The crime of “domestic battery” is one of the more common California domestic violence crimes.
Under California's domestic battery law, Penal Code 243(e)(1) PC,1 the legal definition of domestic battery is any willful and unlawful touching that is harmful or offensive—and is committed against
- the defendant's spouse or former spouse,
- the defendant's cohabitant or former cohabitant,
- the defendant's fiancé(e) or former fiancé(e),
- a person with whom the defendant has or used to have a dating relationship, or
- the father or mother of the defendant's child.2
A defendant can be convicted of domestic battery (sometimes known as “spousal battery”) even if the “victim” is not injured in any way. All that's required is that the defendant use “force” or “violence” against him/her.3
This distinguishes domestic battery from the related domestic violence offense of corporal injury on a spouse, cohabitant, or fellow parent—which requires that the victim suffer some form of physical injury.4
Here are some examples of behavior that could lead to criminal liability under PC 243(e)(1):
- A woman pushes her boyfriend during a fight.
- A man, feeling frustrated with his ex-wife, grabs her shirt and rips it.
- A lesbian teenager is angry with her girlfriend for cheating on her; she pulls her girlfriend's hair and scratches her face.
Domestic battery is a misdemeanor in California law.5
The potential penalties include a fine of up to two thousand dollars ($2,000), and/or imprisonment in the county jail for up to one (1) year.6
Even though it's only a misdemeanor, domestic battery—as a domestic abuse offense—is a tough conviction to have on your record. Fortunately, there are ways to defend yourself with the help of an experienced domestic violence defense attorney.
Some of the legal defenses you can use to fight a domestic battery charge include:
- You acted in self-defense,
- You didn't “willfully” inflict force or violence, and
- You were falsely accused (this is all too common in domestic battery cases).
In order to help you better understand California domestic battery/spousal battery laws, our California domestic violence attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Domestic Violence Crimes; Corporal Injury on a Spouse, Cohabitant, or Fellow Parent California Penal Code 273.5; Legal Definition of a Misdemeanor in California Law; Common Legal Defenses to California Crimes; Self-Defense as a Legal Defense Under California Criminal Law; What to Do If You Are Falsely Accused of a Crime in California; Penal Code 242 PC Battery; Misdemeanor (Summary) Probation; Immigration Consequences of a California Conviction; California Deportable Crimes; Accident as a Legal Defense Under California Criminal Law; The California Criminal Court Process; Legal Definition of a Wobbler in California Law; Legal Definition of a Felony in California Law; Penal Code 243(d) Aggravated Battery; Penal Code 368 PC California's Elder Abuse Law; The Legal Definition of Great Bodily Injury Penal Code 12022.7; California “Disturbing the Peace” Laws Penal Code 415 PC; and The Legal Definition of an Infraction in California Criminal Law.
In order for you to be guilty of domestic battery in California, your behavior must fit the legal definition of that crime. This means that the prosecutor must be able to prove that certain facts (known as “elements of the crime”) are true.
The elements of Penal Code 243(e)(1) domestic battery are:
- You willfully touched another person,
- That touching was harmful or offensive, and
- The person you touched was your intimate partner or former intimate partner.7
Let's take a closer look at exactly what this means.
"Willfully" means you acted on purpose or willingly. You do not need to have intended to
- break the law, or
- inflict injury on someone else.8
Example: John and Katie, who are dating and share an apartment, get into a heated argument. Katie tries to storm out of the apartment, but John physically restrains her. While Katie is struggling to break free of his grip, she dislocates her shoulder.
John may be guilty of domestic battery even though he didn't intend to inflict injury on Katie. He did use physical force against her in an offensive way, and he did so willfully.
Harmful or offensive touching
The most striking thing about the crime of domestic battery is that you can be convicted of this domestic violence offense even if you didn't actually “hurt” another person.
“Harmful or offensive” touching doesn't have to cause injury or pain—as long as it was done in a disrespectful or angry manner.9 In this way, the crime of domestic battery is similar to the crime of Penal Code 242 PC battery.10
Example: Steve and Becky, who are engaged, are arguing outside of a club. Becky is so angry with Steve that she pushes him up against their car.
Becky is much smaller than Steve, and her pushing doesn't hurt him at all. But because she touched him in an angry, violent fashion, she could be charged with Penal Code 243(e)(1) PC spousal battery.
In fact, it's not even entirely clear whether you need to touch someone else's body in order to be guilty of domestic battery. California law is uncertain on this point—but it might be the case that you can be convicted even if you touched something “attached to or closely connected with” the person instead.11
Example: Bill fights with his wife Nancy at a cocktail party. He angrily knocks a glass of wine out of her hand.
Under California domestic battery law, this might qualify as an offensive touching, since the glass of wine was closely connected to Nancy's body.
Against an intimate partner
The crime of domestic battery can only be committed against someone with whom you have an intimate relationship. For purposes of Penal Code 243(e)(1), this includes:
- A spouse or former spouse,
- A person with whom you are cohabiting (i.e., someone you are living with),
- A fiancé or fiancée,
- A person who is the parent of your child, and
- A person with whom you have, or have previously had, a “dating relationship.”12
Several of these relationships—spouse, fiancé or fiancée, other parent—are easy to prove. But sometimes it can be difficult to establish whether two people were actually cohabiting, or involved in a dating relationship.
Example: Witnesses observe Carl hitting a woman named Natasha (who is not his wife, fiancée, or live-in girlfriend) on the street outside of Carl's home at 4:30 in the morning. He is arrested and charged with domestic battery. Natasha decides not to testify against him.
Carl argues that there is no proof that he and Natasha were involved in a dating relationship. But witnesses heard him refer to her as his “girl” and his “lady friend.”
That, plus the fact that she was at his place at 4:30 a.m., is considered enough evidence for the jury to conclude that they were dating—and that he can be convicted of Penal Code 243(e)(1).13
In fact, for purposes of California domestic battery law, it is possible for a defendant to cohabit with more than one person at the same time.14
Example: Nelson and Carrie are dating. They sign a lease on an apartment and move in together. Then Nelson tells Carrie that he thinks he should move out. Nelson moves in with a new girlfriend named Laura.
Nelson spends most nights at Laura's apartment. But he and Carrie continue their romantic relationship, and Nelson spends several nights a week at the apartment he and Carrie used to share. He keeps a key to that apartment and still uses that address for his official mail.
Nelson is considered to be “cohabiting” with Carrie because of the ties he maintains with their old apartment.15
California domestic battery is a misdemeanor.16 If convicted, you may face the following penalties:
- Up to one (1) year in county jail,
- A maximum two thousand dollar ($2,000) fine, and/or
- Misdemeanor (summary) probation.17
It is common for defendants convicted of California domestic battery to receive probation (also known as a “suspended sentence”). If this occurs, you will be required, as a condition of probation, to complete a minimum one-year batterer's treatment program.18
Also, if you receive probation as a sentence, the court may decide that—instead of a $2,000 fine—you must pay:
- Up to five thousand dollars ($5,000) to a battered woman's shelter, and/or
- Any reasonable expenses that the victim occurred as a result of the offense, including the cost of counseling.19
Finally, if you are convicted of Penal Code 243(e)(1) spousal battery for a second or subsequent time—and you are given probation as a sentence—you still will be required to serve at least forty-eight (48) hours in county jail. The only way around this requirement is if you can convince the judge that there is “good cause” why you should not serve that time.20
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 of a California conviction for this crime.
Because domestic battery is a crime of domestic violence, it is a so-called “deportable crime ” under federal immigration law.21 This means that—even if you are here legally—you may face deportation proceedings after a conviction for this offense.
According to Rancho Cucamonga domestic violence defense attorney Nicole Valera22:
“Because all domestic violence convictions can have serious immigration consequences, defendants who are immigrants should speak with a skilled domestic violence defense lawyer as soon as possible. It is especially important to speak to an attorney who understands immigration law—not just criminal law—before pleading guilty to this offense.”
There are a variety of legal defenses that can be used against domestic battery charges. Some of the most common are:
Self-defense/defense of others
The legal defense of self-defense/defense of others applies when all of the following are true:
- You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
- You reasonably believed that the immediate use of force was necessary to defend against that danger; and
- You used no more force than was reasonably necessary to defend against that danger.23
If you can prove all of the above facts, then you are not guilty of PC 243(e)(1) spousal battery.
Example: Sheri is very upset with her son Mark and begins hitting him fiercely. Her husband Dan grabs Sheri and holds her down to restrain her.
If Sheri accuses Dan of domestic battery, Dan can argue that he is innocent because he acted in defense of Mark.
Lack of willfulness
You are not guilty of Penal Code 243(e)(1) PC domestic battery if you did not willfully touch the other person.24 This is a version of accident as a legal defense.
Example: Matt, who is gay, and his boyfriend Raoul are arguing in the apartment they share. Matt grabs a piece of china and throws it at the wall in anger. A china shard ricochets off the wall and hits Raoul, gashing his arm.
If he is charged with domestic battery, Matt can argue that he should be acquitted because he did not willfully touch Raoul with the piece of china.
People are wrongly arrested for spousal battery every day. Often, the arrest is based on false allegations initiated out of anger, jealousy, or a desire for revenge.
If this happens to you, you may feel helpless. But a good criminal/domestic violence defense attorney has seen this situation many times before. She or he will know what kind of questions to ask and evidence to gather to make sure that the truth comes out in the criminal court process.
There are a number of California crimes that are sometimes charged instead of—or along with—Penal Code 243(e)(1) domestic battery. Some of these are:
Penal Code 273.5 intentional/willful infliction of corporal injury is another common California domestic violence charge. You commit this offense if you willfully inflict bodily injury on intimate partners.25
The major difference between this offense and domestic/spousal battery is that intentional infliction of corporal injury requires that you actually cause some kind of injury to the accuser.26
Unlike domestic battery, Penal Code 273.5 is a wobbler in California law. This means that it may be charged as a misdemeanor OR as a felony, depending on the circumstances of the case and the defendant's criminal history.27
Because willful infliction of corporal injury is a more serious crime than domestic battery, in some cases it may make sense to plead guilty to domestic battery charges in order to avoid a Penal Code 273.5 charge.
Penal Code 243(d) aggravated battery is also closely related to domestic battery. The differences between the two offenses are:
- For an aggravated battery charge to stick, the accuser must have suffered a serious bodily injury; and
- For aggravated battery, the accuser can be anyone—not just an intimate partner.28
Aggravated battery under Penal Code 243(d) PC is also a wobbler. If it is charged as a felony, the potential penalties may include imprisonment for two (2), three (3), or four (4) years.29
In some domestic violence cases, the prosecutor may try to charge you with aggravated battery instead of simple domestic battery, if they think they can prove that you caused an injury to your accuser.
Penal Code 368 PC, California's elder abuse law , makes it a crime to willfully or negligently impose unjustifiable physical pain and/or mental suffering on a person who is 65 or older.30
If a defendant's conduct amounts to domestic battery, but the alleged victim if 65 or older, prosecutors could elect to prosecute him/her under this section instead.
California elder abuse laws provide for stiffer penalties than PC 243(e)(1). This offense is a wobbler, carrying a potential state prison sentence of two (2), three (3) or (4) years, and a fine of up to six thousand dollars ($6,000), if it is charged as a felony.31
And if the victim suffers great bodily injury or death, then the potential prison sentence increases to up to five (5) to seven (7) years.32
California "disturbing the peace" laws —set out in Penal Code 415 PC—make it a crime to
- fight someone in public,
- make unreasonable noise so as to disturb others, or
- direct provocative "fighting words" toward another person in public.33
Disturbing the peace is considered a low-level misdemeanor. A conviction for this offense carries a maximum of ninety (90) days in jail.34 In some cases, it can also be treated as an infraction.35
Prosecutors are often willing to "reduce" domestic battery charges to disturbing the peace as part of a plea bargain agreement. Defendants often like this arrangement because PC 415 doesn't carry the stigma, penalties, or immigration consequences of a domestic violence conviction.
Also, if the charge gets reduced to disturbing the peace as an infraction, no criminal record is generated – it's comparable to a parking ticket.
Call us for help…
For questions about Penal Code 243(e)(1) domestic battery, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, OrangeCounty, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San FranciscoBay area, and several nearby cities.
For more information on Nevada “battery domestic violence” laws, please visit our page on Nevada “battery domestic violence” laws.
1 Penal Code 243(e)(1) PC – [Domestic] battery; punishment. (“(e)(1) 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. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.”)
2 Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 841 – Simple Battery: Against Spouse, Cohabitant, or Fellow Parent [Domestic Battery] (Pen. Code, § 243(e)(1)). (“The defendant is charged [in Count ] with battery against [his/her] ([former] spouse/[former] cohabitant/fiancé[e]/a person with whom the defendant currently has, or previously had, a (dating/ [or] engagement) relationship/the (mother/father) of (his/her) child) [in violation of Penal Code section 243(e)(1)]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant willfully [and unlawfully] touched <insert name of complaining witness> in a harmful or offensive manner; [AND] 2 <insert name of complaining witness> is (the/a) (defendant's [former] spouse/defendant's [former] cohabitant/defendant's fiancé[e]/person with whom the defendant currently has, or previously had, a (dating/ [or] engagement) relationship/(mother/father) of the defendant's child)(;/.) <Give element 3 when instructing on self-defense or defense of another.> [AND 3 The defendant did not act (in self-defense/ [or] in defense of someone else).]”)
3 Penal Code 242 PC – Battery defined. (“A [domestic] battery is any willful and unlawful use of force or violence upon the person of another.”)
See also CALCRIM 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.”)
4 Penal Code 273.5 PC – Willful infliction of corporal injury; violation; punishment [contrast with domestic battery statute]. (“(a) Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”)
5 Penal Code 243(e)(1) PC – Domestic battery; punishment, endnote 1, above.
6 See same.
7 CALCRIM 841 – Domestic Battery, endnote 2, above.
8 CALCRIM 841 – Domestic Battery. (“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”)
9 See CALCRIM 841 – Domestic Battery, endnote 3, above.
10 Penal Code 242 PC – Battery defined, endnote 3, above.
11 CALCRIM 960 – Simple Battery [related to domestic battery]: Related Issues. (“The committee could not locate any authority on whether it is sufficient to commit a battery if the defendant touches something attached to or closely connected with the person. Thus, the committee has not included this principle in the instruction.”)
12 Penal Code 243(e)(1) PC – Domestic battery; punishment, endnote 1, above.
13 Based on the facts of People v. Upsher (2007) 155 Cal.App.4th 1311.
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.”)
15 Based on the facts of the same.
16 Penal Code 243(e)(1) PC – Domestic battery; punishment, endnote 1, above.
17 See same.
18 See same.
19 Penal Code 243(e)(2) PC – Domestic battery; punishment. (“(2) Upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements: (A) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000). (B) 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. For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. If the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property shall not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.”)
20 Penal Code 243(e)(3) PC – Domestic battery; punishment. (“(3) Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously convicted of a violation of this subdivision and sentenced under paragraph (1), the person shall be imprisoned for not less than 48 hours in addition to the conditions in paragraph (1). However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence.”)
21 Alvarado v. Gonzales (9th Cir. 2006) 2006 WL 1049742.
22 Rancho Cucamonga domestic violence defense attorney Nicole Valera served as a public defender with the Los Angeles County Public Defender's Office before she began working as a private criminal defense lawyer. Today, Ms. Valera represents clients accused of domestic violence and other offenses throughout the Los Angeles County and San Bernardino County court systems.
23 CALCRIM 3470 - Right to Self-Defense or Defense of Another (Non-Homicide [with respect to acts involving California domestic battery]). ("The defendant acted in lawful (self-defense/ [or] defense of another) if:  The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];  The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.")
24 CALCRIM 841 – Domestic Battery, endnote 2, above.
25 Penal Code 273.5 PC – Willful infliction of corporal injury; violation; punishment [contrast with domestic battery statute], endnote 4, above.
26 See same.
27 See same.
28 Penal Code 243(d) PC – Aggravated battery [compare to domestic battery law]. ("(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.")
29 See same.
30 Penal Code 368 PC [may be charged in lieu of domestic battery]. (“(b)(1) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.”)
31 See same.
32 See same. (“(2) If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows: (A) Three years if the victim is under 70 years of age. (B) Five years if the victim is 70 years of age or older. (3) If in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows: (A) Five years if the victim is under 70 years of age. (B) Seven years if the victim is 70 years of age or older.”)
33 Penal Code 415 PC – Fighting; noise; offensive words [potential plea bargain from PC 243(e)(1)]. (“Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”
34 See same.
35 Penal Code 17 PC - Felony; misdemeanor; infraction; classification of offenses. ("(d) A violation of any code section listed in [Penal Code] Section 19.8 is an infraction subject to the procedures described in [California Penal Code] Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.") California Penal Code 415 PC "disturbing the peace" [potential plea bargain from domestic battery charges] is listed in Penal Code 19.8 PC.