Fresno Criminal Defense & DUI Attorney breaks down the elements of a common Domestic Violence Charge
Penal Code Section 273.5 is a domestic violence charge that can be either a misdemeanor or a felony. A charge that can be either a misdemeanor or a felony is commonly referred to as a "wobbler" in the criminal justice system.
The Penal Code Section 273.5. Felony to inflict corporal injury on Current or Former spouse or cohabitant; Conditions of Probation;
(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.
(b) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is no necessary to constitute cohabitation as the term is used in this section.
(c) As used in this section, "traumatic condition" means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of minor or serious nature, caused by a physical force. For purposes of this section, "strangulation" and "suffocation" include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.
(d) For the purpose of this section, a person shall be considered the father or mother of another person's child if the alleged male parent is presumed the natural father under Sections 7611 and 7612 of the Family Code.
(e)(1) Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.2, 244, 244.5 or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars (10,000).
(2) Any person convicted of a violation of this section for acts occurring within seven years of a previous convictions under subdivision (e) of Section 243 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to ten thousand dollars ($10,000), or by both that imprisonment and fine.
(f) If probation is granted to any person convicted under subdivision (a), the court shall impose probation consistent with the provisions of Section 1203.097.
(g) If probation is granted, or the execution or imposition of a sentence is suspended, or any defendant convicted under subdivision (a) who has been convicted or any prior offense specified in subdivision (e), the court shall impose one of the following conditions of probation:
(1) If the defendant has suffered two or more prior convictions within the previous seven years for a violation of any offense specified in subdivisions (e),, it shall be a conditions of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 60 days.
(3) The court, upon a showing of food cause, may find that the mandatory imprisonment required by the subdivisions shall not be imposed and shall state on the record its reasons for finding good cause.
(h) If probation is granted upon conviction of a violation of subdivisions (a), the conditions of probation may include, consistent with the terms of probation imposed pursuant to Section 1203.097 in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's shelter, up to a maximum of Five thousand dollars ($5,000), pursuant to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct results of the defendant's offense.
For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivisions, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a marred person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.
(i) Upon conviction under subdivision( a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant sentenced to sate prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation.
I was convicted of Domestic Violence, can I still own guns? If I get convicted of Domestic Violence, will I lose my gun rights?
FIREARMS RESTRICTION: Be aware that a conviction under PC 243 Domestic Violence or 273.5 will result in a lifetime firearm prohibition upon the person who was convicted. California Law requires a 10-Year Prohibition because PC 243 and 273.5 are considered a violent misdemeanor. However, under the Lautenberg amendment to the Gun Control Act of 1968, A person convicted of a misdemeanor crime of domestic violence (MCDV) will be prohibited from owning an/or possessing firearms for the duration of their lifetime. (See Firearms Laws)