California Penal Code section836(d) allows an arrest by an officer of a crime that does not take place in their presence if:
The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.
The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.
While this section could, in theory apply to any crime committed, law enforcement agencies will, in fact, make an arrest in virtually every domestic violence case. The most common domestic violence arrest in Santa Clara is for violation of penal code section 273.5 or 243e. However, any crime which is made against a “domestic partner” will trigger an immediate arrest under this section.
According to a manual published in 2014, (DOMESTIC VIOLENCE PROTOCOL FOR LAW ENFORCEMENT), any Santa Clara Agency must make an arrest if called in to a domestic violence investigation whether they believe charges will be filed or not. The following agencies are obligated under this protocol.
· CALIFORNIA HIGHWAY PATROL
· PALO ALTO POLICE DEPARTMENT
· CAMPBELL POLICE DEPARTMENT
· SAN JOSE POLICE DEPARTMENT
· GILROY POLICE DEPARTMENT
· SAN JOSE STATE UNIVERSITY PD
· LOS ALTOS POLICE DEPARTMENT
· SANTA CLARA COUNTY DISTRICT ATTORNEY’S OFFICE
· LOS GATOS- MONTE SERENO POLICE DEPARTMENT
· SANTA CLARA COUNTY SHERIFF’S OFFICE
· MILPITAS POLICE DEPARTMENT
· SANTA CLARA POLICE DEPARTMENT
· MORGAN HILL POLICE DEPARTMENT
· SUNNYVALE DEPARTMENT OF PUBLIC SAFETY
· MOUNTAIN VIEW POLICE DEPARTMENT Chief Scott Vermeer
The protocol makes a “Pro Arrest policy” in domestic violence incidents and DEMANDS that an arrest be made. Further, in circumstances of “mutual combat”, the officers must determine who the “primary aggressor” is and arrest that person.
The manual (link below) describes the various crimes that may be considered “domestic Violence” thus triggering mandated arrest upon a probable cause determination. These are:
136.1 – Intimidating or dissuading a witness
148 – Resisting arrest
166 – Violation of a court order – typically criminal court order
187 – Murder
207 – Kidnapping
236/237 – False imprisonment
236.1 – Human Trafficking
240 – Assault
243 (a) – Battery
243 (e) – Battery – Spousal/cohabitant/parent of suspect’s child/former spouse/fiancée/fiancé/dating and former dating relationship abuse
243 (d) – Battery with serious bodily injury
243.25 – Battery of an elder or dependent adult, who knew or should have known that the victim is an elder or dependent adult
245(a)(1) – Assault with a deadly weapon
245(a)(4) – Assault by means of force likely to produce great bodily injury
246(a) – Shooting at an inhabited dwelling
261.5 – Unlawful sexual intercourse
262 – Spousal rape, eliminates the reporting and corroboration 10 requirements. Now consistent with P.C. 261
270.6 – Leaving California with the intent to avoid paying spousal support, after having notice that a court has made a temporary or permanent order
273.5 – Abuse of spouse, former spouse, cohabitant, former cohabitant, parent of suspect’s child, fiancé, current or previous dating relationship
273.6 – Violation of a protective order (Cross ref to CCP 527.85 pg 8) Typically family law or civil protective orders 20. 273a – Child abuse / endangerment
368 – Crimes against elder or dependent adults
417 – Brandishing a weapon
418 – Forcible entry into the home of another
422 – Criminal threats
591 – Malicious destruction of a telephone line
591.5 – Unlawful removal, damage of wireless communication device, or obstructing use of such device to summon law enforcement
594 – Vandalism
597a – Cruelty to Animals
603 – Forcible entry with damage to property
646.9 – Stalking
653m (a) – Obscene or threatening calls or electronic contacts
653m (b) – Making repeated, annoying telephone calls or electronic contacts.
653m (e) – 653m (a) and (b) are violated when a person knowingly permits any telephone or electronic communication under the person’s control to be used for the purposes prohibited by these subdivisions.
29825 – Restrained person possess or attempt to purchase firearm
25400 – Possession of a concealed firearm
18250 – Confiscation of firearms (Authority for seizure).
25850(a) – Possession of a loaded firearm
653.2 – Electronically distributing, publishing, e-mailing, or making available for download, personal identifying information of an electronic message of a harassing nature, about another person, with the intent to place the person in reasonable fear for his or her safety, or his or her immediate family’s safety, and for the purpose of imminently causing the person unwanted physical contact, injury or harassment by a third party.
528.5m – Knowingly and without consent, credibly impersonating another actual person through or on an Internet Web site or by other electronic means, for purposes of harming, intimidating, threatening, or defrauding another person.
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