San Diego Domestic Violence Attorney

Domestic violence cases make up the largest share of the Law Office of Marc S. Kohnen's work, and they are unlike any other misdemeanor or felony in San Diego County. Police arrive at a home, someone is in handcuffs within minutes, and a chain of consequences starts before anyone has read a police report: an emergency protective order that bars you from your own house, a booking at Central Jail or Las Colinas, and a charging decision by the District Attorney's dedicated domestic violence unit within days.

The charge itself is usually one of two statutes. Penal Code section 243(e)(1), domestic battery, covers any harmful or offensive touching of a partner with no injury. Penal Code section 273.5, corporal injury to a spouse or intimate partner, applies when there is any visible injury, and it can be filed as a felony. Which statute the prosecutor chooses, and at what level, often turns on photographs, medical notes and a 911 recording that a defense lawyer needs to examine immediately.

Marc Kohnen has represented people accused of domestic violence in San Diego since 2008, at the downtown courthouse and the Vista, El Cajon and Chula Vista branches. He reviews every case personally, and a large share of his domestic violence work happens before charges are filed, when it can still change whether a case exists at all.

Domestic Violence Charges Marc Defends in San Diego

California's domestic violence laws apply to conduct between spouses, former spouses, cohabitants, fiancés, people in a dating relationship, and parents who share a child. The alleged victim's wishes do not control the case. Once a report is made, the People of the State of California are the complaining party, and the District Attorney can file and pursue charges even when the person named in the report asks them not to.

The charges that arise from a domestic call in San Diego include:

Domestic battery, Penal Code 243(e)(1): offensive touching of a partner, always a misdemeanor
Corporal injury to a spouse or partner, Penal Code 273.5: any injury, filed as a misdemeanor or a felony
Criminal threats, Penal Code 422: a threat to kill or seriously injure, chargeable as a strike
Violation of a protective or restraining order, Penal Code 273.6 and 166
Stalking, Penal Code 646.9
Child abuse and child endangerment, Penal Code 273d and 273a
Elder or dependent adult abuse, Penal Code 368
Damaging a phone line or device to prevent a call for help, Penal Code 591.5

PC 273.5 or PC 243(e)(1): How the District Attorney Files the Case

Penal Code section 243(e)(1) is always a misdemeanor. It carries up to one year in county jail and a fine of up to $2,000, and it does not require any injury at all. Grabbing an arm, pushing past someone in a doorway, or throwing an object that makes contact can each satisfy the statute.

Penal Code section 273.5 requires a traumatic condition, which the law defines as any wound or bodily injury caused by physical force, whether minor or serious. A bruise, a scratch or redness that appears in a photograph is enough. Section 273.5 is a wobbler. As a misdemeanor it carries up to one year in county jail. As a felony it carries two, three or four years in state prison and a fine of up to $6,000. A prior conviction under 273.5 or certain related statutes within seven years raises the felony range to two, four or five years and the fine to $10,000.

If the prosecution alleges that you personally inflicted great bodily injury, Penal Code section 12022.7(e) adds three, four or five years and turns the conviction into a serious and violent felony under California's Three Strikes law. Whether a case is filed as a 243(e)(1) misdemeanor, a 273.5 misdemeanor, or a 273.5 felony with an enhancement is the single biggest variable in the case, and it is decided in the first days after the arrest.

What Happens in the First Week After a Domestic Violence Arrest in San Diego

San Diego law enforcement agencies treat domestic calls as mandatory-arrest situations in practice. When officers respond, they separate the parties, photograph any marks, record statements on body-worn cameras, and in most cases take one person into custody regardless of what the other person says at the scene. The officer will usually obtain an emergency protective order by telephone from a judge, which takes effect immediately and can keep you away from your home and your children for up to seven days.

The case file goes to the District Attorney's office, which decides whether to file charges, and under which statute, usually within a few days. This review period is the most valuable window in the entire case. A defense attorney who is retained immediately can deliver text messages, witness statements, medical context and the history of the relationship to the filing deputy before a decision is made. Our office has repeatedly persuaded prosecutors not to file charges after a domestic violence arrest, and in one case involving two felony counts of corporal injury to a spouse, all charges were dismissed. Every case is different, and prior results do not guarantee a similar outcome.

If charges are filed, the arraignment takes place at the San Diego Superior Court. At that hearing the judge will issue a criminal protective order under Penal Code section 136.2, often a full stay-away order that prevents you from returning home or contacting your partner and children. Marc regularly asks the court at arraignment to modify that order to a peaceful-contact order so that families are not separated for the months a case takes to resolve.

Penalties for a Domestic Violence Conviction in California

The sentence in a domestic violence case is only part of the consequence. California attaches a fixed set of terms to any grant of probation in these cases, and separate federal and state laws take away rights that most people do not realize are at stake.

Under Penal Code section 1203.097, probation in a domestic violence case must include at least 36 months of probation, completion of a 52-week batterer's intervention program, a criminal protective order in favor of the alleged victim, a fee of at least $500, and restitution, and the court may add a payment of up to $5,000 to a domestic violence shelter. These terms apply to a misdemeanor 243(e)(1) plea with no injury just as they apply to a felony.

Misdemeanor Domestic Violence Penalties

Up to one year in county jail
Fines, penalty assessments and program costs
A minimum of three years of probation under PC 1203.097
A criminal protective order restricting contact with the alleged victim, which can be extended up to ten years after conviction, or fifteen years after a 273.5 conviction
The 52-week batterer's intervention program, attended weekly
A ten-year state firearm ban under PC 29805 for a 243(e)(1) conviction, a lifetime state ban for a misdemeanor 273.5 conviction, and a lifetime federal firearm ban under 18 U.S.C. 922(g)(9) for qualifying convictions

Felony Domestic Violence Penalties

Two, three or four years in state prison, or felony probation with up to one year in county jail
A lifetime ban on owning or possessing a firearm
Fines of up to $6,000, or $10,000 with a qualifying prior
A criminal protective order of up to fifteen years
A strike under the Three Strikes law if great bodily injury is found

Consequences Beyond the Sentence

A domestic violence conviction reaches into parts of life that a sentence does not mention. For anyone who is not a United States citizen, a conviction for a crime of domestic violence is a deportable offense under federal immigration law, and it can bar re-entry and naturalization. A plea that looks manageable in criminal court can end a green card, which is why the immigration file has to be reviewed before any plea is entered.

Family court is affected as well. A conviction, and in many cases the arrest alone, is used in custody and visitation proceedings, and California family courts apply a presumption against awarding custody to a parent with a domestic violence finding in the previous five years. Professional licenses, security clearances, military careers and jobs that require a firearm are all at risk. The 52-week program and the protective order also shape daily life for years, and a violation of either becomes a new criminal case.

Defenses to Domestic Violence Charges

Domestic violence cases are more defensible than people assume, because most of them rest on one person's account, given to officers in the most emotional moment of a dispute, with no independent witness. The prosecution must prove every element beyond a reasonable doubt, and the evidence is often thinner than the arrest suggests.

Self-defense is a complete defense. If the other person was the aggressor and you used reasonable force to protect yourself or a child, no crime was committed. Accident is a defense to both statutes, because each requires a willful act; an injury from a door, a fall, or two people pulling at the same object is not corporal injury. Other defenses include:

False accusation, especially where a divorce, custody dispute, immigration matter or new relationship gives the accuser a reason to make one
Injuries that do not match the account, shown through medical records, timing and photographs
No qualifying relationship under the statute
Statements taken in violation of Miranda, or a search of the home or phone without consent or a warrant
An accuser who recants or declines to testify, and the hearsay and confrontation problems that creates for the prosecution

When the Alleged Victim Recants

Recantation is common in these cases, and it does not end them. The District Attorney's domestic violence unit is trained to proceed without the alleged victim, using the 911 recording, body-camera statements, photographs and the testimony of the responding officers. Prosecutors may also subpoena a reluctant witness, and Evidence Code section 1109 allows them to introduce prior allegations of domestic violence that never resulted in a conviction.

A recantation still matters when the defense handles it correctly. A sworn declaration that describes what actually happened, an explanation for the original statement, and documentation of the relationship since the arrest all change the leverage in negotiations and the strength of the case at trial. The wrong approach, including any contact with the alleged victim that violates a protective order, turns a recantation into a new charge of dissuading a witness. Marc directs that process so that it helps the case rather than harming it.

Diversion, Reductions and Clearing the Record

California's misdemeanor diversion statute, Penal Code section 1001.95, expressly excludes domestic violence offenses, so the diversion available in most misdemeanor cases is not available here. Mental health diversion under Penal Code section 1001.36 remains possible when a diagnosed condition played a significant role in the conduct, and military diversion under section 1001.80 is available to qualifying service members and veterans.

Where the evidence supports it, the more common paths are a reduction to a charge that carries no domestic violence designation, such as disturbing the peace under Penal Code section 415, which can avoid the mandatory terms of section 1203.097 and the federal firearm ban, or a reduction of a felony 273.5 to a misdemeanor under section 17(b). After probation is completed, a dismissal under Penal Code section 1203.4 removes the conviction for most employment purposes, although it does not restore firearm rights or undo immigration consequences.

How Marc Kohnen Handles a Domestic Violence Case

The first call sets the direction of the case. Marc will want to know whether charges have been filed, whether a protective order is in place, where you are staying, and whether children are involved, because each of those affects what has to happen in the next 48 hours. If the District Attorney has not yet made a filing decision, the work begins with the prosecutor. If charges have been filed, it begins with the protective order and the arraignment.

From there the defense is built on the record: the 911 call, the body-camera footage, the photographs, the medical file, the text history between the parties, and interviews with anyone who was in the house or on the phone. Marc has taken domestic violence cases to jury trial and has resolved many more before a jury was ever needed. The goal in every case is the same, to keep a single bad night from becoming a permanent record.

The Law Office of Marc S. Kohnen is at 425 Tenth Avenue in downtown San Diego, a short walk from the central courthouse and the county jail. Marc is available 24 hours a day at (619) 398-2500, and a parent, spouse or friend can make the first call on your behalf.

Questions People Ask After a Domestic Violence Arrest in San Diego

Can the victim drop domestic violence charges in California?

No. Once a report is made, the case belongs to the District Attorney, not the person who called. The alleged victim can tell the prosecutor they do not want to proceed, and that statement carries some weight, but the office can and often does file charges anyway, using the 911 recording, body-camera statements and photographs in place of live testimony. What the alleged victim can do is give an accurate account to the defense, through counsel, so that it reaches the prosecutor in a form that helps rather than a form that creates a new problem.

Will I go to jail for a first domestic violence offense in San Diego?

A first misdemeanor offense with no significant injury is usually resolved without additional custody beyond the time served at booking, but California does not allow an easy probation term in these cases. Penal Code section 1203.097 requires at least three years of probation, the 52-week batterer's program, a protective order and fees, and the court may also order payments to a shelter and impose jail time. A felony filing, an injury, a prior conviction or a protective order violation changes the picture considerably. The charging decision in the first week is where most of that exposure is decided.

Can I go home if there is a protective order?

Not while a full stay-away order is in effect, even if your partner invites you and even if your name is on the lease. The protected person cannot waive the order; only the court can change it. At arraignment the judge can issue a peaceful-contact order instead, which allows you to live together and communicate as long as there is no violence, threat or harassment. Marc routinely asks for that modification at the first hearing, and the alleged victim's own request to the court is a significant factor. Until the order is changed, any contact is a new crime.

Will a domestic violence conviction take away my gun rights?

Yes, and for longer than most people expect. A misdemeanor conviction under Penal Code 243(e)(1) carries a ten-year California firearm ban under Penal Code section 29805, a misdemeanor conviction under 273.5 carries a lifetime California ban under the same section, and both carry a lifetime federal ban under 18 U.S.C. 922(g)(9), which applies to any misdemeanor crime of domestic violence, with one narrow exception for a single conviction involving only a dating partner. A felony conviction is a lifetime ban under both. A later dismissal under Penal Code section 1203.4 does not restore firearm rights. Avoiding the domestic violence designation altogether, through a reduction to a non-domestic offense, is often the only way to protect them.

Is misdemeanor diversion available for domestic violence charges?

No. Penal Code section 1001.95, the statute that lets a judge grant diversion in most misdemeanor cases over the prosecutor's objection, expressly excludes domestic violence offenses. Mental health diversion under Penal Code section 1001.36 can still apply when a diagnosed mental health condition was a significant factor in the conduct, and military diversion under section 1001.80 is available to qualifying veterans and service members. Outside those programs, the path to avoiding a domestic violence record runs through the charging decision, a reduction to a non-domestic charge, or an acquittal.

What should I do in the first 24 hours after a domestic violence arrest?

Do not contact the other person by any means, including through friends or social media, while an emergency protective order is in effect. Do not give a statement to police or a detective without a lawyer. Preserve everything: text threads, call logs, photographs of your own injuries, and the names of anyone who was present or on the phone. Then get counsel involved before the District Attorney makes a filing decision, because that is the point in the case where the most can still be changed.