Domestic violence laws in California are intended to protect people from being hurt by a current or former significant other.1 These are emotionally charged cases, from the time when someone is arrested for the alleged crime and through the course of prosecution of the case. Also, the stakes can be high for the defendant if he or she is convicted of the crime.
If an argument arises between spouses and someone calls the police, the chances are high that someone will be arrested for domestic violence. The police want to stop a argument from continuing and potentially prevent the situation from getting worse. The crimes and their potential penalties and consequences and how to defend yourself against a domestic violence charge are discussed in more detail below.
- 1 Types of Domestic Violence Crimes
- 2 Special relationship to the Victim
- 3 Types of Domestic Cases in More Detail
- 4 Domestic Violence Punishments and Additional Consequences
- 5 Defending a Domestic Violence Case
- 6 The Uncooperative Victim in a Domestic Violence Case
- 7 Reduction of a Domestic Violence Charge
Types of Domestic Violence Crimes
California domestic violence laws are contained in California Penal Code Sections 243 and 273.5. There are three types of domestic violence cases:
- Domestic battery (sometimes called spousal battery),2 a misdemeanor crime;3
- Corporal (or physical) injury,4 a misdemeanor or a felony depending on how the prosecutor charges the crime (called a wobbler);5 and
- Aggravated battery,6 a misdemeanor or a felony, again depending on how the prosecutor charges the crime.7
Before we discuss each charge in more detail we will discuss the necessary relationship between the victim and the defendant. Later in this article we will discuss increased punishments for each of these crimes if there is second conviction for the charge.
Special relationship to the Victim
The victim must have one of the following relationships with the defendant for a conviction of a domestic violence crime. The alleged victim must be:
- A spouse;
- A person with whom the defendant is living with (cohabitant);
- A person who is the parent of the defendant’s child;
- A former spouse;
- A fiancé, or fiancée; or
- A person with whom the defendant currently has, or has previously had, a dating or engagement relationship.8
Most of the special relationships are self-explanatory. However, cohabitant and dating relationship are more clearly defined.
Cohabitants signify two unrelated people living together in a stable relationship which indicates it is intended to be a long-term situation. In general, a cohabitation is where couples live in a manner similar to that of a husband and wife. Several factors are used to determine if a couple can truly be considered as cohabitants:
- Consummation of the relationship while maintaining the same residence,
- Sharing financial responsibilities for living expenses,
- Sharing ownership of property,
- Making statements or indicating otherwise that the couple has a husband-wife type relationship or that they are domestic partners,
- The length and the uninterrupted continuation of the relationship.9
A dating relationship means a frequent, intimate association primarily characterized by the expectation of affectionate or sexual involvement—independent of financial considerations. A judge or jury presiding over a domestic violence case would determine this by hearing evidence presented in court.10
A defendant should not assume that by denying that a dating relationship exists with the victim that he or she will be able to escape a domestic violence charge—a judge or jury would determine what evidence that they believed was the truth.
Types of Domestic Cases in More Detail
Domestic battery: Penal Code § 243(e)(1)
A domestic battery is the lowest charge of the possible domestic violence crimes. An example of domestic battery would be if a husband slaps a wife and there is no visible injury from the slap.11 A domestic battery has the following parts:
- You willfully touched another person,
- The touching was harmful or offensive, and
- You have a special relationship with the alleged victim.12
Willfully means that you did it on purpose or intentionally.13 An accident is not willful.
Harmful or offensive touching doesn’t have to cause injury or pain—as long as it was done in a disrespectful or angry manner. Touching showing affection would not be domestic battery unless the victim didn’t want to be touched.
It is important that a corporal (or physical) injury14 did not occur for a defendant to be convicted of domestic battery. Otherwise much higher penalties can be imposed, either through incarceration, fines, or both.
As previously mentioned, it is necessary to have a special relationship with the victim to be convicted of a domestic violence crime. Whether a special relationship existed is a question for the judge or jury in the case and can be disputed. The alleged victim may say that the defendant and victim were dating, however the defendant may say something different.
A defendant should keep in mind that anything that he has said that would confirm that the parties were in an intimate relationship can be used against him in court, such as referring to the alleged victim as his “girl” or his “lady friend.”
It’s also important to note that a defendant may live with multiple people and each of them is a potential victim of a domestic violence crime.15
Corporal Injury: Penal Code § 273.5
A corporal or physical injury is when a defendant intentionally inflicts physical injury resulting in a “traumatic condition” upon a victim. It’s important to note that the physical injury may be internal and thus not noticeable to the naked eye.
A 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 a minor or serious nature, caused by a physical force. Strangulation and suffocation include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.16
It’s important to keep in mind how corporal injury is more serious than domestic battery and not as serious as aggravated battery (discussed next). The defendant must inflict a physical injury on the victim but the injury must not be serious. “Serious bodily injury” is defined in the next section under aggravated battery.
Aggravated Battery: Penal Code § 243(d)
Domestic aggravated battery is serious bodily injury on a significant other.17 For example, when a someone breaks the bone of his girlfriend, he has committed the crime of domestic aggravated battery.18
Domestic Violence Punishments and Additional Consequences
Domestic violence punishments vary by the severity of the crime and can be wide reaching. The crime should never be taken lightly. In addition to jail time, prison time, or fines, counselling, restitution and many other conditions may be imposed.
The following are the possible jail times, prison sentences, and fines for the different offenses:
- Domestic Battery. A misdemeanor with jail time of not more than one year or a fine not exceeding two thousand dollars ($2,000) or both.19
- Corporal (or Physical) Injury on a Spouse. If charged as a misdemeanor, the defendant can receive a jail sentence up to a year or a fine up to six thousand dollars ($6,000) or both. If charged as a felony, the defendant can receive a prison sentence of up to four years and a fine up to ten thousand dollars ($10,000).
- Aggravated battery. A minimum of 48 hours in jail and a jail sentence up to a year for a misdemeanor or a prison sentence up to four years for a felony.
If probation is granted for domestic battery (as opposed to jail time up to a year), the defendant will need to complete a “batterer’s treatment program” or other appropriate counseling as determined by the court.20 This counseling may continue for up to one year.
In lieu of a fine for domestic battery, the judge may allow one or both of the following:
- That the defendant make payments to a battered women’s shelter, up to a maximum of five thousand dollars ($5,000).
- That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.
Any money payment related to a domestic violence conviction must be based on the defendant’s ability to pay. The prosecutor and the defense attorney can agree on the defendant’s ability to pay or the judge in the case will make a determination.
If a defendant is not committed to the maximum jail or prison sentence for a domestic violence crime, he or she will be on probation. Misdemeanor probation in California typically lasts for between one and three years (though it can last up to five) and involves conditions like paying fines and performing community labor. Instead of checking in with a probation officer, as is the case with felony probation, people placed on misdemeanor probation are required to appear before a judge for periodic “progress reports.” Misdemeanor probation would include the requirement to complete batterer’s treatment program.
Domestic battery is in some ways a minor offense, and the potential penalties are not that severe. However, non-citizen defendants need to be aware of the potential immigration consequences for a conviction of this crime.
Because domestic battery is a crime of domestic violence, it is a deportable crime under federal called immigration law.21 This means that—even if you are here legally—you may face deportation proceedings after a conviction for this offense.
Furthermore, a permanent criminal record could affect your ability to stay in or return to the United States (if you were to leave and were not a U.S. citizen).
A domestic violence conviction may include any of the following additional consequences:
- A loss of gun rights for 10 years;
- A court order requiring you to have no contact with the victim, your children or the home where the crime occurred;
- A criminal record that could affect current or future employment;
- One “strike” under California three strike rule if the conviction is for a felony; and/or
- Compromising your ability to obtain or keep a professional license, such as a medical doctor or a nurse.
Punishments for Subsequent Domestic Violence Offenses
The State of California ratchets up the possible penalties when you have a second conviction for a domestic violence crime within seven years of a previous one. Lawyers will say that these crimes “stack” because the penalty increases with each conviction.
A second conviction within seven years for a domestic battery or a corporal injury on a spouse may be a misdemeanor resulting in jail time for not more than a year or a felony with prison time up to four years. Furthermore, a minimum jail sentence of 48 hours is required for a domestic battery or 15 days for corporal injury.
The court may not impose this jail time if the judge finds “good cause” as to why this should not be imposed. A fine of up to $10,000 may be imposed for any of these crimes.
Defending a Domestic Violence Case
A domestic violence charge can be attacked by a good attorney in a number of ways. It should be noted immediately that the defendant should never attempt to try and persuade the alleged victim to not cooperate with prosecutor—such an action will likely result in an additional charge of tampering with a witness.
Some of the numerous possible defenses to a domestic violence charge are the following:
- You acted in self defense,
- You didn’t intentionally hurt the alleged victim,
- The victim made a false statement to the police or prosecutors,
- A witness to the alleged crime has other motives (such as retaliation), or
- The investigation performed by the police or the prosecutor was incomplete or flawed.
The Uncooperative Victim in a Domestic Violence Case
More often than not it is common that an alleged victim doesn’t want to cooperate with a prosecutor after a domestic violence charge is filed. Emotions usually cool after an arrest is made and the victim and the defendant may want to mend their relationship. In such circumstances the victim will usually do one of the following:
- Decide that she doesn’t want to testify against the defendant, or
- Change or recant their accusations against the defendant.
It’s important that a defendant NEVER assume that the charge will be dismissed if the victim doesn’t want to testify or changes her story. The prosecutor or his office potentially have tools at their disposal to persuade the victim to testify (for example the prosecutor can ask that the victim be held in contempt of court if they do not show for court and testify).
Significantly, if the victim does not appear for trial, any statements made by the victim to the defendant cannot be used against him. The defendant has a right to confront and cross examine the victim. An uncooperative victim may require the prosecutor to reduce or dismiss the charges—discussed in the next section.
Reduction of a Domestic Violence Charge
It’s important to note that any of the domestic crimes that you are charged with can be reduced to a lesser offense. For example, a corporal injury charge can be reduced to domestic battery. A domestic battery could be reduced to a simple battery.
Simple battery is punishable by up to a year in jail or a two thousand dollar fine or both and doesn’t include all the other requirements that a domestic battery includes, such as a batterers treatment program.22
California Penal Code section 243(e)(1) states, in pertinent part, the following: “When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.Footnote 1
A battery is any willful and unlawful use of force or violence upon the person of another. (Penal Code, § 242.)Footnote 2
Penal Code, § 243(e)(1).Footnote 3
Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim. (California Penal Code 273.5.) A 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 a 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.Footnote 4
A wobbler is a crime that can be charged as a misdemeanor or a felony. (See Penal Code, § 17(b).)Footnote 5
Penal Code, § 243(d).Footnote 6
Penal Code, § 243(f).Footnote 7
Penal Code, § 243(f).Footnote 8
People v. Holifield (1988) 205 Cal.App.3d 993, 1000; People v. Ballard (1988) 203 Cal.App.3d 311, 318–319.Footnote 9
Penal Code, § 243(f).Footnote 10
See CALCRIM No. 841, Domestic Battery [“The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.”].Footnote 11
Penal Code, § 243(e)(1); CALCRIM No. 841, Domestic Battery.Footnote 12
CALCRIM No. 841, Domestic Battery.Footnote 13
In Penal Code section 273.5, California law defines corporal injury on a spouse or cohabitant as willfully inflicting a physical injury that causes a “traumatic condition” on a significant other.Footnote 14
People v. Moore (1996) 44 Cal.App.4th 1323, 1335. [“We conclude as a matter of law that for purposes of criminal liability under [Penal Code 243(e)(1)], a defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods.”].Footnote 15
See CALCRIM No. 841 [“A traumatic condition is the result of an injury [for purposes of Penal Code 273.5] if: (1) The traumatic condition was the natural and probable consequence of the injury; (2) The injury was a direct and substantial factor in causing the condition; AND (3) The condition would not have happened without the injury. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that resulted in the traumatic condition.”].Footnote 16
Penal Code, § 243(d).Footnote 17
Serious bodily injury means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.Footnote 18
Penal Code, § 243(e)(1).Footnote 19
Penal Code, § 243(e)(1).Footnote 20
Alvarado v. Gonzales (9th Cir. 2006) 2006 WL 1049742.Footnote 21
Penal Code, § 243(a) [“A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both the fine and imprisonment.”].Footnote 22