Everything You Should Know About Cal. Pen. Code Section 273.5 – Corporal Injury on a Spouse or Cohabitant
Californian Penal Code Section 273.5 makes it a crime to willfully (i.e. intentionally) inflict “corporal injury on a spouse or cohabitant.” Before you ask, corporal injury refers to physical injury and it includes minor and serious injuries.
Summary of Pen. Code Section 273.5
Section 273.5 is one of California’s primary laws against what is colloquially known as domestic violence. However, 273.5 isn’t limited to violence committed by a male partner against a female partner (although, many cases do involve those interactions) and can include violence by a female partner against a male partner (or mutual violence in a same-sex couple).
The law includes intimate partners, cohabitants, and people with whom the defendant is romantically involved but not necessarily living with. For example, if you go on a few dates with a partner over the course of several months, violence visited upon him could be a violation of Section 273.5. Moreover, the law also includes any person with whom the defendant has a child, even if the defendant never dated or married the person (i.e. it was a one-night stand or hook-up).
The law takes a broad interpretation of corporal injury. Corporal injury, as stated above, is any physical violence. It can include violence by a female partner against a male partner, such as shoving a boyfriend down the stairs, it includes a male partner who grabs his female partner so hard that it leaves a bruise.
Finally, the penalties are also severe. Section 273.5 can be charged as either a misdemeanor or felony. Under either charge, you can be incarcerated, face fines for thousands of dollars, and could lose your right to possess firearms.
Common Questions on Section 273.5 Answered
- Inflicted a physical injury;
- On a current or former intimate partner; and
- The physical injury resulted in a traumatic condition.
Willfully refers to your intentional acts. However, you don’t have to intend to break the law, so you don’t have to be aware of Section 273.5 and intend to break that specific law. Rather, you must intend to commit the actions described and prohibited by the law.
So here, you must willfully intend to inflict physical injury. For example, if Jon and Jack are arguing over custody of their mutual child and Jack grabs at Jon dislocating it. Jack didn’t intend to hurt Jon, only to scare or intimidate him. However, Jack intended the action which resulted in Jon’s injuries, so he acted willfully for purposes of Section 273.5.
Traumatic condition is defined as any bodily injury caused by the application of physical force. Yes, traumatic condition does make one think that the injury has to be severe or severe but that isn’t the case. In actuality, the only thing that needs to be proved is that the injury was the result of the physical application of force. So, even minor bruises or injuries can meet this criminal element. It is broadly defined to include any form of physical violence. Some real-life examples include:
- A woman shoves her boyfriend into a glass cabinet, breaking the glass and causing cuts all over his body;
- A man kicks and punches his live-in boyfriend, breaking his partner’s ribs; and
- A man squeezes his ex-wife’s so hard that it leaves bruises.
Traumatic condition can also include:
- Broken bones;
- Internal bleeding; and
- Injuries arising from choking, suffocation, or strangulation; and
The prosecutor must prove the traumatic condition was the result of the application of physical force. So, it isn’t enough to have pictures of the bruises, the prosecutor must also proffer evidence that shows the victim incurred the bruises as a result of the willfully application of physical force.
However, that doesn’t mean the prosecutor must prove that the defendant intended the actual type of injury to occur. For example, the prosecutor can establish this element if the traumatic condition was a probable result of the defendant’s actions.
For example, if Kim and Carrie are arguing in the car. Kim takes her hands off the wheel, hoping to scare Carrie. Kim and Carrie get into a car accident and they both suffer severe injuries. Kim could be convicted because taking her hands off the wheel was likely to result in a car accident which would likely result in severe injuries.
Conversely, consider this example. Kim and Carrie are in an argument. Kim pushes Carrie several times. Carrie walks away from the argument. While she is walking away, Carrie trips and sprains her ankle. Kim is not likely to be convicted because Carrie’s sprained ankle is the result of her falling – not Kim pushing her.
- Current spouses and former spouses;
- Current or former registered domestic partners;
- Current or former live-in partners (co-habitants);
- Current or former fiancé(e)s;
- Anyone the defendant has or used to have a serious dating relationship (so someone you are seeing but not necessarily living with); and
- The father or mother of the defendant’s child (so, if you have a child with someone that you never dated, married, or was engaged to, Section 273.5 still covers those actions).
Some of these categories are self-explanatory, ex-spouses, parents of children, and registered domestic partners. However, some topics can be a little “fuzzy” like fiancé(e), live-in partners, and someone you were dating. Do you need to purchase your spouse a ring, get down on one knee and ask? What is the difference between a live-in partner and a roommate? Is there one? And does it matter how many dates you’ve been on, is it one, two, or five dates?
There isn’t a single answer to these questions, rather, the prosecutor will consider the totality of the circumstances – meaning everything that is relevant. Some factors the prosecutor will consider include:
- Sharing of expenses;
- Sharing of income;
- Joint use of property;
- Joint ownership of property;
- Sexual relationship;
- Length and continuity of the relationship; and
- How do the parties hold themselves out to be? Is their Facebook status “in a relationship?” Do they go on vacations together? Do they have pictures of each other on their walls? What do their friends think, do friends think they were in a relationship? Those kinds of things.
Cal. Pen. Code § 273.5 is a “wobbler.” A wobbler is a crime that can be charged as a misdemeanor or felony, depending on the facts of the case and the defendant’s criminal history (if any). The prosecutor decides whether she will charge the crime as a felony or misdemeanor.
If you are convicted as a misdemeanor, it could result in a $6,000 fine and up to one year in county jail. If you are convicted as a felony, it could result in 2, 3, or 4 years incarceration in a state prison and a $6,000 fine. However, there is an additional enhancement if you are convicted twice within seven years if the following crimes:
- Assault or battery resulting in serious injury; Pen. Code § 243(d);
- Assault with a deadly weapon; Pen. Code § 245;
- Assault with a stun gun; Pen. Code § 244.5
- Corporal injury on a spouse; Pen. Code § 273.5; and
- Battery on a spouse; Pen Code § 243(e).
Which will result in either one year in county jail or 2/3/4 years in a state penitentiary and a fine up to $10,000. The prosecutor can also require the defendant perform community service, attend anger management classes, and see a therapist.
Enhancements refer to criminal penalties that are added to a defendant’s sentence due to the facts of the case or the defendant’s prior criminal history. A typical enhancement that is applied in Section 273.5 convictions is Pen. Code § 12022.7, “great bodily injury.” If the defendant causes significant bodily injury to the victim, Section 1202.7 requires the court to sentence the defendant to an additional and consecutive three, four, or five years in the state penitentiary.
For example, Rick is convicted of a felony violation of Section 273.5, he broke one of his girlfriend’s ribs. The prosecutor files a motion for a Section 12022.7 enhancement (this isn’t decided by the jury, the judge decides it), which the court grants because the broken rib is a “great bodily injury.” Therefore, Rick’s original sentence of four years in state prison is now increased to eight years, because the court imposed an additional four-year enhancement under Section 12022.7.
The court can also order probation for misdemeanor offenses. Probation means you are on conditional release from incarceration. To get probation, you have to surrender certain constitutional rights such as your 4th and 14th amendment protections (protections against unreasonable search and seizure). You usually also have to check in with a probation officer at least once a month to confirm you are complying with the terms of your probation.
For example, you will likely have to pay restitution to the victim, attend counseling classes, and complete community service. Finally, you are required to refrain from engaging in criminal activity for a term of years. For misdemeanor offenses, it is usually three to five years. For felonies, it is generally more than five.
If the defendant violates the terms of his probation, the prosecutor can petition the court to send him back to prison, impose stricter conditions on probation, or even extend the time the defendant is on probation.
Felony convictions can also result in the defendant’s loss of the right to vote, loss of professional licenses (such as real estate, right to practice law or medicine), and the loss of right to own firearms. Finally, a felony conviction can result in severe immigration consequences for those with pending immigration status, and may even result in deportation.
Pending Legislation Notice
Finally, please note that AB 3129 takes effect January 1, 2019, imposes a lifetime prohibition on owning firearms for anyone who is convicted under Section 273.5 regardless if it is a felony or misdemeanor.
California’s Section 273.5 is also the federal crime of domestic violence. Therefore, a conviction under Section 273.5 could result in deportation. Furthermore, immigrants can be deported and regain the right to re-enter the country.
However, aggravated felonies and crimes involving moral turpitude can result in the permanent ban of an individual re-entering the United States, permanently lose the right to obtain U.S. citizenship, and permanently lose the right to apply for a change of status or to obtain a green card.
Finally, Section 273.5 with a “great bodily injury” enhancement could be a strike offense. A strike offense refers to California’s Three Strikes law. The Three Strikes law allows the prosecutor to file a motion with the court to count the defendant’s conviction as a “strike.” If the defendant accumulates two strikes, then the next offense that would qualify as a third strike results in automatic life imprisonment. Furthermore, if the defendant gets a second strike, his punishment is significantly increased (usually doubled).
Misdemeanor or Felony? It’s Up to The Prosecutor
The prosecutor will consider everything involving the case when deciding whether to charge the defendant with a misdemeanor or felony. However, you can expect the prosecutor to consider the severity of the injuries to the victim. The prosecutor will also consider the history of the defendant, for example, does he have a criminal history? Is this his first domestic violence charge?
Potential Domestic Violence Defenses
The most common defense is that you were acting in self-defense or the defense of another person. For example, if your partner was trying to hurt your child and you intervened. Another common defense is that the injury was accidental. Finally, you can also argue that you were falsely accused. You may not think that false accusations are common but they are, especially in domestic violence. It is a frequent tool employed, by acrimonious spouses, especially if there are fights over child custody and visitation.
To successfully argue self-defense, the defendant must establish that (1) she reasonably believed that she or another person was in imminent danger; (2) she believed that the immediate use of force was necessary to defend against that danger; and (3) she used only as much force as was reasonably necessary to defend against the danger.
Just like with the prosecutor, you must prove each of these elements. Meaning, you must show that you believed you were imminent danger, you believed the use of force was necessary to prevent that danger, and you only used as much force as was necessary.
For example, John catches Mary in bed with Bill, their neighbor. John is enraged and grabs a bat, he stalks toward Mary intending to harm Bill. Mary intervenes, striking him hard on the elbow causing him to drop the bat but she also broke his arm. Mary is unlikely to be charged under Section 273.5 because (1) the danger was imminent (2) she believed the use of force was necessary and (3) used only as much force as was needed.
As discussed above, the prosecutor must prove you intended to do the action that results in the crime. That means, the injuries must be related to your actions. So, an injury that results from an accident, even if it is during a heated argument, is not a crime under Section 273.5.
For example, Martha and Emily are in a heated argument. Martha storms out of their shared apartment to take drive. Martha, in her anger, doesn’t pay attention and gets into an accident minutes after leaving the apartment. While Martha wouldn’t have been in the car but for the fight, the accident was not caused by Emily’s willful act therefore Emily is not liable. The same example applies to someone walking away and tripping, etc.
False accusations are common. Sometimes ex-partners are angry and try to get back at their partner, maybe it’s a tactic as part of a child custody dispute, whatever the reason – false accusations happen. If you are falsely accused, your attorney can investigate the allegations by taking the following steps:
- Interviewing the accuser, family, friends, co-workers, etc.;
- Background checks on the accuser;
- Fact investigation (where did the alleged abuse occur, is there CCTV footage, etc.); and
- Subpoenaing the accuser’s communications such as email, text, messages, social network accounts.