Can the Victim Drop Domestic Violence Charges in California?

No. In California, the alleged victim cannot drop domestic violence charges. Once police make an arrest and refer the case, the decision to file, reduce or dismiss belongs to the prosecutor: the District Attorney, or in misdemeanor cases from the City of San Diego, the San Diego City Attorney. The case is brought in the name of the People of the State of California, not the person who called 911.

That does not mean the alleged victim's wishes are irrelevant. They affect how strong the evidence is, what the prosecutor offers and how the judge sentences. This guide explains why prosecutors can go forward without the alleged victim, what changes when that person does not want to cooperate, and the mistakes that can turn one charge into two. It describes how the law generally works, and nothing here replaces advice about a specific case.

Why the Prosecutor Can Go Forward Anyway

Domestic violence cases are often filed even when the alleged victim asks the police and the prosecutor not to. San Diego prosecutors have long followed this approach, building cases on evidence other than the alleged victim's live testimony so that a recantation alone does not end the case. That evidence commonly includes:

• The 911 call. Statements made to a dispatcher to get help during an emergency are generally admissible even if the caller never testifies, under the Supreme Court's decision in Davis v. Washington.
• Body camera video and the officers' observations of injuries, the scene and each person's demeanor.
• Photographs of injuries and medical records.
• Statements made in the heat of the moment, which California treats as spontaneous statements under Evidence Code 1240.
• Statements describing an injury or threat that were recorded or made to police or medical staff, which Evidence Code 1370 can allow when the person who made them is unavailable to testify, subject to conditions the prosecution must meet.
• Texts, voicemails, social media messages and witnesses such as neighbors or family members.
• Evidence of prior incidents, which Evidence Code 1109 allows in domestic violence cases in many circumstances.

There are limits. Under Crawford v. Washington, statements that are testimonial, such as a detailed account given to an officer after the emergency has ended, generally cannot be used against the accused unless the person who made them testifies and can be cross-examined. Separating what the prosecution can use without the alleged victim from what it cannot is often the most important work in these cases.

What Happens When the Alleged Victim Does Not Want to Testify

The prosecutor can subpoena the alleged victim, and a subpoena is a court order. But California law gives domestic violence victims a protection that most witnesses do not have: under Code of Civil Procedure 1219(b), a court cannot jail a domestic violence victim for contempt for refusing to testify about the crime. The court may instead refer the person to a domestic violence counselor.

Marriage does not change this. The usual privilege not to testify against a spouse does not apply in a criminal case where one spouse is charged with a crime against the other, under Evidence Code 972(e).

If the alleged victim does testify and gives a different account than they gave the police, the earlier statements can come in as prior inconsistent statements and be used as evidence of what happened, under Evidence Code 1235. A recantation on the stand therefore does not erase the original report. It gives the jury two versions to weigh, and the defense the chance to explain why the first one was wrong.

What the Alleged Victim's Wishes Can Still Change

Even though the decision is the prosecutor's, the alleged victim's position matters in several concrete ways:

• Evidence strength. When the case depends on testimony the prosecution cannot otherwise replace, an unwilling witness can lead to a reduction or a dismissal.
• The plea offer. Prosecutors weigh the alleged victim's wishes, especially in misdemeanor cases with minor or no injuries.
• Sentencing. Under the California Constitution, crime victims have the right to be heard at plea and sentencing hearings, and judges listen when the person most affected asks for leniency.
• The protective order. The alleged victim can ask the court to modify a criminal protective order, for example to allow peaceful contact so a family can live together or share parenting.

The alleged victim also has rights of their own. The California Constitution lets crime victims decline to be interviewed by the defense. Many people in this position consult their own attorney or a victim advocate before deciding what to say and to whom.

Mistakes That Create New Charges

The most serious risk in a domestic violence case often comes after the arrest. Two mistakes are common, and both can lead to charges more serious than the original one.

Violating the protective order. At the first court date, the judge usually issues a criminal protective order. It may forbid all contact, even if the alleged victim wants contact and initiates it. A violation is a new crime, charged under Penal Code 166(c)(1) or 273.6, and it can also lead to higher bail.

Asking the alleged victim to drop the charges, not show up or change their story. Under Penal Code 136.1, attempting to dissuade a victim or witness from testifying or from helping the prosecution is a crime that can be charged as a felony, and a felony carrying two, three or four years in state prison if it involves force or a threat. The statute covers attempts, so it does not matter whether the request worked. Jail calls are recorded, and prosecutors listen to them.

If the alleged victim wants the case to end, they can say so directly to the prosecutor or the victim advocate assigned to the case, or with their own lawyer. The accused person should not be part of that conversation.

Settlements and Diversion Do Not Work the Usual Way

Two tools that end many other misdemeanor cases are closed in domestic violence cases. A civil compromise, in which the person harmed is paid and the case is dismissed, is excluded by Penal Code 1377 for offenses against a family or household member. Judicial misdemeanor diversion under Penal Code 1001.95 excludes any offense involving domestic violence. Resolutions in these cases instead come from the evidence, from negotiation over the charge, and from programs the court or prosecutor will accept.

How Domestic Violence Cases Are Defended

The defense starts with the evidence the prosecution can actually use without the alleged victim, and challenges the statements that the Confrontation Clause or the hearsay rules keep out. It then looks at what the evidence shows: whether the injuries match the accusation, whether there was self-defense, whether the accusation arose in a custody dispute or breakup, and what the 911 call and video really record. A clear picture of the evidence is what produces a dismissal, a reduction to a charge without the domestic violence consequences, or an acquittal at trial.

Domestic violence defense is the largest part of Marc Kohnen's practice, and he has defended these cases in San Diego County courts since 2008. If you have been arrested, or the alleged victim wants the case to end, call the Law Office of Marc S. Kohnen at (619) 398-2500 before anyone contacts the prosecutor. Our domestic violence page explains the charges, penalties and the first week after an arrest.

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