Domestic Violence
Domestic violence is generally defined as physical abuse against someone who lives in the home, or someone the person is married to (or dating) or used to be married to (or used to date), or someone they have had a child with. A "dating relationship" is defined by CALJIC as "frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations."
Domestic violence affects both men and women. Although men are most often accused of domestic violence, women may also inflict domestic violence on loved ones. Domestic violence may be considered a misdemeanor or a felony, depending on the extent of the injury. A felony domestic violence charge is a "wobbler," meaning that it may be convicted and sentenced as either a misdemeanor or a felony. Misdemeanors may be punished by fines and incarceration in a county jail, while felonies may be punished by fines and imprisonment in a state prison. The law defines domestic violence as a battery, however conviction for domestic violence has a more severe punishment and other negative legal implications, affecting freedom and financial obligations.
The persons who fall into the domestic violence category are:
A current spouse (someone you are currently legally married to)
A person who is the parent of the defendant's child
A former spouse (someone you are legally divorced from)
A fiance or fiancée (either a man or woman)
A former fiance or fiancée
A person the defendant is currently dating
A person the defendant used to be in a dating relationship with
Thus, domestic violence includes a husband or ex-husband who beats his wife or ex-wife, a wife or ex-wife who beats her husband or ex-husband, an unmarried person who is beaten by the person with whom she/he lives or has lived, or has or had a child or dates or has dated, and a parent, guardian or other family member who sexually assaults or physically abuses a child in the family. Also included are elderly parents or dependent adults who are beaten by their children or grandchildren or caretakers.
Misdemeanor Domestic Violence
Misdemeanor domestic violence is a battery as defined in the California Penal Code, Section 242, which reads:
"A battery is any willful and unlawful use of force or violence upon the person of another."
The use of the words "force" and "violence" mean the same things in the eyes of the law. Even though a use of force does not leave a mark, it counts as domestic violence. In
addition, even where a person does not feel pain as a result of a domestic violence encounter, but instead has suffered only hurt feelings, the law will consider it a case of domestic violence, so long as some type of force was used.
Misdemeanor domestic violence is described in Penal Code Section 243(e). It is punishable by a fine up to $2,000 or imprisonment in the county jail for up to a year. However, both a fine and imprisonment may be imposed. If a defendant has been convicted of domestic violence before, then the court may also order a minimum confinement period of 48 hours in the county jail. In addition, if probation is granted, or the execution or imposition of the sentence is suspended, the defendant must participate in a treatment program for batterers, or some other counseling program ordered by the court. Further, the court may order the defendant to reimburse the victim for counseling and other expenses associated with the case, and/or order the defendant to donate up to $5,000 to a battered women's shelter. The defendant will not be required to make a donation to a battered women's shelter where it is not financially feasible, or where it would interfere with the ability to pay the victim.
Felony Domestic Violence
Felony domestic violence is described in Penal Code Section 273.5. This section requires a "corporal injury resulting in a traumatic condition." Corporal injury merely means bodily injury. Traumatic condition is generally defined as having internal injuries or external injuries such as wounds. This may mean minor or major injuries, but does not include hurt feelings as misdemeanor domestic violence does. The punishments are significantly greater, as well. Felony domestic violence is punishable by imprisonment in the state prison for 2, 3, or 4 years, or incarceration in a county jail up to a year, and/or fines of up to $6,000 may be ordered. Where a person has been convicted of either misdemeanor or felony domestic violence in the prior 7 years, punishment is incarceration in the county jail for up to one year, or by imprisonment in the state prison for 2, 4, or 5 years, and/or fines up to $10,000.
If probation is granted, the court may order, as a condition of probation, that the defendant be imprisoned in county jail for a minimum of 15 days, but if there has been more than one conviction for domestic violence in the past 7 years, imprisonment for a minimum of 60 days will be ordered. In addition, the defendant must participate in a treatment program for batterers, or some other counseling program ordered by the court. Further, the court may order the defendant to reimburse the victim for counseling and other expenses associated with the case, and/or order the defendant to donate up to $5,000 to a battered women's shelter. The defendant will not be required to make a donation to a battered women's shelter where it is not financially feasible, or where it would interfere with the ability to pay the victim.
However, the court has the discretion to decide, upon a showing of good cause, that the
mandatory imprisonment required by the Penal Code not be imposed.
The Effect of a Domestic Violence Conviction on Firearm Rights
The conviction for a misdemeanor offense of domestic violence has far-reaching effects, beyond the initial punishment. The federal government has imposed strict laws in regard to firearms. Possession of a firearm and/or ammunition after conviction of a "qualifying" domestic violence misdemeanor is a federal crime. Generally, the misdemeanor will "qualify" if the conviction was for a crime committed by an intimate partner, parent or guardian of the victim that required the use or attempted use of physical force or the threatened use of a deadly weapon. This means, that where someone has been convicted of a misdemeanor crime of domestic violence, they lose their rights to carry any firearm and ammunition, for the rest of their lives. This includes sport hunting.
Where someone is convicted of a felony, gun privileges are also lost permanently. Even a successful motion to the court to reduce the felony conviction to a misdemeanor, under Penal Code Section 17 (b), will not lessen the "taint" of the original felony, thus gun rights would not be restored.
In addition, an expungement, under California Penal Code Section 1203.4, will not restore gun privileges.
Thus, for military personnel, law enforcement officers, and security personnel, a conviction for domestic violence results in being fired from their jobs because they are unable to carry a weapon. This means the end of a career for one mistake, even where someone has fulfilled all the other obligations required by the court, in terms of incarceration, fines, and restitution.
Hiring a good lawyer is the best thing that can be done when facing a charge of domestic violence because of the legal, financial, and life implications that a conviction can bring, not to mention the social stigma associated with such a conviction.
