Is Domestic Violence a Felony?

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.