Domestic violence charge in California: what happens to your case, your home and your children?

In California, the two main domestic violence charges are domestic battery, a misdemeanor with up to one year in county jail (Penal Code § 243(e)(1)), and corporal injury to a spouse or partner, which can be a felony (§ 273.5(a)). A criminal protective order can keep the accused out of the home from the first court date. A conviction can also affect custody (Family Code § 3044) and gun rights.

A domestic violence case is three problems at once: the criminal charge, the home, and the children. A person can be arrested on a Friday night in Irvine or Mission Viejo and, by Monday, be under a court order not to go home or contact their spouse, while the family court has not yet heard a word. This page explains how these cases move through the Orange County courts, what the Penal Code requires if probation is granted, and how the criminal case reaches into custody, firearms and immigration. It sits under the firm's criminal defense and family law practice areas.

How a domestic violence case moves in Orange County, step by step

1. The call and the arrest. Officers respond to a call, speak with both people, and often arrest someone. When the accusation is battery, it is charged as domestic battery if the other person is a spouse, cohabitant, co-parent, fiancé or fiancée, or a current or former dating partner (§ 243(e)(1)).
2. Bail and the open-court rule. Domestic battery and felony corporal injury are on the list of offenses for which a judge may not release on own recognizance, or set bail different from the schedule, without a hearing in open court with two court days' notice (§ 1270.1(a)). The page on how bail and release work in California explains that hearing.
3. The criminal protective order. When there is good cause to believe harm or intimidation of a victim or witness has occurred or is reasonably likely, the criminal court may issue protective orders, including an order that the defendant have no communication with the protected person except through an attorney (§ 136.2(a)(1)). A child who was present during an act of domestic violence is treated as a witness (§ 136.2(a)(2)). A person subject to such an order may not own, possess, buy or receive a firearm while it is in effect (§ 136.2(d)(1)).
4. Arraignment. Misdemeanor cases from Irvine, Newport Beach, Laguna Niguel, Mission Viejo and the rest of south county are heard at the Harbor Justice Center in Newport Beach; felony hearings from every Orange County city are held at the Central Justice Center in Santa Ana. Many in-custody arraignments take place in Department CJ1 inside the Men's Central Jail complex in Santa Ana.
5. The family court track. A separate request for a domestic violence restraining order, and any custody case, is heard in family court. In Orange County, the Lamoreaux Justice Center, 341 The City Drive South, Orange, handles family law and domestic violence matters. If a criminal protective order already exists, a custody or visitation order made afterward must refer to it (§ 136.2(e)(3)).
6. Pretrial and resolution. The defense examines the 911 call, body-camera video, photographs, medical records, messages and witness accounts. The case ends in dismissal, a plea, or trial. Domestic violence charges cannot be sent to the general misdemeanor diversion program (§ 1001.95(e)(2)).
7. If probation is granted. The Penal Code sets mandatory terms for probation in these cases, listed in the table below (§ 1203.097(a)).

Domestic battery or corporal injury: why the label matters

Battery is "any willful and unlawful use of force or violence upon the person of another" (§ 242). When the other person is a spouse, cohabitant, co-parent, fiancé or dating partner, it becomes domestic battery under § 243(e)(1). No visible injury is required. Corporal injury under § 273.5 requires more: an injury that results in a "traumatic condition", which the statute defines as a wound or external or internal injury, including injury from strangulation or suffocation, whether minor or serious. Because § 273.5 can be punished either in state prison or in county jail, the court has power to treat it as a misdemeanor in the circumstances set out in Penal Code § 17(b). The charge matters well beyond the sentence. It changes the bail process, the firearm consequences and, for a parent, what the family court presumes.

What changes the answer?

• Injury. A traumatic condition turns a battery case into a possible felony under § 273.5(a). Allegations involving strangulation are named in the statute itself (§ 273.5(d)).
• Prior convictions. A § 273.5 conviction within seven years of a listed prior raises the range, and if probation is granted, the court must order at least 15 days in jail for one prior, or 60 days for two or more, unless it finds good cause (§ 273.5(f), (h)). After a prior conviction for domestic battery or § 273.5, a new domestic battery with probation brings at least 48 hours in jail unless the court finds good cause (§ 243(e)(3)).
• Children in the home. A child present during the incident is a witness for protective order purposes (§ 136.2(a)(2)). In family court, a finding that a parent committed domestic violence within the past five years creates a rebuttable presumption that awarding that parent sole or joint custody is against the child's best interest (Family Code § 3044(a)). A conviction within five years for a crime such as § 243(e) or § 273.5 against the other party satisfies the finding (§ 3044(d)(1)). The page on how California courts decide custody and visitation covers the rest of that analysis.
• Firearms. A misdemeanor conviction for battery (§ 243) or for § 273.5 is on the list that bars owning or possessing a firearm for 10 years (Penal Code § 29805(a)). For a misdemeanor § 273.5 conviction on or after January 1, 2019, the ban has no 10-year limit (§ 29805(b)). Anyone subject to a protective order also may not have firearms or ammunition while it lasts (Family Code § 6389(a)). More on this is on the page about weapon and firearm charges in California.
• Diversion. The general misdemeanor diversion statute does not apply to any offense involving domestic violence (§ 1001.95(e)(2)).
• Citizenship. Before a guilty or no contest plea, the court must warn a noncitizen that a conviction may lead to deportation, exclusion or denial of naturalization (§ 1016.5(a)).

Questions clients ask about domestic violence charges

• Domestic violence charge in California: what does a criminal protective order mean for your home and children?
• Domestic battery or corporal injury: what is the difference in California?
• Accused of violating a restraining order in California: what are the penalties?
• Domestic violence restraining order in Orange County: how does it work at Lamoreaux?
• Will a conviction or restraining order stop you from owning a gun in California?
• Felony or misdemeanor: can a "wobbler" be reduced in California?
• Not a U.S. citizen: how can a California criminal case affect your green card or visa?
• Can you travel outside the U.S., for example to Iran, while a California criminal case is open?
• Can you clear a criminal record in California? Dismissal under Penal Code 1203.4
• Can you undo an old California conviction that now causes immigration problems? Penal Code 1473.7

A worked example

For example, picture a couple in Mission Viejo, married for twelve years, with two children in middle school. This is a made-up situation, not a real case. During an argument about money sent to relatives in Shiraz, the husband grabs his wife's arm and she falls against a cabinet, leaving a bruise. A neighbor calls 911, and officers arrest the husband. His wife's English is limited, and the first thing she tells the officers, in Persian through her teenage son, is that she does not want him arrested.

By Monday, he is facing a possible § 273.5 charge because of the bruise, a criminal protective order keeps him out of the house, and the order allows contact with his wife only through an attorney (§ 136.2(a)(1)(D)). His son, who was home, is a witness under § 136.2(a)(2). He wants to call his wife to "explain things", and he cannot. He also had a trip planned to Iran for his father's memorial; if he is released on his own recognizance, he has promised not to leave California without the court's permission (§ 1318(a)(3)).

His defense starts with the facts: what the 911 call and body-camera video show, whether the injury meets the "traumatic condition" definition, and what both spouses actually said. The family side runs in parallel. If his wife files for divorce or custody at Lamoreaux, the custody order must refer to the criminal protective order, and a conviction within five years would trigger the § 3044 presumption. The firm's page on how divorce works in California explains that process. He holds a green card, so before any plea he should also consult a separate immigration attorney; this office does not give immigration advice. A Persian-speaking relative can help with documents and dates, while the facts of the night are discussed only between him and his attorney.

Common mistakes in domestic violence cases

• Contacting the protected person. A text, a call through a relative or a message on social media can violate the order. A violation can be punished as a crime or as contempt (§ 136.2(b)).
• Assuming the case ends because the spouse forgives. The protective order is the court's order and stays in force until the court changes it, whatever the protected person now wants.
• Keeping a firearm at home. A person subject to a protective order cannot own or possess firearms or ammunition while it is in effect (Family Code § 6389(a)); relinquishment is ordered when it issues (§ 6389(c)).
• Ignoring the family court. A plea in criminal court can become the finding that triggers the § 3044 custody presumption.
• Treating a misdemeanor plea as minor. A § 273.5 misdemeanor conviction on or after January 1, 2019 brings a firearm ban without the 10-year limit (§ 29805(b)).
• Pleading without immigration advice. For noncitizens, speak with an immigration attorney first.

What to do this week

1. Read the protective order line by line: where you may not go, who you may not contact, and when the next hearing is.
2. Arrange a place to stay and someone neutral to collect clothing, medicine and work items, with a police standby if needed.
3. Turn in or lawfully store any firearms as the order directs, and keep the receipt.
4. Save, without deleting anything, messages, call logs and photos from the days around the incident, and give them to your attorney.
5. Write down the names of witnesses, including neighbors and anyone who heard the call.
6. If you have children, talk to your attorney before agreeing to any custody or visitation schedule.
7. If you are not a U.S. citizen, contact a separate immigration attorney before any plea.

When the facts involve a fight with someone outside the family, the charge is usually simple assault or battery, explained on the page about assault and battery charges in California. To learn who would be representing you, read about Sourena Sarbazevatan.

Charged in Laguna Niguel, Mission Viejo, Lake Forest or Aliso Viejo? Read our south Orange County page.

Frequently asked questions

Is domestic violence a felony in California?

It depends on the charge. Domestic battery under § 243(e)(1) is a misdemeanor with up to one year in county jail. Corporal injury under § 273.5 is defined as a felony, punishable by two, three or four years in state prison, but the statute also allows up to one year in county jail, so it can end as a misdemeanor in some cases (Penal Code § 17(b)).

Can the alleged victim drop the charges?

A criminal protective order is the court's order, not the spouse's. The protected person cannot lift it alone; only the court can change or end it, so any request to modify it goes through the court.

Can I go home after a domestic violence arrest?

Not if a protective order excludes you from the residence or orders you to stay away from the protected person. Ask the court to modify the order through your attorney rather than returning on your own.

Will a domestic violence case affect custody of my children?

It can. A family court finding of domestic violence within five years creates a rebuttable presumption against sole or joint custody for that parent, and a conviction for certain crimes against the other parent satisfies that finding (Family Code § 3044(a), (d)). Completing a batterer's program is one factor the court considers in deciding whether the presumption is overcome (§ 3044(b)(2)(A)).

How long does domestic violence probation last?

At least 36 months, with a protective order, a fee of at least $500 unless reduced or waived, a batterer's program of at least one year, and community service (§ 1203.097(a)).

Can I own a gun after a domestic violence conviction?

A misdemeanor domestic battery conviction triggers a 10-year ban (§ 29805(a)). A misdemeanor § 273.5 conviction on or after January 1, 2019 brings a ban without that time limit (§ 29805(b)), and a felony conviction brings the felony firearm ban.

Is there diversion for domestic violence in Orange County?

Not under the general misdemeanor diversion statute, which excludes any offense involving domestic violence (§ 1001.95(e)(2)). Other outcomes depend on the facts and the charge.

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in domestic violence matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.