PC 273.5

Corporal Injury to Spouse

Domestic abuse is defined by the state as when a person inflicts injury on a former or current spouse, a cohabitant, or a mother or father of one’s child deliberately.  The injury must be visible and can be something minor such as a: scratch, redness, swelling or bruising; or something more serious, such as a: broken nose, concussion, or fractured bones.  It is important to note that one can only be charged with 273.5 if the injury is physical, this particular penal code does not cover mental or psychological injury.

Various Types of Domestic Abuse andSentencing

Domestic abuse cases can be prosecuted as a felony, or as a misdemeanor, depending on the defendant’s criminal record and the details of the case.  If the injuries that the victim sustained are minor, such as bruises, redness or scratches and it’s the defendant’s first violent crime conviction then the crime will most likely be tried as a misdemeanor.  However, if the victim sustained more serious injuries, or “great bodily injury” as defined by the state and it’s a second, third or subsequent conviction then the prosecutor is most likely to try the crime as a felony.

Needless to say there are vast differences in the sentencing of the varying levels of domestic abuse.

The sentencing for domestic abuse as a misdemeanor could be as follows:

  • Minimum of three (3) years of informal probation
  • Up to one (1) year in county jail,
    • A mandatory minimum of fifteen (15) days in jail if the conviction is within seven (7) years of a conviction of either CA Penal Code 242, CA Penal Code 243.4, or other violent crimes
    • A mandatory minimum of sixty (60) days in jail if the conviction is within two prior convictions of either , CA Penal Code 243.4, or other violent crimes
  • Up to $10,000 in fines if the conviction is within seven (7) years of a CA Penal Code 243(e)(1), domestic battery
  • Reimbursement of up to $5,000 if the victim required medical aid or counseling
  • A protective order placed against the defendant
  • A restraining order placed against the defendant by the victim for up to ten (10) years
  • A one (1) year batterer’s class
  • Community service

The sentencing for domestic abuse as a felony could be as follows:

  • Formal probation
  • Up to two (2), three (3), or four (4) years in state prison
    • Could be up to five (5) years if you have a previous CA Penal Code 242, CA Penal Code 243.4 or other violent crime conviction
  • An additional three (3), four (4), or five (5) year prison sentence if the victim sustained “great bodily injury”
  • A “strike” as a part of the California Three-Strike Law
  • Up to $10,000 in fines if the conviction is within seven (7) years of a CA Penal Code 243(e)(1), domestic battery
  • Reimbursement of up to $5,000 if the victim required medical aid or counseling
  • A protective order placed against the defendant
  • A restraining order placed against the defendant by the victim for up to ten (10) years
  • A one (1) year batterer’s class
  • Community service

Also if the crime is committed by an immigrant or legal alien they may deported because domestic abuse is considered a deportable offense.

Prosecuting Domestic Abuse – CA PenalCode 273.5

Prosecuting domestic abuse cases can be difficult for the prosecutor for a list of reasons.  First and foremost, it’s difficult for the prosecutor to get witnesses and victims to appear in court.  The most common victims of domestic abuse crimes are women, often times these women rely on the defendant for their livelihood, and the livelihood of their children.

The victims often fear that taking legal action will lead to more violence, or that a conviction will lead to the victim struggling for money.  The victims will then opt to drop the charges, refuse to give statements, or fail to appear in court.

Another problem for prosecutors is the lack of evidence in domestic abuse cases.  In cases where physical violence is visible the officers on the scene are supposed to take pictures as evidence.  If these pictures don’t show any sign of physical violence the case becomes increasingly difficult to prosecute under CA Penal Code 273.5 because the case will have to be built around the officer’s statement.

It’s interesting to note that even if a victim decides to drop all charges, the case might not necessarily be dropped by the state.  In California, domestic abuse is treated as a crime against the victim and a crime against the state and if the prosecutor feels like he or she has a case they will pursue a conviction.

Defending Domestic Abuse – CA PenalCode 273.5

There are three common defense strategies used by criminal defense attorneys to either reduce domestic abuse charges or have the case dropped altogether.  The first approach is the self-defense strategy.  Often times domestic abuse cases are extremely emotional and result in people acting in ways they typically wouldn’t.

If, for instance, there’s a mutual confrontation between a husband and his wife, the argument escalates when the wife starts swinging her fists violently towards her husband, and all the husband can do is push his wife away to protect himself then this is an act of self-defense and not domestic abuse.

The second defense strategy used by criminal defense attorneys is to prove that the incident was an accident.  If the incident was not deliberate but was a real accident then the defendant should not be convicted of domestic abuse.

For instance, during a verbal altercation a husband walks upstairs to avoid his wife, when he gets to the bedroom he slams the door shut but is unaware is wife is directly behind him and slams the door on her.  This is an accident and the physical violence was not deliberate therefore, it cannot be tried as a domestic abuse case.

The final approach used by criminal defense attorneys is to prove that one party is falsely accusing the other of domestic abuse.  This is most commonly seen with cases involving a jealous party.

For instance, if a wife recently found out that her husband is having an affair, the two start arguing and the woman begins hitting herself and screaming that she’s being beat, when in actuality she is performing the actions to herself.  The husband, who never laid a hand on her, cannot be charged with domestic abuse because he did not deliberately inflict any physical injury to is wife.

 

References

1 273.5. (a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition 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. [1]

2 242. A battery is any willful and unlawful use of force or violence upon the person of another.

3 243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a

county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).[2]

[1] More at http://law.onecle.com/california/penal/273.5.html

[2] More at http://law.onecle.com/california/penal/243.4.html

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