Is Penal Code 273.5 a Strike? A Defense Lawyer Explains

You were recently charged under California Penal Code 273.5 for committing corporal injury on your spouse (which is essentially domestic violence). The district attorney is now saying that the charge could result in a “strike” on your criminal record. Is this correct?

It can be, depending on the facts of the case. A domestic violence offense could lead to a strike under California’s three strikes law if the crime:

1. was charged as a felony (as opposed to a misdemeanor), and
2. caused the alleged victim to suffer great bodily injury.

Note that Penal Code 273.5 PC makes it a crime in California for you to commit domestic violence. You commit “domestic violence” if you inflict corporal injury on a:

• spouse (or former spouse),
• cohabitant (or former cohabitant),
• co-parent,
• intimate partner, or
• member of a dating relationship.

“Corporal injury” refers to any physical injury. The injury can be either minor or serious.

1. When does domestic violence count as a “strike” under California law?

A domestic violence conviction will likely result in a strike on your criminal history if the crime gets classified as a violent or serious felony.

Per California’s three strikes law, a “strike” is a conviction for either

• a “violent” felony under PC 667.5, or
• a “serious” felony under PC 1192.7c.¹

Both of these laws set forth specific offenses that may count as violent or serious felonies. One in particular is a felony in which the defendant personally inflicts great bodily injury on any person.²

So, a domestic violence offense under PC 273.5 will result in a strike if the following are true:

1. the conviction resulted in a felony conviction, and
2. the “victim” suffered great bodily injury because of the crime.

2. What is “great bodily injury”?

Under California criminal law, the term “great bodily injury” means any significant or substantial physical injury.³

Great bodily injuries are limited to injuries from physical harm. Therefore, they do not include:

• emotional scars, or
• financial loss.⁴

Further, while a great bodily injury can include major traumas, the serious injury does not necessarily have to be:

• permanent, or
• severe.⁵

Some of the factors that a judge or jury will consider to determine whether or not a physical injury is a great bodily injury include:

• the severity of the injury,
• the resulting physical pain to the “victim,” and
• if the injury required immediate medical care.⁶

3. What is California’s three strikes law?

California’s three strikes law sets forth a sentencing enhancement that imposes a state prison sentence of 25 years to life if you are convicted of three or more violent or serious felonies.⁷

The law also doubles your prison sentence for any California felony if you have two strikes on your criminal record.⁸

As stated above, violent and serious felonies that count as “strikes” under the three strikes law are specifically set forth in Penal Code Sections 667.5 and 1192.7c.

Examples of these felonies include:

• murder,
• mayhem,
• rape,
• arson,
• assault with a deadly weapon,
• oral copulation by force,
• first-degree robbery, and
• felony domestic violence that causes great bodily injury.⁹

4. Are domestic violence cases always charged as felonies?

No. Domestic violence is a wobbler offense under California law. A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony, depending on:

• the facts of the case, and
• your criminal record.

A misdemeanor conviction of domestic violence can result in:

• county jail time of up to one year, and/or
• a maximum fine of $6,000.¹⁰

Most felony domestic violence charges are punishable by:

• custody in state prison for up to four years, and/or
• a maximum fine of $6,000.¹¹

Note that felony charges can also result in:

• being subject to a domestic violence protective order/restraining order, and
• loss of the right to own a firearm.

Note as well that some domestic violence offenses are considered crimes of moral turpitude. If you are not a U.S. citizen, this type of offense could lead to deportation.

5. Should you contact a criminal defense attorney for help?

Yes. You should speak with a defense lawyer or law firm if you are either:

• facing domestic violence charges in California, or
• are subject to California’s three-strikes law.

A criminal defense attorney can help by:

• getting you released from jail following a domestic violence arrest,
• contesting the necessity for a restraining order,
• gathering evidence that questions the “victim’s” credibility, and
• raising a legal defense to question a charge.

As to the latter, note that a few common defenses in domestic violence cases include showing that you:

• acted in self-defense, or
• were falsely accused.

The defense attorneys at our firm are well experienced in working with California’s criminal laws. Contact us to get the help you deserve.

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