Can You Go to Jail for Domestic Violence

Updated February 7, 2022

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

Common criminal charges include:

• Penal Lawmaking 243(e)(one) "domestic battery" and
• Penal Code 273.five, "inflicting corporal injury on an intimate partner."

Consequences of a domestic violence confidence in California

In addition to punishment past a jail or prison sentence, the consequences of a California domestic violence conviction tin include:

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

• A restraining order (also known every bit a protective order),
• Loss of custody rights,
• Loss of California gun rights,
• A permanent criminal record, and
• Clearing consequences for non-citizens, such every bit deportation or inadmissibility to the United 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 blow;
• The injuries did not upshot from the defendant's deportment;
• The defendant acted in cocky-defense or defense of some other person; or
• The victim made a faux accusation.

Sometimes we can convince the district attorney not to pursue a criminal case at all. Or nosotros can negotiate a favorable plea deal to a lesser charge.

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

In this article, our California criminal defense lawyers will hash out:

• 1. What is the legal definition of "domestic violence" in California?
• two. Who counts as a victim of domestic violence nether California law?
  • 2.one. For purposes of California's criminal domestic violence laws
  • ii.2 For purposes of custody disputes
• 3. What are the mutual California domestic violence crimes and penalties?
  • three.1. Penal Code 273.5, corporal injury to a spouse or inhabitant
  • 3.2. Penal Code 243(e)(1), domestic battery
  • iii.3. Penal Code 273d, child abuse
  • 3.4. Penal Code 273a, child endangerment
  • 3.5. Penal Code 270, kid fail/failure to provide intendance
  • 3.six. Penal Lawmaking 368, elderberry abuse
  • 3.7. Penal Code 422, criminal threats
  • 3.8. Penal Code 646.nine, stalking
  • iii.nine. Penal Code 591, damaging a telephone line
  • 3.x. Penal Lawmaking 601, aggravated trespass
  • 3.11. Penal Code 647(j)(four), revenge porn
  • 3.12. Penal Code 653.two, posting harmful information on the internet
• iv. Is domestic abuse a felony?
• 5. When can a defendant in a domestic violence instance receive probation instead of jail time?
• 6. What are additional consequences of a California domestic violence conviction?
  • 6.1. Mandatory minimum jail time
  • six.two. Payment of victim restitution & domestic violence fund
  • half dozen.3. Participation in a "batterers' plan"
  • half-dozen.4. Permanent criminal record
  • six.v. Loss of custody rights
  • 6.half-dozen. Loss of gun rights
    • half dozen.6.1. Later on a misdemeanor conviction
    • half dozen.6.two. After a felony conviction
    • 6.6.3. Can a pardon or expungement restore gun rights after a domestic violence conviction?
  • half dozen.seven. Restraining orders
  • half dozen.8. Immigration consequences
• 7. What are the defenses to California domestic violence charges?
  • 7.i. Legal defense strategies
  • vii.two. Plea bargains to lesser charges
  • 7.3. Pre-trial diversion
• eight. How tin a California domestic violence lawyer help?
• ix. What are resources for domestic violence victims?

Mutual 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 against an intimate partner.^ane  A person commits "corruption" when he or she intentionally or recklessly uses, or threatens the use of, physical force against an intimate partner. ⁱⁱ

2. Who counts as a victim?

two.1. For purposes of criminal law

California domestic violence laws define "domestic violence" as abuse against an "intimate partner." An "intimate partner" is divers as:

• A current or former spouse,
• A current or former registered domestic partner,ⁱⁱⁱ
• A current or former fiancé(eastward),
• A electric current or former live-in romantic partner (a "cohabitant"),⁴
• A person with whom the defendant has, or has had, a child, or
• Someone the accused is seriously dating or was in a dating human relationship with in the past.^five

ii.2. For purposes of custody disputes

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

• The defendant's child,⁶ or
• Whatsoever other person related past to the defendant past consanguinity (blood) or analogousness (marriage) within the second degree, including:
  • Brothers and sisters,
  • Half-brothers and half-sisters,
  • Footstep-brothers and step-sisters,
  • Grandparents,
  • Grandchildren,
  • Aunts and uncles, and
  • Nephews and nieces.⁷

These additional categories are of import for purposes of California custody laws, discussed in Department five.5, beneath.

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

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

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

• The circumstances of the offense,
• The seriousness of the alleged victim'southward injuries (if any), and
• The accused's criminal tape (if any).^eight

(For more than discussion, come across our folio on Is domestic violence a felony?)

Some of the virtually common crimes of domestic violence are discussed in cursory, below. For more information on each of these offenses, please click on the highlighted link(s).

3.i. Penal Code 273.5, corporal injury to a spouse or inhabitant

Penal Code 273.five makes it illegal to inflict a "corporal injury" that results in fifty-fifty a slight physical injury to an intimate partner.

PC 273.5 is a felony. Possible penalties for a first offense range from one (1) year in canton jail to up to four (4) years in California country prison.

3.2. Penal Code 243(e)(1), domestic battery

Penal Code 243(e)(one) – California'south domestic battery constabulary — makes information technology a misdemeanor to inflict force or violence on an intimate partner. Dissimilar Penal Code 273.v, this California domestic violence law does non crave a visible injury.

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

3.three. Penal Code 273d, child abuse

Penal Lawmaking 273d PC California'south "child abuse" law, makes it a crime to inflict corporal penalisation or injury on a child. Reasonable spankings are excluded, but any punishment that is cruel or causes injury is considered child abuse in California.

A outset offense for child abuse tin can be punished past up to one (1) yr in canton jail or upwardly to three (3) years in state prison.

Striking a child with a hangar is not a "reasonable spanking" under California'due south child abuse laws

3.4. Penal Code 273a, child endangerment

Penal Lawmaking 273a PC California'due south kid endangerment law, makes it a criminal offence to willfully allow a child in i'due south care to:

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

Examples:

• A mother who permits her swain to beat her half dozen-yr-old, or
• A parent who operates a dangerous meth lab in the same home where his/her child lives.

If the child is at chance of bully bodily injury, the criminal offence is a "wobbler."^ix

Otherwise, child endangerment is a misdemeanor, punishable past up to six (6) months in jail.

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

California'south "kid neglect" law, Penal Code 270 PC, makes information technology a law-breaking for a parent to willfully fail to provide necessities (like food, shelter, medical care, etc.) to his or her minor child.

Child neglect is a misdemeanor. It can be punished by a fine of up to $2,000 and/or upwards to one (1) year in county jail.

3.half-dozen. 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 historic period or older:

• Physical corruption,
• Emotional abuse,
• Fail,
• Endangerment, or
• Fiscal fraud.

Every bit a misdemeanor elder abuse can be punished by upwardly to i (1) year in jail. Equally a felony, elder corruption penalties can include upwards to 4 (4) years in state prison house.

Abuse of a senior citizen is a California offense of domestic violence that tin can touch on custody rights

3.vii. Penal Code 422, criminal threats

California's "criminal threats" law, Penal Code 422 PC, makes it a offense to threaten someone with serious harm. PC 422 may exist charged as a misdemeanor or a felony.

Every bit a misdemeanor, criminal threats can be punished by upwards to one (one) year in jail.

Equally a felony, potential penalties tin can include upwards to iv (4) years in prison. Plus, a felony confidence counts as a strike nether California'south "Iii Strikes" law.

3.8. Penal Code 646.9, stalking

Penal Lawmaking 646.9, 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 can exist a misdemeanor or a felony, depending on the accused's criminal history.

Misdemeanor stalking tin can be punished by up to one (1) yr in jail. As a felony, stalking penalties can include upward to three (3) years in prison

3.nine. Penal Code 591, damaging a telephone line

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

PC 591 can be charged as a misdemeanor or a felony. If charged every bit a felony, penalties can include a fine of upwardly to $10,000 and/or upward to three (3) years in prison.

3.10. Penal Code 601, aggravated trespass

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

1. Makes a criminal threat, and
2. Within the side by side 30 days enters that person'due south home or workplace to carry it out.

Aggravated trespass can be either a misdemeanor or a felony. Punishment for a felony violation tin include up to iii (iii) years in jail.

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

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

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

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

three.12. Penal Code 653.2, posting harmful information on the net

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

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

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

It can be punished by a fine of up to $ane,000 and/or up to ane (one) year in jail.

iv. Is domestic abuse a felony?

Ane blazon of domestic abuse is always a felony in California: Corporal injury to a spouse or inhabitant (PC 273.5). The following domestic abuse-related offenses can exist 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.ix)
• Damaging a phone line (PC 591)
• Aggravated trespass (PC 601)

Scroll upwardly to the previous department for specific penalties for these crimes.

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

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

• It is the defendant's first criminal offense, or
• The victim's injuries are not significant.

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

And even if the gauge sentences the defendant to probation, many of the consequences listed below will still utilize.

But, the defendant will be sentenced to a minimum of jail time. In commutation, he or she will be subject to conditions, such every bit the ones fix along in Section 6, beneath.

If the accused violates probation conditions, the judge can revoke probation and transport the accused to prison or jail.

6. What are boosted consequences of a California domestic violence conviction?

A conviction for battery or abuse frequently results in more than than simply incarceration and a fine. Additional consequences of a California domestic violence conviction tin include some or all of the following:

six.one. Mandatory minimum jail time

About California counties impose a minimum jail sentence of 30 days for a domestic violence conviction. This is true even if the charge is a misdemeanor and it is the defendant's offset crime.

6.2. Payment of victim restitution & domestic violence fund

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

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

The defendant will too have to pay $500 to fund domestic violence programs in California.^x

6.3. Participation in a "batterers' program"

Judges almost always require convicted batterers to nourish a year-long handling and counseling program. ¹¹

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

vi.4. Permanent criminal tape

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

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

6.v. Loss of custody rights

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

Note that for purposes of determining custody, a criminal conviction is non required for a family police approximate to decide in that location was domestic violence.

But a judge will definitely decide at that place was domestic violence if one parent was bedevilled of a crime of domestic violence against the other parent within the previous five years. Meet Family Code Section 3044.

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

vi.6. Loss of gun rights

A California domestic violence conviction will nigh e'er result in a loss of the right to own or possess a firearm.

Unfortunately, for the reasons set up forth below, there is no mode to recover lost gun rights after a domestic violence conviction.

6.6.i. Subsequently a misdemeanor conviction

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

But if the criminal offence is one that qualifies as a misdemeanor offense of domestic violence ("MCDV") under federal constabulary, a conviction will result in a firearm ban for life.^thirteen

6.6.2. Afterward a felony conviction

Penal Lawmaking 29800 PC is California'south "felon with a firearm" law. Information technology imposes a lifetime firearms ban on people who take been convicted of a felony offense in any country or country.

So if you are convicted of DV equally a felony, both California and federal law prohibit y'all from ever legally possessing a gun.¹⁴

6.6.3. Can a pardon or expungement restore gun rights subsequently a domestic violence conviction?

Federal law imposes a lifetime firearms ban afterwards a domestic violence conviction.^fifteen  The only mode to remove the federal firearms ban is with a Presidential pardon. But such pardons are seldom granted.

To larn how to apply for a presidential pardon, delight see the Usa Department of Justice pardon data and instructions.

vi.7. Restraining orders

California law allows a victim of domestic violence to apply for an emergency restraining order (also known as an "emergency protective order"). ¹⁶

A DV restraining order tin be obtained in either civil or criminal court.

No physical harm is required for a protective club.

An declared victim does non need to have suffered concrete harm in guild to obtain a protective order in California.

The person filing the petition just needs to testify that:

• Someone has abused or threatened to abuse the petitioner or the petitioner's pocket-sized kid, and
• The alleged abuser is an intimate partner or a outset- or second-degree relative.¹⁷

Violation of a protective or restraining lodge

California law makes it a offense to violate a restraining lodge.¹⁸

Violation of a protective social club is usually a misdemeanor every bit long equally the victim wasn't hurt.

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

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

six.8. Immigration consequences

Many California domestic violence convictions count as an "aggravated felony" or a "law-breaking involving moral turpitude" ("CIMV") nether U.S. immigration police.

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

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

So earlier pleading guilty, it is critical that a non-citizen consult with a knowledgeable California domestic violence lawyer.

An experienced California criminal attorney may exist able to negotiate a plea bargain that avoids the negative immigration consequences of a domestic violence conviction.

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

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

7.one. Legal defence force strategies

In that location are numerous legal defenses that a criminal defence force attorney can assert. Some of the most common include taking the position that:

• The other person's injury was the outcome of an accident;
• The alleged victim's injuries did not upshot from the defendant's deportment; or
• The defendant was acting in self-defense or defence force of someone else.
• The accused is beingness falsely defendant due to:
  • Anger or jealousy,
  • An attempt to gain the upper mitt in divorce or child custody proceedings, or
  • Any other reason.

seven.2. Plea bargains to lesser charges

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

2 of the virtually common lesser offenses a domestic violence accused may exist able to plead to are:

• Penal Lawmaking 602 PC criminal trespass, or
• Penal Lawmaking 415 PC disturbing 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

Some other legal strategy oft pursued by a defence force chaser is to try to become a pre-trial diversion program or deferred entry of judgment ("DEJ") for the accused batterer.

With pretrial diversion, if the defendant successfully completes a batterers' program, the charges volition be dismissed and finish to be for most purposes.

Eligibility for pretrial diversion depends on:

• The specific charges,
• Where the defendant batterer resides, and
• The defendant'southward 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.

8. How tin can a California domestic violence lawyer help?

California law enforcement agencies take claims of DV quite seriously.

Someone defendant of domestic violence for allegedly hit or threatening a spouse or child may observe him- or herself cut off from family and unable even to go home.

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

Nosotros understand how judges decide when to effect a domestic violence restraining order and what penalty is merited.

When we get involved early in a case we can frequently persuade the prosecutor not to file charges. Or we can negotiate a plea bargain that allows our client to avoid the negative consequences of a domestic abuse conviction.

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

ix. What are resource for domestic violence victims?

• Domestic Violence Organizations in California – California Partnership to End Domestic Violence
• California Domestic Violence Help, 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
• Resource – National Coalition Against Domestic Violence (NCADV)

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

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

We may also be able to aid if you 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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