Domestic Violence as a Felony or Misdemeanor

Posted by Ronald D. HeddingDec 06, 2019

The dividing line between felonies and misdemeanors related to California domestic violence-related offenses is important because nobody wants to get hit with a felony. After all, if you get charged with a felony in a domestic violence case, you're looking at prison time, loss of weapons, and the ability to vote.

There are all sorts of nasty things that flow from a felony.  Plus, when somebody runs your criminal record, they'll see that you have a felony on your record.  That's a bad stigma that comes along with these sorts of offenses.

So, people usually ask me how we know whether it will be charged as a felony or a misdemeanor.  Usually, in domestic violence cases, people are being booked with like a $50,000.00 bail, so they think that they're going to be charged with a felony when a lot of times, they probably won't be charged with a felony.  About 90% of arrests in Los Angeles County for domestic violence cases do not result in felony filings.

So, the question becomes, what does trigger a felony filing?  One example of felony filings is if you have a prior domestic violence case and now pick up a new one.  Domestic Violence Penal Code Section 273.5 is a wobbler, meaning it could be filed as a felony or misdemeanor.

It will be at the prosecutor's discretion whether they want to file it as a felony.  If you've got another domestic violence case and now you've picked up a new one, especially if it involved the same victim, there's a high probability it will be charged as a felony.  It doesn't have to be, but there's a high probability it will.

Serious Bodily Injury Felony Domestic Violence

Another example of when you can expect a felony charge filed against you is when the victim has a severe injury, even significant bodily injury, or some mayhem where they've disfigurement. The prosecutor could allege a great bodily injury in a domestic violence case.

Domestic Violence as a Felony or Misdemeanor in Los Angeles

Then you could rest assured a felony will be charged against you.  To determine whether it's a serious enough injury, the types of injuries that you can expect to be serious enough for felony purposes would be any broken bones, scarring, lacerations requiring stitches, and disfigurement of the victim — any actual bad serious injury.

Sometimes I find myself arguing with the judge about whether or not it's severe enough of an injury for it to be a felony charge.  Then you've got to get into the whole issue of serious injury versus significant bodily injury.

If the injury is bad enough, they can charge great bodily injury.  In that circumstance, you could be looking at an additional three years in prison, and the six years, you're looking at a high term for the domestic violence charge.  So, that's nine years right there.  That puts you in a bad position when the injury is bad enough to be considered great bodily injury versus serious injury.

The distinction between the two is really like splitting hairs. Often, you need an excellent criminal defense attorney to argue if they've changed a great bodily injury to try to get that enhancement struck because that also makes the case a strike.

For any crime in Los Angeles County under the three-strikes law where significant bodily injury is proved, the person has a strike on their record for the rest of their life.  It also means that any tie you serve, whether in county jail or prison, will be done at 85% because it has turned into a violent felony.

So, you do not want a felony at all costs.  If the injury is bad enough, you're in a challenging position. You want to get an attorney immediately and let that attorney start working on your case to avoid some of the horrible ramifications of a felony domestic violence-related case.

If the case is charged as a misdemeanor, which most cases are, you're in a much stronger position to stay out of prison.  You can't go to jail for a misdemeanor related to a domestic violence-related offense.

The most time you could be given would be a year in the county jail.  Often, you could even avoid jail time in a domestic violence case if you have a good attorney and some of the good factors you need to stay out of jail, like a job, no prior criminal record, no bad injuries to the victim.

Domestic Violence While Children Present

Another area where I see people getting thrown in jail is when kids are involved — if you're battering a child or if your child is present when the domestic violence occurs, that tends to irk prosecutors and judges. You could probably expect they will want some jail time if you put yourself in the position where your children are watching you batter your significant other.

So, as you can see, many of these cases spin on the facts of whatever happened.  That's why it's so important to get somebody like me who's been doing this for twenty-five years because I've seen so many different variations and situations. I know how to make the correct argument so that the prosecutors will look at the other side of the coin — the other side of you — so you could end up with the best result in your criminal case.

How to Get the Best Sentence in a Domestic Violence Case?

Sentencing is vital in domestic violence cases, and if you end up having to plead guilty or no contest in the case, you should start thinking about your sentencing right from the beginning. What I have you do is come in.  We meet.  We review all of the evidence in the case and decide first whether we will fight it or resolve it.

If we decide to resolve it, we will start talking about sentencing.  First, we'll talk about what charge or charges you might have to plead guilty or no contest to; then we'll talk about what that looks like at sentencing, such as the following:

  • Are you going to have to do the 52-week domestic violence course?
  • Are you facing jail or prison time?
  • Will you be on probation for three to five years?
  • Will you have to do community service, Cal Trans, and community labor?
  • Will you have to do AA meetings?
  • Was there alcohol involved in your domestic violence case?
  • Will there be a protective order issued?

If a protective order is issued, will you still be able to see your significant other, or will you be blocked from seeing your significant other and be in a position where you can end up in jail if you violate a particular protective order?

Experienced Domestic Violence Defense

These are all things that we talk about right from the beginning. So it would be best to have an attorney like me who's been doing it for 30 years because I've traveled the road you're about to travel. I've gotten great results in domestic violence cases.  I've helped guide people through some of the most challenging times. 

When you get arrested and put in the back of a police car and have to post a $50,000.00 bail, and you can't get out, that turns your whole world upside down.  So, it's my job to set things straight.  It's my job to fight for you and get you the best possible result in your case.

So, we start talking about sentencing as soon as we're in a position where we've decided you will work out a deal. Because we want to know exactly what terms of sentencing you can deal with and what terms of sentencing you can't deal with. 

A perfect example of when it's essential to have an attorney defending you is when there is a protective order situation. You want the attorney to argue and ensure you can see your significant other if you choose to do that. 

Because one thing the court and prosecutors always do in domestic violence cases is put a protective order in place to protect the other party, so that's something that you want to talk about with your attorney.

You will have to decide whether you want to see the other party and whether the other party wants to see you – and then your attorney can make the moves to put you in the best position not try to be able to get back together with your significant other if that's what you choose to do. You've come to the right place if you need the best domestic violence attorney.  Pick up the phone now and ask for a meeting with Ron Hedding.

Domestic Violence Defense