The dividing line between felony and misdemeanors as it relates to domestic violence-related offenses is important, because obviously, nobody wants to get hit with a felony, because if you get charged with a felony in a domestic violence case you’re looking at prison time, loss of weapons, loss of the ability to vote.
There’s all sorts of bad things that flow from a felony. Plus, when somebody runs your criminal record they’re going to see that you have a felony on your record. That’s a bad stigma that comes along with these sorts of offenses.
So, what people usually ask me is, how do we know whether it’s going to 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. In fact, I’d say about 90% of arrests in Los Angeles County for domestic violence cases do not result in felony filings.
Prior Domestic Violence Case
So, the question becomes, what does trigger a felony filing? One example where I’ve seen felony filings is if you have a prior domestic violence case and you 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 discretion of the prosecutor 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’s going to 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 to have a felony charge filed against you is when the victim has a serious injury or even great bodily injury or some mayhem where they’ve got disfigurement. In more serious cases, the prosecutor could allege a great bodily injury in a domestic violence case.
Then you could be rest assured a felony will be charged against you. In order 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 obviously be any broken bones, any scarring, any lacerations that require stitches, any disfigurement of the victim — any real bad serious injury.
Sometimes I find myself arguing it out with the judge whether or not it’s serious enough of an injury in order for it to be a felony charge. Then you’ve got to get into the whole issue of serious injury versus great 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 in addition to the six years you’re looking at high term for the domestic violence charge. So, that’s nine years right there. That puts you in a real 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 and a lot of times you really need a good criminal defense attorney to argue if they’ve charged a great bodily injury to try to get that enhancement struck because that also makes the case a strike.
Any crime in Los Angeles county pursuant to the three strikes law where great bodily injury is proved, the person has a strike on their record for the rest of their life. It also makes it that any tie that you serve, whether it be in county nail or prison, will be served at 85% because it has turned it into a violent felony.
So, obviously, you do not want a felony at all costs. If the injury is bad enough you’re in a real difficult position and you want to get an attorney right away and let that attorney start working on your case so you can avoid some of the horrible ramifications that come from 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. In fact, you can’t go to prison 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. A lot of times you could even avoid jail time in a domestic violence case if you have a good attorney and you have some of the good factors that you need in order 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 takes place — that really tends to irk prosecutors and judges and you could probably expect they’re going to 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 a lot of these cases just 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 — so many different situations.
I know how to make the right argument so 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.
Categorised in: Domestic Violence