20 Jul 26
If you have been accused of domestic violence, you have a complex and aggressive legal system to deal with, and the situation can be thrown into turmoil by an accusation of domestic violence. One of the first questions many people have is whether the charges will be filed as felonies.
The answer is that it depends on California law. Certain domestic violence offenses, including Penal Code 273.5, are classified as ‘wobblers,’ meaning they may be charged as either misdemeanors or felonies. This leaves it to the prosecution to decide whether to file it as a misdemeanor or a felony. The outcome will depend on the facts of the case, the seriousness of any injuries sustained, and your past criminal record.
In these charges, it is important to understand the state laws, including domestic battery and corporal injury towards a cohabitant. A felony conviction has serious, lifelong implications, and a timely, strategic defense is critical to protecting your future and your freedom.
What Determines Whether a Domestic Violence Charge Is a Misdemeanor or Felony?
Many crimes in California’s criminal justice system cannot be classified as a single crime. Instead, state law considers several domestic violence offenses to be wobbler offenses. A wobbler is a crime that may be tried as a misdemeanor or a felony, depending on the circumstances.
The initial classification of your charge is not automatic. Prosecutors have plenty of prosecutorial discretion with respect to your case and the work done by the police officers in writing your report to decide what to do with it. When determining whether your case is a true felony case, the district attorney (DA) considers the following aggravating and mitigating factors:
- Visible trauma — The severity of any injuries is one factor prosecutors consider when determining whether to file felony charges
- Use of a weapon — The alleged use of a weapon may result in additional charges and can increase the likelihood of felony prosecution
- Your criminal history — If you have any domestic violence arrests, violent crime convictions, or if you are currently active on probation, there is a significantly increased risk of a felony filing
- Victim vulnerability — Prosecutors consider certain circumstances involving the accused victim, such as his or her age, or if it happened in front of minor children
- Repeat police calls to your home — If the DA receives police calls to your home repeatedly, it indicates a pattern of conduct, which can lead to a more serious charge
Your arrest and formal arraignment are a crucial time in your defense. It is a good idea to have a competent criminal defense attorney obtain a pre-filing intervention to sway the DA’s decision to file charges before the charges are entered into the court record.
Your defense attorney can use an independent investigation to introduce mitigating evidence, to identify gaps and faults in the police report, or to highlight your lack of a prior record. Early intervention by a defense attorney will help present mitigating evidence that prosecutors can consider when making charging decisions. Having this context provided early can help reduce the potential penalties you face and protect your future from a felony charge.
Why Penal Code 273.5 Is Considered a Felony-Leaning Wobbler Offense
When an intimate partner suffers a qualifying injury, prosecutors often consider charges under Penal Code 273.5. It is a willful infliction of corporal injury and a serious offense that may be charged as either a misdemeanor or a felony.
The crime of willfully inflicting physical injury to an intimate partner, which causes a traumatic condition, is a crime under PC 273.5. “Willful” means deliberate or on purpose, but it does not require that you intend to break the law or cause severe harm.
The presence of a “traumatic condition” is the key element that brings a dispute to a severe felony domestic abuse charge. Under the law, “traumatic condition” means any wound or bodily injury that results from the direct application of physical force.
Many people think that the charge would not apply unless the injury is significant or life-threatening. In fact, prosecutors may pursue felony charges based on relatively minor visible injuries or discernible marks. The law defines evidence to satisfy this threshold as the following:
- Swelling, bruising, or a black eye
- Scratches, cuts, or lacerations
- Bite marks or welts
What is Domestic Battery Under California Penal Code 243(e)(1)?
Any injury, no matter how minor, that meets the definition of a “traumatic” condition under the law can give the district attorney grounds to pursue formal felony charges.
Casual acquaintances and strangers are not covered by Penal Code 273.5. The law is very narrowly drawn and applies only to a person who is in a special, legally recognized intimate relationship with you. This includes physical harm to your spouse, ex-spouse, current or previous cohabitant, fiancé, or anyone you have a child with.
California courts evaluate multiple factors when determining whether two individuals were cohabitants, that is, lived together for a considerable period, indicating permanency in the arrangement. This is true even if you have your own fixed home, but even when the living arrangement does not resemble a traditional household.
PC 273.5 is a wobbler, which means that the penalties you may receive are based on how the prosecutor chooses to classify the crime. If the state prosecutes the case as a misdemeanor:
- The maximum fine is $6,000
- The maximum imprisonment is in a county jail for up to one year
The penalties become much more severe when the prosecutor files the case as a felony. A felony conviction in California will result in:
- Two, three, or four years of state prison
- Formal felony probation
- A one-year batterer’s intervention program
- A permanent felony record, including the loss of your rights to own a gun and future employment opportunities
What Qualifies as Harmful or Offensive Contact Under PC 243(e)(1)
If there has been some type of physical contact in an altercation, but no actual physical injury suffered, then the California main domestic violence statute, which is a misdemeanor, becomes relevant, Penal Code 243(e)(1). This statute is commonly used to charge simple domestic battery and provides the state’s minimum charge for any illegal contact involving an intimate partner.
PC 243(e)(1) is the statute that makes it illegal to use force or violence against an intimate. Like PC 273.5, this statute also applies to your spouse, former spouse, cohabitant, fiancé(e), or co-parent. But the main legal difference is in the type of physical contact.
A key feature of domestic battery under Penal Code 243(e)(1) is that no injury is required. The prosecution only needs to prove that you touched the other person in a harmful or offensive manner. Even if an individual’s actions are not violent but are merely angry or disrespectful, they may still be considered a force under the law.
Common circumstances that may lead to no-injury domestic violence CA charges are the following:
- Pushing or shoving in an argument
- Grabbing by the shirt, jacket, or wrist
- Slapping a phone, keys, or an object out of their hand
- Spitting on an intimate partner or pulling their hair
Given the low threshold for physical contact, you could be arrested and charged with simple battery, even if responding officers specifically mention in the report that the alleged victim was not harmed.
PC 243(e)(1) is a misdemeanor, which is a much lesser charge than corporal injury. The maximum penalties are:
- A maximum of one year in a county jail
- A maximum fine of $2,000
- A required 1-year batterer’s treatment program.
- Summary (informal) probation
A misdemeanor domestic battery charge may sometimes arise during plea negotiations involving more serious allegations.
A skilled defense attorney will challenge the traumatic condition requirement by carefully reviewing the medical evidence and witness statements presented by the prosecution. Your attorney can probably get the felony reduced to a misdemeanor domestic battery if they can prove that there were no actual injuries, that any injuries were extreme exaggerations, or that the incident was not related to the case. This reduction can help you avoid a felony conviction, jail time in state prison, and loss of long-term job prospects for yourself and your loved ones.
Aggravating Circumstances That Trigger Felony Domestic Violence Prosecution
Prosecutors examine the circumstances of an incident to see if it can be prosecuted as a misdemeanor or a felony, but some actions remove that ambiguity. The state will almost always seek serious felony prosecution if certain aggravating factors are present. Moreover, the district attorney may also add felony domestic violence enhancements to the charge, which will give you additional required prison time above and beyond the original charge.
Strangulation (PC 273.5(a))
Any allegation of choking is treated very seriously. According to the legal definition of a traumatic condition in Penal Code 273.5(a), suffocation and strangulation are included as internal or external injuries.
Legally, strangulation domestic violence is defined as impeding the normal breathing or blood circulation of a person by applying pressure to their throat or neck. This action has a risk of causing significant bodily harm or death inherent in the action. It is, therefore, often viewed by law enforcement and prosecutors as a particularly serious allegation when considering an escalation point. If there are no external injuries apparent on the neck, a written statement by the alleged victim that they were unable to breathe will influence the decision of the filing to make it a severe felony.
Use of a Weapon (PC 245(a)(1))
When an assault incident involves an object that is used to threaten or cause harm, the prosecution will consider using the provisions of other domestic violence provisions in addition to the normal provisions. As a result, you can be charged with separate, back-to-back assaults with a deadly weapon, under Penal Code 245(a)(1).
A weapon can be anything that can cause death. California law states that anything that can cause serious bodily harm can qualify, such as:
- A baseball bat, golf club, or tool
- A heavy piece of furniture or utensil at home
- A vehicle
- Allegations involving a weapon significantly increase the likelihood of felony prosecution, making a misdemeanor resolution possible at the time of filing, and mandate a state prison sentence of up to 4 years.
Great Bodily Injury (GBI) Enhancement
If the alleged victim experiences severe physical injury, the prosecutor will add a great bodily injury enhancement to Penal Code 12022. 7. GBI is defined as a significant physical injury that is more than minor bruising or superficial cuts.
Examples that will bring a GBI enhancement:
- Fractures or broken bones
- Concussions or Traumatic Brain Injuries (TBI)
- Lacerations are serious cuts and bruises that may need stitches to heal.
- Injuries that may need immediate medical care or surgery.
If a GBI enhancement is found, that will result in three to five years of consecutive state prison time, and is mandatory.
The Strike Law Connection
If the domestic violence charge is considered a “serious” or “violent” felony under the California three strikes law for domestic violence, then the repercussions of the conviction grow significantly.
A regular domestic battery charge or minor corporal injury charge is not a strike. If the personal use of a deadly weapon or personal causing of great bodily injury, however, is involved, then the crime is automatically a strike.
A strike on your record requires that you serve 85% of any sentence given, as opposed to 50% for non-strike-off cases. Furthermore, if you plead guilty to a future felony, the sentence will be doubled, and a third conviction will automatically mean a minimum sentence of 25 years to life in state prison.
Collateral Consequences of Domestic Violence Convictions Beyond Jail and Probation
Convictions for domestic violence have longer effects than probation or jail sentences do. You will have extensive collateral consequences that may result in a lifelong disruption to your personal, financial, and professional life if you are convicted of a felony.
Permanent Loss of Firearm Rights
State law prohibits the ownership, purchase, or possession of firearms or ammunition in California except for individuals who have been convicted of a felony or any domestic violence offense. A felony conviction generally results in a lifetime prohibition on possessing firearms under California and federal law.
But it is important to note that not securing a felony conviction does not necessarily protect an individual’s Second Amendment rights. California Penal Code Section 29805 imposes a hard 10-year California firearm ban against misdemeanor domestic violence convictions.
More importantly, federal law, as a result of the Lautenberg Amendment, mandates a lifelong ban on gun rights after any domestic violence conviction, whether it is a misdemeanor or felony. Federal law imposes firearm restrictions that may apply even when state restrictions differ, and a misdemeanor conviction still results in a lifetime restriction. These restrictions may significantly limit employment opportunities in professions that require firearm possession.
Severe Complications in Child Custody
If you are convicted of domestic violence, it has a significant effect on how your case will move forward in family law court. California family law and domestic violence laws (Family Code Section 3044) impose a rebuttable presumption that Family Code Section 3044 creates a rebuttable presumption against awarding custody to a parent who has committed domestic violence.
This presumption is automatically presumed to be true if you have been convicted of domestic violence in the last 5 years. Once active, the court assumes you should not have custody. You have the burden of rebutting the presumption to overcome it and be granted the visitation or custody rights you are seeking. It involves proving to a judge that:
- You have attended the compulsory 52-week batterer’s intervention program and parenting classes
- Your involvement directly benefits the child
Mandatory Deportation Risks for Non-Citizens
If you are not a United States citizen, the consequences of being charged with domestic violence are the same. Domestic violence offenses are addressed in immigration law with a zero-tolerance policy. Federal immigration laws classify a domestic violence felony as a “crime of moral turpitude” and/or an “aggravated felony.”
A conviction may trigger deportation proceedings and should be reviewed immediately by an attorney familiar with both criminal and immigration law, as well as your legal status. Federal immigration law considers a misdemeanor domestic violence charge to be a deportable crime. As a green card holder, visa holder, undocumented immigrant, or non-citizen, a permanent record will eliminate your ability to apply for, get, or renew a green card or even re-enter the United States.
Can a Victim “Drop” Felony Domestic Violence Charges?
A widespread misconception exists that an alleged victim has the authority to contact law enforcement or prosecutors to cancel a criminal case. In fact, the power to drop domestic violence charges is one thing that the state constitutionally holds. After the police arrest, the case is taken out of the person’s hands and given to the district attorney.
The criminal case is entitled The People of the State of California v. You. The prosecutor may continue pursuing the case even if the alleged victim no longer wishes to participate.
Often, prosecutors will pursue victimless prosecutions based on evidence collected independently at the scene, such as the following:
- The first emergency audio recording of the call to 911
- The bodycams of responding officers and statements by police officers
- Photos of injuries or property damage, if applicable
- Medical records from paramedics (EMT/EMT-B).
The DA issues a formal subpoena if the alleged victim must appear in court. However, California Civil Procedure Code Section 1219 offers a special safeguard: A person who is the victim of domestic violence or sexual assault may not be held in contempt for refusing to testify.
This does not prevent the court from searching for an unwilling witness and holding them in contempt, for which they may be fined a considerable sum. Furthermore, the prosecutor may introduce the witness’s prior statements to the police as evidence under certain hearsay exceptions. In some circumstances, prosecutors may attempt to introduce prior statements under recognized evidentiary exceptions, subject to constitutional limitations.
Find a Criminal Defense Attorney Near Me
An accusation of domestic violence in Van Nuys can quickly escalate from a relatively trivial incident to a life-altering felony charge. These offenses are considered to be wobblers, and your freedom, firearm rights, and custody of your children are dependent entirely upon the filing decision of the district attorney and the strength of your defense strategy. Do not leave your future to prosecutorial discretion or assume the charges will simply disappear. Pre-filing intervention that is both immediate and aggressive can mean the difference between a case being dismissed and a person ending up in prison. Do not hesitate to reach out to Leah Legal today to fight for your rights and secure your future. Contact us at 818-484-1100.
