any marks.
Appellate court disagreed. Any application of force to one’s neck or throat calculated to stop
the blood flow to the head and then loss of consciousness is choking and excessive use of force given the circumstances.
Officer terminated by Sheriff’s Department for using carotid restraint against an inmate.
Officer said he used reasonable force because he believed he was going to be attacked and he was following policy: “The carotid restraint may be used on subjects who are actively resisting or assaultive.”
Trial court and Appellate Court agreed with Commissioner who modified officer’s discipline from termination to 3 days of suspension.
People v. Lay, 66 Cal.App.2d 889 (1944)
Where defendant in his attempt to rape prosecutrix choked her every time she screamed, prosecutrix had right of free choice of what she might consider the lesser of two evils, and her choice of submission rather than possible strangulation did not show consent.
The rule that to constitute rape there must have been the most vehement exercise of every physical means or faculty within female’s power to resist penetration and a persistence in such resistance until offense is consummated does not apply in California.