Domestic Violence

Domestic Violence 2017-12-10T11:30:46+00:00

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Domestic Battery

Unlawfully inflicting physical force or violence on an intimate partner is domestic battery under California Penal Code 243(e)(1). It states as follows:

243(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.

An intimate partner is any of the following individuals:

  • Past or present spouse or fiancée
  • Past or present person you were dating
  • Parent of your child
  • Someone with whom you live

Physical Force Requirement

In a domestic battery charge, the amount of physical force or violence on the intimate partner can be trivial. Merely pushing someone or performing any other unwanted touching or contact constitutes the crime and no injury need be inflicted. The act, however, must not have been done accidentally but in anger, or with maliciousness or with an intent to commit violence. The act does not need to have caused any pain.

Touching or Contact

Merely touching someone without their consent is battery but usually something more than just an annoying brush against you is needed such as:

  • Slapping
  • Shoving someone up against a wall
  • Grabbing the person
  • Touching an intimate part

It also includes unlawfully contacting something connected to your intimate partner such as kicking your intimate partner’s dog while your partner is walking it, or smashing your partner’s car windows with him or her inside.

Other Related offenses

If there is an injury, the prosecutor can charge you with any one of three offenses:

  • Simple battery (PC 242)
  • Aggravated battery {PC 243(d)}
  • Intentional infliction of corporal injury (273.5

Simple Battery

If the injury is minimal, if at all, you will likely be charged with simple battery, a misdemeanor, though prior or multiple convictions could persuade the prosecutor to charge it as felony. A misdemeanor carries up to 6 months in jail and/or a fine up to $2,000.

Aggravated Battery

Aggravated battery can be charged against anyone regardless of the victim. It involves a serious injury, or one that seriously impairs a physical condition or causes great bodily harm. These injuries include concussions, cuts requiring numerous sutures, disfigurement, broken limbs or injuries requiring serious or substantial medical treatment.

This offense can be charged as either a misdemeanor or felony. A misdemeanor carries up to one year in jail and/or a $1,000 fine. If a felony, you face 2, 3 or 4 years in state prison and/or a fine up to $10,000. As a felony, you risk having a strike on your criminal record.

Intentional Infliction of Corporal Injury

Should you attack or willfully cause a traumatic injury to an intimate partner, you can be charged with intentional infliction of corporal injury. Under this section, an intimate partner is:

  • the parent of your child,
  • someone with whom you are living with or once lived with
  • your current or former spouse

This section does not apply to current or former fiancés or to a person you once dated.

A traumatic injury is generally considered a visible one, regardless if it is just a scratch or red mark, as long as it was done intentionally and without consent. Strangling or attempted suffocation is included.

This offense is also a “wobbler” or one that can be a misdemeanor or felony charge. A misdemeanor carries up to a year in jail and a fine up to $6,000. If you had a previous conviction within the past 7 years, you face a minimum mandatory 15 days in jail. If you had 2 previous convictions, the mandatory minimum is 60 days. There are additional penalties for a misdemeanor conviction:

  • Payment to a battered women’s shelter of up to $5000
  • Restitution to the victim for medical and psychological counseling
  • Participation for one year in a batterer’s education program
  • Restraining order prohibiting you from any contact with the victim for up to 10 years
  • Other treatment programs like drug or alcohol counseling
  • Community service

A felony conviction subjects you to 2, 4 or 5 years in state prison and a fine up to $10,000 along with the conditions imposed on misdemeanor sentences. Probation in lieu or jail or prison is possible for this offense.

Defenses to Domestic Battery

  • Self-defense

Self-defense is available in many domestic battery cases where both parties are fighting each other. You can use self-defense so long as you were not the initial attacker, that you used reasonable force to repel the attack and ceased your counterattack when you were no longer in danger.

  • Accident

If during an argument, you pushed your intimate partner by accident or were in the act of slamming a door without knowing your partner was just coming through it, then you lacked the requisite intent to unlawfully inflict physical harm.

  • False accusations

It is relatively easy to accuse someone of domestic battery since you need not display any visible injury or you could point to an unrelated bruise as evidence.

Finally, it is within the prosecutor’s discretion whether to charge someone if the victim decides not to press charges. If the victim wishes to not cooperate, it may be difficult to charge someone unless there is corroboration by others or evidence of a serious or traumatic injury. A victim can be subpoenaed to testify and be charged with perjury if he or she lies under oath.

Retain a California Criminal Defense Attorney

Domestic battery charges can be serious and impose significant limitations on your life as well as present a substantial stigma. If you face domestic battery or any other domestic violence crime, contact a California criminal defense lawyer to discuss your legal options and defense.