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Is Domestic Violence a Felony Crime?

Posted by Ronald D. Hedding | Jun 10, 2024

In California, domestic violence (DV) is typically filed as a misdemeanor rather than a felony unless certain circumstances elevate the offense to a felony.

These include significant injuries, a child victim, the use of a deadly weapon, prior domestic violence convictions, or the violation of a restraining order. If none of these circumstances exist, the district attorney will typically file domestic violence as a misdemeanor by default.

Is Domestic Violence a Felony Crime?
Domestic violence can charged as a felony when there are injuries or a child or elderly victim.

A criminal case begins when somebody reports an incident of domestic violence to law enforcement. If an arrest occurs, criminal charges might be filed by the district attorney.

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

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

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

There are numerous potential criminal charges an alleged perpetrator might face, such as battery, abuse, threats, and neglect. As noted, most are misdemeanors, but some are felonies.

California Penal Code 273.5 PC is a standard charge and can be filed as a felony. Simply put, it's illegal for somebody to inflict corporal injury that results in a physical injury to an intimate partner.

Some primary factors considered when determining whether or not to charge someone with a felony are the circumstances of the offense, the level of injuries, and the defendant's criminal record.

Felony Domestic Violence - Quick Facts

  • The state of California has some of the strictest DV laws in the nation.
  • Domestic violence is charged as a misdemeanor offense by default.
  • Common reasons to elevate a DV to a felony include when the incident caused an injury, involved a deadly weapon, or a child victim.
  • Patterns of abuse or restraining order violations can also elevate domestic violence to a felony offense.
  • A common question for alleged DV perpetrators is whether the district attorney will file misdemeanor or felony charges.
  • Felony domestic violence convictions carry harsh penalties, including up to seven years in state prison.
  • Most domestic abuse crimes in California are classified as "wobblers," meaning the prosecution has the discretion to charge these crimes as either misdemeanors or felonies. 
  • Some DV crimes are more likely than others to be charged as felonies.
  • Each DV case is typically weighed on the specific circumstances.
  • State laws typically list circumstances that elevate a DV offense to a felony.
  • If certain circumstances are not present in a case, the offense will be prosecuted as misdemeanor domestic violence.

When is it Felony Domestic Violence?

The decision by the district attorney on whether to charge domestic abuse as a misdemeanor or felony depends on several factors, such as the following:

  • Bodily Harm. The level of injuries inflicted on the victim is a primary factor in the DV case filed. Serious bodily harm will usually elevate the case to a felony because of the increased jeopardy to the victim. If a victim sustains bodily harm or a corporal injury, especially in cases where the injuries are serious, the district attorney will file felony domestic violence charges.
  • History of Abuse. A defendant's past has the potential to impact their current domestic violence proceedings. If they have a history of abusive behavior, it often results in harsher charges due to the risk of recidivism.
  • Elderly or Child Victim. Domestic violence against the elderly or children is considered more severe and will usually be filed as a felony, especially when there are injuries. Similarly, if a child witnesses domestic violence, the prosecutor will likely file the case as a felony.
  • Weapon Use. Suppose the alleged perpetrator uses a weapon during the commission of a domestic violence incident. In that case, it is considered a much higher level of premeditation or threat and will be filed as a felony DV case.
  • Restraining Order Violations. If a defendant violates a restraining or protective order to commit a domestic violence offense, the prosecutor will often file felony charges.

Notably, in California, there is not just one domestic violence law; instead, there are numerous statutes covering different situations, but only a few can be filed as felonies.

What Are Some Domestic Violence Felonies?

Several domestic violence cases could be filed as felonies in California, such as the following:

Penal Code 273.5 PC - Corporal Injury on a Spouse. This law makes it a wobbler crime to willfully inflict corporal injury resulting in a traumatic condition upon a spouse or cohabitant. Still, it is often filed as a felony if the victim sustains a visible or verifiable injury, the perpetrator has a history of domestic violence, or a weapon was used during the incident.

Penal Code 273.5 PC - Corporal Injury on a Spouse

Penal Code 422 PC - Criminal Threats. This law is violated when someone threatens to commit a crime that will result in death or great bodily injury to another person, causing them to be in sustained fear for their safety or their family's safety. PC 422 can be charged as a felony if the threat is specific and unequivocal or the perpetrator has a history of violence or prior criminal threats.

Penal Code 273d PC - Child Abuse. This law makes it illegal to inflict cruel or inhuman corporal punishment on a child. It will generally be filed as a felony if the abuse causes bodily injury and the perpetrator has a prior history of child abuse.

Penal Code 273a PC - Child Endangerment. This involves causing or permitting a child to suffer unjustifiable physical pain or mental suffering. Child endangerment could be filed as a felony when the actions place the child at great risk of harm or death, there is evidence of severe physical or emotional trauma, or the perpetrator has a history of similar offenses or violent behavior.

Penal Code 368 PC - Elder Abuse. This law criminalizes physical or emotional abuse, neglect, or financial exploitation of any elder aged 65 or older. This crime is a wobbler but can be filed as a felony when the victim sustains significant physical injury or emotional trauma, the abuse involved using a weapon or other dangerous means, or the defendant has prior convictions for similar offenses or a history of abuse.

Penal Code 646.9 PC - Stalking. This crime involves repeatedly following, harassing, or threatening somebody to the extent that they fear for their safety. It can be filed as a felony if the stalking includes credible threats of violence, the defendant has prior stalking convictions or restraining orders against them, or the victim is particularly vulnerable, such as a minor or an elderly person.

Penal Code 601 - Aggravated Trespassing. This law defines aggravated felony trespass as threatening to injure someone physically and then entering that person's home or workplace without permission. This law is the more serious charge of misdemeanor trespass defined under Penal Code 602 PC.

What are the Penalties If Convicted?

A felony domestic violence conviction typically carries more than one year in prison, but each law will have various fines, jail or prison sentences, and sentencing enhancements.

The most common felony domestic violence is Penal Code 273.5 PC corporal injury to a spouse, which carries the following penalties:

  • up to a $6,000 fine and
  • two, three, or four years in state prison.

Sentencing enhancements

  • An additional and consecutive sentence of three, four, or five years in prison if the domestic violence caused a great bodily injury.
  • Fines of up to $10,000 and two, four, or five years in prison when a defendant has a prior conviction for certain domestic violence offenses in the last seven years, such as assault or battery resulting in a serious physical injury (Penal Code 243(d) PC), assault with a deadly weapon (Penal Code 245 PC), sexual battery (Penal Code 243.4 PC), and battery on a spouse (Penal Code 243(e) PC).

Criminal penalties for domestic violence convictions can also carry paying restitution to the victim or a domestic violence fund for victims' programs, counseling, community service, immigration consequences, restraining orders, temporary or permanent loss of the right to bear arms, and a "strike" under California's Three Strikes law.

What are the Common Defenses?

Defendants who have been accused of domestic violence often have several legal defenses available by a California criminal defense lawyer, depending on the circumstances.

For this reason, an attorney plays a crucial role in the early stages of the case because of a high motivation to see the offenses charged as misdemeanors rather than felonies, if possible.

Perhaps we can argue that you were falsely accused. One of the most common strategies is that the alleged victim is making a false accusation. It's not uncommon for claims of domestic violence to be made by someone seeking leverage or revenge.

Perhaps we can argue it was an accident. It's a valid defense if the violence was accidental. Violent domestic violence crimes generally require intentional conduct, which the district attorney must prove beyond a reasonable doubt.

Perhaps we can argue that you were defending yourself and claim self-defense. Contact us for more information. The Hedding Law Firm is based in Los Angeles, CA.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.