Being accused of domestic violence can mean years in prison and thousands in fines and fees. Charges for domestic battery can include more severe penalties if a firearm was involved. Even if the defendant never intended to use a gun or never even loaded the firearm, firearms involved in felony charges are taken very seriously by California courts.
If you are accused of domestic abuse in California, it is important to understand your legal rights and options. An experienced East Bay criminal defense lawyer may be able to build a strong case to get the charges dropped. In some cases, your attorney can negotiate a plea agreement so you can avoid jail time. Trying to handle a domestic violence case on your own can leave you with a permanent criminal record.
Guns in California Domestic Violence Cases
In California, domestic violence is threats or violence between people in the same household. Domestic abuse can involve family members, spouses, dating partners, or others who live together. Domestic abuse in California generally falls under Penal Code 243(e)(1), as battery, or Penal Code 273.5, as inflicting corporal injury resulting in a traumatic condition.
Domestic battery is known as a "wobbler," and can be charged as a misdemeanor or a felony. Domestic violence corporal injury is a felony. As a misdemeanor, criminal charges for domestic violence can include up to a year in jail and fines of up to $2,000. As a felony, the penalties are much more severe, including up to 4 years in prison. In addition to fines and jail time, other consequences of a domestic violence conviction can include:
- Batterer's intervention program
- Payment of victim restitution
- Loss of gun rights
- Restraining orders
- Immigration consequences
There may be increased penalties for domestic violence charges when a firearm is involved. According to the Public Policy Institute of California, there has been an increase in the number of domestic violence service calls involving firearms. In 2013, the number of DV calls involving guns was 754. The number of calls involving guns in 2020 was 1,974. About half of domestic violence incidents result in injury, with the risk of serious injury or death more likely in cases involving firearms.
Enhanced Penalties for Felonies Involving a Firearm in California
Use of a firearm can be an "enhancement" to criminal penalties. An enhancement can add additional time in prison to your sentence. Under California Penal Code 12022.5, "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense."
For example, if someone was accused of using a gun to hit their spouse, causing corporal injury, use of the gun could significantly increase the criminal prison sentence. Depending on the individual circumstances, a defendant who was facing a 4-year term in prison for felony domestic violence could have their sentence doubled to an 8-year term of imprisonment.
Use of a Weapon as an Aggravating Factor
In determining the sentence for offenders, the judges may consider aggravating and mitigating circumstances. Under California Rules of Court 4.421, circumstances in aggravation include, "the defendant was armed with or used a weapon at the time of the commission of the crime."
Even if the domestic battery did not result in corporal injury, use of a gun to threaten the victim could be used as a factor to charge the offense as a felony instead of a misdemeanor, resulting in a felony criminal record. If you have questions about your charges and how you can get a wobbler charged as a misdemeanor instead of a felony, talk to your East Bay criminal defense attorney.
Firearms Restrictions and DV Protection Orders
If you are a hunter, target shooter, or want a firearm for protection, a conviction for domestic violence can mean the loss of your gun rights. In California, a domestic violence conviction means that you will not be able to own or possess a firearm.
Under California Penal Code 29805(a), anyone convicted of misdemeanor domestic battery under Penal Code 243 is prohibited from owning, purchasing, possessing, or receiving a firearm for 10 years. A felony conviction results in a lifetime ban for owning or possessing a gun. Under federal law, a conviction for domestic violence also results in a lifetime ban on owning or possessing a firearm.
Possession of a firearm in violation of a California weapons ban is a felony, punishable by up to 3 years in state prison and a fine of up to $10,000. If you are charged with violating the federal firearm ban, it can result in a fine of up to $250,000 and up to 10 years in federal prison.
Do I Have to Turn Over My Guns After an Arrest in Oakland?
Even before you are convicted of domestic violence, a domestic violence restraining order generally requires turning over any guns. A California Gun Violence Restraining Order is a court order that prohibits the subject from having a firearm, ammunition, or magazines. The order can require someone to turn in any guns or ammunition to the police or a licensed firearm dealer.
A temporary or emergency gun violence protection order will generally last for 21 days. After a court hearing, the court can issue a longer gun violence order that can last from 1 to 5 years.
Call an East Bay Criminal Defense Lawyer After a Domestic Violence Arrest
Lynn Gorelick has more than 39 years of East Bay criminal defense experience and understands how difficult it can be to be accused of violence against your family. Pleading guilty will take away your chance to challenge the charges. Before you give up and accept a criminal record and the costs of a domestic violence conviction, get experienced legal advice. If you are facing domestic violence charges anywhere in Oakland, Alameda County, or Contra Costa County, contact Lynn Gorelick.