Elements Of The Crime
In order to convict an accused person of this crime the District Attorney (“DA”) must prove the following elements by proof beyond a reasonable doubt:
- That you willfully inflicted a physical injury upon the victim;
- The victim was an “intimate partner”; and
- The injury resulted in a “traumatic condition”. (California Criminal Jury Instruction 840)
Willful Infliction
A touching is willful if it is done on purpose or willingly. There does not need to be any intent to hurt the person, just an intent to touch. (California Criminal Jury Instruction 840)
Example: John and Sue are watching TV on their couch. Sue does not like what John is watching and they argue about it. Sue reaches over John to get the remote on the table next to him. Her elbow inadvertently strikes john. This touching was not willful because it was no done on purpose.
Intimate Partner
An “intimate partner” is a current or former sexual partner, spouse (including registered domestic partner), fiance (fiancee), or cohabitant. It also includes someone with whom you have had a child.
Traumatic Condition
A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. (Id.) “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.
Example #1: Annie has an argument with her boyfriend Joe and slaps his face. The slap leaves a slight cut on Joe’s face. Because there is a visible injury to Joe, the DA can charge Annie with inflicting corporal injury.
Example #2: Tim arrives home late after drinking with his friends. His wife, Jody, is angry and argues with Tim. During the course of the argument, Jody shoves Tim who falls trips over the coffee table and falls to the floor. The neighbors call the police. When the police arrive, Tim complains of a sharp pain on his side. X-rays reveal a very small hairline fracture on Tim’s rib. Jody can be charged with inflicting a corporal injury.
Punishment For Corporal Injury
Penal Code 273.5 is a “wobbler”. This means the DA has the discretion to file the charge as either a misdemeanor or a felony. The DA’s decision is largely based on the defendant’s criminal record and the extent of the injury.
Misdemeanor Punishment
Misdemeanor infliction of corporal injury is punishable by up to a year in the Orange County jail and a fine of $6,000.00. If the defendant has a prior conviction for domestic violence within the past seven years, the court must sentence the defendant to at least 15 days in jail. If the defendant has two prior convictions within seven years, that minimum increases to 60 days.
Conviction for this offense will also result in a lifetime ban on your gun rights. Moreover, the judge will order a protective order (restraining order) limiting your contact with the victim for up to ten years. Whether this order completely bars contact with the victim or limits it to “peaceful contact” is entirely within the discretion of the sentencing judge. That’s why it is so important for your attorney to negotiate this term before a conviction.
If the judge allows probation in your case, then you will also be required to complete a year-long batterer’s treatment program. You may also be ordered to pay up to $5,000.00 to a domestic violence fund. If you are not a citizen, conviction of this charge will likely lead to deportation.
Felony Punishment
If charged as a felony, this crime is punishable by up to four years in the California state prison and is a “strike” offense. If the injury to the victim is “serious or substantial”, up to six years of additional consecutive prison time can be added. (Penal Code 12022.7; great bodily injury enhancement)
If the defendant has a prior conviction for domestic violence within the past seven years, the court must sentence the defendant to at least 15 days in jail and the fine increases to up to $10,000.00. If the defendant has two prior convictions within seven years, that minimum increases to 60 days.
Conviction will result in a lifetime ban on your gun rights. Moreover, the judge will order a protective order (restraining order) limiting your contact with the victim for up to ten years. Whether this order completely bars contact with the victim or limits it to “peaceful contact” is entirely within the discretion of the sentencing judge. That’s why it is so important for your attorney to negotiate this term before a conviction.
If the judge allows probation in your case, then you will also be required to complete a year-long batterer’s treatment program. You may also be ordered to pay up to $5,000.00 to a domestic violence fund. If you are not a citizen, conviction of this charge will likely lead to deportation.
Defenses For Inflicting Corporal Injury
Legal Defenses
Self Defense
Under California law, you have the right to use reasonable force to protect yourself from any unlawful touching. Even if you are much bigger and stronger than the person assaulting you, you still have the right to use reasonable force to stop or prevent an imminent assault.
Example #1: Don, a 250 pound man, is married to Veronica, a 100 pound woman. During an argument, Veronica continued to poke Don in the chest with her finger. Don told her to stop but she continued poking and pushing him. Don grabbed Veronica’s arms and held her down to prevent her from poking and pushing him. As a result, Veronica has bruises on her arms. Veronica’s screams resulted in the police responding.
Despite the bruises on Veronica and no injury to Don, Don is NOT guilty of domestic violence. Even though Veronica’s pokes could not possibly injure Don, they are an assault all the same. In fact, Don could bring charges against Veronica if he chooses to do so.
Example #2: Don and Veronica have an argument about their finances. Don attempts to leave their apartment but Veronica stands in his way, blocking the door. Despite Don’s request for her to move, Veronica refuses to move, blocking Don’s way out. Don attempts to physically move Veronica but Veronica fights back. Don pushes her out of the way and she falls to the floor and suffers a gash on her head.
Don is NOT guilty of inflicting a corporal injury. Don is entitled to use reasonable force to overcome the unlawful restraint of his liberty. Veronica is guilty of false imprisonment (Penal Code 236). Don can bring charges against Veronica if he wants to.
Defense Of Others
California law bestows upon everyone the right to use force to defend another from unlawful assault.
Example: Rick and Julie are married with a 12-year-old child. Rick became angry when the child lied about finishing his homework. Rick picked up a wooden hanger and began to strike the child. Julie jumped on Rick and scratched him on the face. Julie is entitled to use reasonable force to stop Rick from his unlawful assault.
Defense Of Property
Every person has the legal right to use reasonable force to protect their property.
Example #1: During an argument, Lisa becomes enraged at her husband David’s flirting with other women. Lisa begins breaking David’s cherished items, including certain sports memorabilia. David restrains Lisa and holds her down until she agrees to stop the destruction. Lisa calls the police and shows them the bruises on her arms.
David is NOT guilty of inflicting a corporal injury. David has the right to use reasonable force to protect his property. David can bring charges against Lisa for vandalism.
Example #2: Lisa wants to have a discussion with her husband David. David is not interested and goes to get his car keys so he can leave. Lisa grabs his car keys and will not relinquish them. David grabs Lisa and restrains her while he pries the keys from her hand. David leaves scratch marks on Lisa’s wrist.
David is NOT guilty of inflicting a corporal injury. He has the right to use reasonable force to retrieve his property. David can bring charges against Lisa for false imprisonment.
Accident
Example: John and Sue are watching TV on their couch. Sue does not like what John is watching and they argue about it. Sue reaches over John to get the remote on the table next to him. Her elbow inadvertently strikes john, leaving a bruise on his chin. This touching was not willful because it was no done on purpose. This was an accident.
False Accusation
False accusations of domestic violence are all too common in situations where one person hopes to gain an advantage over the other in divorce or custody proceedings or for revenge. This ulterior motive is almost never explored by the police when they make an arrest. However, a skilled domestic violence attorney can bring this motive to light and expose the false claim of domestic violence.
Plea Bargaining Strategies
An experienced and skilled domestic violence attorney can find and uncover any weakness in a domestic violence case. When confronted with a “weakness” in a case, the District Attorney (“DA”) may be willing to reduce the charge to something other than infliction of a corporal injury, such as simple assault (Penal Code 240/242), disturbing the peace (Penal Code 415), or trespass (Penal Code 602).
If your domestic violence lawyer can negotiate a deal that does not contain a domestic violence charge, you can avoid the mandatory terms of a domestic violence conviction including; jail time, a protective order (restraining order), loss of gun rights, attending a year-long batterer’s treatment program, and deportation (non-citizen). Moreover, you can avoid a domestic violence conviction on your record.
Attorney Stopyro’s favorite settlement alternative is something called “deferred entry of judgment” (“DEJ”). Under the terms of DEJ, if our client completes a short class and has no new law violations for three months, the case is completely dismissed with no conviction on your record.
Talk To An Experienced Domestic Violence Attorney Now
The Law Office of EJ Stopyro offers a free, no-obligation telephonic consultation and case review. Call us today at (949) 278-6353 today. EJ will be happy to evaluate your case and explore your options.