quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
telephone calls as described in Section 653m of the Penal Code, destroying personal property,<br />
contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance<br />
of, or disturbing the peace of the other party, <strong>and</strong>, in the discretion of the court, on a showing of<br />
good cause, of other named family or household members.”<br />
Section 6320(b) permits a judge in a domestic violence situation to enjoin a party from<br />
taking certain actions against the victim’s pet. Section 6389 permits injunction of possession<br />
<strong>and</strong> use of a firearm.<br />
a. Suggested Pleas<br />
Criminal defense counsel must make every ef<strong>for</strong>t to avoid a judicial finding that a defendant<br />
violated a portion of a domestic violence order involving conduct described in Calif. Family C.<br />
§§ 6320 <strong>and</strong> 6389, including minor violations involving stay-away orders or phone calls.<br />
Suggestions include:<br />
‣ Plead to a new offense, rather than to a violation of a protective order. In doing so, make sure (a)<br />
that the plea is not to a “crime of domestic violence” or other deportable offense <strong>and</strong> (b) that the<br />
judge does not make a finding in the proceeding that the protective order was violated.<br />
o For example, a plea to spousal battery under P.C. § 243(e) is not a crime of domestic<br />
violence if the record of conviction does not indicate that actual violence was used. A<br />
plea to trespass rather than violation of a stay-away order should not cause deportability<br />
as a violation of a protective order, or as a conviction of a crime of domestic violence.<br />
(However, because of uncertainty of how the law will be interpreted, it would be best to<br />
plead to conduct that is not itself a violation of the court order, where that is possible.)<br />
These pleas can have as conditions of probation additional protective order provisions,<br />
requirements to go to anger management classes, etc. See Part A, supra, regarding safe<br />
pleas to avoid conviction of a crime of domestic violence.<br />
‣ Plead to P.C. § 166(a) (contempt of court), <strong>and</strong> keep the record vague. Among other actions,<br />
this offense includes violating any order made by the court.<br />
‣ A violation of a domestic violence protective order that relates to custody, support payment,<br />
anger management class attendance, <strong>and</strong> similar matters does not come within this ground.<br />
‣ Far more risky, attempt to plead to P.C. 273.6 but not <strong>for</strong> violating a protective order issued<br />
“pursuant to” Calif. Family Code §§ 6320 <strong>and</strong> 6389.<br />
o<br />
If counsel must plead to P.C. § 273.6 pursuant to Family C. §§ 6320 <strong>and</strong> 6389, counsel<br />
should take a West plea to, e.g., “Count 2,” but refuse to plead specifically “as charged<br />
in” Count 2. This will give <strong>immigration</strong> counsel an argument that the record does not<br />
Immigrant Legal Resource Center N-97