Domestic Disputes

It is illegal to commit an assault, battery or criminal threat against anyone. But if the alleged victim is your fiancé, spouse, dating partner or the parent of your child, California domestic violence laws make the allegation significantly more serious.

Nearly every district attorney’s office in California has a special unit dedicated to prosecuting domestic violence cases. They typically proceed with the case even if the accuser “recants” or insists he/she does not want to press charges. Furthermore, most counties impose jail time for domestic abuse convictions, even in first-offense misdemeanor cases.


The consequences of a conviction can last a lifetime. These crimes carry heavy fines, mandatory classes, and prison sentences. They are defined as crimes of moral turpitude. Moreover, some convictions can be considered “strike” offenses with regards to the Three Strikes Law. Domestic violence crimes also can have grave immigration consequences and can lead to deportation from the United States. In instances where children are involved, a conviction of a domestic violence crime in can lead to losing custody of children.

The priority of the police after the 911 call is placed is to make an arrest. The prosecution’s priority is making sure obtain a conviction. The system is not interested in what really happened in the relationship, what the fight was about, if the victim was the instigator, or that he or she was the aggressor and you were trying to defend yourself. Unfortunately, there are no safeguards in place to protect innocent men and women from being accused and charged for something they did not do. Even more unfortunate is that gender often plays a significant role in domestic violence cases; men are almost always the accused. Whoever made the 911 call will almost always be defined as the victim.


There is a misconception that a spouse, partner, girlfriend, etc., can drop the charges after he or she has called the police and you have been arrested. That is not true. The District Attorney’s office will not drop the charges in a domestic violence case simply because the victim has a change of heart weeks or months later. The decision to file or not file a case is the sole decision of the District Attorney. The decision will be based on what is said on the 911 call, what is written in the police report, whether or not there were any injuries, and whether or not there have been any prior acts of domestic violence or criminal history. Under Evidence Code section 1109, the District Attorney can make a motion to introduce evidence of prior acts of domestic violence, whether they were charged as crimes or not, and including acts of domestic violence against persons other than the alleged victim in your case.


California Penal Code section 273.5 (Corporal Injury on a Spouse or Cohabitant) is the most commonly used criminal charge in domestic violence cases. In order to convict someone of the charge, the prosecution must prove that you:

  1. Willfully and intentionally inflicted a bodily injury; and
  2. The injury was inflicted on your current or former spouse, partner, girlfriend, or someone with whom you have had a sexual relationship, or a person with whom you have a child together.

Penal Code section 273.5 is known as a “wobbler.” Charges can be filed as a misdemeanor or as a felony. Whether the case is filed as a felony or a misdemeanor depends on the gravity of the injuries. Whether the case is pled or sentenced as a felony or misdemeanor will depend on the expertise and experience of your attorney.

Penal Code section 243(e)(1)(Battery or Cohabitant or Spouse), is defined almost exactly the same as Penal Code section 273.5, except that the prosecution does not have to prove that there was an injury. Further more, Penal Code section 243(e)(1) is a misdemeanor. The District Attorney’s office will almost always file this charge when the supposed victim was pushed, allegedly pushed, or shoved. In most of these cases, there was no crime committed, only a simple misunderstanding or an accidental touching. Yet the “system” is focused on arrests and convictions instead of the truth, resulting in these cases being filed all the time. Although a violation of Penal Code section 243(e)(1) cannot result in a prison sentence, a plea to or a conviction to this crime can have many of the previously listed consequences.

California Penal Code section 422 (Criminal Threats) is charged whenever the alleged victim makes the claim that the accused threatened them. The relevant part Penal Code section 422 demands that the prosecution proves beyond a reasonable doubt that the accused “willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is taken as a threat.” In other words, the prosecution can use the unfortunate statements couples say to each other during a fight to charge you with a crime.

Although Penal Code section 422 is a “wobbler” and can be filed as a misdemeanor or a felony, if it is filed as a felony, it is considered a “strike” for purposes of the Three Strikes Law. Obviously, if the accused pleas to such a charge or is found guilty of it by a jury, it can, and will, have life altering consequences. The fact that these charges came out of a verbal argument that the accused and the victim had, does not mean that accused should take it lightly. A charge of Penal Code section 422 is serious enough to be a “strike” if it is filed as a felony.

Three other charges that are commonly used in domestic disputes are Penal Code section 646.9 (Stalking and Cyber-Stalking), Penal Code section 273.6 (Violating A Domestic Violence Protective Order) and Penal Code section 653m (Making Annoying Phone Calls). Although these crimes are either misdemeanors or (in the case of Penal Code section 646.9) “wobblers” that are usually charged as misdemeanors, they should be taken very seriously if you are accused of committing any of them. All three of these crimes carry the possibility of jail time, probation, high fines and mandatory classes. Moreover, they can have disastrous effects on your career, work prospects, immigration status, and the custody of your children.