The two most common charges for domestic violence include misdemeanor domestic battery, under Penal Code section 243(e)(1), and Penal Code 273.5 which is a wobbler, meaning it can be either a misdemeanor or a felony.
As a person who’s faced false accusations, Kevin knows firsthand about the devastating consequences and lasting effect a false accusation can carry, let alone a conviction.
What is Domestic Violence?
California’s Penal Code defines “domestic violence” as abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the [defendant] has had a child, or his having, or has had a dating or engagement relationship.
A “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. There are six factors to determine whether persons are cohabiting: (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship.
“Abuse” is defined as intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.
Misdemeanor 243(e)(1) – Domestic Battery
In order to be found guilty of domestic battery the prosecution must show:
You willfully touched another person
The touching was harmful or offensive, and
The person you touched was an intimate partner as defined.
273.5 – Corporal Injury (Misdemeanor/Felony)
In order to be found guilty of corporal injury the prosecution must show:
You willfully inflicted corporal injury on a victim
The injury was upon someone with whom you had a domestic relationship, and
The corporal injury resulted in a traumatic condition
Penalties for Domestic Violence
Penalties for a misdemeanor 243(e)(1) can include up to one year in county jail, a fine up to $2,000, summary probation, and loss of gun rights.
Penalties for a misdemeanor 273.5 can include a fine up to $6,000, probation, up to one year in county jail, restraining order, loss of gun rights, and immigration consequences.
Penalties for a felony 273.5 can include a fine up to $6,000, formal probation, a sentence to state prison of 2, 3, or 4 years, restraining order, loss of gun rights, and immigration consequences.
Other penalties can include the requirement that you pay restitution to the victim which can include medical expenses, counseling, and property damage. You may also be required to pay for services provided by the victim compensation board.
If you are convicted of a domestic violence charge, you will be required to attend a 52-week batters intervention program. These programs typically run on a sliding scale fee wise and can be expensive.
If you are involved in a custody dispute, you can be certain that the other side and the courts will be interested to know about the facts of the domestic violence situation and will use that against you.
Defenses to Domestic Violence
There are a variety of legal defenses that a skilled criminal defense attorney can assert. Some of the most common include:
That the act was self-defense
The alleged injures are the result of self-infliction
The alleged injuries are the result of an accident
The allegations are false due to a personal motive based upon anger, jealousy, retaliation, or an attempt to gain the advantage in another court proceeding.
For instance: A wife claims that her husband punched her and caused some redness to her thigh. On the eve of the trial, the wife emailed the husband and told him that if he paid her $10,000 and agreed to give her custody of their two children, she would refuse to testify.