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.

Contact JWB Family Law Today

    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

                

    Family Code Section 2030 and Its Role in Alleviating Financial Struggles in Divorce

    Within the intricate landscape of family law, Family Code Section 2030 assumes a pivotal role by addressing the economic imbalances that often surface during divorce proceedings. Its primary objective is to ensure that both parties embroiled in a divorce have...

    Tips for Protecting Your Financial Interests During a Divorce

    Tips for Protecting Your Financial Interests During a Divorce   Divorce is a challenging and emotionally charged process, often accompanied by numerous financial complexities. Protecting your financial interests during a divorce is crucial to ensure your future...

    How to Divide a Community Property Home?

    When individuals go through a divorce, they often contemplate selling their home quickly to divide their community property funds swiftly—an action that can be potentially costly. It's crucial not to sell the house until a written agreement has been established and...

    Child Support for Children with Special Needs

    Many individuals experience an increased likelihood of divorce when their marriage involves raising a child with special needs, be it due to conditions like autism or other medical issues. This heightened risk of divorce can be attributed to the significant stress...

    Federal Laws & Procedures Impacting Military Divorce

    Several federal laws are relevant procedurally when one or both spouses in a dissolution proceeding are members of the military. Although not every Act applies to every case, it is good practice to be aware of the federal laws and procedures that may impact your...

    A Detailed Breakdown of the Divorce Procedure

    Divorce is a challenging and emotionally charged process, often accompanied by numerous financial complexities. Protecting your financial interests during a divorce is crucial to ensure your future financial stability. In this blog, we will discuss several essential...

    The Difference Between Contested & Uncontested Divorce

    Divorce is a significant life event that involves the legal termination of a marital union. It is a decision often accompanied by complex emotions, legal considerations, and a multitude of issues to be resolved. When pursuing a divorce and finding a divorce attorney...

    Common Mistakes to Avoid During Divorce Proceedings

    Divorce is a complex and emotionally challenging process that requires careful consideration and strategic decision-making. From navigating legal intricacies to managing the emotional turmoil, divorcing couples often find themselves overwhelmed and prone to making...

    Property Division in Divorce: What You Need to Know

    Divorce is a challenging and emotionally charged process, requiring careful consideration and resolution of various legal and financial matters. One critical aspect that often arises during divorce proceedings is property division.This encompasses a broad range of...

    How to Choose the Right Divorce Lawyer for Your Case

    Divorce is an emotionally challenging and legally complex process that marks the end of a significant chapter in one's life. When facing the dissolution of a marriage, it’s crucial to have the right legal representation by your side. A skilled and experienced divorce...