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Practices - Domestic Violence

California PC 273.5 - Corporal Injury on a Spouse, Cohabitant, or Fellow Parent

California Penal Code 273.5 is commonly referred to as domestic violence, spousal abuse, spousal battery, or corporal injury. Penal Code 273.5 makes it a crime to inflict bodily injury on a current or former spouse, a person with whom you live or used to live, or the mother/father of your child. Under California law, it is not necessary that the alleged victim actually be married to the defendant or that they hold themselves out to the public as husband and wife.

Typically, an arrest for CA Penal Code 273.5 Corporal Injury occurs after spouses have a heated argument that leads to physical contact. A neighbor, or the alleged victim will call 9-1-1. Police will arrive, and take a report. They will examine the alleged victim for any signs of physical contact or “traumatic injury”, however slight they may be. If there is an injury, police will take photos and provide them to the prosecutor’s office to use as evidence.

If police are called for a domestic disturbance and there is no “traumatic injury”, you may face charges under CA Penal Code 243(e)(1). Please click here for more information on “Domestic Battery"

At the Law Offices of Pereira & Moffatt, our attorneys are very experienced defending against charges of PC 273.5 corporal injury, and other domestic violence charges. Let’s take a look at what constitutes a crime under CA PC 273.5 and what the consequences might be.

Elements of the Crime – CA Penal Code 273.5 Domestic Violence
In order to be convicted of PC 273.5, the prosecutor must be able to prove that you:

  1. That you inflicted corporal (bodily) injury upon a current/former spouse, a person with whom you live/used to live, or the mother/father of your child.
  2. That you willfully, or intentionally, caused the injury.
  3. That the injury resulted in a “traumatic condition”.

What is a corporal or “bodily” injury?
A corporal or “bodily” injury is simply an injury to the body of a person. This injury can be the result of hitting, punching, kicking, shoving, choking, biting, or any physical action that occurs during a fight.

What does it mean that the injury was caused “willfully”?
A “willfully” caused injury is done with intent. The prosecutor must prove that you intended the act that caused an injury to the alleged victim. This doesn’t mean that the prosecutor must prove that you intended to injure the alleged victim, merely that you intended to do the act that resulted in an injury.

If Husband “H” shoves Wife “W” and W falls and hits her head, it can be determined that H willfully caused an injury – even if H had no intention of harming W. It is enough to satisfy the law that H intended to shove W, which resulted in an injury.

However, if H and W are arguing, and during the argument H trips over a rug and falls into W, resulting in W falling down and hitting her head, there is no willful act. H did not intend to shove W or even touch her. It was an accident, not intentional.

What is a “traumatic condition”?
A “traumatic condition” is a wound or injury. It can be as serious as a cut, broken bone, or concussion. It can be as minor as redness caused by hitting or pushing, a scratch, or a bruise. The prosecutor will look for a visible injury on the person’s body, caused by an application of physical force.

How can the domestic violence attorneys from the Law Offices of Pereira and Moffatt fight my 273.5 domestic violence charge?
Our domestic violence attorneys can fight your 273.5 charges in several ways. Let’s take a look at a few common defenses:

  1. Self defense. 273.5 charges of domestic violence can be difficult for the district attorney to prove. It is very common for “corporal injury” to arise out of a fight in which both spouses inflicting some sort of physical harm. In this situation, the defendant’s actions are excused under self-defense.

  2. Accident. “It was an accident” is a defense to many California crimes, including 273.5 Corporal Injury. Accidentally injuring someone is not a crime. Remember our example of H and W? Let’s say that H and W are arguing in the kitchen. H is arguing with W while trying to make dinner. H, not paying attention to what he is doing, pulls a pot from a drawer under the stove and drops it.

    The pot hits W in the foot, and breaks her toe. Did H throw a pot at W? No! He accidentally dropped it. In this example, there is no crime, because the injury caused to W’s foot was an accident.

  3. False accusations. The accusations against you must be true to be convicted of CA Penal Code 273.5 Corporal Injury. Unfortunately, these situations arise from very passionate arguments, where people tend to exaggerate or make up stories out of anger.

    A spouse may lie and say that she wasn’t hitting the defendant, when in fact she was and the defendant hit back in self-defense. She may make up stories when the police arrive to gain the upper hand, that result in the defendant being falsely arrested and charged with domestic violence.

    At the Law Offices of Pereira & Moffatt, we will ask questions and investigate your case to find information and statements which will help show the District Attorney that you were falsely accused of CA Penal Code 273.5 Corporal Injury.

Can’t my spouse simply drop the charges?
In a word, no. It is very common for spouses to change their stories and tell police and the prosecution that they do not want to press charges anymore, once they have calmed down or reconciled with the defendant.

In California, domestic violence is treated not only as a crime against the alleged victim, but also as a crime against the people or “the state”. This means that the prosecutor can, and often will, pursue charges of domestic violence even if the alleged victim doesn’t want to press charges.

If the prosecutor believes that a crime has been committed and that they have evidence to support that notion, they will pursue the charges. However, if the alleged victim no longer wants to pursue charges, and does not cooperate with the prosecutor’s office, this can make the prosecution’s job of proving domestic violence charges more difficult. This can result in dropping the charges, or a better deal for the defendant.

What if my spouse doesn’t show up to court to testify against me?
A spouse who doesn’t want to press charges likely will not want to testify, either. However, the prosecution has the power to subpoena a spouse and compel them to testify. Also, if a spouse shows up to court, a judge can order that spouse back to court.

However, as a defendant, you have the Constitutional right to confront and cross-examine witnesses. If your spouse has left the state or country, gone into hiding, or otherwise cannot be located by the Court, that spouse’s prior statements to police or others are inadmissible. Only previous testimony, where your spouse was placed under oath and subject to cross-examination, will be admissible in the event that a spouse cannot be located and brought into court for testimony.

It is important to note that under certain circumstances, a prosecutor can bring in previous testimony from a spouse that occurred during a preliminary hearing in the same case. Often times in PC 273.5 domestic violence cases, when a spouse cannot be located to testify in court, the prosecutor’s case is greatly weakened and domestic violence charges can be dropped or negotiated down to lesser charges.

What if my spouse wants to testify, and deny that domestic violence took place?
Once a witness is under oath and subject to cross-examination, prior inconsistent statements made to police or others can generally be used against them. Did your spouse tell a police officer, a 9-1-1 operator, or a neighbor/witness that you hit her? If so, and your spouse goes into court to testify that you did not hit her, the prosecutor can introduce evidence of those previous statements to show that your spouse’s current statement on the witness stand is not consistent with her prior statements.

What sort of penalties am I facing if I am convicted of PC 273.5 Corporal Injury on a Spouse?
CA Penal Code 273.5 is what we call a “wobbler”. It can be charged as a misdemeanor, or a felony. How the prosecutor will charge you depends upon the seriousness of the injuries sustained by the alleged victim, and depend upon your criminal history. Prosecutors will look at whether you have a history of violence when deciding whether to pursue PC 273.5 as a misdemeanor or a felony.

If convicted of misdemeanor 273.5, you may face the following penalties:

  1. a minimum of three years informal or “summary” probation;
  2. up to a one-year sentence in the county jail and (1) a minimum of 15 days in jail if the defendant was convicted within the past seven years of Penal Code 242 Battery, Sexual Battery certain types of aggravated assault, and (2) minimum 60 days in jail if the conviction was within 7 years of two prior convictions for the same
  3. Up to $6,000 in fines (or up to $10,000 if the conviction was within seven years of a prior conviction for the above offenses or CA Penal Code 243(e)(1) Domestic Battery), OR
  4. Payments to a battered women’s shelter not to exceed $5,000 or restitution paid to the victim for counseling and medical expenses reasonably incurred as a result of the offense;
  5. A Protective Order that protects the alleged victim from further violence and possibly excludes you from seeing the alleged victim or living with her;
  6. A Restraining Order which prohibits you from having contact with the alleged victim for up to ten years;
  7. Successful completion of a Batterer’s Class which will last at least a year and meet for at least two hours on a weekly basis;
  8. Community service work;
  9. Any other type of courses or education (such as Substance Abuse classes) that the court thinks you may benefit from.

If you are convicted of felony 273.5, you may face the following penalties:

  1. 2 or 4 years in a California State Prison (or up to 5 years if you have a prior conviction for PC 242 Battery or PC 243.4 Sexual Battery);
  2. An addition 3,4 or 5 year consecutive sentence if the alleged victim or anyone else but you sustained a “Great Bodily Injury”.
  3. Formal probation;
  4. A “strike” under California’s Three Strikes Law if the crime resulted in Great Bodily Injury;
  5. All of the terms of probation described under the “misdemeanor” section above.

I am not a citizen of the United States. Are there immigration consequences for being convicted of CA Penal Code 273.5?
Yes. Domestic violence is a deportable offense, and a crime of “moral turpitude”. If you are not a citizen of the United States, it is important that you speak to an attorney from the Law Offices of Pereira & Moffatt. We are experienced in defending against charges that may result in deportation, and our associates who specialize in Immigration Law can assist you in the immigration aspect of your case. Please visit our page on “Crimes That May Lead to Deportation” for more information.

I am a gun owner. Can a conviction for CA Penal Code 273.5 affect my right to own a gun?
Yes, potentially for life. You may be prohibited from owning, possessing, purchasing, or receiving a firearm if convicted of PC 273.5 Corporal Injury. Please click here for more information on “How A Conviction Can Affect Your Gun Rights.”

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