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California Domestic Battery Laws

Posted by attorney Seth Weinstein


California authorities take allegations of Domestic Battery very seriously. In nearly all cases, whenever there is just a shred of evidence that Domestic Battery occurred, the police will arrest the individual they believe committed the Domestic Battery. There are several different Penal Code sections that deal with Domestic Battery in California.

Penal Code Section 273.5 is the willful infliction of a corporal (visible) injury upon a family member or cohabitant. This can either be charged as a misdemeanor or felony offense. If charged as a felony and the Prosecutor believes Great Bodily Injury occured, the defendant will face a "strike" under California's "Three Strikes" law. Penal Code Section 243(e)(1) is simple misdemeanor Domestic Battery. No visible injuries need exist for an arrest to be made under this Penal Code Section.

Other crimes often charged in conjunction with Domestic Battery include Penal Code Section 422 (Criminal Threats) and Penal Code Section 166 (Violation of a Protective Order). In some instances, additional charges may include Penal Code Section 646.9 (Stalking), Penal Code Section 591 (Disabling a Telephone or Cable Line) and Penal Code Section 136.1(b)(1) (Dissuading a Witness from Reporting a Crime).

Even though the alleged victim may not want to prosecute the defendant, in most instances, California law requires that the Prosecutor's Office (either the City Attorney or District Attorney) proceed with the case.


Bail amounts for Domestic Battery range from $20,000 to $100,000, depending on whether the charge is a misdemeanor or felony and whether any Enhancements such as Great Bodily Injury are alleged. It is becoming more common to release individuals "OR," or own recognizance, meaning they do not have to post a bail bond, in very minor Domestic Battery situations.

The police may issue an Emergency Order of Protection valid for up to 72 hours on behalf of the alleged victim. This means that any contact by the defendant to the alleged victim can result in additional charges of Violating a Protective Order.

If the alleged victim allows the Emergency Order of Protection to lapse by not filing for a Restraining Order in Civil Court, the defendant will be allowed to contact the alleged victim. However, most Prosecutors will ask a Judge to place a new Restraining Order on the alleged victim's behalf against the defendant on the first Court date (see "What to Expect in Court").


After an arrest for Domestic Battery has been made, the report is usually forwarded to a Detective. The Detective will conduct followup with the alleged victim, any witnesses and possibly the defendant. The defendant must remember that he/she has the right to remain silent and the right to speak with an attorney.

Police Detectives are very skilled in convincing individuals to speak with them. Whatever you say as a defendant can and definitely will be used against you in court. Even if you think you are helping your case by talking to the police, chances are, you are doing more harm than good.

Prior to the Arraignment date, the Detective will forward the report to the District Attorney's Office, or City Attorney's Office (in some jurisdictions). The Prosecutor has the sole discretion on what charges to file. Even if an individual was arrested for a misdemeanor Domestic Battery offense, the Prosecutor can elevate the charge to a felony and vice versa.

What to Expect in Court

If a defendant does not post bail within 48 court hours (not calendar hours), he/she must be seen by a Judge. If the defendant posts bail, the Arraignment date will be moved back anywhere between one and four weeks. If the alleged victim does not renew the Restraining Order, the defendant may contact the alleged victim.

However, at the first Court appearance, the Prosecutor will ask the Judge to place a new Restraining Order on the alleged victim's behalf against the defendant. Most Judges will agree to the request, despite opposition from the alleged victim. In some instances, overriding good cause will convince Judges to modify the Restraining Order to allow the alleged victim and defendant "peaceful contact." Peaceful contact allows parties to live together, see their children together and make joint decisions providing the defendant does not harass the alleged victim.

In felony Domestic Battery matters, the alleged victim does not actually have to testify at the Preliminary Hearing. The Preliminary Hearing is the probable cause hearing to determine whether the Prosecution has enough evidence to bring the matter to felony trial court. The alleged victim does not have to testify due to California Proposition 115. A police officer or Detective who meets certain requirements can testify on the alleged victim's behalf. When the alleged victim wants to press charges, the alleged victim will still be required to testify at either the misdemeanor or felony trial.

Marsy's Law

When the alleged victim communicates his/her desire to drop the charges, the Prosecutor will not dismiss the charges per California state law and office policy. if the alleged victim does not appear in Court, the Prosecutor's Office will attempt to personally serve the alleged victim a subpoena to appear. If the Prosecutor cannot serve the alleged victim, he/she will not be required to appear in Court.

If the Prosecutor successfully serves the alleged victim with a subpoena, he/she is required to appear in Court. However, pursuant to Marsy's Law, the alleged victim may refuse to testify and cannot be jailed. The Court can impose penalties on the alleged victim for refusing to testify, but the penalties cannot include jail.

Even if an alleged victim refuses to testify, the Prosecution can proceed with other evidence. This includes statements made by the defendant to the police as well as other witness testimony.

Consequences to Domestic BatteryConvictions

\* Possible jail time, or in serious matters, state prison

\* Formal Probation

* A lifetime ban on possessing firearms or ammunition

* Presumptions against you in Family Court for Child Custody

* Difficulties obtaining California Professional Licenses


The most important thing to remember when charged with Domestic Battery is to retain the services of a California Domestic Battery attorney. The criminal court process can be daunting and the damage to your life, career and reputation can be minimized with the guidance of a criminal defense attorney.

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