What Are 5 Situations Where Domestic Violence is a Felony?

Posted by Neil Shouse | Jul 15, 2019 | 0 Comments

man clenching fist at woman

There are at least five situations where a person could be charged with felony domestic violence (DV) in California. Felony charges under Penal Code 273.5 could be filed if a person:

  1. inflicts corporal injury resulting in a traumatic condition upon an intimate partner,
  2. commits DV and has certain prior battery convictions within 7 years,
  3. commits DV and has a prior domestic battery conviction within 7 years,
  4. commits DV causing serious bodily injury,
  5. commits DV with force likely to cause great bodily injury.

Domestic violence is a special relationship crime and there must be a prior relationship between the accused and the victim. The victim must be one of the following:

  • a spouse or former spouse,
  • a cohabitant or former cohabitant,
  • a fiancé or fiancée,
  • someone with whom the accused has, or previously had, an engagement or dating relationship, or
  • the mother or father of the accused's child.

In California, domestic violence is classified as a wobbler, which means that it can be charged as either a felony or a misdemeanor. Facts important to a prosecutor in deciding whether to file a felony or a misdemeanor are:

  • the extent of the victim's injuries,
  • the facts of the case,
  • the accused's prior criminal history.

Corporal injury under Penal Code 273.5 means any physical injury, whether serious or minor.

Traumatic condition means any wound or other bodily injury caused by the direct application of physical force.

A conviction for domestic violence is punishable by imprisonment in:

  • state prison for two, three, or four years, OR
  • county jail up to one year, and
  • $6,000 fine.

Defenses to a charge of domestic violence include:

  • self-defense or defense of others,
  • accident or mistake,
  • the accusations are false or contrived.

Can A Person Be Charged with Felony Domestic Violence for Causing Minor Injuries?

Yes. The relationship of the parties is what distinguishes felony domestic violence from other felony assault and battery crimes. Domestic violence can be committed when an accused inflicts even minor injury.

California courts have stated that:

Other felonies require serious or great bodily injury. The Legislature has clothed persons in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed. People v. Wilkins (1993) 14 Cal. App. 4th 761.

Under California Penal Code 273.5, any person who willfully inflicts corporal injury resulting in a traumatic condition upon an intimate partner is guilty of a felony.

Traumatic condition means any wound or other bodily injury caused by the direct application of physical force. It does not need to be serious -- a minor wound or injury is enough.

In this example from a California case, the court found there was NOT domestic violence:

The defendant slapped his wife several times but there was no evidence of even a minor injury. The soreness and tenderness the wife experienced did not constitute a traumatic condition, and the statute requires injury from a traumatic condition, even though the injury may be minor. People v. Abrego (1993) 21 Cal. App. 4th 133.

Please note that in this example the accused was still guilty of misdemeanor battery for slapping his wife.

What is the punishment for felony domestic violence in California?

Under Penal Code 273.5, any person who commits domestic violence is guilty of a felony, and upon conviction shall be punished by:

  • two, three, or four years state prison,
  • up to one-year county jail,
  • a $6,000 fine.

If a person has certain prior assault or battery convictions within seven years of a new crime the punishment could be increased to:

  • two, four, or five years state prison, OR
  • up to one-year county jail, and
  • a $10,000 fine.

It is also possible for a prosecutor to add a great bodily injury enhancement to a domestic violence charge under Penal Code 12022.7(a). The additional punishment for this enhancement is:

  • three years state prison.

This great bodily injury enhancement is required to run consecutive to any other punishment.

If probation is granted to any person convicted of domestic violence, under Penal Code 1203.097 the court must impose certain probation conditions. These conditions include:

  • three years probation (minimum),
  • a criminal protective order (CPO) protecting the victim from further acts of violence, threats, abuse, and harassment,
  • enrollment in and successful completion of a batterer's program,
  • community service.

IMPORTANT: A domestic violence conviction results in the loss of the right to own a firearm.

What are some defenses to felony domestic violence?

Domestic violence accusations often come up in divorce or child-custody related situations. It is not unusual for a “victim” to make false or exaggerated claims. Defenses to domestic violence claims could include:

  • self-defense or defense of others,
  • accident or mistake,
  • false accusations.

If falsely accused of domestic violence it is very important to immediately begin building a defense. Similar to a police investigation for the prosecution, it is vitally important for an accused to (at a minimum):

  • consult with an attorney,
  • locate any pictures and/or videos,
  • review medical records,
  • obtain witness statements.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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