WHAT IS THE DEFINITION OF DOMESTIC VIOLENCE? 

Under the Penal Code, “domestic violence” is defined as “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” (Pen C §13700(b)). 

“Abuse” is defined as intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or to another.  (Pen C §13700(a)).

 

INFLICTING CORPORAL INJURY ON SPOUSE, COHABITANT, OR CO-PARENT (PENAL CODE §273.5.)

Penal Code § 273.5(a) and (b) set forth the elements of the crime of inflicting corporal injury on a designated party:

1. A person willfully inflicts a physical injury on his or her spouse, former spouse, cohabitant, former cohabitant, co-parent, fiancé, fiancée, or a person with whom the defendant has, or previously had, a dating or engagement relationship; and
2. The injury inflicted results in a traumatic condition.

“Willfully” means a willingness to commit the act.  It does not require an intent to violate the law, to injure another, or to acquire an advantage.  Pen C §7(1).  Thus, Pen C §273.5 is a general intent crime, not a specific intent crime.  The assailant need only have the purpose or willingness to commit the act.

A defendant “willfully inflicts” a corporal injury on a person covered under Pen C §273.5 when a direct application of force by the defendant on the victim causes injury.  Thus, violation of the statute results only if the corporal injury results from a direct application of force on the victim by the defendant.  (For example, the victim was injured when she fell during an attempt to escape from the defendant; criminal liability under Pen C §273.5 does not extend to direct, natural, and probable consequences of the criminal touching).

The Legislature amended the general statute of limitations for felony violations of Pen C §273.5, effective January 1, 2020, to extend the statute of limitations to 5 years, effective on that date.  (Pen C §803.7.)

 

TRAUMATIC CONDITION

As used in Pen C §273.5, a “traumatic condition” is a condition of the body such as a wound or an external or internal injury, including but not limited to injury as a result of strangulation or suffocation, whether of a minor or serious nature, that is caused by physical force.  (Pen C §273.5(d).)

The requirement of an injury resulting in a traumatic condition differentiates this crime from lesser offenses.  Both simple assault and misdemeanor battery are lesser included offenses in a prosecution under Pen C §273.5.

Other offenses require higher degrees of harm to be inflicted before the offense they criminalize is committed.  For instance, felony battery requires serious bodily injury.  Felony assault requires force likely to produce great bodily injury.  In contrast, the Legislature has clothed persons in intimate relationships protected by Pen C §273.5 with greater protection by requiring less harm to be inflicted before the offense is committed. 

Accordingly, to support a conviction under Pen C §273.5, the injury may be of any variety and of a minor or serious nature.  Soreness and tenderness are insufficient, however, without evidence of actual injury.  Nor is emotional upset a traumatic condition under Pen C §273.5, absent evidence of physical injury.

One can commit the crime of attempted injury of an intimate partner without causing a traumatic injury.  Attempted injury on a person protected under Pen C §273.5 does not require a traumatic condition. 

 

SIMPLE BATTERY AGAINST SPOUSE, COHABITANT, OR CO-PARENT (PENAL CODE §243(e).)

Penal Code §243(e) prohibits the commission of a battery against a spouse, former spouse, cohabitant, co-parent, fiancé, fiancée, or a person with whom the defendant has, or previously had, a dating or engagement relationship.  A defendant will usually be charged under Pen C §243(e) if the touching or contact with the victim does not result in physical injury.  If a physical injury occurs, the defendant can generally be charged under Pen C §273.5.  Penal Code §243(e)(1) is a lesser included offense of Pen C §273.5.

 

PUNISHMENT FOR DOMESTIC VIOLENCE OFFENSES

 

CORPORAL INJURY TO SPOUSE, COHABITANT, OR CO-PARENT (PENAL CODE §273.5.)

Any person found guilty of corporal injury under Pen C §273.5 is a felony and punishable by imprisonment in state prison for 2, 3, or 4 years or in county jail for not more than one year (364 days per Pen C §18.5); or by a fine of up to $6000; or by both a fine and imprisonment.  (Pen C §273.5(a).)  This section is a wobbler.

If the court grants probation to a person convicted under Pen C §273.5(a), the terms of probation must be consistent with the provisions of Pen C §1203.097.  (Pen C §273.5(g).)

A person convicted of violating Pen C §273.5 for acts occurring within seven years of a previous conviction under Pen C §273.5 or other specified offenses must be punished by imprisonment in a county jail for not more than one year; or by imprisonment in state prison for 2, 4, or 5 years; or by both imprisonment and a fine of up to §10,000.  (Pen C §273.5(f)(1).)  Similarly, a person convicted of violating Pen C §273.5 for acts occurring within seven years of a previous conviction for battery under Pen C §243(e) must be punished by imprisonment in state prison for 2, 3, or 4 years or in the county jail not more than one year (364 days per Pen C §18.5); or by a fine of up to $10,000; or by both imprisonment and fine.  See Pen C §273.5(f)(2).

If probation is granted or the execution or imposition of a sentence is suspended for a defendant convicted under Pen C §273.5(a) who has been convicted of a prior offense specified in Pen C §273.5(f), the court must impose one of the following conditions of probation in addition to the provisions contained in Pen C §1203.097 (Pen C §273.5(h)):

• If the defendant has one prior conviction within the previous seven years for any offense specified in Pen C §273.5(f), imprisonment in county jail for no less than 15 days.
• If the defendant has two or more prior convictions within the previous seven years for an offense specified in Pen C §273.5(f), imprisonment in county jail for no less than 60 days.

However, on a showing of good cause, the court may find that mandatory imprisonment as required by Pen C §273.5(h) should not be imposed but must state on the record its reasons for finding good cause.  (Pen C §273.5(h)(3).)

In lieu of imposing a fine, the court may require a defendant placed on probation for violating Pen C §273.5(a) to make payments up to a maximum of $5000 to a battered women’s shelter under Pen C §1203.097.  See Pen C §273.5(i)(1).  Similarly, the court may require a defendant to reimburse the victim for reasonable costs of counseling, and other expenses the court finds are the direct result of the offense.  See Pen C §273.5 (i)(2)(A).  However, the court must make a determination of the defendant’s ability to pay before imposing an order to pay a fine, make payments to a shelter, or pay restitution as a condition of probation under Pen C §273.5.  (Pen C §273.5(i)(2)(B).)  Additionally, the court may not order the defendant to make payments to a battered women’s shelter if it would impair the defendant’s ability to pay direct restitution to the victim or court-ordered child support.  (Pen C §273.5(i)(2)(B).)

On a conviction of Pen C §273.5(a), the court must 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.  (Pen C §273.5(i).)  The restraining order may not list the victim’s immediate family members as protected parties.  (People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212-213.).  But see People v. Clayburg (2012) 211 Cal.App.4th 86, 90-93 (interpreted, similarly the worded Pen C §646.9(k)(1) to include a member of the immediate family of a stalking victim who suffers emotional harm as a “victim” for purposes of the restraining order).  The length of the restraining order should be based on the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and the victim’s immediate family.  (Pen C §§273.5(j).)  The court may issue the protective order whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.  (Pen C §273.5(j).)

Any person who is convicted, on or after January 1, 2019, of a misdemeanor violation of Pen C §273.5 is subject to a lifetime firearms bar.

 

SIMPLE BATTERY AGAINST SPOUSE, COHABITANT, OR CO-PARENT (PENAL CODE §243(e).)

A battery against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, a former spouse, fiancé or fiancée, or a person with whom the defendant had or has a dating or engagement relationship, is a misdemeanor and punishable by a fine of up to $2000, or up to a year in county jail, or both.  See Pen C §243(e)(1).  The term “dating relationship” is defined as frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement, independent of financial considerations.  (Pen C §243(f)(10).)

If the court grants probation or suspends the sentence, it must order that the defendant participate for at least one year and successfully complete a batterer treatment program as defined in Pen C §1203.097.  If no such treatment program is available, the court must order the defendant to participate in and complete another appropriate counseling program.  (Pen C §243(e)(1).)  The same restrictions apply as in Pen C §273.5 with respect to the ability to pay, noninterference with child support, and exhaustion of separate property before community property is used.  See Pen C §243(e)(2).  Repeat offenders and offenders with prior convictions for a violation of Pen C §273.5 must be imprisoned for at least 48 hours unless good cause is shown.  (Pen C §243(e)(3).)