West Justice Center
Anthony J. Ferrentino
Judge,
West Panel
Loyola Law School
If you have any experience in family law and its subset of Domestic Violence Protection Act (DVPA) matters you likely know that a parallel criminal domestic violence case can have quite an effect on the corollary proceedings. While both family law and criminal panel judges can issue protective orders in their respective cases, the disposition of the criminal matter often has a great impact on the family law case. Indeed, even prior convictions in criminal cases can have long-lasting repercussions in many family law hearings.
Pending criminal matters
When criminal matters are ongoing during the pendency of a family law case, it often results in requests for continuances. This is usually due to 5th Amendment concerns by the charged party. A very thorough discussion of the interplay between 5th Amendment-related issues and DVPA actions was detailed by Los Angeles Superior Court Judge Scott J. Nord in the Daily Journal on Feb. 15, 2022. This same analysis may now come into play under newly enacted Family Code Section 6309 which allows for limited discretionary discovery in DVPA actions. It has yet to be seen, but the accused party may attempt to refuse producing such discovery based on a 5th Amendment invocation. If that issue arises, trial courts will need to address a complex interplay between family, criminal and constitutional law.
Another issue for practitioners and the bench to be aware of when there are concurrently pending family law and criminal cases is the potential for multiple (and inconsistent) protective orders. On occasion in DVPA matters, the parties agree to a less restrictive protective order based on negotiations that may have occurred in the disposition of the family law matter. If this is the case, the parties will need to re-visit the criminal court to request a modification allowing for visitation to occur per the family law court order. If this is not done and the parties take actions based on the less restrictive family law order, the defendant may be facing new criminal prosecutions if he or she violates the more restrictive criminal protective order. Of course, this may also occur in reverse where the family law order is more restrictive than the criminal protective order.
Prior criminal convictions in family law proceedings
1. Family Code Sections 4324 and 4324.5
Prior criminal convictions may have serious consequences in family court proceedings. Pursuant to Family Code Section 4324, a spouse who attempts to murder or solicitates someone to murder the other spouse is prohibited from receiving spousal support, medical, life or other insurance benefits from the injured spouse. Additionally, pursuant to Family Code Section 4324.5, a spouse who has been convicted of a violent sexual felony or a domestic violence felony in certain instances may be denied spousal support, may not be entitled to attorney's fees through the injured spouse's separate property and might not receive community property interests in the injured spouse's retirement and pension benefits. Moreso, under Section 4324.5, a court may find the parties' date of separation to be the date of the offending conduct or earlier if the court finds it just under the circumstances.
2. Family Code Section 4325
Similar consequences for criminal conduct can also be found in Family Code Section 4325 when the conviction involves a domestic violence misdemeanor or a criminal conviction that results in a term of probation pursuant to Section 1203.097 of the Penal Code. Section 1203.097 applies to all crimes in which the victim is a person defined under Section 6211 of the Family Code including but not limited to spouse or former spouse or a person with whom they have a child. Additionally, a finding of domestic violence in a DVPA action can be based on a prior criminal conviction in the last 5 years of a crime against the other party as defined in Family Code Section 6211. See Family Code Section 3044(d)(1). Such a finding of abuse by using prior convictions or by a finding made after hearing establishes a rebuttable presumption that the perpetrator of such abuse not be awarded sole or joint physical or legal custody of any of the parties' minor children. This finding may further impact financial matters related to child support because an offending party's timeshare with the children may decrease and child support is partly based on the calculation of that timeshare.
3. Family Code Section 6306
Prior to a hearing on the issuance or denial of a DVPA order, a family court must search for and consider certain information obtained from the accused's criminal history or other listed databases. Family Code Section 6306(b)(1) states the court shall consider the following:
"a conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code; a misdemeanor conviction involving domestic violence, weapons, or other violence; an outstanding warrant; parole or probation status; a prior restraining order; and a violation of a prior restraining order."
The first portion of Section 6306 refers to what is commonly referred to as a felony "strike" offense in criminal proceedings. For consideration by the court, there is no requirement that the other spouse was the victim of these crimes which include arson, kidnapping, carjacking, first-degree burglary, grand theft of a firearm, criminal threats, personally inflicting great bodily injury as well as many others. Section 6306 also includes misdemeanor domestic violence violations under Penal Code Section 273.5 (Inflicting Injury on Spouse, Cohabitant or Fellow Parent Resulting in Traumatic Condition) and Penal Code section 243(e)(1) (Simple Battery Against Spouse, Cohabitant or Fellow Parent) for consideration by the court but does not include felony domestic violence for consideration unless that offense involved the personal infliction of great bodily injury, threats or possible use of a weapon which would make such felony conduct a "strike." A violation of Penal Code section 273.5(a) can be charged as a felony or a misdemeanor but according to the plain reading of Section 6306, the family law court can only take into consideration such conviction if it is for a misdemeanor. Looking at the intent of the statute this may be an oversight. With that said how, is the family law judicial officer to "consider" the commission of these crimes or acts in its analysis under Section 6306?
a. Consideration of non-domestic violence offenses
What if the family law court conducts its search and finds that a spouse accused of domestic violence in the DVPA proceeding has a prior conviction for felony residential burglary which is a felony "strike" assuming the residential burglary did not occur against the other spouse? In a criminal proceeding that did not involve a party seeking admission of this evidence under Evidence Code Section 1101(b) (Evidence of Character to Prove Conduct), the prior conviction would normally not be admissible unless it was being used to challenge the credibility of the defendant after testifying. Pursuant to People v. Castro, 38 Cal.3d. 301 (1985) and People v. Wheeler, 4 Cal. 4th 284 (1992) as well as a subsequent precedent, certain conduct including convictions for some strikes constitute moral turpitude which can be used by a trier of fact to weigh credibility. See CALCRIM 316 in criminal actions and CACI 211 in civil actions. Back to our DVRO hypothetical, if the accused spouse testifies, should the court consider the residential burglary conviction strictly for the purpose of weighing credibility? If he or she does not testify should the court consider it at all? How should the court use the accused party's probation or parole status for crimes they committed that are not specifically listed in Family Code Section 6306? Section 6306 does not give guidance to answer these inquiries but it would appear logical for such a conviction to be considered only for credibility purposes.
b. Consideration of domestic violence offenses
If the prior conviction involves the accused spouse committing domestic violence, how should the court "consider" that evidence? In a criminal proceeding, such evidence could possibly be used to prove a propensity to commit domestic violence pursuant to Evidence Code Section 1109 (Evidence of Defendant's Other Acts of Domestic Violence). This is some of the most powerful evidence presented where the triers of fact "may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and based on that decision, also conclude that the defendant was likely to commit ..." the currently charged domestic violence. See CALCRIM 852A. Propensity evidence can include prior as well as subsequent conduct in relation to the present allegations. People v. Balcom, 7 Cal.4th 414, 425 (1994). In criminal cases, this evidence may relate to the alleged victim in the present case or may have occurred against others and is not exclusively limited to convictions but can be related to conduct which was never prosecuted. Of course, the decision whether to admit such evidence in criminal actions is guided by well-developed case law as well as a scrutinized analysis under Evidence Code Section 352. Back to the hypothetical, should the court consider domestic violence convictions under an Evidence Code Section 1109 analysis in DVPA proceedings? If it can, can it be proven up by just providing certified copies or is live testimony from the victim of said offense necessary? Evidence Code Section 452.5(b)(1) indicates that a certified copy of conviction can be used to "prove the commission" or "attempted commission" of an act. See also People v. Robinson, 99 Cal.App.5th 1345 (2024) and People v. Wesson, 138 Cal.App.4th 959 (2006). Although Section 6306 does not expressly state how to consider such evidence, it would appear an intelligent application of the evidence code would allow the magistrate to consider it as propensity evidence. Questions remain on how the court should approach the same analysis when considering previous restraining orders issued against a party whether they be temporary or issued after hearing.
Conclusion
While there may be some unanswered questions in this area, there is no doubt that pending or past criminal cases can cause serious consequences for litigants in dissolution proceedings. It is important to understand how such actions might affect the rights of the parties in decisions made regarding custody, visitation and financial matters. Additionally, it is essential to understand how such matters can be used in evidentiary hearings, particularly those under the DVPA, and how the court could analyze such evidence.