Domestic violence is defined as a battery against a domestic partner. The slightest touching can be enough to commit a battery if is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching can done indirectly by causing an object, or someone else, to touch the person. Although domestic violence can exist even without injury (see Penal Code section 243(e)(1)), when it does cause injury, domestic violence is punishable by Penal Code section 273.5(a).
Specifically, Penal Code section 273.5(a) prohibits a defendant from inflicting injury on the victim that resulted in a traumatic condition.
To prove that the defendant is guilty of this crime, the People must prove each and every one of the following elements beyond a reasonable doubt:
1. The defendant willfully (and unlawfully) inflicted a physical injury on the victim;
2. The injury inflicted by the defendant resulted in a traumatic condition; and
3. The defendant did not act in self defense or defense of someone else.
Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intended to hurt the other person.
The victim must be a person with whom the defendant either currently has a romantic relationship with or previously had a romantic relationship with. A person can have more than one romantic relationship at a time. Neither the defendant nor the victim have to be in an exclusive relationship with the other person.
A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of force.
The court must instruct on self-defense if there is sufficient evidence in the record to support that self-defense may have been the cause of the touching.
One violation of Penal Code section 273.5 can be charged for a continuous course of conduct and the prosecutor is not required to choose a particular act and the jury is not required to unanimously agree on the same act before a guilty verdict can be returned. (See People v. Thomas (1984) 160, Cal.App.3d 220, 224). This is an exception to most crimes involving multiple acts where a jury must unanimously agree on the act that is the basis of the charge.
Penal Code section 273.5 is a wobbler, which means it can be charged as either a misdemeanor or a felony, depending on the seriousness of the injury. If it is charged as a misdemeanor, the maximum penalty is one year jail and/or a fine. If it is charged as a felony and the defendant is sentenced to state prison, the sentencing range is 2-3-4 years prison. If probation is granted (either as a misdemeanor or felony), then the court must also require a 52-week domestic violence class.
A common enhancement for felony domestic violence is the Great Bodily Injury enhancement. If the GBI enhancement is found true, then the felony domestic violence conviction becomes a strike.
Certain prior convictions , within seven years, can also increase the penalties. A prior conviction for PC 243(e)(1), within seven years, can raise the fines. Other prior convictions, including a prior conviction for PC 273.5 or Penal Code section 243.4 (sexual battery) or 245 (assault with a deadly weapon or assault with intent to produce great bodily injury) , within seven years, can raise the fines and increase the maximum amount of time in prison to 5 years. Any of these prior convictions, within seven years, will also raise the minimum jail time to 15 days for one prior conviction and 60 days for two prior convictions, unless good cause is shown and stated on the record.
Felony domestic violence is not subject to Penal Code section 1170(h). That means that if a defendant is sent to prison for felony domestic violence, that term will be served in state prison and not county jail.
Not only can a domestic violence conviction lead to criminal penalties, but it can also have drastic employment, licensing and immigration consequences. Domestic violence crimes are considered crimes of moral turpitude, which are crimes that relate to a person’s honesty. Having a domestic violence conviction can prevent a person from finding a job or lead to a person being fired from their current job. Furthermore, many professions that require licensing from a state board, such as doctors, pharmacists, nurses, lawyers, accountants, contractors, teachers, real estate agents and stock brokers, all require background checks. A professional who has a domestic violence conviction on their record risks losing their professional license, or never acquiring it in the first place. Perhaps the most severe impact of a domestic violence conviction involves immigration consequences. There are a few crimes that immigration authorizes cannot tolerate, and one of those crimes is domestic violence. Domestic violence is one of the worst convictions possible for non-citizens. Defendants who are permanent residents, with a green card, or temporary visitors, with a visa, will be deported, with a domestic violence conviction on their record.
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