Is Domestic Violence a Felony?

Domestic Violence

Yes, domestic violence can be a felony.

A criminal case begins when someone reports an incident of domestic violence to law enforcement. If an arrest happens, criminal charges may be filed by the District Attorney.

What is considered domestic violence?

California Penal Code §13700 defines domestic violence as abuse committed against an intimate partner. If someone intentionally or recklessly uses or threatens the use of physical force against an intimate partner, they have committed domestic violence.

An intimate partner is defined as a current or former spouse, a current or former domestic partner, a current or former fiancé, a current or former cohabitant, a person with whom the alleged perpetrator shares a child or someone with whom the alleged perpetrator has or has had a dating relationship.

The Family Code extends the list of domestic violence victims to include children and immediate or extended family members.

What Can Domestic Violence Defendants be Charged with?

There are several potential criminal charges an alleged perpetrator can face: battery, abuse, threats, and neglect. Some of these are misdemeanors—others are felonies.

Penal Code §273.5 is a common charge, and a felony. It is illegal for someone to inflict corporal injury that results in even a slight physical injury to an intimate partner. A defendant can serve up to one year in county jail or up to four years in state prison.

Can Penal Code §273.5 be charged as a misdemeanor?

Penal Code §71(b) allows felony violations to be charged as misdemeanors, making it a wobbler. A “wobbler” is a case that can be charged as either a felony or a misdemeanor. 

Some factors that are taken into consideration when determining whether or not to charge someone with a misdemeanor are:

  1. the circumstances of the offense;
  2. the seriousness of the alleged victims’ injuries (if any); and
  3. the defendant’s criminal record (if any).

First-time Offenders

First-time offenders can often have their charges converted to a misdemeanor if, upon review of the above factors, they present as potentially good candidates.

Other Types of Domestic Crimes

Domestic Violence Vs. Domestic Battery

Penal Code §243(e)(1) is related to domestic battery, which is classified as a misdemeanor. No visible injury to the victim is necessary for someone to be charged with this offense. Punishment can include a fine up to $2,000 and/or up to one year in county jail.

Child Endangerment

Penal Code §273a addresses child endangerment. If the child is at risk of “great bodily injury,” the crime is a “wobbler” and can be charged as either a felony or a misdemeanor.

Other Common Domestic Crimes

Depending on the severity of the offense, the alleged perpetrator’s past criminal record and the seriousness of the victim’s injuries, some of these listed violations may be charged as felonies.

Other common domestic crimes include:

  • Penal Code §273d, child abuse
  • Penal Code §270, child neglect/failure to provide care
  • Penal Code §368, elder abuse
  • Penal Code §422, criminal threats
  • Penal Code §646.9, stalking
  • Penal Code §591, damaging a telephone line
  • Penal Code §601, aggravated trespass
  • Penal Code §647(j)(4), revenge porn
  • Penal Code §653.2, posting harmful information on the internet 

What are the potential punishments?

California felony violations carry a minimum of 16 months in state prison unless it is charged as a wobbler, in which case the maximum jail time is one year in county jail.

The defendant may receive felony probation. This means the imposition of jail or prison time stays pending until the successful completion of all felony probation terms and conditions. 

Those terms and conditions may include: 

  1. payment of restitution to the victim;
  2. participation in a work furlough program;
  3. successful completion of a domestic violence batterer’s program; and
  4. completion of a substance abuse program.

Some of the consequences of a domestic violence conviction, whether felony or misdemeanor, are: 

  1. a permanent criminal record;
  2. a 10-year criminal protective order limiting contact with the victim and/or minor children;
  3. loss of custody rights; and 
  4. presumption the perpetrator is not entitled to receive spousal support from the victim in a dissolution proceeding.

Child Custody and Domestic Violence

The loss of child custody is perhaps one of the most devastating results of criminal domestic violence, regardless of a felony or misdemeanor conviction.

Family Code §3044 addresses and defines the presumption against people who have either been convicted or have been found to have perpetrated domestic violence and the impact that has on child custody. The presumption is rebuttable, meaning that the perpetrators can present evidence to show why they should be allowed to have sole or joint legal or physical custody of a minor child even after a finding of domestic violence by the Court. 

The Court must weigh the evidence in light of the child’s best interest. Some of the factors the Court shall consider are whether the perpetrator has completed a domestic violence batterer’s class, complied with the terms of felony probation, and whether there has been a violation of the criminal or family law protective order. 

Victims of Criminal Domestic Violence

Victims of criminal domestic violence often seek a restraining order from the Family Court. The Family Court has jurisdiction over child custody/visitation and support issues. 

However, where the Criminal Court has made an order regarding contact with the minor child, the Family Court will almost always defer to the Criminal Court regarding any criminal protection orders, especially when the criminal protection order specifies no contact between the perpetrator and the minor child. 

Legal Representation in Domestic Violence Cases

Unlike criminal matters, where a defendant is entitled to a court-appointed attorney in the event they cannot afford legal counsel, there is no right to counsel in a family law matter. A party is either self-represented or retains an attorney to represent their legal interests.

It is prudent to consult with an attorney regarding the impact of felony or misdemeanor domestic violence charges and/or convictions and the impact they may have on custody issues under the jurisdiction of the Family Court. 

JWB Family Law remains open and available to answer your questions and concerns regarding the potential impact and consequences a criminal conviction may have on your custody rights. Whether you are the victim or the accused, if you have concerns about you and your children or any other questions about navigating these trying times, call for a free one-half hour consultation.

The Importance of the CFLS Designation

A Certified Family Law Specialist, or CFLS, is an attorney who has obtained certification in the standards of California family law and demonstrated optimal legal competence. Attorneys who obtain this certification have specific expertise in all aspects of family law, which includes divorce or the dissolution of marriagechild and spousal support, child custody, and temporary restraining orders, among other areas of emphasis.

Not every attorney practicing family law has obtained this certification. In fact, the designation remains relatively rare—there are fewer than 2,000 CFLS attorneys in California and fewer than 200 in San Diego.

Categories

Connect With Us

            

Contact

San Diego Office
1620 Fifth Avenue, Suite 600
San Diego, CA 92101

Phone: 619.234.6123

Temecula Office
43537 Ridge Park Dr, Suite 100
Temecula, CA 92590
Phone: 951.297.3871

El Centro Office
300 S Imperial Ave, #10
El Centro, CA 92243
Phone: 760.460.4608

            

What Cat Ears Have to Do With Divorce

Quite a bit, as it turns out, and it has nothing to do with how you feel about felines. A study from researchers at the University of Washington shows divorce filings peak at two distinct times of the year – March and August....

FL-150 Forms – What you need to know

A frustrating but mandatory part of the divorce process in California is completing financial disclosure forms. One of these forms is the Income and Expense Declaration (FL-150), which requires both the Petitioner and Respondent to detail their earnings and spending. ...

Who gets inheritance money after a divorce?

Here are examples of community property and separate property:

Child custody schedule options and examples

When you are in a proceeding to decide how to share the custody and visitation of your children, many decisions must be made by you and the other parent on how you will co-parent your minor children. If you are unable to reach an agreement, the court will make a...

What’s worth fighting for in a divorce?

Here are examples of community property and separate property:

San Diego domestic violence resources

As in other counties in California, San Diego has resources you can contact to help you in a domestic violence case. A nd a dedicated family law and divorce attorney can help you legally enforce your separation from an abusive partner.

Military spouse benefits after a divorce

It is important to discuss all these topics with the military spouse divorce attorneys you retain to help guide you through the dissolution of your marriage. Military family law can be complex when it comes to divorce.

What not to post on social media during your divorce

Anything you post on social media during a divorce can, and likely will, be used against you in your dissolution proceedings. It is extremely important to avoid posting about getting divorced on all your social media profiles because anything that can be construed...

Helping a friend through divorce isn’t easy

A person going through a divorce is often dealing with the loss of time with their kids, a portion of their retirement, their house, and even relationships with their in-laws.

Child custody during the divorce process

There are two types of custody: legal and physical.