Los Angeles Domestic Violence Felony vs. Misdemeanor Attorney

Domestic violence cases in California are taken very seriously by law enforcement, prosecutors, and courts. The potential consequences can range from informal probation and a brief jail sentence to lengthy incarceration in state prison. Whether a domestic violence offense is filed as a felony or a misdemeanor is critical to understanding the scope of these consequences and how to best navigate the legal process. Below is a comprehensive overview of how felony and misdemeanor domestic violence charges are handled, including specific Penal Code sections, standard jury instructions, and sentencing considerations. This information is provided by Kraut Law Group Criminal & DUI Lawyers and is intended for informational purposes only. If you have been accused or charged with a felony or misdemeanor domestic violence, you need to seek a skilled domestic violence attorney and fight for your rights.

What Is the Difference Between Felony and Misdemeanor Domestic Violence in California?

When a person is arrested on a domestic violence offense, the arresting law enforcement agency forwards their report and evidence to the prosecutor’s office. From there, the prosecutor determines what charges—if any—will be filed. Domestic violence is considered a criminal act of violence, abuse, or threat that occurs within certain intimate or familial relationships, including spouses, former spouses, cohabitants, dating partners, and parents of a child in common.

Whether an offense is charged as a felony or a misdemeanor typically depends on the seriousness of the injuries, the conduct involved, and the defendant’s prior criminal record. The distinction between the two levels of charges is extremely important because:

• A felony conviction can result in a state prison sentence, formal probation, the loss of certain civil rights (including the right to vote while incarcerated), and significant collateral consequences for employment, professional licensing, and housing.
• A misdemeanor conviction carries a maximum of one year in county jail, the possibility of informal (summary) probation, and fewer overall collateral consequences than a felony.
• Still, a misdemeanor on one’s criminal record can also create serious obstacles. Given these distinctions, it is critical for individuals charged with domestic violence to understand exactly what they are facing and how best to defend themselves against it.

What California Laws Apply to a Domestic Violence Charge? 

Corporal Injury on a Spouse or Cohabitant (Penal Code Section 273.5).

One of the most common domestic violence charges is corporal injury on a spouse or cohabitant under California Penal Code Section 273.5. The statute applies to willfully inflicting a “corporal injury” that results in a “traumatic condition” upon a person with whom the accused has a close relationship, such as a spouse, former spouse, cohabitant, co-parent, or fiancé(e). Key elements include:

• Willful infliction of bodily injury
• A resulting “traumatic condition,” which can be any injury, even if minor
• A qualifying relationship between the accused and the alleged victim

Penal Code Section 273.5 is known as a “wobbler” offense. A wobbler can be filed as either a felony or a misdemeanor, depending on the circumstances of the case and the individual’s criminal history. Significant injuries, a history of domestic violence offenses, or the presence of aggravating factors often push the charge toward a felony filing. On the other hand, minimal injuries, no prior record, and other mitigating factors can lead to a misdemeanor filing.

Domestic Battery (Penal Code Section 243(e)(1))

Another frequently charged domestic violence statute is domestic battery under California Penal Code Section 243(e)(1). Domestic battery is typically charged when an individual willfully and unlawfully uses force or violence against an intimate partner, but there is no visible injury or only very minor injury. Even though physical harm may not be serious, the offense is still punishable by law. Unlike Penal Code Section 273.5, domestic battery is always charged as a misdemeanor. That said, it can still carry significant penalties, including up to one year in county jail, fines, mandatory counseling, and protective orders.

Wobblers and Penal Code Section 17(b)

A key concept in California criminal law is the “wobbler.” Certain domestic violence offenses (such as Penal Code Section 273.5) can be charged as either a felony or a misdemeanor. When a prosecutor files felony domestic violence charges, but the defendant’s circumstances warrant more lenient treatment, the defendant—or their attorney—may request that the court reduce the felony charges to a misdemeanor under Penal Code Section 17(b). If a judge grants the request, the offense will be treated as a misdemeanor going forward. This is a critical legal mechanism for individuals charged with domestic violence who seek to avoid the far-reaching impact of a felony conviction.

Standard Jury Instructions for Domestic Violence Cases

California uses CALCRIM (California Criminal Jury Instructions) to guide jurors on the elements they must find to return a guilty verdict. The following are some of the primary CALCRIM instructions relevant to domestic violence charges:

• CALCRIM No. 840 – This instruction covers “Inflicting Injury on a Spouse, Cohabitant, or Fellow Parent Resulting in a Traumatic Condition,” which applies to charges under Penal Code Section 273.5. Jurors learn the elements they must decide upon to determine if the defendant is guilty, including whether the act was willful, the nature of the injury, and the relationship between the defendant and the alleged victim.
• CALCRIM No. 841 – This instruction addresses “Battery Against a Spouse, Cohabitant, or Fellow Parent,” which corresponds to domestic battery under Penal Code Section 243(e)(1). Jurors are instructed on the definition of battery, the need to prove force or violence, the relationship requirement, and the absence of lawful justification.

Properly understanding these instructions is vital for anyone charged with domestic violence. A skilled defense attorney can challenge whether certain elements have been met, raise self-defense or mutual combat arguments, or highlight deficiencies in the prosecution’s case. This is especially important in jury trials, where the defense may be able to show that the state has not proven each element beyond a reasonable doubt.

What Are the Potential Penalties for Domestic Violence Convictions in California?

When someone is convicted of a domestic violence offense—whether a felony or a misdemeanor—they can face a host of potential penalties that extend well beyond incarceration. While each case is unique, some common sentencing factors include:

Jail or Prison Time:

• Misdemeanor domestic violence convictions can result in up to one year in county jail.
• Felony domestic violence convictions can result in multiple years in state prison. For instance, a felony conviction under Penal Code Section 273.5 can carry a sentence of two, three, or four years in state prison. If the victim suffers a serious bodily injury, the penalties can be enhanced.

Probation:

• Misdemeanor domestic violence cases typically involve summary (informal) probation. Offenders may be required to complete a 52-week domestic violence batterer’s intervention program, community service, and pay fines.
• Felony domestic violence cases involve formal probation (also known as felony probation) supervised by a probation officer. Violation of felony probation can lead to being remanded to state prison to serve out the original sentence.

Protective Orders (Criminal Protective Orders):

• Courts often issue protective orders prohibiting the convicted individual from contacting or harassing the victim. In some cases, these orders can restrict all contact (even if the victim wants contact to resume), which may have profound consequences for families, particularly where children are involved.

Firearm Restrictions:

• Federal and state laws generally prohibit individuals convicted of domestic violence crimes from owning or possessing firearms. A violation of these laws can result in additional criminal charges.

 Immigration Consequences:

• Non-citizens convicted of domestic violence crimes can face immigration consequences such as deportation, denial of reentry, or denial of naturalization.

Collateral Consequences:

• A felony record, in particular, can limit job opportunities, professional licenses, and certain public benefits. Even misdemeanor domestic violence convictions can disqualify a person from certain fields of employment or professional licensing boards.

Domestic Violence as a Strike Offense

Some forms of domestic violence can qualify as a strike under California’s Three Strikes Law if the underlying offense is considered a serious or violent felony. For example, assault with a deadly weapon under Penal Code Section 245(a)(1) can sometimes be filed as an act of domestic violence and may also count as a strike if there is great bodily injury or use of a firearm or other deadly weapon. Having a strike offense on one’s criminal record can drastically increase potential sentences for future crimes. The first strike can result in a doubled sentence for a new felony, and by the time a person is facing a third strike, they may be looking at a sentence of 25 years to life in state prison.

Defending Against Domestic Violence Charges

The stakes are incredibly high in domestic violence cases, whether misdemeanor or felony. A qualified defense attorney may be able to employ several strategies to protect their client’s rights, such as:

• Challenging the Prosecutor’s Evidence: This can include questioning the alleged victim’s credibility, the reliability of any third-party witness statements, or inconsistencies in the reporting officer’s narrative.
• Demonstrating Self-Defense or Mutual Combat: If the defendant acted to protect themselves from harm, the use of force might be justified under California law. Sometimes, both parties bear some responsibility, and the prosecution may struggle to prove who initiated the violence.
• Highlighting a Lack of Injury or Substantial Harm: If injuries were minor or non-existent, an attorney may negotiate for a misdemeanor charge or dismissal.
• Exploring Alternative Sentencing Options: For individuals who struggle with anger management, mental health issues, or substance abuse, there may be rehabilitative programs that better serve both the accused and society.

Reducing a Felony to a Misdemeanor or Seeking Expungement

In addition to exploring potential defenses, individuals charged with a felony domestic violence offense can sometimes seek a reduction of charges under Penal Code Section 17(b). If granted, the conviction is reduced to a misdemeanor. This can be especially beneficial for future career prospects, licensing considerations, and general quality of life. Moreover, once a misdemeanor or felony sentence has been completed—including any probationary terms—a defendant may be eligible for expungement. While an expungement does not erase the conviction, it allows an individual to withdraw their plea or have their conviction set aside in the interests of justice. This process can be pivotal for those seeking to move on with their lives after a domestic violence conviction.

Why Do You Need an Experienced Domestic Violence Attorney?

Domestic violence cases are handled by specialized units within the prosecutor’s office. Prosecutors are well-versed in the relevant laws, have the support of victim advocates, and often move to maximize criminal penalties to demonstrate a tough stance on domestic violence. A defense attorney who understands this area of law can:

• Conduct a thorough investigation of the facts
• Review all available evidence, including body camera footage, medical records, and witness statements
• Build a strategic defense that raises reasonable doubt
• Argue persuasively for the reduction of charges or alternative sentencing
• Secure the best possible outcome under the circumstances

Consult With Kraut Law Group Criminal & DUI Lawyers

Kraut Law Group Criminal & DUI Lawyers, led by former Deputy District Attorney Michael Kraut, provides steadfast representation for individuals charged with both felony and misdemeanor domestic violence offenses. With over 14 years of prosecutorial experience, Michael Kraut knows how the other side thinks and strategizes. This insight can be invaluable for those trying to avoid life-altering penalties such as state prison, the stigma of a felony record, and the loss of professional opportunities.

Kraut Law Group Criminal & DUI Lawyers is located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. If you or a loved one has been arrested for a domestic violence offense, contact Michael Kraut at 888-334-6344 or 323-464-6453. The office can be reached 24/7 to answer questions and schedule a free consultation to discuss your legal options.

Ultimately, how a domestic violence case is charged and resolved can shape the course of your life—your career, your family relationships, and your reputation. Understanding the distinction between felony and misdemeanor charges is a critical first step, and seeking knowledgeable legal counsel is often the next. Kraut Law Group Criminal & DUI Lawyers is committed to ensuring that every client’s rights are defended and that their case is handled with the utmost care and expertise. By fully understanding the applicable Penal Code sections, jury instructions, and sentencing guidelines, those accused of domestic violence can make informed decisions about how to proceed and protect their futures.