After you’ve been faced with domestic violence charges, you might be wondering whether your charges are misdemeanor or a felony. This can be a challenging situation since it determines the kind of penalties that you are at risk of facing. Please read this article and learn more about the difference between domestic violence misdemeanor and felony cases and how they affect you.
Instances when Domestic Violence is a Misdemeanor
Before we get into details, it’s crucial to understand the basics of California domestic violence laws. Under California Family Code Section 6211, domestic violence refers to any form of abuse against the following people:
- A spouse or former spouse
- A cohabitant
- A person with whom the respondent has a dating or engagement relationship
- The defendant’s party
- Anyone affiliated to the defendant by consanguinity or affinity
Under this statute, “abuse” refers to any intentional, reckless cause or attempt to cause bodily injury, sexual assault, or place someone under imminent bodily injury.
With the definition of domestic violence in mind, it’s much easier to understand when a particular instance becomes a misdemeanor or a felony.
Generally, domestic violence is considered a misdemeanor when the defendant uses, attempts to use or threatens to use force against a domestic partner. Misdemeanor charges usually result from assault or battery crimes.
For instance, you can be charged with assault when you threaten another person to the extent of believing that they are in imminent danger of bodily harm. At this point, the defendant would have probably threatened the alleged victim to the point of believing that the defendant would harm them very soon.
On the other hand, battery refers to using physical force against another person resulting in harmful or offensive contact without permission.
Another instance of misdemeanor domestic violence is when you emotionally abuse a victim. Emotional abuse consists of criticism, manipulation, verbal abuse, making upsetting or belittling remarks, and so on.
Common domestic violence crimes charged as misdemeanor include the following:
- Penal Code 243(e)(1): Domestic Battery
- Penal Code 273(a): Child endangerment without causing significant bodily injury
- Penal Code 270: Child Neglect
- Penal Code 422: Criminal threat
- Penal Code 646.9: Stalking
- Penal Code 647(j)(4): Revenge porn
- Penal Code 653.2: Posting harmful information on the internet
Instances when Domestic Violence Is a Felony
Although most domestic violence cases are prosecuted as a misdemeanor, several factors can convert the misdemeanor domestic violence to felony charges. The most common reason behind this is that domestic abuse becomes frequent, the victim sustains severe bodily injury, and a defendant has a prior domestic violence misdemeanor conviction. Some of the other ways that domestic violence can be charged as a felony include the following:
- When there’s a use of a weapon
- When the alleged victim is severely harmed or dies
- When there’s an ongoing pattern of abuse
- If there is drugs or alcohol involved
- If the defendant violates a restraining order
- When a child or minor witnesses the abusive conduct
Please note, there’s no single domestic violence law that charges domestic abuse conducts as felonies. Instead, several laws cover domestic violence based on the nature of the crime. Some of the offenses that are charged as felonies include a violation of the following statute:
- Penal Code 273(d): Child abuse
- Penal Code 273.5: Causing corporal injuries
- Penal Code 273(a): Child endangerment with the risk of causing significant bodily injuries
- Penal Code 368: Elder abuse
- Penal Code 601: Aggravated trespass
Most of these offenses are wobblers. This means that they can be charged as felonies or misdemeanors under the prosecution’s discretion. Prosecutors usually look at the defendant’s criminal history and the nature of the criminal act to decide whether to charge a defendant with a misdemeanor or a felony.
The Differences in Domestic Violence Cases Based on the Penalties of a Conviction
You should expect misdemeanor domestic violence charges to carry lenient penalties than felony charges. For instance, most misdemeanor charges carry a maximum of one year of custody in county jail and a maximum fine of $1,000.
On the other hand, most felony-level domestic violence carries a maximum fine of $6,000 and imprisonment for two, three, or four years.
Felony charges are subject to sentence enhancement based on the nature of the crime. Some of the common types of sentence enhancement include:
- Additional and consecutive prison sentence for three, four, or five years for causing significant bodily injury
- A maximum fine of $10,000 and imprisonment for two, four, or five years for having a prior conviction of particular domestic violence offenses for the last seven years
You can face the second sentence enhancement stated above if you have a prior conviction for the following crimes:
- Corporal injury on your spouse
- Assault that leads to severe physical injuries
- Assault or battery with caustic chemicals
- Assault with a stun gun
- Assault with a deadly weapon
- Battery on a spouse
- Sexual battery
Similarities Between Misdemeanor and Felony Domestic Violence Conviction
Even though there are distinct differences between the penalties of felony and misdemeanor domestic violence, a couple of consequences apply to both charges. These consequences include:
Mandatory Custody in Jail
Most California counties impose at least thirty days of mandatory custody in county jail for thirty days or
Most domestic violence convictions. This applies even when charged with a first-time misdemeanor.
Paying Victim Restitution and Domestic Violence Fund
Some people convicted of domestic violence can be required to pay victim restitution. The restitution includes the victim’s bill, lost wages, property damages, and mental health counseling. The defendant must also pay $500 to fund domestic violence programs in California.
Participation in a California Batterers Program
Most judges require convicted batters to attend a year-long treatment and counseling program. This applies even when you’re sentenced to a misdemeanor or felony probation.
Permanent Criminal Record
Perhaps one of the worst effects of a domestic violence conviction is having a permanent criminal record. Once you have a permanent criminal record, your conviction will appear anytime someone does a background check on you. This can affect your right to gainful employment, housing, and state licensing.
Loss of Your Custodial Rights
Most domestic abusers are prohibited from getting custody of their children in California. However, most of them can still get visitation rights. However, you should note that family law judges don’t necessarily have to decide on domestic violence while determining custody for a child.
Even so, a family law judge can still decide on custodial rights if one of the contesting parents was convicted of domestic violence against the other within the past five years.
Loss of Your Gun Right
Both misdemeanor and felony domestic violence cases put defendants at risk of losing their gun rights. Most misdemeanor convictions result in a firearm ban for ten years. Still, some misdemeanors like corporal injury on a cohabitant or spouse result in a lifetime loss of your gun rights.
When it comes to a felony conviction, you’ll be liable under California Penal Code 29800: California “felon with a firearm” law which imposes a lifetime ban on owning or possessing a firearm.
Domestic violence victims can apply for a protective order. Anyone can obtain a restraining order through a criminal or civil court. The alleged victim doesn’t necessarily have to suffer physical harm to obtain a protective order in California. You only need to prove that the defendant abused or threatened to abuse you and that person is an intimate partner or a second-degree relative. In that case, alleged victims for misdemeanor and felony can file a restraining order on the defendant.
Civil Lawsuit Consequences
Apart from the above consequences of a misdemeanor or felony domestic violence, defendants are at risk of facing certain consequences outside the California criminal justice system. Most of these consequences apply in a civil lawsuit that involves child custody agreements and divorce agreements. Therefore, whether you’re charged with a felony or a misdemeanor, you are at risk of paying financial compensation for:
- Lost wages
- Medical bills
- Emotional distress
- Pain and suffering
Instances When Domestic Violence Becomes a Strike Offense
Some felony domestic violence cases can include a strike on your criminal record under California’s Three Strike Law. Including a strike in your criminal record means that you will receive double the standard maximum sentence for your offense after a second offense. A third conviction of a serious or violent felony imposes a sentence of twenty-five years to life imprisonment on your current charges.
An example of a domestic violence offense that can include a strike on your criminal record is assault with a deadly weapon under the California Penal Code 245.
Common Legal Defense Strategies for Domestic Violence Charges in California
There’s not much difference between the legal defense strategies for a misdemeanor or felony domestic violence charges. Your attorney will most probably depend on these legal defense strategies for your domestic violence charges. These legal defense strategies are as follows:
You can disapprove of your domestic violence charges if you can prove that you’re innocent. Proving your innocence doesn’t mean that you didn’t do the alleged crime but proves you were elsewhere at the time when the alleged crime happened. You can provide an alibi to support your innocence.
If you suffered an injury even when you’re a defendant to domestic violence charges, your attorney could argue that your actions were out of self-defense. You could prove this if you were responding to an abusive situation. Even so, you should be ready for a prosecution attack on your situation since most of them use the battered child or woman syndrome to seek a conviction.
Insufficient or Lack of Evidence
Domestic violence cases can involve a lot of hearsays since they take place in homes where there are scarce witnesses in most of these cases. You can use this situation in favor of defending yourself against the charges made on you. Prosecutors can’t convict you beyond reasonable doubt when there’s insufficient or no evidence to prosecute you. Discrediting the victim’s testimony can also be a suitable legal defense strategy.
Accidental injury suggests that the alleged victim suffered injuries from other events rather than domestic abuse. You can discredit an injury through medical evidence. It might be challenging to determine where a bruise came from without a witness. However, if you can provide relevant evidence, you’re better positioned to disapprove of the charges made against you.
Your Actions Were a Result of the Victim’s Behavior
In some cases, alleged victims’ actions can be the reason behind their injuries. You can be accused of domestic violence due to these behaviors. For instance, an alleged victim can accuse you of domestic battery when trying to prevent her from hurting herself or another person. This defense works better when you can use the alleged victim’s history of anger as your evidence. Witnesses can also help you support this explanation.
Police Misconducts or Errors
You can discredit the charges made against you through police misconduct or errors. Police misconduct or errors refers to any form of deviation from the required police investigation protocols. These instances can include:
- Denying you the right to an attorney
- Failure to record your interviews
- Denying request for an attorney
- Conducting searches without a warrant
- Failure to read Miranda right
- Conducting unwarranted searches and seizure
You can also use consent as your legal defense strategy. For instance, if both of you took martial-art classes, there are chances of physical interactions. Your attorney can argue that this creates a consensual relationship for your actions.
It’s common for domestic partners to make false allegations on the other as a means of gaining leverage or revenge on the other. Therefore, if you can prove that your charges were made out of a false allegation, you can have your case dismissed.
Seek a Plea Bargain
Your attorney can seek a plea bargain for your charges when accused of a felony domestic violence offense. Seeking a plea bargain means that you must plead guilty to a lesser offense to avoid the negative consequences of domestic violence conviction. Some of the common lesser offenses for domestic violence include:
- Criminal trespass
- Disturbing the peace
Seeking a plea bargain holds several advantages, which includes:
- Retention of your right to a firearm
- No automatic loss of your custodial rights
- No deportation or being marked inadmissible if you’re a non-citizen
Find a Domestic Violence Lawyer Near Me
California laws refer to domestic violence as a serious charge. That’s why it’s recommendable to seek the help of an attorney immediately after you’re arrested and charged with any domestic violence offense. At the Domestic Violence Attorney Law Firm, we are committed to providing the best legal services to anyone charged with a domestic violence offense in San Diego, CA. Contact us today at 619-393-8588 and speak to a knowledgeable and committed lawyer.