PC 273.5 is as follows:

273.5. (a) “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.

(c) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section.

(d) As used in this section, "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. For purposes of this section, "strangulation" and "suffocation" include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.

(e) For the purpose of this section, a person shall be considered the father or mother of another person's child if the alleged male parent is presumed the natural father under Sections 7611 and 7612 of the Family Code.

(f) (1) 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).

(2) Any person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 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 ten thousand dollars ($10,000), or by both that imprisonment and fine.

(g) If probation is granted to any person convicted under subdivision (a), the court shall impose probation consistent with the provisions of Section 1203.097.

(h) If probation is granted, or the execution or imposition of a sentence is suspended, for any defendant convicted under subdivision (a) who has been convicted of any prior offense specified in subdivision (f), the court shall impose one of the following conditions of probation:

(1) If the defendant has suffered one prior conviction 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 15 days.

(2) 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.

(3) The court, upon a showing of good cause, may find that the mandatory imprisonment required by this subdivision shall not be imposed and shall state on the record its reasons for finding good cause.

(i) 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.

(2) (A) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.

(B) For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. An order to make payments to a battered women's shelter shall not be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. If the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.

(j) Upon conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.

(k) If a peace officer makes an arrest for a violation of this section, the peace officer is not required to inform the victim of his or her right to make a citizen's arrest pursuant to subdivision (b) of Section 836.”

Who is an Intimate Partner?

For purposes of this statute, an intimate partner includes more than just the defendant’s spouse. It also includes:

• A former spouse
• Any cohabitant
• Fiancée or former fiancée
• The other parent of the defendant’s child
• A person whom the defendant is dating or had a dating relationship with at one time

It makes no difference if the parties are gay or if the defendant is female or the victim a male.

Elements of Corporal Injury to a Spouse or Cohabitant

The elements of the offense, or those provisions of which each must be proved beyond a reasonable doubt, are:

1. That you willfully inflicted a physical injury on an intimate partner and,

2. That the injury caused a traumatic condition in the victim

A physical injury is one that is visible. If not, the defendant could still face charges under the domestic battery statute. Examples of physical injuries are black eyes, bruises, sprains, dislocated joints, cuts and lacerations. Of course, broken limbs and stab and gunshot wounds qualify. The law also specifically includes an injury from strangulation or suffocation, no matter how minor.

The injury could be caused by simply shoving the victim who falls and suffers cuts and bruises or a sprained ankle. It is irrelevant if the defendant merely intended to scare the victim but caused the physical injury because his or her action led to the injury.

Similarly, a traumatic condition is any visible wound, no matter how minor. The “traumatic condition” must also have been:

• A natural and probable result of the injury
• The injury itself was a direct and substantial cause of the traumatic condition
• The injury would not have occurred but for the injury

For instance, if you intentionally shove your boyfriend and he falls and sprains an ankle, his sprain was a natural and probable cause from being shoved by you. The sprain is also a direct cause from hitting the ground. If you had not shoved your boyfriend, he would not have suffered the sprained ankle.

Penalties

This offense is a “wobbler” or one in which the prosecutor has discretion to charge as a misdemeanor or felony depending on the facts of the case, seriousness of the injury and criminal record of the defendant.

If charged as a misdemeanor, you face:

• Up to one year in county jail
• A fine of up to $6,000
• Summary probation

Should the prosecutor decide to charge you with a felony, then you face:

• 2, 3, or 4 years in state prison
• A fine of up to $6,000
• Felony or formal probation

Regardless if you are convicted of a misdemeanor or felony, the court can also place a restraining order on you that prevents you from making any contact with the victim for up to 10 years.

If you are not a US citizen, any conviction under this statute is a deportable offense under federal immigration law.

Sentence Enhancements

Like most offenses, a prior criminal record of domestic violence can increase your jail or prison time as well as the amount of your fine. For instance, a prior domestic violence conviction within 7 years can increase your fine to up to $10,000. You also face 5 years in state prison if any of your previous convictions were for simple or aggravated battery, sexual battery under PC 243.4, or assault with a deadly weapon.

Should the victim have sustained a serious injury, this will also result in increasing your state prison time by 3 to 5 years under California’s “great bodily injury” sentencing statute.

As a condition of probation, the court may impose any one or more of the following:

• Mandatory minimum jail time of 15 days for violating any of the battery offenses if you had one prior conviction in the past 7 years
• Mandatory minimum jail time of 60 days if you have at least 2 prior battery convictions in the past 7 years
• A payment up to and not exceeding $5000 to a battered woman’s shelter
• Attendance at a batterer’s treatment program
• Restitution to the victim for medical treatment or counseling

Further, you face a doubling of your sentence under California’s 3-Strikes law if your prior conviction was a felony that included great bodily harm and then you committed any other felony. Three violent felony convictions means three strikes and a sentence of 25-years to life.

What if the Accuser Refuses to Testify?

All too often in domestic violence and battery cases, the victim or accuser suddenly becomes reluctant to testify or denies that the defendant caused his or her injuries. In many of these cases, the accuser is fearful of retaliation by the defendant or is being manipulated.

It is still within the discretion of the prosecution to charge the defendant based on the injuries inflicted or the testimony of other witnesses. In some cases, the accuser might have given a signed or video statement. The accuser can be subpoenaed to court and questioned under oath. If the accuser made a prior statement and then denies it or contradicts it, her prior statement can be used to impeach her credibility. Still, many prosecutors hesitate to prosecute a defendant if the accuser refuses to testify or recants her prior testimony or accusations without other supporting evidence.

Related Offenses

There are a number of offenses related to PC 273.5 that may be charged in lieu of it or as an additional offense. In some cases, the charge under PC 273.5 is reduced to one of these related crimes in a plea negotiation or because of an insufficiency of evidence.

• Domestic battery. This is found under PC 243(e)(1). The requirements are only that the defendant willfully and unlawfully touched an intimate partner and that the contact be harmful or offensive. The victim need not have suffered any injury. This is a misdemeanor carrying up to one year in county jail and/or a fine up to $2000.
• Disturbing the peace. Under PC 415, this offense is usually brought against combatants in a bar or for those who make unreasonably loud and offensive noises or who threaten someone in public. This can be either a misdemeanor, though it carries only a maximum of 90 days in jail, or an infraction that carries only a fine and is not a criminal offense.
• Elder abuse. Under PC 368, it is a crime to unlawfully or negligently impose unjustifiable physical pain or cause mental suffering on someone who is at least 65 years of age. This offense may accompany a charge under PC 273.5. It is a wobbler also. If a felony, you face 2, 3 or 4 years in prison and a fine up to $6000.
• Child endangerment. If you commit an offense under PC 273.5 against your spouse and there are minor children, you face possible child endangerment charges under PC 273a.

Call an attorney at the Domestic Violence Group if you face a charge of corporal injury to a spouse or cohabitant. There are possible defenses available to you if you act promptly and allow us to fully investigate the facts and circumstances of the event and your arrest. In many cases, we are able to reduce the charges against you or have them dismissed. If you have been charged with domestic violence, domestic battery or corporal injury to a spouse PC, please call the Domestic Violence Attorney Group – Experienced & Aggressive Domestic Violence Lawyer and Lawyers Fighting for you.

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