California Domestic Violence Law, Explained

The great majority of domestic violence cases in California come from emotional and heated arguments between a couple. At some point, someone feels physically threatened and they call the police. When police arrive at the scene, their goal is to diffuse the situation. Unfortunately, that frequently results in someone being arrested for domestic violence and they are hauled off to jail.

Domestic violence cases are emotionally charged. From the time of arrest until the prosecution of the case is completed, the alleged victim and the defendant are highly stressed. The stakes are high for any defendant and if he or she is convicted of a crime. Furthermore, the victim is frequently confused about what to do about the case or is being pressured by others. The victim is not entitled to legal advice, much unlike the defendant.

Unfortunately, many people believe that a domestic violence arrest and charge comes about when an argument becomes physical, such as a slap or a punch. However, California law allows police officers to arrest individuals for very light touching of a boyfriend, girlfriend, wife or husband, the parent of a mutual child, cohabitants, or a person with a previous relationship without their consent.

Unfortunately, police officers who arrive at the scene of a domestic disturbance call encounter a situation where everyone is emotional. In anger, the alleged victim often only presents their side of the story, exaggerates the facts and ignore their own bad actions. Police officers, hoping to avoid potential violence among the couple, will often arrest someone to avoid any liability or later trouble in the day. People have often been wrongfully accused and falsely charged with domestic violence because domestic violence cases do not require that someone is injured.

California Domestic Violence Laws

Cases involving alleged domestic violence or injury are prosecuted under several California laws. The law used to charge someone depends on the injury suffered by the alleged victim.

• California Penal Code section 243(e)(1), commonly known as “Domestic Battery” or “Spousal Battery” is a misdemeanor crime that involves battery against a spouse or someone previous relationship. This is the least serious and most common of California’s domestic violence criminal charges because no injury needs to be suffered by the victim. Because it is often a “he said, she said” situation without injury, criminal charges under PC243(e) can be successful defended.
• California Penal Code section 273.5 commonly known as “willful corporal injury on a spouse” or “corporal injury on a spouse” is a “wobbler” and can be charged as either a misdemeanor or a felony crime that involves the infliction of injury on a person with a prior relationship. Penal Code, § 273.5 is punishable by up to 1 year in jail or 2, 3 or 4 years in prison.
• California Penal Code section 243(d) commonly known as “aggravated battery” or battery with serious bodily injury is a misdemeanor or a felony and is punishable by up to 1 year in jail as a misdemeanor or 2, 3 or 4 years as a felony. Penal Code, 243(d) is not limited to domestic situations, but is often charged in domestic disputes with serious injury.

Domestic Violence Punishments & Consequences

Depending on the charge, punishments for domestic violence charges can include jail or prison time, fines, counselling, restitution and many other conditions.

If your case involves a divorce or a restraining order, a claim of domestic violence can result in serious family law issues involving child custody, child support and possibly lengthy restraining orders.

Domestic or Spousal Battery

Code Section	Penal Code, § 243(e)(1)
Violation Type	Misdemeanor
Custody Time	Jail sentence of not more than one year.
Additional Consequences	One year or more of domestic violence counselling, Probation 3 to 5 years, and A fine of up to $2,000.

Corporal Injury on a Spouse, Cohabitant, or Other Special Relationship

Code Section	Penal Code, § 273.5
Violation Type	Can be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody Time	If charged as a misdemeanor: up to one year in jail. If charged as a felony: two, three, or four years in state prison.
Additional Consequences	>One year or more of domestic violence counselling, Probation 3 to 5 years, and A fine of up to $2,000.

Battery with Serious Bodily Injury

Code Section	Penal Code, § 243(d)
Violation Type	Can be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody Time	If charged as a misdemeanor: up to one year in jail. If charged as a felony: two, three, or four years in state prison.
Additional Consequences	One year or more of domestic violence counselling.

Second Conviction of Battery with Serious Bodily Injury within Seven Years

Code Section	Penal Code, § 243(e)
Violation Type	Can be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody Time	If charged as a misdemeanor: up to one year in jail. If charged as a felony: two, three, or four years in state prison.
Additional Consequences	One year or more of domestic violence counselling.

When Does a Misdemeanor Escalate to a Felony?

Both Penal Code, § 273.5 and Penal Code, § 243(d) can be charged as either a felony or a misdemeanor and are known as “wobblers.” Penal Code, § 243(e)(1) can only be charged as a misdemeanor.

Whether Penal Code, § 273.5 or 243(d) is charged as a felony or not will depend on the prosecutor’s review of the case. The prosecutor will usually consider the following factors:

• The facts of the case and their strength
• The statements made by the defendant
• The statements made by a victim
• The police investigation
• How credible the victim is
• The seriousness of the injury
• Prior history of previous violence between the parties
• Whether a defendant has a prior criminal history
• Any witnesses to the alleged
• Any other factor that may be relevant

Consequences After Sentencing

Besides a criminal conviction, jail time, significant counselling, and fines, a domestic violence conviction may result in many other consequences. Unlike the vast majority of crimes, a domestic violence conviction may have an impact on immigration, future job applications, and other licensing applications.

Professional Consequences

The greatest problem for most people convicted of a domestic violence charge are the challenges of applying for a job. Most private employers routinely ask for criminal conviction information. In other cases, having a criminal conviction can eliminate or delay obtaining licenses or job certifications from the State of California (or having such a license revoked or suspended). Jobs or occupations that will carefully examine and hold a domestic violence conviction against a license applicant are:

• Accountants
• Architects
• Acupuncturist
• Attorneys/Lawyers
• Barbers
• Cosmetologists
• Chiropractors
• Dentists
• Dental assistants
• Orthodontic assistants
• Dental Hygienist
• Engineers
• Landscapers
• Optometrists
• Osteopathic Physicians
• Paramedics (Emergency Medical Technician)
• Pharmacists
• Pharmacy Technicians
• Physical Therapists
• Physician Assistants
• Teachers
• Registered Nurses
• Real Estate Agents
• Real Estate Brokers
• Security Guards
• Structural Pest
• Veterinarians
• Building Contractors
• Vocational Nurses

Any other occupation or professional licensing requiring a criminal record check or fingerprint. A list of California professions that require licensure by the state of California can be viewed here.

Although most license applications or license renewals will look to the facts of the case and examine the police report, having a domestic violence case dismissed or reduced to something less serious (such as assault) can only improve an applicant’s ability to be successful or to renew their license.

Immigration Consequences

Domestic battery is viewed by man as a minor offense, and the potential penalties are not that severe. However, non-citizen defendants need to be aware of the potential immigration consequences for a conviction of this crime.

Because domestic battery is a crime of domestic violence, it is a deportable crime under federal called immigration law.1 This means that—even if you are in the United States legally—you may face deportation proceedings after a conviction for this offense.

Furthermore, a permanent criminal record could affect your ability to stay in the United States or (if you were to leave and were not a U.S. citizen).

Additional consequences

A domestic violence conviction may include any of the following additional consequences:

• A loss of gun rights for 10 years;
• A court order requiring you to have no contact with the victim, your children or the home where the crime occurred;
• A criminal record that could affect current or future employment;
• One “strike” under California three strike rule if the conviction is for a felony; and/or
• Compromising your ability to obtain or keep a professional license, such as a medical doctor or a nurse.

Common Examples of Domestic Violence Arrests

Example One

Shirley and John are arguing. Shirley wants to leave the house, but John stops her from leaving by grabbing her wrists. John eventually let’s go and Shirley calls the police. The police arrive and see a slight bruise on Shirley’s wrists. Even though Shirley does not want John arrested, he is arrested for domestic battery under Penal Code 243(e)(1). Bail is set at $20,000.00 for John.

Example Two

Mark and Linda are watching football and start arguing about whether the Raiders or the Chargers are the better team. They both get emotional and Mark throws the TV remote at Linda and hits her in the leg. Linda has no bruising and did not feel any pain. The police are called and Mark is arrested and jailed for domestic battery under Penal Code, § 243(e)(1). Even though there is no injury, there was an unlawful touching against Linda.

Example Three

Kristine and Catherine used to date and while drinking one night together as “friends” they start arguing. During their argument, they start daring each other to hit each other. They approach each other and eventually start pushing and shoving each other. No one can remember who started pushing. Kristine pushes Catherine’s face to get away. Catherine develops a swollen lip and a black eye. The police arrive and Kristine is arrested under Penal Code § 273.5 for domestic battery with corporal (physical) injury to Catherine.

Example Four

Henry and Jeanette are not married, but have a child together. One day, Henry is under the influence of alcohol and drugs and punches Jeanette once in the face with a closed fist and kicks her once when she is on the ground. Jeanette has a broken tooth and a cracked rib. Henry is arrested and charged with battery with a serious bodily injury under Penal Code, § 243(d) and bail is set at $50,000.00.

Who Can Be a Victim of Domestic Violence under California Law?

Unlike assault or battery, a charge of domestic violence depends on a special relationship between the defendant and the victim. The definition of a domestic relationship is flexible and broad under California law. The following relationships in an assault or battery situation usually trigger domestic violence laws and punishments:2

• Current or former husband or wife,
• Anyone with whom you had a current or former dating relationship,3
• Current or former fiance or fiancée,
• Same sex couples,
• The mother or father of a defendant’s child, and
• Any person’s current or former cohabiting situation.

A defendant may reside with multiple people if he or she maintains a substantial relationship for significant periods of time.4 Cohabitation has been vaguely defined by California courts as a couple “living together in a substantial relationship-manifesting permanence and sexual or amorous intimacy.” 5

Most of the special relationships are self-explanatory. However, “cohabitant” and “dating relationship” are more clearly defined.

Cohabitants

Cohabitants signify two unrelated people living together in a stable relationship which indicates it is intended to be long-term. In general, a cohabitation is where couples live in a manner like that of a husband and wife. Several factors are used to determine if a couple can truly be considered cohabitants:

• Consummation of the relationship while maintaining the same residence,
• Sharing financial responsibilities for living expenses,
• Sharing ownership of property,
• Making statements or otherwise indicating that the couple has a husband-wife type relationship or that they are domestic partners, and
• The length and the uninterrupted continuation of the relationship.6

Dating relationship

A dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. A judge or jury presiding over a domestic violence case would determine this by hearing evidence presented in court. 7

A defendant should not assume that by denying that a dating relationship exists with the victim that he or she will be able to escape a domestic violence charge—a judge or jury would weigh the evidence and decide what they believed was the truth.

Types of Domestic Cases in More Detail

Domestic battery: California Penal Code § 243(e)(1)

A domestic battery is the lowest charge of the possible domestic violence crimes. An example of domestic battery would be if a husband slaps a wife and there is no visible injury from the slap.8 A domestic battery has the following parts:

• You willfully touched another person,
• The touching was harmful or offensive, and
• You have a special relationship with the alleged victim.9

Willfully means that you did it on purpose or intentionally. 10 An accident is not willful. Harmful or offensive touching doesn’t have to cause injury or pain—if it was done in a disrespectful or angry manner. Touching showing affection would not be domestic battery unless the victim didn’t want to be touched.

It is important that a corporal (or physical) injury 1 did NOT occur for a defendant to be convicted of domestic battery. Otherwise much higher penalties can be imposed, either through incarceration, fines, or both.

As previously mentioned, it is necessary to have a special relationship with the victim to be convicted of a domestic violence crime. Whether a special relationship existed is a question for the judge or jury in the case and can be disputed. The alleged victim may say that the defendant and victim were dating, however the defendant may say something different.

A defendant should keep in mind that anything that he has said that would confirm that the parties were in an intimate relationship can be used against him in court, such as referring to the alleged victim as his “girl” or his “lady friend.”

It’s also important to note that a defendant may live with multiple people and each of them is a potential victim of a domestic violence crime.12

Corporal Injury: California Penal Code § 273.5

A corporal or physical injury is when a defendant intentionally inflicts physical injury resulting in a “traumatic condition” upon a victim. It’s important to note that the physical injury may be internal and thus not noticeable to the naked eye.

A “traumatic condition” means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. “Strangulation” and “suffocation” include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.13

It’s important to keep in mind how corporal injury is more serious than domestic battery and not as serious as aggravated battery (discussed next). The defendant must inflict a physical injury on the victim but the injury must not be serious. “Serious bodily injury” is defined in the next section under aggravated battery

Aggravated Battery: California Penal Code § 243(d)

Domestic aggravated battery is serious bodily injury on a significant other.14For example, when a someone breaks the bone of his girlfriend, he has committed the crime of domestic aggravated battery.15

The Best Domestic Violence Defense Strategy

There is no single “best” defense strategy that will work for every domestic violence case. Your case cannot be treated like every other case because your case is different from every other case.

A good experienced attorney will put together your best defense from strengths and weaknesses in your case.

Every defense against domestic violence aims to have the case dismissed. However, you alternatively want the prosecutor to acknowledge the case weaknesses and reduce the charge.

Considerations in Preparing a Defense

Defending against a charge of domestic violence requires a very careful examination of:

• The legality of the police search and interrogation,
• Whether the reporting witnesses’ testimony was honest and accurate,
• Whether any questioning of the defendant was recorded or video taped,
• Whether you the defendant were defending yourself against attack,
• Whether the victim lied or exaggerated,
• Whether the police gave the arrested person a fair opportunity to defend themselves,
• The thoroughness and fairness of the police investigation against you and whether evidence that helps you was missed, and
• Whether a less serious criminal charge fits the facts of your case better.

Your Domestic Violence Case Defense Strategy

In every criminal case, you are presumed innocent. Under the Fifth Amendment of the United States Constitution, the prosecutor must show you violated every single element of a domestic violence offense law beyond a reasonable doubt.16

Fight back against one sided police investigations through your own investigation and presentation of evidence.

Domestic violence cases are unique because only the testimony of the accusing victim is being told . Most police reports will ignore the statements of the defendant and completely accept the victim’s story. To prevail, anyone charged with domestic violence must work hard to present their side of the story in a strong and convincing light (or show that the alleged victims statements are not true or are exaggerated).

Almost invariably, there is only one primary investigator in a domestic abuse case and that is the police officer. Police officers are inclined to build their case by only asking questions that demonstrate guilt or collecting evidence that demonstrates your guilt. Unfortunately, police interviews and reports are often short and often only contain the statements of the victim. Furthermore, if an officer is called to testify at trial he or she may not remember the details of your specific case.

Police officers responding to a domestic violence call often make their decisions after a short investigation that lasts a few minutes. Police officers will usually separate the couple and then speak to each person individually. After listening to each person’s stories, they look for physical evidence of either injury or property damage. After a few minutes of “investigations” or “interviews” the police officers make a guess about each person’s honesty and then decides who to arrest.

Show the Prosecutor the Other Person Has a History of Violence

Every domestic relationship has a history and there are always several ways to interpret that history. The key in every domestic violence case is to develop facts and evidence that highlight the motives of an alleged victim. A defendant and their attorney must decide on what defense will be most persuasive and then gather information and witnesses that highlight the lies and exaggeration of a complaining witness.

Self-Defense

Self-defense is a legal defense in California if the accuser used force first and the defendant then responded with a reasonable amount of force to prevent injury to themselves.17In many cases, the person who starts the fight often blames the other person for starting the fight.

A successful claim of self-defense will consider the following factors:

• Show the injury suffered was caused by the accuser or by accident,
• Examine whether the defendant made any statements that are inconsistent or contradict a claim of self defense,
• Consider whether the defendant has a history of peace or violence,
• The bodily injury suffered by the alleged victim in relation to the injuries suffered by the defendant,
• Whether the injuries appear defensive, and
• Whether the force used was reasonable for self defense.

Challenging Witness Credibility & Motivation To Lie

The following areas should be developed by a private investigator for your attorney to challenge an alleged victim’s testimony and memory of the incident. Consider the following:

• Alleged victim is preparing to gain an advantage in a current or future divorce or child custody dispute;
• Alleged victim has a secret motivation to hurt the defendant;
• The alleged victim made up the story to hurt the defendant but realized they cannot back out and retract their false statement;
• Alleged victim called the police only to “scare” the defendant into treating them better;
• Alleged victim is upset with the defendant because they might be ending their relationship;
• Alleged victim is angry at defendant and wants to break up their marriage and blame it on the defendant; and
• Alleged victim has personal beliefs, religious rules or family pressures that do not allow divorce unless the spouse has committed criminal or violent acts.

Serious Harm or Injury

Injury is not required for a conviction of domestic abuse under Penal Code section 243(e). Only an unlawful touching is required. 18 The touching does not need to hurt or leave bruising or a mark. 19

On the other hand, Penal Code section 273.5 does require at least some minor bodily injury. 20 California courts have found a wide variety of injuries to be a serious injury under Penal Code, § 273.5. The following are examples:

• Victim lost part of a tooth and received stitches from cuts,21
• Victim was bruised and scarred from a beating,22
• Victim suffered a black eye from a punch,32 or
• Strangulation or suffocation by grabbing, choking or applying pressure to the throat or neck.24

In contrast to serious bodily injury cases, minor bodily injury cases are better described by example:

The injury suffered must be the result of your actions and not injuries caused by the alleged victim to themselves. If the alleged victim injured themselves, no conviction for Penal Code, § 273.5 can happen (or at least on that will stand up in court).

In People v. Jackson, a California case, the defendant was wrongly convicted of battery under California penal code § 273.5 against his girlfriend because her injuries happened after she tripped on a sidewalk curb as she was running away. The California Court of Appeal reversed Mr. Jackson’s conviction for Penal Code, § 273.5 because he did not directly cause or inflict the injury to his girlfriend.27

Emergency Protective Orders

When there is an arrest for domestic violence, any California police officer can issue an emergency protective order that lasts for up to 7 calendar days. Additional protective orders must be requested by the protected party after the expiration of the emergency protective order.

If an emergency protective order is issued by a police officer, the following things must be done by the restrained person:

• Stay away from the protected person, usually 100 yards;
• Stay away from the home and/or business of the protected person, usually 100 yards;
• Not possess, buy, receive or attempt to receive any guns or ammunition;
• Not annoy, threaten, harass the protected party; and
• Not take any action to obtain the address or location of the protected person.

In addition, an emergency protective order can also require the restrained person to move out of the home they share with the protected person and give them temporary care over any minor children.

Understandably, many couples want to make up and reconcile their relationship with a loved one after an emotional argument and fight. Despite a defendant’s good intentions, contact with the alleged victim in a case (the reporting party) could be a violation of a protective order issued by police officers or the court.

Furthermore, anyone charged with domestic violence risks their actions to make up with the alleged victim being interpreted as witness intimidation under Penal Code §136.

Any defendant who wants to visit their accuser must only make contact AFTER the court gives them permission to do so or lifts the no contact order.

In many cases, your accuser may contact you the defendant to attempt to reconcile. Resist the temptation to be in contact with them—do not violate a court order! You could go to jail! Despite the “permission” of the accuser to contact them, it could be a violation of a court order under California law (Pen. Code, § 166) if the defendant contacts their accuser before the restraining order is lifted. As the defendant, you need to keep in mind that you are on a short leash with the court system.

Any violation of a restraining order can be prosecuted under Penal Code section 273.6 and carries a maximum penalty of up to a year in jail and a fine of $1,000.28

The victim’s verbal permission is NOT enough to modify a court order and a violation can result in your arrest. Have your attorney obtain the judge’s modification of the restraining order before you contact the other person. Your freedom depends on it!

Final Thoughts

Show the prosecutor the complete picture of your case and defend your reputation, your rights, and your freedom.

Unfortunately, those who are charged with spousal abuse or domestic violence are assumed to be guilty. No one charged with any crime should expect justice to be served on its own. You need to make every effort to fight hard to clear your name or reduce the charge against you. District Attorneys and prosecutors usually only rely on the police report as the story of your case unless you confront them with strong contradictory evidence. Proactive and aggressive action is necessary to pressure the district attorney to dismiss your case or make you a fair offer.

Given these special concerns for a domestic violence case, a methodical approach and well-thought out strategy makes a real difference in defending your domestic violence case and having the best result possible.

If you have questions about your case, call the Los Angeles Law Offices of Long Beach Criminal Lawyer at 562-304-5121 for a consultation of your rights and defenses.