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When is Domestic Violence a Felony?

Posted by Dmitry Gorin | Jun 04, 2024

The common question is which California domestic abuse crimes can be charged as felonies? Domestic violence (DV) is generally charged as a misdemeanor offense.

However, sometimes, the district attorney will file DV as a felony when the incident caused an injury, involved a deadly weapon, or a child victim.

A pattern of abuse can also elevate domestic violence to a felony. So can a violation of a restraining order. The laws in different states will determine which circumstances create a felony offense.

When is Domestic Violence a Felony?
Domestic violence can be filed as a felony if the victim sustains a substantial injury.

When it comes to penalizing domestic abuse, the State of California has some of the strictest laws in the nation, with the potential to impose severe penalties on those who are convicted of domestic violence crimes.

If you're facing the possibility of domestic violence charges in California, one of the most important questions to be answered is whether you will be charged with a misdemeanor or a felony.

This is because the potential punishments for felonies are much more stringent than those for misdemeanors. If convicted of felony domestic violence, you could be sentenced to several years in prison.

Notably, most domestic abuse crimes in California are classified as "wobbler" offenses, meaning the prosecution has the discretion to charge these offenses as either misdemeanors or felonies, depending on various criteria.

Some crimes are more likely than others to be charged as felonies, but each case is usually weighed on the circumstances. For this reason, a California criminal defense 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.

State criminal laws typically list circumstances that elevate a DV offense to a felony. If those circumstances are not present, the offense will be prosecuted as misdemeanor domestic violence. Let's review further below.

What are the Criteria Influencing Felony DV Charges?

The decision to charge domestic abuse as a misdemeanor or felony hinges on several factors, including the severity of the offense, the defendant's criminal history, and the specifics of the incident. Some specific criteria prosecutors look at include the following:

  • Prior Criminal History or History of Abuse. A defendant's past can significantly impact current proceedings. A track record of similar offenses or a history of abusive behavior often results in harsher charges due to the perceived risk of recidivism.
  • Presence of Severe Bodily Harm. The extent of injury inflicted on the victim plays a central role in how the alleged crime is charged. Cases involving serious bodily harm are typically escalated to felony charges because of the increased jeopardy to the victim's well-being. Simply put, if the victim suffered bodily harm or a corporal injury, especially if it was a severe injury, the DA will typically file felony charges against the alleged perpetrator.
  • Use of a Weapon. Employing a weapon during the commission of a domestic violence offense not only increases the potential for grave injuries but also indicates a higher level of premeditation or threat. This almost always escalates the case to the level of a felony.
  • Victim Was a Child or Elderly. California law provides additional protections for vulnerable populations. Offenses against children or the elderly are particularly egregious and are therefore more likely to be charged as felonies, mainly if injury occurs. Similarly, if a child witnessed the violence, then the DA might file the incident as a felony offense.
  • Violation of a Restraining Order. If the defendant violated a restraining or protective order to commit the violence, the prosecutor will often file felony charges.

Which Domestic Abuse Crimes are Commonly Charged as Felonies?

Several domestic violence offenses are more likely than others to be charged as felonies in California. These include but are not limited to, the following listed below.

Penal Code 273.5 PC - Corporal Injury on a Spouse or Cohabitant

Under PC 273.5, it is a crime to willfully inflict corporal injury resulting in a traumatic condition upon a spouse, cohabitant, or the parent of one's child. This offense is a wobbler, but it can be charged as a felony if:

  • The victim sustains a visible or verifiable injury.
  • The accused has a history of domestic violence.
  • A weapon was used during the incident.

Penal Code 422 PC - Criminal Threats

Criminal threats occur when someone threatens to commit a crime that will result in death or great bodily injury to another person, causing the victim to be in sustained fear for their safety or their family's safety. This crime can be charged as a felony if:

  • The threat is specific and unequivocal.
  • The victim reasonably fears for their safety or the safety of their immediate family or
  • The accused has a history of violence or prior criminal threats.

Penal Code 646.9 PC - Stalking

Stalking involves repeatedly following, harassing, or threatening someone to the extent that they fear for their safety. This offense can be charged as a felony if:

  • The stalking includes credible threats of violence.
  • The accused has prior stalking convictions or restraining orders against them or
  • The victim is particularly vulnerable (e.g., a minor or elderly person).

Penal Code 273d PC - Child Abuse

Under PC 273d, it is illegal to inflict cruel or inhuman corporal punishment on a child. This offense is typically charged as a felony if:

  • The abuse causes bodily injury and
  • The accused has a prior history of child abuse.

Penal Code 273a PC - Child Endangerment

Child endangerment involves causing or permitting a child to suffer unjustifiable physical pain or mental suffering. Child endangerment can be charged 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 accused has a history of similar offenses or violent behavior.

Penal Code 368 PC - Elder Abuse

PC 368 criminalizes physical or emotional abuse, neglect, or financial exploitation of individuals aged 65 or older. This offense is considered a wobbler, with felony charges applicable when:

  • The victim suffers significant physical injury or emotional trauma.
  • The abuse involved the use of a weapon or other dangerous means or
  • The accused has prior convictions for similar offenses or a history of abuse.

Penal Code 601 - Aggravated Trespassing

California Penal Code 601 PC is the law that law defines aggravated felony trespass as the following:

  • Threatening to injure someone physically and
  • Then, entering that person's home or workplace without permission.

This offense is more severe than misdemeanor trespass in Penal Code 602 PC.

What are the Penalties for a Felony DV Conviction?

When domestic violence charges are felony charges, they can lead to over one year in prison. Still, each case will have various fines, jail or prison sentences, and sentencing enhancements.

For example, the most common felony domestic violence is when it involves a corporal injury defined under Penal Code 273.5, which carries the following penalties:

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

Notably, some sentencing enhancements include the following:

  • An additional and consecutive sentence of three, four, or five years in prison if the domestic violence caused a great bodily injury and
  • Fines of up to $10,000 and two, four, or five years in state prison if the defendant has a prior conviction for certain domestic violence offenses in the last seven years.

Defendants who have been accused of domestic violence often have several legal defenses available, depending on the circumstances. Contact our California criminal defense lawyers for a case review of more information. Eisner Gorin LLP is in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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