Domestic Violence—Penal Code §§ 243(e)(1), 273.5, 243.5(d)2018-08-09T15:47:11+00:00

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In California, domestic violence is prosecuted under several statutes, depending on whether the victim suffered an injury.  

Domestic or Spousal Battery


If there was no injury to the victim, the offense will be charged as a domestic battery under Penal Code § 243(e)(1).

The prosecutor will have to prove the following elements:

  • The defendant committed a battery upon the victim
  • The victim was defendant’s  current or former spouse, a co-habitant, the parent of defendant’s child, a fiancé(e), or a current or former dating partner   

Unlike Penal Code § 273.5, domestic battery does not require any physical injury to the victim.

Penal Code § 243(e)(1) is a misdemeanor and is punished by a fine of up to $2,000 and/or up to a year in county jail.  If probation is granted, the defendant will be required to complete a one-year batterer’s treatment program, or another appropriate counseling program as determined by the court.  A conviction also results in ineligibility to own a firearm.

Additionally, if probation is granted, the court can also require up to $5,000 to a battered women’s shelter and/or reimbursement to the victim for reasonable costs of counseling or other reasonable expenses that are a direct result of the offense.   The court can consider the defendant’s ability to pay, and if the defendant and victim are married, the court will order that community property shall not be used to discharge these obligations.

If no jail is sentenced, or execution or imposition is suspended, and the defendant has a previous conviction for § 243(e)(1) or § 273.5, there is a mandatory 48 hour sentence, unless the court finds good cause to not impose the mandatory minimum imprisonment.

Under federal immigration law, this offense is a crime involving domestic violence, and depending on circumstances be a crime involving moral turpitude.

Corporal Injury on a Spouse


If the victim was injured, the offense will be charged as corporal injury on a spouse under Penal Code § 273.5.

The prosecutor will have to prove the following elements:

  • The willful infliction of corporal injury on the victim
  • The corporal injury resulted in a traumatic condition
  • The victim was a spouse or former spouse, a cohabitant or former cohabitant, a fiancé(e), a current or former dating partner, or a parent of the defendant’s child.

Penal Code § 273.5 is a “wobbler,” an offense that can be charged as either a misdemeanor or a felony.

If charged as a felony, the offense can be punished by two, three, or four years in state prison [1]. If charged as a misdemeanor, the  offense can be punished by up to a year in county jail and/or a fine of up to $6,000 [2].  In either case, a conviction results in ineligibility to own a firearm.

As with domestic battery, if probation is granted, the court can also require up to $5,000 to a battered women’s shelter and/or reimbursement to the victim for reasonable costs of counseling or other reasonable expenses that are a direct result of the offense [3].  The court can consider the defendant’s ability to pay, and if the defendant and victim are married, the court will order that community property shall not be used to discharge these obligations.

However, if the defendant has had a previous conviction for § 273 or § 243(d) or certain other domestic violence offenses [4] within the previous seven years, the punishment for a felony is two, four, or five years in state prison.  The fine increases to a maximum of $10,000. If probation is granted, the defendant faces a mandatory minimum of 15 days in county jail, and 60 days in county jail if there are two or more prior convictions [5].  However, a court can chose not to impose the mandatory minimum imprisonment upon a showing of good cause [6].

If the victim suffers great bodily injury, the defendant can be sentenced with an additional three to five years in state prison under the “great bodily injury” sentencing enhancement [7].  

In addition to imprisonment and fines, the court will also consider issuing a restraining order prohibiting any contact with the victim for a period of up to ten years [8].

If charged as a felony, this offense can qualify as a strike if there is great bodily injury to the victim or the defendant uses a firearm.

Under federal immigration law, corporal injury on a spouse is a crime involving moral turpitude and a crime involving domestic violence, and can be an aggravated felony depending on the sentence.

Battery with Serious Bodily Injury


If the victim is seriously injured, the offense will be charged as a battery with serious bodily injury under Penal Code § 243 (d).

The prosecutor will have to prove the following elements:

  • The defendant committed battery upon the victim
  • The battery caused serious bodily injury

This offense is not strictly a domestic violence offense, and can also be used in cases where there is no relationship between the defendant and the victim.

Penal Code § 243 (d) is also a wobbler.  If charged as a misdemeanor, it can be punished by up to one year in jail and 52 weeks of domestic violence classes.  If charged as a felony, it can be punished by two, three, or four years in state prison.

If charged as a felony, this offense qualifies as a strike.

Under federal immigration law, this offense is a crime involving moral turpitude.  

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Elements of Domestic Violence and Related Definitions


Battery: A “willful and unlawful use of force or violence against the person of another.” [9]

For example, if during an argument, one person shoves another, that is a battery, even if that person suffers no injury.

Willful: An act is done willfully when it is done intentionally, rather than accidentally.  You do not need to have intended to break the law or hurt the victim in order to have acted willfully.

For example, if a couple is arguing and one person grabs the arm of the other person to stop that person from leaving, resulting in a bruise., the act is willful because the person intended to grab their partner, even if they did not intend to hurt or bruise them.

Traumatic injury: Any wound or external or internal injury, regardless of whether the injury is minor or serious.

Great or serious bodily injury: An injury that is substantial or significant. [10]

For example, even a small bruise or scrape would be a traumatic injury.  However, a broken bone would qualify as a serious bodily injury.

Defenses Against Domestic Violence or Assault Charges

  • Self-defense: If the victim in your case committed a battery against you, and you were merely defending yourself, you are not guilty of assault or battery.  Unfortunately, police usually end up arresting the party who called police first, regardless of whether that person was actually the aggressor.
  • False accusation: Most domestic violence cases are based on the testimony of the victim.  Many times the victim has a motivation to lie and make a false accusation, such as gaining an advantage in a divorce or child custody proceeding or revenge after a painful breakup.
  • Accident: Battery is an intentional act. If the use of force was the result of an accident, it is not a battery.
  • Lack of injury: Penal Code §§ 273.5 and 243(d) both require that the victim sustain an physical injury.  If the victim was not injured, or their injury had another cause, you cannot be found guilty. (Note: this is not a defense to Penal Code § 243(e))

Charges of spousal assault or battery carry serious penalties.  Fortunately, a skilled criminal defense attorney can use defenses above, and others, to keep a domestic violence conviction off your record.  Call our criminal defense firm at 877-375-8188 for a FREE consultation with the best domestic violence defense attorneys in Los Angeles.

Next Steps

  • Do not speak to the police.  If police try to question you, politely but firmly tell them that you do not wish to speak to them and that you are invoking your constitutional rights to remain silent and to have an attorney present during any questioning.
  • Obey all protective orders.  Many cases for domestic battery or spousal assault involve Emergency Protective Orders (issued by police), Temporary Restraining Orders (issued by a court in a separate civil proceeding that may occur before, during, or after the criminal case), or Criminal Protective Orders (issued by the judge in the criminal case, usually at arraignment). These orders usually require the defendant to avoid contact with the victim and stay a certain distance away.  It is crucial to avoid violating these orders because they can result in incarceration.
  • Do not contact potential witnesses.  The District Attorney or judge could view this as an attempt to pressure the victim or witness.
  • Contact an experienced criminal defense attorney to represent you in your California domestic violence case.  Talk to our criminal defense attorneys today at 877-375-8188 for a FREE case evaluation.

Resources

Domestic violence cases are often accompanied by Domestic Violence Restraining Orders filed by the victim.  Our domestic violence lawyers can help prevent a Temporary Restraining Order against you from becoming a Restraining Order that can last up to five years.  Additional information about the restraining order process is available from the court. 

[1] Penal Code § 273.5(a)

[2] Id

[3] Penal Code § 273.5(i)

[4] Penal Code §§ 243.4, 244, 244.5, 245

[5] Penal Code § 273.5 (h)

[6] Penal Code § 273.5(h)(3)

[7] Penal Code § 12022.7

[8] Penal Code § 273.5(j)

[9] Penal Code §242

[10] Id