What Is Considered Domestic Violence in California Family Law

Updated February seven, 2022

California domestic violence laws make information technology a criminal law-breaking to harm (or threaten to harm) a current or former spouse, cohabitant, co-parent, dating or intimate partner. In some cases, the list of protected persons includes parents, children, and relatives.

Common criminal charges include:

• Penal Code 243(eastward)(1) "domestic bombardment" and
• Penal Lawmaking 273.5, "inflicting corporal injury on an intimate partner."

Consequences of a domestic violence confidence in California

In addition to penalisation past a jail or prison house sentence, the consequences of a California domestic violence conviction can include:

• Mandatory minimum jail time,
• Mandatory participation in a "batterer'south intervention program" (domestic violence classes),
• Payment of fines and/or victim restitution,

• A restraining guild (also known as a protective order),
• Loss of custody rights,
• Loss of California gun rights,
• A permanent criminal record, and
• Immigration consequences for not-citizens, such equally displacement or inadmissibility to the The states.

Most of these consequences apply even if the defendant is sentenced to:

• "Summary" (misdemeanor) probation, or
• "Formal" (felony) probation.

Defending California domestic violence charges

Our California domestic violence lawyers can help people fight back. Legal defenses to these charges include showing that:

• It was an accident;
• The injuries did not result from the accused's actions;
• The defendant acted in self-defense or defense force of some other person; or
• The victim fabricated a false accusation.

Sometimes we can convince the commune attorney not to pursue a criminal example at all. Or nosotros can negotiate a favorable plea bargain to a bottom charge.

And if what our client needs is help, we do our best to see that he or she gets treatment instead of jail time.

In this article, our California criminal defence force lawyers will discuss:

• i. What is the legal definition of "domestic violence" in California?
• 2. Who counts as a victim of domestic violence nether California law?
  • 2.1. For purposes of California's criminal domestic violence laws
  • 2.2 For purposes of custody disputes
• 3. What are the common California domestic violence crimes and penalties?
  • 3.ane. Penal Code 273.5, corporal injury to a spouse or inhabitant
  • 3.2. Penal Code 243(e)(ane), domestic battery
  • three.3. Penal Code 273d, child abuse
  • 3.4. Penal Lawmaking 273a, child endangerment
  • iii.5. Penal Code 270, child neglect/failure to provide care
  • 3.6. Penal Code 368, elder abuse
  • three.7. Penal Lawmaking 422, criminal threats
  • 3.8. Penal Code 646.9, stalking
  • 3.9. Penal Code 591, damaging a telephone line
  • 3.10. Penal Code 601, aggravated trespass
  • iii.eleven. Penal Lawmaking 647(j)(4), revenge porn
  • 3.12. Penal Code 653.2, posting harmful data on the internet
• 4. Is domestic abuse a felony?
• 5. When tin can a accused in a domestic violence example receive probation instead of jail fourth dimension?
• 6. What are additional consequences of a California domestic violence conviction?
  • 6.1. Mandatory minimum jail time
  • six.2. Payment of victim restitution & domestic violence fund
  • six.3. Participation in a "batterers' plan"
  • half-dozen.4. Permanent criminal tape
  • 6.5. Loss of custody rights
  • vi.6. Loss of gun rights
    • 6.half dozen.one. After a misdemeanor conviction
    • 6.half dozen.ii. After a felony conviction
    • 6.half dozen.3. Can a pardon or expungement restore gun rights afterward a domestic violence conviction?
  • 6.7. Restraining orders
  • six.8. Immigration consequences
• vii. What are the defenses to California domestic violence charges?
  • 7.1. Legal defense strategies
  • seven.2. Plea bargains to bottom charges
  • vii.3. Pre-trial diversion
• 8. How can a California domestic violence lawyer help?
• 9. What are resources for domestic violence victims?

Common California domestic violence offenses include Penal Code 273.5, corporal injury on a spouse, and Penal Code 243(e)(1), domestic battery

i. What is the legal definition of "domestic violence" in California?

California Penal Code 13700 defines "domestic violence" as abuse committed confronting an intimate partner.¹  A person commits "abuse" when he or she intentionally or recklessly uses, or threatens the use of, physical strength against an intimate partner. ²

2. Who counts as a victim?

two.1. For purposes of criminal law

California domestic violence laws define "domestic violence" as abuse confronting an "intimate partner." An "intimate partner" is defined equally:

• A current or former spouse,
• A current or former registered domestic partner,³
• A electric current or onetime fiancé(e),
• A current or former live-in romantic partner (a "cohabitant"),⁴
• A person with whom the accused has, or has had, a kid, or
• Someone the accused is seriously dating or was in a dating human relationship with in the by.⁵

2.two. For purposes of custody disputes

The California Family unit Code has a longer listing of people who can be considered victims of domestic violence. In addition to partners in an intimate human relationship, victims tin can include:

• The defendant'due south child,^vi or
• Any other person related by to the defendant by consanguinity (blood) or affinity (wedlock) within the second degree, including:
  • Brothers and sisters,
  • Half-brothers and half-sisters,
  • Step-brothers and step-sisters,
  • Grandparents,
  • Grandchildren,
  • Aunts and uncles, and
  • Nephews and nieces.⁷

These boosted categories are important for purposes of California custody laws, discussed in Section 5.5, below.

3. What are the common domestic violence crimes and penalties?

Common crimes of "domestic violence" in California include battery, abuse, threats, and fail. Some of these offenses are misdemeanors. Others are felonies.

Just most of these crimes are California "wobbler" offenses. A "wobbler" is a law-breaking that can be charged as either a misdemeanor or a felony, depending on:

• The circumstances of the offense,
• The seriousness of the alleged victim's injuries (if any), and
• The defendant'south criminal record (if any).⁸

(For more discussion, see our page on Is domestic violence a felony?)

Some of the most common crimes of domestic violence are discussed in brief, below. For more information on each of these offenses, delight click on the highlighted link(south).

3.1. Penal Code 273.v, corporal injury to a spouse or inhabitant

Penal Lawmaking 273.v makes it illegal to inflict a "corporal injury" that results in even a slight physical injury to an intimate partner.

PC 273.v is a felony. Possible penalties for a first law-breaking range from i (one) yr in county jail to up to four (iv) years in California state prison.

3.2. Penal Code 243(east)(1), domestic bombardment

Penal Code 243(east)(1) – California's domestic battery police force — makes it a misdemeanor to inflict force or violence on an intimate partner. Unlike Penal Lawmaking 273.5, this California domestic violence police force does not require a visible injury.

Domestic battery is a misdemeanor. Punishment can include a fine of up to $ii,000, and/or up to one (1) twelvemonth in county jail.

3.3. Penal Code 273d, child abuse

Penal Code 273d PC California's "child abuse" law, makes information technology a crime to inflict corporal punishment or injury on a child. Reasonable spankings are excluded, just any punishment that is vicious or causes injury is considered child abuse in California.

A first criminal offence for child abuse can be punished past upwards to one (1) year in county jail or upwards to three (iii) years in state prison.

Hit a child with a hangar is non a "reasonable spanking" under California's kid abuse laws

iii.4. Penal Code 273a, child endangerment

Penal Code 273a PC California'south child endangerment police force, makes it a crime to willfully allow a child in one's care to:

• Suffer harm, or
• Take his/her safety or health endangered.

Examples:

• A female parent who permits her boyfriend to vanquish her 6-year-old, or
• A parent who operates a unsafe meth lab in the aforementioned home where his/her kid lives.

If the child is at take chances of bang-up actual injury, the law-breaking is a "wobbler."^nine

Otherwise, kid endangerment is a misdemeanor, punishable by up to six (six) months in jail.

3.5. Penal Code 270, child neglect/failure to provide care

California's "child fail" law, Penal Lawmaking 270 PC, makes it a crime for a parent to willfully fail to provide necessities (similar food, shelter, medical care, etc.) to his or her pocket-sized child.

Child fail is a misdemeanor. It tin can be punished past a fine of upwards to $2,000 and/or upwards to one (i) yr in canton jail.

iii.6. Penal Code 368, elder abuse

Penal Code 368 PC, California's law on elder abuse, makes it a "wobbler" to inflict any of the following on a victim 65 years of age or older:

• Physical corruption,
• Emotional abuse,
• Neglect,
• Endangerment, or
• Financial fraud.

As a misdemeanor elder abuse tin can exist punished by up to one (1) yr in jail. Every bit a felony, elder abuse penalties tin include upward to four (four) years in land prison house.

Abuse of a senior denizen is a California crime of domestic violence that can affect custody rights

3.7. Penal Lawmaking 422, criminal threats

California'southward "criminal threats" law, Penal Code 422 PC, makes information technology a crime to threaten someone with serious harm. PC 422 may exist charged equally a misdemeanor or a felony.

As a misdemeanor, criminal threats can be punished past upwards to one (1) yr in jail.

As a felony, potential penalties can include up to four (iv) years in prison house. Plus, a felony conviction counts equally a strike nether California'south "Three Strikes" law.

iii.8. Penal Lawmaking 646.ix, stalking

Penal Code 646.nine, California's "stalking" law, prohibits:

• Harassing or threatening another person,
• To the point at which the person fears for his/her condom or the safety of his/her family members.

Stalking tin exist a misdemeanor or a felony, depending on the defendant'south criminal history.

Misdemeanor stalking can be punished past up to one (i) year in jail. As a felony, stalking penalties can include up to 3 (3) years in prison

3.ix. Penal Lawmaking 591, dissentious a phone line

Penal Code 591 PC is California's law on dissentious a phone line. It makes it a crime to cut or otherwise damage a phone line or phone equipment. An example is a domestic abuser who prevents his/her victim from making a phone call.

PC 591 can be charged equally a misdemeanor or a felony. If charged as a felony, penalties can include a fine of up to $x,000 and/or upwards to 3 (3) years in prison.

3.ten. Penal Code 601, aggravated trespass

Someone commits Penal Lawmaking 601 PC "aggravated trespass" when he or she:

1. Makes a criminal threat, and
2. Inside the side by side xxx days enters that person's abode or workplace to carry information technology out.

Aggravated trespass can be either a misdemeanor or a felony. Punishment for a felony violation can include upwards to three (3) years in jail.

3.11. Penal Code 647(j)(4), revenge porn

The misdemeanor crime of "revenge porn" — PC 647(j)(four) — is a type of "cyber-harassment." It occurs when someone:

• Intentionally distributes sexual photos of another person (such as an ex-girlfriend or ex-wife),
• With the intent to crusade that person emotional distress.

Revenge porn tin be punished past a fine of upwardly to $i,000 and up to 1 (1) year in county jail.

3.12. Penal Code 653.2, posting harmful data on the internet

PC 653.2 – posting harmful info on the internet – is a relatively new misdemeanor crime. Also known as "indirect electronic harassment," information technology consists of:

• Posting or emailing harmful data about someone,
• With the intent of causing other people to harass that person.

PC 653.2 is oft charged when someone uses the internet to get revenge on the other political party in a domestic dispute.

Information technology can be punished past a fine of up to $1,000 and/or upwards to one (1) yr in jail.

four. Is domestic abuse a felony?

One type of domestic abuse is always a felony in California: Corporal injury to a spouse or inhabitant (PC 273.5). The post-obit domestic corruption-related offenses can be felonies or misdemeanors depending on the case. These "wobbler" offenses include:

• Child abuse (PC 273d)
• Child endangerment (PC 273a)
• Elder abuse (PC 368)
• Criminal threats (PC 422)
• Stalking (PC 646.nine)
• Damaging a phone line (PC 591)
• Aggravated trespass (PC 601)

Curlicue up to the previous section for specific penalties for these crimes.

five. When can a defendant in a domestic violence case receive probation instead of jail time?

A approximate may be willing to sentence a domestic abuser to probation if:

• It is the defendant's first offense, or
• The victim'south injuries are non meaning.

Probation is more likely when the instance is prosecuted as a misdemeanor. This is considering felony charges are typically brought only when the victim suffers a significant injury.

And fifty-fifty if the judge sentences the defendant to probation, many of the consequences listed below will still utilize.

Merely, the defendant volition be sentenced to a minimum of jail time. In exchange, he or she will be bailiwick to atmospheric condition, such as the ones set along in Section 6, below.

If the defendant violates probation weather, the gauge can revoke probation and ship the accused to prison or jail.

half-dozen. What are additional consequences of a California domestic violence confidence?

A conviction for battery or corruption often results in more than simply incarceration and a fine. Boosted consequences of a California domestic violence conviction can include some or all of the following:

6.1. Mandatory minimum jail time

Near California counties impose a minimum jail sentence of 30 days for a domestic violence conviction. This is truthful even if the accuse is a misdemeanor and it is the defendant's first offense.

6.two. Payment of victim restitution & domestic violence fund

Someone convicted of domestic violence may exist ordered to pay victim "restitution" in California. Such restitution tin can include the victim's:

• Medical bills,
• Mental health counseling,
• Lost wages, and/or
• Property damage.[27]

The defendant will as well have to pay $500 to fund domestic violence programs in California.¹⁰

6.3. Participation in a "batterers' program"

Judges most ever require convicted batterers to nourish a twelvemonth-long treatment and counseling program. ¹¹

This is true even if the accused is sentenced to "summary" (misdemeanor) probation or "formal" (felony) probation in lieu of all or part of a defendant'south sentence.

six.4. Permanent criminal record

Possibly worst of all is that a DV conviction goes on the defendant'south permanent criminal tape.

The conviction will appear anytime someone does a routine background check. This tin can make it difficult to gain employment, state licensing, housing or other benefits.

6.five. Loss of custody rights

Domestic abusers are usually prohibited from getting custody of their minor children in California. But they are still often able to obtain visitation rights.

Notation that for purposes of determining custody, a criminal conviction is not required for a family law judge to determine there was domestic violence.

But a gauge will definitely decide in that location was domestic violence if one parent was convicted of a crime of domestic violence against the other parent within the previous v years. See Family unit Code Section 3044.

Consequences of a California domestic violence conviction can include a loss of custody rights

6.6. Loss of gun rights

A California domestic violence confidence will almost always upshot in a loss of the right to own or possess a firearm.

Unfortunately, for the reasons set forth below, at that place is no fashion to recover lost gun rights after a domestic violence conviction.

vi.6.1. After a misdemeanor confidence

Under California Penal Lawmaking 29805, most misdemeanor DV convictions upshot in a ten-year firearms ban. A misdemeanor conviction of violating Penal Lawmaking 273.5 PC (corporal injury on a spouse or cohabitant) will carry a lifetime loss of gun rights. Run across California AB 3129.¹²

But if the offense is one that qualifies every bit a misdemeanor crime of domestic violence ("MCDV") under federal police, a conviction will outcome in a firearm ban for life.¹³

six.6.ii. After a felony confidence

Penal Code 29800 PC is California's "felon with a firearm" law. It imposes a lifetime firearms ban on people who take been convicted of a felony criminal offence in any state or country.

So if you are convicted of DV as a felony, both California and federal police force prohibit you from ever legally possessing a gun.^fourteen

six.6.three. Can a pardon or expungement restore gun rights after a domestic violence confidence?

Federal law imposes a lifetime firearms ban later a domestic violence confidence.¹⁵  The but manner to remove the federal firearms ban is with a Presidential pardon. But such pardons are seldom granted.

To learn how to apply for a presidential pardon, please see the The states Department of Justice pardon information and instructions.

6.7. Restraining orders

California police allows a victim of domestic violence to apply for an emergency restraining order (also known equally an "emergency protective social club"). ¹⁶

A DV restraining order can be obtained in either civil or criminal courtroom.

No physical harm is required for a protective order.

An declared victim does non need to have suffered physical impairment in society to obtain a protective gild in California.

The person filing the petition simply needs to bear witness that:

• Someone has driveling or threatened to abuse the petitioner or the petitioner's minor child, and
• The alleged abuser is an intimate partner or a first- or 2nd-degree relative.¹⁷

Violation of a protective or restraining social club

California law makes it a crime to violate a restraining order.^xviii

Violation of a protective gild is usually a misdemeanor as long as the victim wasn't hurt.

Common defenses to a charge of violating a protective order include taking the position that:

• The protective order wasn't legally issued;
• The defendant didn't know nearly the restraining order;
• The defendant didn't intentionally violate the order; or
• The defendant was falsely accused.

6.8. Immigration consequences

Many California domestic violence convictions count every bit an "aggravated felony" or a "crime involving moral turpitude" ("CIMV") nether U.Due south. clearing police.

Confidence on these charges can subject a non-U.Due south. citizen to:

• Removal (deportation) from the United States,¹⁹ and/or
• Inadmissibility to the United States — including ineligibility to apply for a greenish card or an adjustment of status (from illegal to legal).²⁰

So before pleading guilty, it is critical that a not-citizen consult with a knowledgeable California domestic violence lawyer.

An experienced California criminal chaser may be able to negotiate a plea deal that avoids the negative immigration consequences of a domestic violence conviction.

Arguments in front of children can sometimes lead to false accusations of California's domestic violence laws, with devastating consequences

7. What are the defenses to California domestic violence charges?

7.1. Legal defence strategies

There are numerous legal defenses that a criminal defense force attorney can assert. Some of the well-nigh common include taking the position that:

• The other person's injury was the result of an blow;
• The alleged victim's injuries did not result from the defendant's actions; or
• The defendant was acting in self-defence or defense of someone else.
• The accused is being falsely defendant due to:
  • Anger or jealousy,
  • An try to gain the upper hand in divorce or kid custody proceedings, or
  • Any other reason.

7.2. Plea bargains to lesser charges

An experienced defense force attorney can sometimes negotiate a plea bargain to a bottom offense. Pleading guilty to a lesser offense tin help a defendant avoid the stigma and negative consequences of a domestic violence conviction.

2 of the most common bottom offenses a domestic violence defendant may be able to plead to are:

• Penal Lawmaking 602 PC criminal trespass, or
• Penal Code 415 PC agonizing the peace.

Advantages of pleading to 1 of these crimes can include:

• Retention of the right to own a firearm,
• No automatic loss of custody rights, and
• No displacement or inadmissibility for non-citizens.

vii.3. Pre-trial diversion

Another legal strategy often pursued past a defence attorney is to try to become a pre-trial diversion program or deferred entry of judgment ("DEJ") for the defendant batterer.

With pretrial diversion, if the defendant successfully completes a batterers' program, the charges will be dismissed and cease to exist for near purposes.

Eligibility for pretrial diversion depends on:

• The specific charges,
• Where the accused batterer resides, and
• The defendant's criminal history (if whatsoever).

Talk to an experienced California domestic violence attorney to find out whether a pre-trial diversion program is available in your jurisdiction.

viii. How tin a California domestic violence lawyer help?

California law enforcement agencies accept claims of DV quite seriously.

Someone accused of domestic violence for allegedly hitting or threatening a spouse or child may find him- or herself cutting off from family and unable even to go dwelling house.

Our criminal defence force lawyers include former police officers and prosecutors. We have decades of experience investigating and trying cases of declared abuse.

We sympathize how judges decide when to issue a domestic violence restraining society and what punishment is merited.

When we get involved early in a case nosotros tin can oft persuade the prosecutor non to file charges. Or nosotros tin can negotiate a plea deal that allows our client to avoid the negative consequences of a domestic abuse conviction.

And if your case does go to jury trial we will brand certain your side of the story is presented. Contrary to what you lot may have heard, it is possible to win a domestic violence instance.

9. What are resources for domestic violence victims?

• Domestic Violence Organizations in California – California Partnership to End Domestic Violence
• California Domestic Violence Assist, Programs and Statistics – DomesticShelters.org
• State Resources: California – WomensLaw.org
• Domestic violence in California: Resources for survivors, advocates, and allies – Blue Shield of California Foundation
• Getting Help – California Courts
• National Domestic Violence Hotline
• Resources – National Coalition Against Domestic Violence (NCADV)

If you have been charged under California's domestic violence laws, we invite you lot to contact us to speak confidentially.

Nosotros have offices in Los Angeles throughout California to serve your needs. Our law business firm tin can help you find the best defenses to the charges against you so that y'all can preserve your reputation and stay out of jail.

We may also exist able to help if you lot were charged under Nevada's domestic violence laws .

¿Habla español? Visite nuestro sitio Web en español sobre el delito de violencia doméstica de Californi y nuestros abogados de violencia domestica de California .

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Legal References

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Source: https://www.shouselaw.com/ca/defense/laws/domestic-violence/

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