California Abuse Continues on the Victim What to Do in Court

In this guide, I will explain nine (9) things you need to know about penal code 273.5, California's domestic violence law¹.

Let's get started…

In This Guide We'll Cover:

Overview Of Domestic Violence Under Penal Code 273.5

In California, special rules apply when dealing with a domestic violence crime.

What Constitues Domestic Violence?

Domestic violence can consist of stalking, threatening, abandoning, damaging the property of or inflicting some kind of physical injury on the victim.

California law does distinguish between certain types of domestic violence.

What is Penal Code 273.5 PC?

California Penal Code Section 273.5 pc² which is the most commonly charged domestic violence related charge deals with corporal injury to an individual who is or who once was an intimate partner of the accused.

This penal code section can be filed as a misdemeanor or a felony.

Sometimes It's Not as Simple as It Reads in the Police Report

Some women and men who are accused of domestic violence are actually victims of domestic violence.

They either were acting in self-defense, set up entirely, or the victim of ongoing abuse that prompted a violent act in response.

Unfortunately, our domestic violence response system is not perfect and tends to make arrest and investigatory decisions based upon superficial factors.

What Factors Cause A Domestic Violence Arrest?

These factors might include:

Who called 911 first,
Who was more upset,
Who had the greater apparent physical injury.

Sometimes gender bias plays a role. Many abusers know how to work the domestic violence response system to their advantage.

Its quite common for someone to call the police hoping to calm a situation down such as a heated argument and somebody getting arrested for domestic violence
says criminal defense attorney Diana Aizman.

How Does The Prosecutor Prove The Charge

To be convicted of penal code 273.5 pc, the DA has to prove each element of the offense by the standard of proof beyond a reasonable doubt.

What Are The Elements of PC 273.5?

Willfully or intentionally³ inflicting a physical injury on an intimate partner⁴
Which causes a traumatic condition⁵ in the intimate partner.

Did the Act or Injury Substantially Lead to the Traumatic Condition?

You may have intended to strike your spouse or dating partner but not necessarily to cause the person to suffer an unintended injury.

Regardless, it is your direct physical act that was the cause or was a substantial cause of the traumatic condition⁶ suffered by your spouse or dating partner.

Was the Act Intentional and a Natural and Probable Consequence?

If you pushed your intimate partner down and the person fell and broke his or her arm or even sprained an ankle, your act was a substantial factor⁷ that led to the injury.

It may not have been your intention to break the person's arm or to suffer a sprained ankle, but your act of pushing was intentional and a natural and probable consequence⁸ that resulted in the traumatic condition.

Who Is Considered An "Intimate Partner" Under PC 273.5?

The offender's spouse or former spouse
The offender's cohabitant or former cohabitant
The offender's fiancé or fiancée, or someone with whom the offender has, or previously had, an engagement or dating relationship⁹.
The mother or father of the offender's child.

Note That Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section¹⁰

Legal Defenses For PC 273.5

There are a number of defenses available to anyone charged with domestic violence under penal code 273.5 pc:

You Had A Lack Of Willful Intent

You must have intended to harm your intimate partner or you will not have committed this particular crime.

For instance, an argument can result in unintended consequences such as accidentally shoving the victim when angrily leaving the room and the individual falls and sustains a concussion.

You Were Falsely Accused of Domestic Violence

It is not uncommon for defendants to be falsely accused by angry spouses or intimate partners of inflicting injuries that either did not occur or that were inflicted by someone else or in an accident.

If police cannot detect inaccuracies or contradictions in many of these instances, your attorney may be able to expose a fabricated allegation.

It Was Self Defense

In numerous crimes of violence, a defendant will assert the affirmative defense of self-defense, or that the defendant had to use physical or even deadly force to protect himself from imminent physical harm.

Self Defense Is An Affimative Defense

As an affirmative defense, you have to prove each element of self-defense before a jury or the trier-of-fact will find you not guilty. The elements of self-defense are:

You had a reasonable belief that you or someone else was in imminent danger of either serious bodily injury or offensive touching
You had a reasonable belief that you had to use physical force to prevent or defend yourself against the harm or danger
And you used no more force than was necessary to prevent or defend yourself or the other person

There Is A Lack of Proof

Prosecution under PC 273.5 may appear to be fairly simple if there is a clearly visible injury to an intimate partner of the defendant who alleges the defendant inflicted it and who either has a history of domestic violence or there are witnesses.

But many domestic violence crimes only occur in the presence of the victim and the defendant and if victims either recant their testimony or refuse to testify, what can the DA do

Can The Victim Be Subpoenaed To Testify?

A reluctant victim can be forced into court to testify by being served with a subpoena and must testify truthfully or face possible perjury charges or contempt of court if the person fails to appear.

A prosecutor can try to elicit testimony by asking the victim if he/she has been threatened by the defendant to not testify or is being manipulated.

Penalties & Sentencing For PC 273.5

Domestic violence under PC 273.5 is a wobbler offense, allowing the DA discretion to charge you with either a misdemeanor or a felony.

This also allows the court to reduce a felony under this section to a misdemeanor or for your attorney to negotiate it down if you are charged with felony domestic violence.

How Does The Prosecutor Decide If You Will Be Charged With A Misdemeanor Or Felony?

Whether you are charged with a misdemeanor or felony will depend on the nature or seriousness of the traumatic condition and/or your criminal history.

As a misdemeanor or felony, you can be sentenced as follows:

Penalties For PC 273.5	Misdemeanor	Felony
Fine	Up to $6,000¹¹	Up To $6,000¹²
Probation	Possible summary probation	Possible formal probation
Jail or Prison	Up to one year in county jail	2, 3, or 4 years in state prison
Restraining Order	Up to 10 Years¹³	Up to 10 years¹⁴

Note: AB 3129 increases the firearms prohibition for those convicted of misdemeanor domestic violence in violation of Pen Code §273.5 from 10 years to life.

The lifetime prohibition only applies to those convicted on or after January 1, 2019.

You Can Be Charged With Lesser Included Offenses

The following crimes are considered lesser included offenses for domestic violence.

Attempted Inﬂiction of Corporal Punishment on Spouse.¹⁵
Penal Code 242 pc – Misdemeanor Battery.¹⁶
Penal Code 240 pc – Simple Assault.¹⁷

Immigration Consequences For Domestic Violence Convictions

A conviction for domestic violence can lead to serious immigration consequences. These consquences include the possiblity of deportation for non-U.S. citizens¹⁸.

Additionally domestic violence can be a crime of moral turpitude.

Penalty Enhancements

Will A Prior Conviction For Domestic Violence Increase The Penalties?

A prior conviction in many instances will enhance a sentence for the present offense.

If you were convicted of domestic battery within 7 years of your conviction for domestic violence, your fine can increase to $10,000¹⁹.

For other violent offenses, your sentence will also increase to 5 years for a felony conviction. These include violations of the following:

Penal Code 245(a)(1) pc – Assault with a deadly weapon
Simple assault
Aggravated assault or battery
Sexual battery—PC 243.4

Are There Mandatory Miniumums For A Prior Conviction?

The court will impose a mandatory minimum 15-day jail sentence if you have a prior conviction within 7 years of the current conviction and a 60-day minimum jail sentence if you have had 2 or more prior convictions within 7 years²⁰.

If you are given a suspended sentence which always includes probation, you are subject to the mandatory minimum jail sentences stated above as well as:

Contribution to a battered woman's shelter of up to $5000²¹
Mandatory participation in a batterer's treatment program
Reimbursement to the victim for medical or counseling expenses²²

Is There A Penalty Enhancement For Great Bodily Injury?

Should the injury you inflicted have been serious, or which fits within the definition of "great bodily injury," then you face an added 3 to 5 years for a felony conviction.

A great bodily injury is a substantial or significant injury and may include²³:

Broken bones
Severe scarring or disfigurement
Severe concussion
Blistering or second degree burns
Severe contusions and swelling
Strangulation to where the victim passes out or nearly passes out
Knife wounds
Wounds from a gunshot
Loss of a body member or organ
Internal organ damage

Can You Receive A Strike For Great Bodily Injury?

You also face receiving a strike pursuant to California's 3-Strikes law if you inflicted great bodily injury on an intimate partner.

If you are convicted of a subsequent offense that is a violent or serious felony, your sentence will be doubled.

What Happens If You Already Have One Strike On Your Record?

If you have a strike and are convicted under PC 273.5, you face up to 10 years in state prison.

What Happens If Its Your Third Strike?

If you receive a third strike for a violent or serious felony, you face a sentence of 25 years to life.

Can You Be Charged With Child Endangerment And DV?

If a child is involved and you physically harm a spouse or the parent of the child or other intimate partner in the child's presence²⁴, then you face the prospect of a charge of child endangerment under PC 273a.

The DA would have to prove that you placed the child in danger or at risk of great bodily injury or death.

This might include attacking the intimate partner with a firearm or using some kind of dangerous weapon with the child in close proximity.

This is a misdemeanor but it becomes a wobbler offense if the child was placed in danger of suffering serious injury so that the DA can charge you with a felony.

Elder Abuse

If the intimate partner who was physically harmed was at least 65 years of age, then you may face an additional charge of Elder Abuse.

This offense is usually alleged against caretakers or nursing home facilities or individuals who swindle or embezzle elders.

Elder abuse is a wobbler offense if charged and convicted as a felony, you face 2, 3 or 4 years in state prison and a fine of up to $6000.

Potential Plea Options

There are options for a defense attorney or a DA to offer in a plea agreement if the evidence is weak, the victim is wavering as to whether to testify or there are other circumstances where a jury might not convict a defendant of domestic violence.

The following are some lesser offenses that a defendant might be offered in a plea arrangement:

Domestic Battery Plea Deal

Domestic battery under PC 243(e)(1) is a misdemeanor offense that carries a maximum sentence of one year in county jail and/or a fine up to $2000²⁵.

No visible injury need be shown or proved to get a conviction. A slap on the face or a push to the floor is sufficient.

Disturbing The Peace Plea

In cases where the DA has little to no proof that any injury or any contact was even made, or where the victim states that no violence occurred, a charge of Disturbing the Peace under PC 415 may be a last resort.

Examples Of Disturbing The Peace

Examples can be fighting in a bar or on the street, shouting obscenities or threats to someone in public or disturbing other tenants or residents in the area from your conduct.

It is a misdemeanor but only carries a maximum county jail sentence of 90 days. It can also be charged as an infraction, which is not a criminal offense.

Immigration Consequences Under This Plea

A conviction under PC 415 is not a deportable offense.

Expungement For Domestic Violence

Expungement of your criminal conviction under PC 273.5 is possible if you were convicted of a misdemeanor or otherwise did not serve time in state prison, a factor that will render your conviction ineligible for expungement relief.

A felony in California under this code section, however, provides for state prison time.

Under Penal Code 1203.4, you may petition the court to expunge your misdemeanor conviction for corporal domestic violence.

It is always desirable to seek an expungement since your conviction will not appear on a public database should anyone conduct a criminal background check, including landlords or private employers.

Will An Expungement Remove Everything?

An expungement does not result in the complete eradication of your conviction record. It remains accessible to persons considering you for public employment as well as to law enforcement and court personnel for sentence enhancement if you commit a subsequent felony offense.

Additional Benefits of An Expungement For Penal Code 273.5

Another major benefit of obtaining an expungement is that it enables you to state on any employment application or rental application, even under oath, that you were never convicted of a crime.

Unlike a felony, you do not have to disclose your conviction, along with the fact that it was expunged if you apply to run for public office or for public office. You do have to disclose it if you:

Eligibility for Expungement

If you were convicted of a misdemeanor under PC 273.5 or a felony for which you served no state prison time, you qualify for an expungement of the conviction. You may petition the court once you satisfy these other conditions:

You completed all conditions of your sentence and probation
You have not committed a subsequent felony
You have no criminal charges pending
You did not violate your violation

A probation violation does not necessarily render your conviction ineligible so long as you did not commit a serious misdemeanor or a felony offense. A court will review your overall criminal record and your need for the expungement order.

Case Process Information

The following links have important information on the criminal court process:

Being Released On Your Recognizance After An Arrest
Who Presses Charges The Prosecutor Or Victim?
Step 1 In A Criminal Case – The Arraignment
How To Conduct Yourself In Court
The Plea Bargain Process Between Prosecution & Defense Attorney
Criminal Trials – A Step By Step Overview

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 (b) Subdivision (a) shall apply if the victim is or was one or more of the following: (1) The offender's spouse or former spouse. (2) The offender's cohabitant or former cohabitant. (3) The offender's fiancé or fiancée, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243. (4) The mother or father of the offender's child. [↩]
Penal Code Section 273.5(a) PC defined – 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., available at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=273.5. [↩]
Willful Deﬁned. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]. [↩]
For purposes of this code section, the injured victim must have had some kind of relationship with the defendant. The category of "intimate partner" is broad and includes the following types of persons or relationships: a spouse or ex-spouse, a cohabitant [Cohabitant Deﬁned. People v. Holiﬁeld (1988) 205 Cal.App.3d 993, 1000 [252 Cal.Rptr. 729]; People v. Ballard (1988) 203 Cal.App.3d 311, 318–319 [249 Cal.Rptr. 806].] or ex-cohabitant (roommate) a fiancé or ex-fiancé, a current or former dating partner [see PC 243(f)(10)], the parent of the defendant's child [↩]
Causing a traumatic condition distinguishes this crime from the less serious offense of domestic battery, which can include any kind of offensive touching, no matter how slight. A traumatic condition is one where a visible injury occurs or one that is internal, such as from a punch to the stomach or lower abdomen that damages a testicle or internal organ. Obvious examples are black eyes, a broken jaw, loss of a tooth, a broken bone, bleeding from a cut or blow, bruises or marks left from strangulation. The injury, although referred to in the code as "traumatic," can be a minor injury but it qualifies as traumatic if it is at all physical in nature. Defined in California Criminal Jury Instructions 840 traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. [↩]
Traumatic Condition Deﬁned. Pen. Code, § 273.5(d); People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [217 Cal.Rptr. 616]. [↩]
A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that resulted in the traumatic condition.] Calcrim 840 [↩]
A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.
In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence – Calcrim 840 [↩]
Penal Code 243(f)(10): "Dating relationship" means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. [↩]
California Penal Code 273.5(c) pc [↩]
California Penal Code 273.5(a) PC [↩]
California Penal Code 273.5(a) PC. [↩]
California penal Code 273.5(j) PC. [↩]
California Penal Code 273.5(j) PC. [↩]
Pen. Code, §§ 664, 273.5(a); People v. Kinsey (1995) 40 Cal.App.4th 1621, 1627, 1628 [47 Cal.Rptr.2d 769] [attempt requires intent to cause traumatic condition, but does not require a resulting "traumatic condition"]. [↩]
Pen. Code, §§ 242, 243(a); see People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [217 Cal.Rptr. 616]. Battery Against Spouse, Cohabitant, or Fellow Parent. Pen. Code, § 243(e)(1); see People v. Jackson (2000) 77 Cal.App.4th 574, 580 [91 Cal.Rptr.2d 805]. [↩]
Pen. Code, §§ 240, 241(a); People v. Van Os (1950) 96 Cal.App.2d 204, 206 [214 P.2d 554] [↩]
Immigration & Nationality Act ("INA") 237 (codified at 8 U.S.Code 1227). [↩]
California Penal Code 273.5(f)(2) pc – Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of 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). [↩]
California Penal Code 273.5(h)(2) pc – If the defendant has suffered two or more prior convictions within the previous seven years for a violation of any offense specified in subdivision (f), 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. [↩]
California Penal Code 273.5((i) pc – 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. [↩]
California Penal Code 273.5((i)(2)(A) pc. [↩]
California Penal Code 12022.7;, See also CALCRIM 3163 [↩]
Penal Code 273(a). [↩]
California Penal Code 243(e)(1). [↩]

Ms. Aizman is the founding attorney at Aizman Law Firm, an award winning criminal defense attorney & former prosecutor for the city of Los Angeles. She regularly appears on CNN, Fox News, HLN & CBS News to provide legal insight on various legal topics. She is a proud member of the California Attorneys For Criminal Justice, California DUI Lawyers Association & the National College of DUI Defense

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Source: https://aizmanlaw.com/violent-crime/domestic-violence/