Can the Victim Drop Domestic Violence Charges in California?
The short answer: no. In California a domestic violence case is filed by the People of the State of California, not by the person who was hurt, and only the prosecutor or the judge can dismiss it. The alleged victim can tell the district attorney that she does not want to proceed, can decline to cooperate, and in some circumstances cannot be jailed for refusing to testify, but the case does not end because she asks. Prosecutors in Riverside, San Bernardino, Los Angeles, and Orange counties routinely go forward with the 911 recording, body camera footage, photographs, and the officers' testimony. This guide explains what the victim can and cannot do, what evidence the prosecutor uses when she will not help, and the one thing the accused must never do, which is ask her to drop it.
Why this question comes up so often. Many domestic violence arrests follow an argument that both people regret by morning. The person who called 911 wants the arrest undone, the person arrested is sitting in the Robert Presley Detention Center in Riverside or the West Valley Detention Center in Rancho Cucamonga, and both of them assume that a phone call to the police station will fix it. It will not. Understanding why, and what actually moves these cases, is the first step toward a good result. A Riverside criminal defense attorney who handles domestic violence calendars at the Riverside Hall of Justice and the Southwest Justice Center sees this situation every week.
Who Controls a Domestic Violence Case in California?
The prosecutor, not the victim. Once an arrest report reaches the district attorney, or a city attorney in cities that prosecute their own misdemeanors, the charging decision belongs to that office. The complaining witness is a witness, with rights to be informed and heard under the Victims' Bill of Rights in the California Constitution, but without the power to file or dismiss. Most Southern California prosecuting offices have domestic violence units with policies against dropping cases at the victim's request, because experience has taught them that requests to drop often come from fear, financial dependence, or pressure. What prosecutors look at before filing criminal charges describes the review.
The arrest itself. Officers responding to a domestic call have authority under Penal Code section 836 to make a warrantless arrest for a misdemeanor assault or battery on a family or household member they did not witness, and most agencies in the Inland Empire and Los Angeles County treat an arrest as mandatory when there is probable cause and a visible injury. The common charges are domestic battery under Penal Code section 243, subdivision (e)(1), corporal injury under Penal Code section 273.5, criminal threats under Penal Code section 422, and vandalism under Penal Code section 594. Our guides on domestic battery and corporal injury to a spouse explain each element.
No civil compromise. For many misdemeanors with a private victim, Penal Code section 1377 and Penal Code section 1378 allow the victim to acknowledge satisfaction and the court to dismiss. The civil compromise statute excludes offenses committed against a family or household member, so that route is closed in domestic violence cases. Misdemeanor diversion under Penal Code section 1001.95 likewise excludes domestic battery and corporal injury, which is why how to get criminal charges dismissed looks different in a domestic violence case.
What Happens When the Victim Does Not Want to Press Charges
The prosecutor evaluates the case without her. When a victim tells the victim advocate or the deputy district attorney that she does not want to go forward, the office asks a practical question: can this case be proven without her? The answer depends on what else exists. A 911 call describing an attack as it happens, body camera footage of a crying victim with a split lip, photographs of injuries, a neighbor who heard the fight, a child's statement, and the defendant's own admissions on camera can be enough to proceed, and the Riverside and San Bernardino district attorneys regularly do. A case built on nothing but the victim's statement to an officer an hour after the fact is far weaker, and those cases are the ones that get dismissed or reduced.
Recanting is not the same as dropping. When a victim changes her story, the prosecutor does not simply accept the new version. Under Evidence Code section 1235, a witness's prior inconsistent statement is admissible as substantive evidence, so a victim who testifies that nothing happened can be confronted with her recorded statement from the night of the arrest, and the jury may believe the recording. Recanting also exposes the victim to accusations that one of her statements was false. A victim who wants to correct a genuinely inaccurate report should do so through her own attorney or the victim advocate, in writing, with specifics, rather than by changing her story on the stand.
Prior acts come in. Evidence Code section 1109 allows the prosecutor in a domestic violence case to introduce evidence of other acts of domestic violence to show propensity, subject to the balancing test of Evidence Code section 352. A prior call to the house, an old restraining order, or an earlier arrest that never resulted in charges can all become part of the trial even if the current victim will not testify.
Can the Victim Refuse to Testify?
She can be subpoenaed. A victim who ignores the prosecutor's calls can be served with a subpoena, and a witness who disobeys a subpoena is subject to a body attachment and contempt. Code of Civil Procedure section 1219, subdivision (b), however, prohibits a court from jailing a victim of domestic violence or sexual assault for contempt for refusing to testify about the crime. The court can refer the victim to a domestic violence counselor and impose other sanctions, but not incarceration. In practice, a victim who appears and refuses, or who cannot be found, forces the prosecutor to decide whether the remaining evidence carries the case.
The spousal privilege. If the victim and the accused are married, Evidence Code section 970 and Evidence Code section 971 ordinarily give a spouse a privilege not to testify against the other spouse. Evidence Code section 972 removes that privilege in a criminal proceeding in which one spouse is charged with a crime against the person or property of the other spouse or of a child of either. The marital privilege does not protect a spouse in a domestic violence prosecution.
The Confrontation Clause. When the victim does not testify, the prosecutor's ability to use her out-of-court statements depends on whether they are testimonial. Under Crawford v. Washington (2004) 541 U.S. 36, testimonial statements by a witness who does not appear are inadmissible unless the defendant had a prior opportunity to cross-examine. In Davis v. Washington (2006) 547 U.S. 813 the Supreme Court held that statements to a 911 operator during an ongoing emergency are nontestimonial and admissible, while statements to officers describing a completed event after the scene is secure are testimonial. The line between the two is where most absent-victim domestic violence trials are won or lost, and a defense attorney who knows the body camera footage minute by minute can keep the testimonial half out.
Hearsay exceptions the prosecutor uses. A statement made while the victim was still under the stress of the event may come in as a spontaneous statement under Evidence Code section 1240. Evidence Code section 1370 allows a statement describing the infliction or threat of physical injury when the declarant is unavailable, the statement was made at or near the time of the injury in circumstances indicating trustworthiness, and it was written, recorded, or made to law enforcement or medical personnel. Both exceptions still have to clear Crawford, so the constitutional analysis comes first.
Forfeiture by wrongdoing. If the accused caused the victim's absence, by threats, by persuading her to leave the state, or by any conduct intended to keep her from testifying, the accused forfeits the right to confront her, and her statements come in under Evidence Code section 1390. In Giles v. California (2008) 554 U.S. 353 the United States Supreme Court held that the doctrine applies only when the defendant acted with the intent to prevent the witness from testifying. Jail calls are recorded, and a defendant who tells the victim from the jail phone not to show up has handed the prosecutor both a forfeiture argument and a new felony.
What the Accused Must Never Do
Do not contact her. After a domestic violence arrest there is almost always an emergency protective order, explained in what an emergency protective order is, followed at arraignment by a criminal protective order under Penal Code section 136.2 on form CR-160. Any contact, including a text that says "please tell them you want to drop it," violates the order under Penal Code section 273.6. The protected person's willingness to talk is not a defense. What happens if you violate a restraining order explains the exposure.
Do not ask anyone else to contact her. Asking a parent, a sibling, or a friend to persuade the victim to drop the charges is dissuading a witness under Penal Code section 136.1, a wobbler that becomes a straight felony and a strike when accomplished by force or threat or as part of a conspiracy. Inland Empire prosecutors add this count whenever jail calls or messages show it, and it is often harder to defend than the original battery charge. Can the police use your text messages against you explains how those messages are obtained.
Do not talk to the police about what happened. A statement to the responding officer, or to a detective who calls the next day, is the evidence the prosecutor uses when the victim will not testify. Do not say this to police and can I talk my way out of charges explain why the explanation that feels helpful is usually the most damaging thing in the file.
What the Victim Can Lawfully Do
Speak through the victim advocate. Every district attorney's office in Southern California has victim advocates. A victim who does not want the case to proceed can say so to the advocate, can describe the context the police report left out, and can ask that her wishes be conveyed to the assigned deputy. Her views are not binding, but they are considered, particularly on the question of whether to offer a reduced charge.
Hire her own lawyer. The victim is entitled to independent counsel. Her attorney can present a declaration, can accompany her to interviews, can assert the protections of Code of Civil Procedure section 1219 if she is subpoenaed, and can keep her from making statements that create perjury or false report exposure. The defense attorney for the accused cannot represent her and should not be her source of advice.
Ask to modify the protective order. The protected person can ask the criminal court to change a no-contact order to a peaceful contact order so the family can live together while the case is pending. Judges at the Riverside Hall of Justice, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, and the Van Nuys and Long Beach courthouses generally want to hear from the protected person directly before granting that request. What a criminal protective order is walks through the process.
Decide about her own civil restraining order. A domestic violence restraining order under Family Code section 6300 is the victim's own case, filed on form DV-100 in family court, and she can dismiss it or decline to file it. That decision does not affect the criminal case, and the criminal protective order remains in force until the criminal judge changes it. Our domestic violence restraining order practice handles both sides of that proceeding.
How These Cases Usually End
Dismissal, reduction, or plea. When the only evidence is a non-cooperating victim's statement, the case is often dismissed at or before the pretrial conference, or on the day of trial when the prosecutor cannot proceed. When there is independent evidence, the typical offers move from corporal injury to domestic battery, or from domestic battery to simple battery under Penal Code section 242 or disturbing the peace under Penal Code section 415. What happens at a pretrial conference and should you take a plea deal explain the decision.
Why the charge label matters. A plea to any domestic violence offense triggers Penal Code section 1203.097: a minimum three-year probation term, the 52-week batterer intervention program described in our batterer program guide, a protective order, and fees. A domestic violence conviction also brings a ten-year state firearm ban under Penal Code section 29805 and a federal ban, and it creates the custody presumption of Family Code section 3044 against the convicted parent, as explained in how a domestic violence arrest affects child custody. A plea to simple battery or disturbing the peace avoids all of that, which is why the fight over the label is worth having even when some plea is inevitable.
Trial. When the prosecutor will not reduce and the evidence is thin, a jury trial is a real option. Juries in Riverside, San Bernardino, and Los Angeles counties acquit in absent-victim cases more often than people expect, particularly when the 911 call is ambiguous and the injuries are minor. How a criminal jury trial works and what makes a criminal case weak describe what the defense is looking for.
Frequently Asked Questions
Can the victim drop domestic violence charges in California?
No. The case belongs to the People of the State of California, and only the prosecutor or the judge can dismiss it. The victim can tell the district attorney she does not want to proceed, and her wishes are considered, but the prosecutor can and often does go forward using the 911 recording, body camera footage, photographs, medical records, and the officers' testimony.
What happens if the victim refuses to testify in a domestic violence case?
The prosecutor decides whether the other evidence is enough. The victim can be subpoenaed, but Code of Civil Procedure section 1219, subdivision (b), prohibits jailing a domestic violence victim for contempt for refusing to testify. If the remaining evidence is strong the case proceeds without her, subject to the Confrontation Clause limits of Crawford v. Washington and Davis v. Washington; if it is weak, the case is often dismissed or reduced.
Can my spouse be forced to testify against me in California?
In a domestic violence case, yes. Evidence Code section 970 and Evidence Code section 971 ordinarily let a spouse refuse to testify against the other spouse, but Evidence Code section 972 removes the privilege when one spouse is charged with a crime against the person or property of the other spouse or a child. The privilege does not apply in a domestic violence prosecution.
Can I ask the victim to drop the charges?
No, and doing so can be a new felony. Contacting the protected person violates the criminal protective order under Penal Code section 273.6, and asking her, directly or through anyone else, not to cooperate can be charged as dissuading a witness under Penal Code section 136.1. Jail calls and text messages are the most common proof. Let your attorney handle every communication about the case.
Does the victim's recantation get the case dismissed?
Not by itself. Under Evidence Code section 1235 the victim's original recorded statement can be used as substantive evidence even if she testifies differently, and prosecutors treat recantations with suspicion. A recantation helps most when it is specific, consistent with the physical evidence, and presented through the victim's own attorney or the victim advocate rather than announced for the first time at trial.
What if the victim lied to the police?
Tell your lawyer, not the police. A false report is a defense to be developed through discovery, the victim's own messages, witnesses, and the inconsistencies in the recordings, and it can lead to a dismissal. The accused should never confront the victim about it, and the victim who wants to correct a false statement should do so through her own counsel, because a knowingly false report to police is itself a crime under Penal Code section 148.5.
Gramling Law Group defends domestic violence cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Van Nuys and Long Beach courthouses, and the Central Justice Center in Santa Ana, serving the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options and handles the related restraining order and custody proceedings. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
Local criminal defense pages: Riverside criminal defense attorney, San Bernardino criminal defense attorney, Long Beach criminal defense attorney, our Inland Empire criminal defense guide, and our domestic violence restraining order practice.
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Phone: (909) 654-4575
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