Corporal Injury on a Spouse, Cohabitant, or Fellow Parent
California Penal Code 273.5

California Penal Code 273.5 PC is sometimes referred to as domestic violence, domestic abuse, corporal injury, spousal abuse or spousal battery.  Charges often stem from he-said/she-said allegations and arise out of highly charged, emotional situations.  Many innocent people get falsely accused of this serious offense.

But we're here to help.  As former prosecutors and police investigators, we understand how domestic violence allegations are processed, prosecuted, and...most importantly...defended.  Our decades of experience have made us experts in defending against bogus, unfounded and exaggerated spousal abuse charges.

Penal Code 273.5 PC punishes the crime of inflicting bodily injury on

  • your current or former spouse,
  • a person with whom you live or have lived, or
  • the mother or father of your child.1
Img-domestic_violence273-5-1

This photograph  was originally taken by Flickr user susan402 and the original photo can be found here.

To help you better understand the complexities of this charge, our Los Angeles criminal defense attorneys will address the following:2

(Click on a title to proceed directly to that section)

1. How does the prosecutor prove that I am guilty of a Penal Code 273.5 violation?
2. How do domestic violence arrests tend to happen?
3. How do I fight a California Penal Code 273.5 charge?
4. What if the alleged victim wants to "drop the charges"?
5. What if the "victim" doesn't show up for court?
6. What if the victim goes to court and denies that any domestic abuse took place?
7. What are the penalties and sentences for a PC 273.5 conviction?
8. Penal Code 273.5 and deportation
9. "Disturbing the peace" and "trespass" as plea bargains for PC 273.5
10. Can prior acts of domestic violence be used against you?
11. Penal Code 273.5 and California's three strike's law
12. Penal Code 273.5 and related domestic violence offenses
13. Domestic homicide
14. The politics behind California domestic violence law
15. How Nevada's domestic violence law differs from California Penal Code 273.5

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 Law, Penal Code 243(e)(1) Domestic Battery, Penal Code 273d Child Abuse, Penal Code 273a Child Endangerment, Penal Code 368 Elder Abuse, Penal Code 187 Murder, Penal Code 192 Manslaughter, Penal Code 646.9 PC Stalking, and California Crimes that Subject Aliens/Immigrants to Deportation.

We also invite you to join the Shouse Law Group Facebook fan page and follow us on Twitter to receive regular updates and commentary on California criminal law issues.

1. How does the prosecutor prove that I am guilty
of a Penal Code 273.5 violation?

In order to convict you of Penal Code 273.5 PC, California's primary domestic violence law, the prosecutor must prove the following "elements" of the offense3:

  1. that you inflicted corporal (bodily) injury upon (a) your current or former spouse, (b) your current or former cohabitant (that is, someone with whom you share or shared a residence), or (c) the mother or father of your child,
  2. that you willfully inflicted the injury, and
  3. that the injury resulted in a "traumatic condition."

Let's take a closer look at some of these terms to gain a better understanding of their meanings.

Corporal or bodily injury

A "bodily" injury is just that...a physical injury to the body.  The most common examples of inflicting corporal injury under Penal Code 273.5 include:4

  • hitting,
  • punching,
  • kicking,
  • slapping,
  • biting, and
  • pushing.

Since a corporal injury is a bodily injury, causing emotional and/or mental abuse alone will not subject one to liability.

But instances of emotional and/or mental abuse may sometimes be prosecuted under Penal Code 422, California's criminal threats law or under Penal Code 646.9, California's stalking law.

Willfully

"Willfully" means deliberately or on purpose.  It means you intended to commit the act that resulted in the corporal injury.  It doesn't necessarily mean that you intended the consequences of the act.5

Example: Mike willfully acted when he threw the vase at Mary. But he didn't intend for it to hit her in the head, knock her to the ground, and cause her head to bleed.  Even though he didn't intend the end result, he could still be prosecuted since he willfully inflicted bodily injury.

However, a true accident doesn't constitute a "willful" act.

Example:  Out of anger, a girlfriend shoves her live-in boyfriend.  This is a willful act.

Change the facts: While arguing, the boyfriend is physically restraining his live-in girlfriend.  As she attempts to get away, she trips and shoves into him, causing him to hit the back of his head on the wall.

Under that scenario, she didn't intend to shove him...the act, therefore, wasn't willful.

Traumatic condition

A "traumatic condition" is "a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force."6 The key is that there must be some visible injury on the person's body.7 The injury could be minor, such as

  • a scratch,
  • redness,
  • swelling, or
  • bruising.

A traumatic condition can also be a more serious injury, such as

  • a broken nose,
  • fractured ribs, or
  • a concussion.
2. How do domestic violence arrests
tend to happen?

The typical Penal Code 273.5 PC case starts with a heated argument that becomes physical.  The alleged victim (or sometimes a neighbor) calls 911 and summons the police.  Officers arrive and take a statement from the accuser who claims that some sort of violence was used against him/her.

The officers examine the accuser to see if a visible injury can be observed.  If so, police protocol is to photograph the injury on the scene.  Police then send the photos and the officer's report to the prosecutor's office to be used as evidence in court.

Remember that only a very slight injury is necessary to make a Penal Code 273.5 case.  If no injuries are observed, the prosecutor can still file charges under Penal Code 243(e)(1), a less serious domestic violence charge that doesn't require a visible injury. We discuss Penal Code 243(e)(1) below under Section 11: Related Domestic Violence Offenses.

3. How do I fight a California
Penal Code 273.5 charge?

The consequences of a domestic violence or spousal abuse conviction can be severe.  You could go to jail as well as face the stigma of having the charge on your permanent criminal record.

But there are many legal defenses to domestic abuse charges that a good California criminal defense attorney can present on your behalf.  Self-defense, accident and false accusation are some of the most common defenses.

Self-defense

Allegations of domestic violence or spousal abuse can be very difficult for the district attorney to prove.  Many times, the Penal Code 273.5 PC charge arose out of a mutual struggle in which the defendant's actions are excusable under California's rules of self defense.

Example:  During an argument, an angry wife starts "swinging" at her husband, trying to hit him.  In order to avoid being punched in the face, the husband shoves her away.  The wife falls and bruises her shoulder.  She calls the police and...even though he was simply trying to protect himself...the husband gets arrested.
Under these circumstances, it's true that the husband inflicted the corporal injury on his spouse.  However, because he was only trying to protect himself, he could validly claim self-defense.

Accident

In the course of a heated argument and struggle, it is not uncommon to strike someone or push someone by accident.  A true accident serves as a legal defense to most California crimes, including domestic violence crimes.

Example:  During a heated argument, Amy goes into the bathroom to cool off and closes the door behind her.  Still angry, her husband Jake forcefully pushes the bathroom door open to continue the argument.  He didn't realize that Amy was actually standing behind the door at the time.  When the door swings open, it hits Amy and breaks her nose.
Given these facts, Jake didn't intend to hurt Amy.  Despite the fact that they were arguing and that he was angry, the door hitting her in the face was an accident.  He had no intention of hitting her and certainly didn't intend to injure her.

When you accidentally injure someone, absent criminal intent or extreme recklessness, you have not committed a crime.  Period.8

False accusations

As Glendale criminal defense attorney Darrell York explains,9 "Unfortunately, false accusations and wrongful arrests occur regularly in the California Penal Code 273.5 context.  Since domestic disputes usually arise out of very emotional situations, people often don't think clearly and are sometimes just looking to gain the upper-hand."

Example:  The classic case of false accusations in a domestic violence case involves an angry or jealous wife.  She suspects her husband of cheating on her and wants to get even.  She creates a loud argument (so neighbors can hear) and then calls the police.
When the cops arrive, she lies and exaggerates, accusing him of having become violent with her.  The husband then gets wrongly arrested and falsely charged with spousal battery.
4. What if the alleged victim wants to
"drop the charges"?

Suppose, after a Penal Code 273.5 arrest, the "victim" goes to the police or prosecutors and says "I don't want to press charges anymore. I just want to drop the case." Do the charges get dropped?

The answer is: generally not.

California law treats instances of domestic violence as a crime against both the victim and the state. Even if the alleged victim no longer wants to press charges, prosecutors will still proceed with the case as long as (1) they believe the crime was committed, and (2) they have evidence to make their case in court.

It's widely believed throughout the justice system that the public interest favors prosecuting legitimate domestic violence cases, even against the will of the victim.10 This stems from the notion that a victim often seeks to drop charges because she's afraid of the accused, because she's reconciled with him, and/or because she doesn't want to lose a source of financial support.11 It's believed that if these cases don't get prosecuted, the abuse will continue, and often times grow worse.

That said, if the "victim" doesn't desire prosecution, this may affect how the district attorney deals the case. An uncooperative victim can make the prosecutor's job harder. It sometimes makes him/her more willing to reduce the charge to a lesser offense, to offer a more generous plea agreement, or even to dismiss the case if the evidence is already weak.

5. What if the "victim" doesn't show up for court?

The prosecutor can try to force the witness to court

The prosecutor and the defense have the "subpoena power" of the court...which means the attorneys can force witnesses to come to court whether they wish to or not.

In order to compel a witness into court, the prosecutor must have either (1) gotten the witness personally served with a subpoena to appear or (2) had the judge "order back" the witness if he/she had previously been in court on the case.12 If so and the witness fails to appear, the judge can issue a bench warrant for the person's arrest.13 Police can then arrest the person, and bring him/her to court in custody.

It's not uncommon in Penal Code 273.5 cases for prosecutors to resort to these measures in order to compel an uncooperative victim into court.

Example: Judy is the accusing witness in a California domestic violence case. She gets personally served with a subpoena to appear in court Monday to testify at trial. Come Monday, she doesn't show up. The D.A. shows the judge a "proof of service" of the subpoena. The judge then issues a "body attachment" for her arrest.
Police go to Judy's work and take her into custody. The police bring her directly to court where the judge puts her on the witness stand and compels her to testify.

What if the D.A. still can't get the "victim" into court?

All of this assumes the D.A. is able to get personal service of the subpoena, and/or find the witness and arrest him/her for ignoring the subpoena.

But what if the witness dodges service? What if she moves away, goes to Mexico, goes into hiding? What if the D.A. absolutely cannot get her into court?

If the witness is necessary to the prosecution's case, chances are the D.A. won't be able to proceed.

The United States Supreme Court has ruled that a defendant in a criminal case has a Constitutional right to confront and cross examine witnesses.14 This means that witnesses against him must be:

  • brought into court,
  • placed under oath, and
  • subject to cross-examination as to their testimony.

If these witnesses can't be produced at trial, then, generally, their prior statements to the police or others are inadmissible.

One exception to this rule is testimony at a prior proceeding. California Evidence Code 1291 allows introduction of an unavailable witnesses' prior testimony if that witness was subject to cross-examination on the previous occasion.15

Example: Sally is the alleged victim at a Penal Code 273.5 trial. The D.A. makes diligent efforts to locate her and serve her a subpoena. But she is nowhere to be found. However, Sally did testify at a prior preliminary hearing in the same case, and the defense had a full opportunity to cross-examine her at that time. Under these circumstances, courts allow the D.A. to introduce at trial the transcript of her prior testimony.

Two conditions must exist for the "prior testimony" exception to apply. First, the defense must have had a full opportunity to cross-examine the witness at the prior proceeding. Second, the prosecutor must satisfy the court that the witness is legally "unavailable." This generally means that the witness could not be located despite reasonable diligence, or is precluded from testifying due to a privilege.16

6. What if the victim goes to court and denies that
any domestic abuse took place?

Suppose the accuser takes the witness stand at trial and denies that anything ever happened? What happens then?

It's not uncommon for accusing witnesses to recant their prior stories to the police. When they do, prosecutors are generally allowed to introduce prior inconsistent statements made to the police or others.17

Example: Tim calls 911 and tells police that his domestic partner Dan punched him in the shoulder. Officers respond to the scene. They observe redness on Tim's shoulder, photograph it, and arrest Dan for Penal Code 273.5.
At Dan's trial, the D.A. calls Tim to the stand as a witness. Tim recants and testifies: "Dan never hit me. When I spoke to the cops that day, I was making up a story because I was mad at Dan and wanted to get him in trouble. The truth is: I got that redness when I fell climbing down the stairs."
Under this scenario, the D.A. can call the officers to the witness stand and have them recount Tim's original statement on the day of the incident. The jury must then decide whether to believe Tim's initial statement to the police, or his testimony at trial.

In order to be allowed to introduce the witnesses' prior inconsistent statement, the witness must be present at trial and must testify. Suppose, in the previous example, Tim never shows up at trial at all. In that case, the D.A. would not be allowed to introduce his statement to the police.

7. What are the penalties and sentences for a
PC 273.5 conviction?

A Penal Code 273.5 conviction is serious and can involve fines, jail or prison time, and court-ordered counseling.

Infliction of a corporal injury on a spouse or cohabitant is a "wobbler."  This means that prosecutors can choose to file it as either a misdemeanor or a felony.

Prosecutors tend to decide this based on

  1. the facts surrounding the specific offense (especially the extent of the injuries), and
  2. the suspect's criminal history (with particular emphasis placed on other acts of violence).

Misdemeanor sentencing

If you get convicted of misdemeanor domestic violence under Penal Code 273.5, you face any of all of the following18:

  • a minimum three-years of informal or "summary" probation,
  • up to a one year sentence to county jail (and (1) a minimum fifteen days in jail if the conviction was within seven years of a previous conviction for Penal Code 242 battery (with or without a serious bodily injury allegation), Penal Code 243.4 sexual battery, or certain types of aggravated assault, and (2) at least 60 days in jail if the conviction was within seven years of two prior convictions for the same),
  • up to $6,000 in fines (or up to $10,000 if the conviction was within seven years of a previous conviction for any of the above offenses or for Penal Code 243(e)(1) domestic battery),  OR
  • payments to a battered women's shelter not to exceed $5,000 and/or reimbursement to the alleged victim for any medical and/or counseling services he/she reasonably incurred as a result of the offense,
  • a protective order that protects the alleged victim from further acts of violence, threats, sexual abuse, stalking, harassment, and possibly a residence exclusion and/or stay-away conditions,
  • a restraining order that prohibits you from having any contact with the alleged victim for up to ten years,
  • notice to the victim of disposition of the case,
  • successful completion of at least a year's worth of batterer's classes that meet for at least two hours on a weekly basis,
  • any other type of counseling services that the court determines might be beneficial (substance abuse and/or alcohol educations classes, for example), and
  • completion of a community service program.

Our article on how probation & probation violation hearings work in California provides a more in-depth discussion of probationary sentences.19

If you are granted probation in a misdemeanor or felony case, you may expunge your California criminal record once you successfully complete the probationary period.  But the judge can deny you an expungement if you suffer a probation violation, or fail to adhere to all the terms and conditions of probation.20

Felony sentencing

If convicted of felony domestic abuse under Penal Code 273.5 PC, you face any of all of the following:

  • formal probation,
  • up to two, three, or four years in California State Prison (and up to five years if you have a previous conviction for Penal Code 242 battery, Penal Code 243.4 sexual battery, or certain types of aggravated assault),
  • an additional and consecutive three, four, or five year prison sentence if the alleged victim or anyone other than yourself sustained a "great bodily injury" (that is, a substantial or significant bodily injury, discussed in detail in our article on California's definition of great bodily injury),
  • a possible "strike" on your record under California's Three Strikes Law, and
  • all of the probation requirements listed above under the misdemeanor penalty section.

Note that the additional three-to-five year prison sentence enhancement for inflicting great bodily injury can be added if anyone other than yourself sustains great bodily harm under circumstances that involve domestic violence.21

Example:  John catches his wife in bed with Steve.  In a jealous rage, John puts a knife to his wife's throat and threatens to kill her.  Steve tries to intervene and John stabs him instead.  As a result, Steve suffers a great bodily injury.
Even though Steve doesn't meet the "intimate partner" criteria set forth under Penal Code 273.5 PC, John wounded Steve under circumstances involving domestic abuse and therefore faces the additional sentencing enhancement.

If you are charged with felony spousal abuse, the court may be willing to reduce the wobbler from a felony to a misdemeanor.22 The court may also grant an early termination of probation if you comply with all the terms and conditions of probation for the first year or two.23

8.  Penal Code 273.5 and deportation

Aliens / immigrants are subject to deportation for committing certain California crimes.  A conviction for any California domestic violence crime, including Penal Code 273.5 PC, subjects even legal aliens to deportation because

  1. domestic violence crimes are specifically listed as deportable crimes,
  2. Penal Code 273.5 may be classified as an aggravated felony (even when charged and sentenced as a misdemeanor),24 and
  3. it also counts as a crime involving "moral turpitude" (that is, a crime that society regards as especially reprehensible).25

It is especially critical for noncitizens to consult a California criminal defense attorney who has experience dealing with domestic violence cases and immigration issues.  An attorney versed in both subjects knows the best way to resolve the case so as to avoid triggering a deportation.

9. "Disturbing the peace" and "trespass" as
plea bargains in a California Penal Code
273.5 case

Sometimes the prosecution's evidence may be weak or circumstances may warrant giving the defendant leniency.  But because of political pressure, the prosecutor may be reluctant to dismiss the domestic violence case altogether.  In this scenario, the prosecutor might reduce your charge to a lesser offense in exchange for a guilty or "no contest" plea.

Two of the most common plea bargain charges are Penal Code 602 trespass and Penal Code 415 disturbing the peace. Penal Code 602, California's trespassing law prohibits entering another person's property without permission.26Penal Code 415, California's disturbing the peace law prohibits fighting another person in public, using fighting words in public, or making unreasonable noise so as to disturb your neighbors.27

Typically, these charges relate to the alleged domestic violence only indirectly, if at all. Nevertheless, they are commonly used as plea bargaining tools because

  1. they carry lesser sentences than domestic violence charges (both can be charged as either misdemeanors or infractions), and
  2. they carry less of a stigma on one's criminal record.
10. Can prior acts of domestic violence be used
against you?

As a general rule, California law prohibits prosecutors from introducing at trial a defendant's prior misconduct.28 This is because jurors are supposed to judge the defendant based on the facts surrounding the crime for which he is presently charged.  If the prosecutor gets to "dirty him up" by telling of his prior bad acts, jurors may convict him based on his history rather than the evidence in the present case.

Nevertheless, California law contains an exception to this rule when the defendant is charged with domestic violence. Evidence Code section 1109 allows prior acts of domestic abuse...including those subject to Penal Code 273.5, Penal Code 273d child abuse29 and/or Penal Code 273a child endangerment30...to be introduced as evidence against you.31

Moreover, section 1109 allows the prosecutor to introduce prior allegations that you engaged in acts of domestic violence, even if you were never convicted of those allegations, so long as they pass muster with judge.  Before a judge will allow the prosecutor to introduce prior acts of domestic battery, he/she will conduct an admissibility hearing and consider:

  • whether the proposed evidence will unduly prejudice the jury,
  • the strength of the evidence to support the prior allegations, and
  • how much time has elapsed between the prior acts and the pending case32

If the judge determines that your prior acts are admissible, it may be easier for the prosecutor to convict you of Penal Code 273.5 simply because someone accused you of similar conduct in the past.  However, the judge will instruct the jury that the prior acts are not by themselves sufficient to find you guilty and that they are simply one factor to consider when deliberating the case.

A criminal defense attorney who specializes in California domestic violence law knows the most effective arguments to convince the court that this type of evidence is unduly prejudicial and should be excluded.

11. Penal Code 273.5 and California's three
strike's law

A Penal Code 273.5 PC conviction will result in a "strike" on your record under California's Three Strikes Law if the offense resulted in "great bodily injury."33

This means that if you are subsequently charged with any felony and have a prior "strike" on your record, you will be considered a "second striker." As such, your sentence will be twice the term otherwise required by law.34

If charged with a third felony and you have two prior strikes, you will be considered a "third striker." In this scenario, you must serve a mandatory minimum sentence of 25 years-to-life in California state prison.35

12. Penal Code 273.5 and related domestic
violence offenses

A number of related offenses also fall under the umbrella of California domestic violence law.  These include:

Penal Code 243(e)(1) "simple" domestic battery

California Penal Code 243(e)(1) domestic battery is always a misdemeanor.  It is the least serious of the primary domestic violence laws.  It also expands the definition of "intimate partner" to include the same partners defined in Penal Code 273.5 PC, but also adds

  1. anyone you are or previously were dating, and
  2. a current or former fianc� or fianc�e.36

You can be convicted of this offense even if you don't injure your partner...all that is required is that you willfully inflict force or violence upon him/her.  Even the slightest touch will satisfy the "force or violence" requirements if you touched your partner in an angry, disrespectful or offensive manner.37

Penal Code 243d aggravated battery

There are two main differences between California Penal Code 243d aggravated battery and its domestic abuse counterparts Penal Code 243(e)(1) and Penal Code 273.5.  The first is that the alleged victim must suffer a serious bodily injury.  The second is that the alleged victim can be anybody, not just an intimate partner.38

Under this section, "serious bodily injury" means serious harm to one's body.  Examples may include a concussion, broken bones, an injury requiring extensive stitches, or disfigurement.39

This code section is essentially the "catchall" that allows prosecutors to file domestic violence charges where the alleged victim doesn't qualify as an intimate partner under Penal Code 273.5.

Example: Let's use an example from above, but put a twist on some of the facts.  Instead of an angry and jealous wife falsely accusing her husband of domestic violence, let's say that the couple is not married and not living together.  While the woman is accusing her boyfriend of cheating on her, she slaps him.  At the time she slaps him, she is wearing a ring that happens to be turned inward, which seriously cuts his eye and causes partial blindness.
If prosecutors wanted to charge felony domestic abuse, they would do so under this section, since "boyfriends" aren't considered partners under 273.5.

Domestic violence involving children

Although we most often think of domestic abuse as acts that take place between adults involved in sexual or romantic relationships, it's actually much broader.  California's domestic violence laws also include acts that you commit against (1) your child, or (2) a child with whom you are or were living.40

This means that if you physically abuse a minor child, you face a domestic violence charge for Penal Code 273d child abuse.41

Similarly if you place a child in a situation where he/she is likely to be injured...either physically or mentally...you face prosecution under Penal Code 273a, California's child endangerment law.42

Example:  If you abuse your wife in front of your child, prosecutors could charge you with Penal Code 273.5 spousal abuse and child endangerment.  Allowing your child to witness his mother being beaten is likely to cause mental suffering.  In addition and, depending on the circumstances, placing him in that situation could also possibly cause a physical injury (if he were inadvertently hit or if he tried to intervene to protect his mother).

And along these same lines, allowing your child to remain in a home where domestic violence takes place...even if you are the primary victim of the domestic abuse ...could subject you to child endangerment charges as well.

It should be noted that these offenses involve children who are under 18 years old.

If you abuse an adult child living with you, prosecutors will likely pursue charges under one of the other domestic battery statutes such as Penal Code 243(e)(1) or Penal Code 273.5 PC, since an adult child qualifies as a "cohabitant."

If you are accused of abusing an adult child who does not live with you, prosecutors would choose between filing a Penal Code 242 simple battery or a Penal Code 243d aggravated battery.  Both of these offenses are applicable to any victim.

Penal Code 368 PC elder abuse

California Penal Code 368 PC elder abuse makes it a crime to abuse a person 65 years of age or older. Unlike Penal Code 273.5 which covers only physical abuse, the "elder abuse" law encompasses physical, mental, emotional or financial abuse.43

In a situation where a person is accused of inflicting corporal injury on a live-in parent or other cohabitant 65 or older, prosecutors may charge both Penal Code 273.5 and 368.

Lesser included offenses

There are times when a jury might believe that the defendant committed a crime, just not the crime that the prosecutor alleged.  If the offense they believe that the defendant committed is a lesser included offense of the one alleged, they can elect to convict the defendant of that charge instead.

A "lesser included offense" is one whose elements are contained in the more serious alleged offense.  The crimes of assault and battery are lesser included offenses of Penal Code 273.5 spousal abuse.

Penal Code 240 PC assault

A California Penal Code 240 PC assault takes place when you perform an act that is likely to result in the application of force to another.44 You don't need to make actual contact with the other person. You just have to make the attempt and have the ability to do so.

You can't inflict a traumatic injury under Penal Code 273.5 PC domestic abuse without first attempting to do so, which is why assault is a lesser included offense of this crime.

Penal Code 242 PC battery

Penal Code 242 PC battery is simply defined as unlawfully touching another.45 If your partner doesn't sustain a traumatic condition (but you still unlawfully touched him/her), you have committed a battery.

It should be noted that these lesser included offenses apply to all victims.  As a result, a jury might find you guilty of one of these offenses if, for example, the alleged victim isn't one of the people specifically included in Penal Code 273.5's definition of "intimate partner."

Img-domestic_violence273-5-2
13. California domestic homicide cases

Domestic homicide refers to a situation in which a person is killed by a spouse, cohabitant or other dating partner.  Depending on the circumstances, prosecutors may pursue the case as murder or manslaughter.

If prosecutors believe the defendant killed the victim

  • with an explicit intent to kill
  • out of a reckless disregard for human life, OR
  • in connection with a dangerous felony (thus invoking the California felony murder rule),

they will likely file charges under Penal Code 187, California's murder law.46

If prosecutors believe that the death was

  • somewhat accidental,
  • due to criminal negligence (under California law, "criminal negligence" is a standard of care where you exhibit an extreme disregard for human safety), or
  • provoked and carried out in the "heat of passion" (the common example is the husband finding his wife in bed with another man),

they will likely file charges under Penal Code 192, California's manslaughter law.47

14. The politics of California domestic
violence law

California domestic violence law is very politically driven.  This area began to receive increased public attention during the 1970s, when women's organizations led the movement towards putting an end to abusive relationships and to protecting the victims of those relationships.48

As the '70s and '80s continued, domestic violence became a more familiar phrase.  Domestic abuse laws began to emerge, and new protocols were introduced to help medical professionals and law enforcement officers detect and respond to these types of calls with increased sensitivity and diligence.49

The affect of the O.J. Simpson Case

But California domestic violence laws really began to take center stage in 1994 after O.J. Simpson was arrested for killing his wife, Nicole Brown Simpson, and her friend, Ron Goldman.  This tragic event not only increased public awareness about domestic violence. It also inspired a number of subsequent spousal battery laws.50

O.J. Simpson had been arrested five years earlier on spousal battery charges. Nicole had summoned police to their home on eight previous occasions where they took no action against O.J.  When he was finally arrested and charged, he received only a $500 fine, community service and counseling services over the phone.

The Simpson case prompted the justice system to reexamine how police responded to domestic violence calls.  Statistics in the early 1990s revealed that an overwhelming number of 911 calls for corporal injury on a spouse or cohabitant didn't end in arrest.  They further revealed that most of those that did end in arrest didn't result in prosecution or conviction.51 California passed new legislation that:

  1. required even veteran officers to receive on-going training on California's domestic abuse laws,
  2. required law enforcement officers to report all instances where physical acts of domestic violence actually occurred,
  3. officially encouraged officers to make arrests in domestic abuse situations, and
  4. mandated officers to arrest anyone who violated a domestic violence related restraining order.

And with respect to penalties...

Penalties for corporal injury to a spouse or cohabitant also increased.  Prior to the Simpson/Goldman murders, many Penal Code 273.5 PC offenders participated in diversion programs.  "Diversion programs" allow defendants who participate in counseling programs to have their charges dismissed upon successful completion of those programs.

However, the California Legislature enacted laws in 1994 and 1995 that changed the ways domestic violence offenders were treated by the courts.  These new laws:52

  1. prohibited alleged spousal battery offenders from participating in diversion programs (effectively limiting the choice of defendants either to plead guilty or stand trial),
  2. required those persons convicted of Penal Code 273.5 and other crimes of domestic violence to be placed on minimum three-year probationary periods, and
  3. required offenders to attend weekly two-hour counseling sessions for a minimum of one-year.

Vertical prosecution and the "no-drop" policy

Two other practices developed during the 1990s as well:  (1) the birth of prosecutorial "family violence" units and (2) the "no-drop" policy.

Many California prosecuting agencies established specialized domestic violence or "family violence" units to handle cases of corporal injury on a spouse or cohabitant.  In these units, one prosecutor is assigned to handle the case from beginning to end, throughout the entire court process.  Referred to as "vertical prosecution," this structure aimed to

  • ensure more successful prosecutions, by
  • allowing prosecutors to develop relationships of trust with their victims/witnesses.

The fact remains, however, that even with vertical prosecution, many witnesses are reluctant to testify against their alleged abusers.  So prosecutors began to adopt "no-drop" policies. The "no-drop" policy made it clear that even if a victim changes her mind and wants to "drop the charges," the D.A.'s office is still going to prosecute the case.

Prosecuting agencies enacted this policy in part due to political pressure to toughen up on domestic abusers, and in part to deal with a common phenomenon known as the "recanting victim."  "Recanting victims" change their stories after formal domestic violence charges have been filed.  This happens largely because either

  • they are ready to own up to the false allegations that they initiated,
  • they are fearful of their partner and don't want to endure further abuse after testifying, or
  • they don't want to lose the breadwinner of the family.

A variety of California Evidence Code sections make this no-drop policy possible.53 These codes allow prosecutors to introduce evidence that might otherwise be excluded when the victim

  • is unable to testify,
  • changes his or her story (that is, the "recanting" victim), or
  • won't cooperate.

Since coming into the limelight, domestic violence has remained a hot button political issue.  The California Legislature is constantly reviewing new bills proposing increased rights for victims and stiffer penalties for offenders.

15.  How Nevada's domestic violence law differs
from California Penal Code 273.5

The Nevada crime of battery domestic violence54 has a broader scope than California Penal Code 273.5.

Under NRS 200.485, Nevada prosecutors can file charges in cases of alleged abuse between any family members, including cousins, and even when the alleged victim shows no sign of physical injury.  California Penal Code 273.5, on the other hand, applies only to episodes between current or former spouses or cohabitants, or the parents of a child, and requires a showing of a traumatic condition.

So while NRS 200.485 comprises all domestic abuse matters, PC 273.5 is reserved for graver situations between more intimate partners.  In California, in domestic violence cases that are more minor, prosecutors may elect to press misdemeanor charges under PC 243(e)(1) for simple domestic abuse.

Call us for help...
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If you or loved one is charged with Penal Code 273.5 corporal injury and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Nevada criminal defense attorneys represent clients accused of battery domestic violence.  For more information about Nevada's domestic violence laws, we invite you to contact our local attorneys at one of our Nevada law offices.55

Legal References:

1California Penal Code 273.5 PC -- Domestic violence.  ("(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, 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.")

2Our Los Angeles criminal defense attorneys have local criminal law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

3California Jury Instructions -- Criminal (CALJIC 9.35 -- Spouse or cohabitant beating).  ("In order to prove this crime [that is, willful infliction of corporal injury of a spouse, cohabitant, or fellow parent under California Penal Code 273.5], each of the following elements must be proved:[1] A person inflicted bodily injury upon [[his] [her] [former] spouse] [a [former] cohabitant] [the [mother] [or] [father] of [his] [her] child]; [2] The infliction of bodily injury was willful [and unlawful]; and [3] The bodily injury resulted in a traumatic condition.")

4See same.  (""Corporal injury" means bodily injury.")

5 See same.  ("The word "willfully" as used in this instruction means a purpose or willingness to commit the act that results in corporal injury.")

6See same.  ("A "traumatic condition" is a condition of the body such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.")

7People v. Silva (1994) 27 Cal.App.4th 1160, 1166.  ("[California Penal Code] Section 273.5 applies to "corporal injury resulting in a traumatic condition." A "traumatic condition" is defined as "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." ([California Penal Code]  � 273.5, subd. (c).) Thus, a defendant who inflicts only "minor" injury violates the statute. ( People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [17 Cal.Rptr.2d 743]; People v. Gutierrez (1985) 171 Cal.App.3d 944, 951-952 [217 Cal.Rptr. 616].) By contrast, felony battery requires "serious bodily injury" (� 243, subd. (d)) and felony assault requires "force likely to produce great bodily injury" FN7 (� 245, subd. (a)). Section 273.5 requires a lesser showing of harm so officers can intervene more expeditiously in domestic disputes. ( People v. Gutierrez, supra, 171 Cal.App.3d at p. 950.) In other words, "the Legislature has clothed persons of the opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed.")

8California Jury Instructions --  Criminal (CALJIC) 4.45 -- Accident and Misfortune.  ("When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she] does not thereby commit a crime.")

9Glendale California criminal defense lawyer Darrell York is a former 24-year Glendale police officer. He now practices criminal defense law throughout Los Angeles and Ventura Counties.

10See abstract by Erin Han, Mandatory Arrest and No-Drop Policies: Victim Empowerment in Domestic Violence.

11See Power and Control Wheel: Why Women Stay in Abusive Relationships.

12See California Penal Code 1331 and Code of Civil Procedure 1212.

13See California Penal Code 1328d and Code of Civil Procedure 1993.

14See Crawford v Washington (2004) 541 US 36, 68, 124 S Ct 1354, 158 L Ed 2d 177. See also People v Wilson (2005) 36 C4th 309, 341, 30 CR3d 513.

15California Evidence Code 1291. Former Testimony of Party in Former Action

(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

(1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or

(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

(b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to:

(1) Objections to the form of the question which were not made at the time the former testimony was given.

(2) Objections based on competency or privilege which did not exist at the time the former testimony was given.

16California Evidence Code 240. Unavailable as a Witness Defined

(a) Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.

(2) Disqualified from testifying to the matter.

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

(4) Absent from the hearing and the court is unable to compel his or her attendance by its process.

(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.

(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.

(c) Expert testimony which establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term "expert" means a physician and surgeon, including a psychiatrist, or any person described by subdivision (b), (c), or (e) of Section 1010.

The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.

17California Evidence Code 770. Extrinsic Evidence of Inconsistent Testimony

Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:

(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or

(b) The witness has not been excused from giving further testimony in the action.

18California Penal Code 273.5 PC -- Willful infliction of corporal injury; violation; punishment. ("(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, 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....(e)(1) Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of [California Penal Code] Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000). (2) Any person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 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 ten thousand dollars ($10,000), or by both that imprisonment and fine. (f) If probation is granted to any person convicted under subdivision (a), the court shall impose probation consistent with the provisions of [California Penal Code] Section 1203.097. (g) If probation is granted, or the execution or imposition of a sentence is suspended, for any defendant convicted under subdivision (a) who has been convicted of any prior offense specified in subdivision (e), the court shall impose one of the following conditions of probation: (1) If the defendant has suffered one prior conviction within the previous seven years for a violation of any offense specified in subdivision (e), it shall be a condition thereof, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 15 days. (2) If the defendant has suffered two or more prior convictions within the previous seven years for a violation of any offense specified in subdivision (e), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 60 days. (3) The court, upon a showing of good cause, may find that the mandatory imprisonment required by this subdivision shall not be imposed and shall state on the record its reasons for finding good cause. (h) If probation is granted upon conviction of a violation of subdivision (a), the conditions of probation may include, consistent with the terms of probation imposed pursuant to Section 1203.097, in lieu of a fine, one or both of the following requirements: (1) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097. (2) 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...(i) Upon conviction under subdivision (a), the sentencing court shall 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. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation.")

See also California Penal Code 1203.097 PC -- Terms of probation for crimes of domestic violence.  This statute lists a variety of penalties that are mandatory for an individual placed on probation following a domestic violence conviction.  In addition to those conditions listed under California Penal Code 273.5, this section adds additional requirements, listed under misdemeanor and felony penalties for infliction of corporal injury on a spouse, cohabitant, or fellow parent, above.

19California Probation Law and California Probation Violation Hearings are governed by the California Penal Code.  California Penal Code 1203 -- Probation. ("(a) As used in this code, "probation" means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. As used in this code, "conditional sentence" means the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer. It is the intent of the Legislature that both conditional sentence and probation are authorized whenever probation is authorized in any code as a sentencing option for infractions or misdemeanors.")

20California Penal Code 1203.4 PC -- Change of plea.  This section outlines the procedures by which a defendant can expunge his California Penal Code 273.5 spousal battery conviction from his criminal record.

21People v. Truong (2001) 90 Cal.App.4th 887, 899.  ("The Legislature in [California Penal Code] section 12022.7, subdivision (d), could easily have limited application of the enhancement to great bodily injury inflicted upon a "victim of domestic violence." Instead, it chose the broad language "under circumstances involving domestic violence."...By its plain language, [California Penal Code] section 12022.7, subdivision (d), establishes an enhancement for any person who inflicts great bodily injury upon a person in the course of an incident of domestic violence...It is easy to conjure the circumstances in which the statute might come into play, such as when the defendant inflicts great bodily injury upon a friend or relative who has attempted to come to the aid of the domestic violence victim, or upon a peace officer responding to an incident of domestic violence. The reach of the statute certainly includes the circumstances presented here, in which an angry husband physically abuses his wife and, as part of the same incident, inflicts great bodily injury upon the man with whom she is having an affair.")

22California Penal Code 17 -- felony / misdemeanor.  Penal Code 17(b)(3) states "(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail [as is a California Penal Code 273.5 willful infliction of corporal injury on a spouse, cohabitant, or fellow parent], it is a misdemeanor for all purposes under the following circumstances:...(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor."

23California Penal Code 1203.3 PC -- Probation; revocation, modification, termination.  This code section outlines the procedures that must be followed in order to modify a probation order in a California domestic violence case.

24Maya-Cruz v. Keisler (2007) 252 Fed.Appx. 136, 137.  ("Maya-Cruz was convicted of the misdemeanor crime of willful infliction of corporeal injury to a spouse under California Penal Code � 273.5(a), which makes it a felony to "willfully inflict[ ]" upon a spouse or cohabitant a "corporal injury resulting in a traumatic condition." Maya-Cruz was charged with this crime as a misdemeanor under California Penal Code � 17(b)(4), which allows the prosecutor discretion to specify the crime as a misdemeanor. Maya-Cruz does not dispute that the crime of corporeal injury to a spouse is a crime of violence nor does he dispute that he was sentenced to 365 days in jail for this offense after violating the terms of his probation. He therefore rests his legal claim solely on his contention that his crime cannot be an "aggravated felony" because it is a misdemeanor under state law and he was not sentenced to more than one year. We disagree. A crime is an aggravated felony under 8 U.S.C. � 1101(a)(43) "without regard to whether, under state law, the crime is labeled a felony or a misdemeanor." United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1170 (9th Cir.2002) (quoting United States v. Corona-Sanchez, 291 F.3d 1201, 1210 (9th Cir.2002) (en banc)). Further, the clause "at least one year" in 8 U.S.C. � 1101(a)(43)(F) includes "those crimes that receive a sentence of exactly one year," see United States v. Gonzalez-Tamariz, 310 F.3d at 1171, as well as crimes where the maximum sentence is one year, see United States v. Alvarez-Gutierrez, 394 F.3d 1241, 1244-45 (9th Cir.2005). Lastly, "[t]he fact that this term of imprisonment was not imposed until after [petitioner] violated his probation is not legally significant." United States v. Jimenez, 258 F.3d 1120, 1125 (9th Cir.2001).")

25Grageda v. U.S. I.N.S. (1993) 12 F.3d 919.  This case holds that California Penal Code 273.5 PC spousal battery is a crime of moral turpitude.

26California Penal Code 602 PC -- Trespass.  This code lists a variety of ways that trespasses take place, but it is essentially summed up as entering or remaining on another's property without the right to do so.  This and disturbing the peace under endnote 46 below, are common plea bargains used in California Penal Code 273.5 PC willful infliction of corporal injury on a spouse, cohabitant, or fellow parent prosecutions.

27California Penal Code 415 PC -- Disturbing the peace.  ("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.")

28California Evidence Code 1101 -- Evidence of character to prove conduct.  ("(a) Except as provided in this section and in [California Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion [in a California Penal Code 273.5 trial].")

See also California Evidence Code 352 -- Discretion of court to exclude evidence.  ("The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.")  Italics added.

29California Penal Code 273d -- Corporal punishment or injury of child; felony; punishment; enhancement for prior conviction; conditions of probation "child abuse".  ("(a) Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine."

30California Penal Code 273a -- Willful harm or injury to child; endangering person or health; punishment; conditions of probation - child endangerment.  ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is  endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the [California] state prison for two, four, or six years.  (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.")

31California Evidence Code 1109 -- Evidence of defendant's other acts of domestic violence.  ("(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence [such as a Penal Code 273.5 willful infliction of corporal injury on a spouse, cohabitant, or fellow parent], evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.  (2) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant's commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. (3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101. (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054. 7 of the Penal Code. (c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law. (d) As used in this section: (1) "Abuse of an elder or dependent person" means physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering. (2) "Child abuse" means an act proscribed by Section 273d of the Penal Code. (3) "Domestic violence" has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, "domestic violence" has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense. (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice...")

See also California Evidence Code 1101(b) -- Evidence of character to prove conduct.  ("(b) Nothing in this section prohibits the admission of evidence [into a Penal Code 273.5 prosecution] that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.")

32See California Evidence Code 1109, endnote 17, above.

33California Penal Code 1192.7(c). ("As used in this section [with respect to California Penal Code 273.5], 'serious felony' means...(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm...")

See also California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

34California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law.  ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years...")

35See same.

36California Penal Code 243(e)(1) PC -- Domestic battery.  ("(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, fianc�, or fianc�e, 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.")

37Judicial Council Of California Criminal Jury Instruction 841-- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Penal Code 243(e)(1)). ("The slightest touching can be enough to commit a [domestic] 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.")

See also People v. Rocha, (1971) 3 Cal.3d 893, 900 ("'It has long been established, both in tort and criminal law, that the least touching' may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.'")

38California Penal Code 243 (d) -- Aggravated battery. ("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 in the state prison for two, three, or four years.")

39Judicial Council Of California Criminal Jury Instruction 925 -- Battery Causing Serious Bodily Injury (Pen. Code, �� 242, 243(d)).  ("[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (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).]")

40California Family Code 6211 -- Domestic violence.  ("'Domestic violence' is abuse perpetrated against any of the following persons: (b) A cohabitant or former cohabitant, as defined in Section 6209....(e) A child of a party...")

See also California Family Code 6209 -- Cohabitant.  ("'Cohabitant' means a person who regularly resides in the household. "Former cohabitant" means a person who formerly regularly resided in the household.")

41See California Penal Code 273d -- Corporal punishment or injury of child, endnote 15 above.

42See California Penal Code 273a -- Willful harm or injury to child, endnote 16 above.

43California Penal Code 368 PC -- Elder abuse.  This section reads almost identical to the Penal Code 273 child endangerment code above, except that it applies to those 65 years or older.  It also goes on to include forms of financial abuse as well.

44California Penal Code 240 PC -- Assault defined.  ("An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.")

45California Penal Code 242 PC -- Battery.  ("A battery is any willful and unlawful use of force or violence upon the person of another.")

46California Penal Code 187 PC murder.  ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.")

See also California Penal Code 189 PC -- Murder; degrees.  ("All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under [California Penal Code] Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.")

47California Penal Code 192 PC -- Manslaughter.  ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary--upon a sudden quarrel or heat of passion. (b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle. (c) Vehicular"...)

48Her Story of Domestic Violence: A Timeline of the Battered Women's Movement -- Chronicles the history of  events that  relate to domestic violence

49See same.

50California's Response to Domestic Violence -- A 1996 consensus put together by the California Senate Office of Research

51See same.

52See same.

53California Evidence Code sections 1240, 1241, 1250, 1370, and 1237 all allow out of court statements that may be classified as "hearsay" to be admitted during a California Penal Code 273.5 trial.

54NRS 200.485 Battery which constitutes domestic violence: Penalties; referring child for counseling; restriction against dismissal, probation and suspension; definitions. [Effective July 1, 2009.]

  1. Unless a greater penalty is provided pursuant to subsection 2 or NRS 200.481, a person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018:


  2. (a) For the first offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:

    (1) Imprisonment in the city or county jail or detention facility for not less than 2 days, but not more than 6 months; and

    (2) Perform not less than 48 hours, but not more than 120 hours, of community service.

    → The person shall be further punished by a fine of not less than $200, but not more than $1,000. A term of imprisonment imposed pursuant to this paragraph may be served intermittently at the discretion of the judge or justice of the peace, except that each period of confinement must be not less than 4 consecutive hours and must occur at a time when the person is not required to be at his place of employment or on a weekend.

    (b) For the second offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:

    (1) Imprisonment in the city or county jail or detention facility for not less than 10 days, but not more than 6 months; and

    (2) Perform not less than 100 hours, but not more than 200 hours, of community service.

    → The person shall be further punished by a fine of not less than $500, but not more than $1,000.

    (c) For the third and any subsequent offense within 7 years, is guilty of a category C felony and shall be punished as provided in NRS 193.130.

55Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's battery domestic violence laws.  Their Nevada law offices are located in Reno and Las Vegas.

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