Elements Of The Crime
Penal Code 243(e)(1) makes it a crime of domestic violence to commit a “battery” against a present or past domestic partner. A “battery” is any harmful or offensive contact. In order to convict you of domestic battery, the District Attorney (“DA”) must prove the following elements:
- That you willfully touched the victim;
- The touching was harmful or offensive; and
- The victim is your past or present intimate partner.
Willful Touching
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 841)
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.
Harmful Of Offensive
The DA must also prove that the touching was harmful or offensive. This does NOT mean that the touching actually caused injury, or even hurt. The slightest touching is a battery if that touching was done in a rude or angry manner. (Id.)
Example: Sarah gets into a heated argument with her ex-boyfriend Max. Max becomes visibly upset. Sarah puts her hand on his shoulder in a gentle manner and tries to sooth him. This is NOT a harmful or offensive touching because it was not done in a rude or angry manner.
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.
Punishment For Domestic Battery
Domestic battery is punishable by up to a year in the Orange County jail and a substantial fine. Also, the judge will issue a “protective order”, limiting your contact with the victim for up to ten years. Also, you will lose your right to own or possess a firearm for ten years.
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 have a prior conviction for this offense, then a new conviction will require mandatory jail time. If you are not a citizen of the U.S., conviction for this offense may result in your deportation, even if you are here legally.
Domestic Battery Defenses
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.
Don is NOT guilty of domestic violence. 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 chooses to do so.
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. 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 domestic violence. 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 is NOT guilty of domestic violence. 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. This touching was not willful because it was no done on purpose.
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 expose 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 domestic violence, 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.