California Penal Code Elements for Domestic Violence
California Penal Code 13700 defines “domestic violence” as abuse committed against an intimate partner.
A person commits “abuse” when he or she intentionally or recklessly uses, or threatens to use, physical force against an intimate partner.
An “intimate partner” can include a current or former spouse, a current or former registered domestic partner, a current or former fiancé, a current or former live-in romantic partner (cohabitant), a person the accused has a child with, the accused’s child, family by blood or marriage within the second degree, or someone the accused is seriously dating or seriously dated in the past.
Common Related Domestic Violence Crimes
Common domestic violence crimes in California include battery, abuse, threats, and neglect. Some of the crimes are misdemeanors, while others are felonies.
“Wobbler” Offenses
Most of these crimes are considered “wobbler” offenses, meaning they can be charged as a misdemeanor or a felony depending on various circumstances, the seriousness of the alleged victim’s injuries, and the defendant’s criminal record.
Domestic Battery Definition
Penal Code 243(e)(1), or domestic battery, is a misdemeanor crime upon a first offense, and it is committed when the accused inflicts force or violence on an intimate partner. Visible injury is not required.
Punishments for the misdemeanor can include a fine with a maximum of $2,000 and/or a maximum county jail sentence of one year.
Inflicting Corporal Injury on an Intimate Partner Definition
Penal Code 273.5, or inflicting corporal injury on an intimate partner, makes it illegal to inflict corporal injury that results in even a slight physical injury to an intimate partner. This is a felony and the possible punishments range from one year in county jail up to four years in a California state prison.
Child Abuse Definition
Penal Code 273d, or child abuse, makes it illegal to inflict corporal punishment or injury upon a child. Reasonable “spankings” are excluded. However, any punishment that is cruel or causes injury to the child is considered child abuse. Penalties for a first offense child abuse conviction can include up to one year in county jail or up to three years in a state prison.
Child Endangerment Definition
Penal Code 273a, or child endangerment, makes it illegal to willfully allow a child in one’s care to suffer harm or have his/her safety or health endangered. If the child is at risk of great bodily injury, the crime is a wobbler; otherwise child endangerment is a misdemeanor punishable by up to six months in county jail.
Child Neglect Definition
Penal Code 270, or child neglect/failure to provide, makes it illegal for a parent to willfully fail to provide necessities (i.e. food, shelter, medical care) to his or her minor child. Child neglect is a misdemeanor and is punishable with a maximum fine of $2,000 and/or a maximum of one year in county jail.
Elder Abuse Definition
Penal Code 368, or elder abuse, makes it illegal to inflict any of the following on a victim that is 65 years or older:
· Physical abuse
· Emotional abuse
· Neglect
· Endangerment
· Financial fraud
Criminal Threats Definition
Penal Code 422, or criminal threats, makes it illegal to threaten someone with serious harm. PC 422 may be charged is a wobbler offense and can be charged as a misdemeanor or felony. As a misdemeanor, it is punishable up to one year in county jail. As a felony, it is punishable up to four years in prison.
Additionally, a felony conviction for criminal threats counts as a strike under the California “three strikes” law.
Stalking Definition
Penal Code 646.9, or stalking, makes it illegal to harass or threaten another person to the point at which the person fears for his/her safety or the safety of his/her family. Depending on the defendant’s criminal history, stalking can be a misdemeanor or a felony. As a misdemeanor, it is punishable up to one year in jail. As a felony, it is punishable up to three years in state prison.
Aggravated Trespass Definition
Penal Code 601, or aggravated trespass, is when the accused makes a criminal threat and within the next 30 days enters that person’s home or workplace to carry it out. Aggravated trespass can be either a misdemeanor or a felony. Punishment for a felony violation can include up to three years in jail.
Revenge Porn Definition
Penal Code 647(j)(4), or revenge porn, is a misdemeanor crime that is a type of “cyber-harassment.” It occurs when someone intentionally distributes sexual photos of another person with the intent to cause that person emotional distress. Revenge porn is punishable with a fine up to $1,000 and up to one year in county jail.
Posting Harmful Information Defintion
Penal Code 653.2, or posting harmful information on the internet, consists of posting or emailing harmful information about someone with the intent of cause other people to harass that person. This crime is a misdemeanor and is punishable by a fine up to $1,000 and/or one year in jail.
Domestic Violence Conviction Penalties in California
No matter the conviction, a 30-day minimum day sentence is likely. From there the penalties can include a broad range of additional penalties.
In addition to a possible jail or prison sentences, misdemeanor probation, or felony probation, the consequences for a domestic violence conviction in California can include:
· Mandatory minimum jail time
· Mandatory participation in a “batterer’s intervention program” (i.e. domestic violence classes)
· Fines and/or restitution paid to the victim
· Payment of victim’s medical bills or lost wages
· A restraining order (i.e. protective order)
· Loss of child custody rights
· Loss of California gun rights
· A permanent criminal record, and/or
· Immigration consequences for non-citizens, such as deportation or inadmissibility into the United States.
Possible Probation Sentence
It is possible for a judge to sentence a defendant to probation instead of jail. However, this is more likely if the conviction is the defendant’s first, or if the injuries involved were minor or non-existent; thus probation is more likely for a misdemeanor sentence, rather than a felony sentence.
Legal Defenses to Domestic Violence
It is advised to retain an experienced criminal attorney to help people fight domestic violence charges. There are multiple legal defenses that may help to reduce or dismiss domestic violence charges. These include:
· The act was an accident
· The injuries to the victim weren’t a result from the defendant’s actions
· The defendant acted in self-defense or defense of another person, or
· The victim made a false accusation
Pre-Trial Diversion
Additionally, the accused’s criminal attorney may be able to bargain with the prosecution in order to allow the defendant to enter a pre-trial diversion program in lieu of prosecution on the domestic violence charge(s).
If the defendant is successful in the diversion program, the charges are typically dismissed.
