Domestic violence cases are never simple because they often involve serious questions regarding the facts. Police frequently are unable to discern at the scene which party was right or wrong. As a result, an arrest is almost always made when police respond to a domestic violence call. In fact, police are mandated to take a person into custody if they merely think that some appreciable degree of domestic violence has occurred.Minor arguments and slight physical touching are sufficient to lead to domestic violence charges being brought against you. At the discretion of the prosecutor, the offense can be charged as either a misdemeanor or felony.

The severity of injury – if any – typically plays an integral role in how the offense is ultimately charged. If the injuries are slight and there are no other aggravating circumstances, then usually a misdemeanor charge will be filed. However, if the injuries are significant or there are aggravating circumstances, then felony domestic violence charges will almost always be filed. Additionally, if the alleged victim sustained great bodily injury, then the offense will be a “strike” under California’s “Three Strikes” Law – if convicted.

In a more serious incident, a criminal defense attorney may be able to provide facts to the prosecutor that may result in the charges being reduced from a felony to a misdemeanor. In less serious cases that are charged as misdemeanors, a San Diego criminal lawyer may be able to get the charge reduced to an infraction (e.g., disturbing the peace) or, under the right circumstances, have the charge dismissed altogether.


San Diego Domestic Violence Charges

Domestic violence can be charged a number of ways by the prosecution. Most commonly, however, domestic violence is charged under the following Penal Code sections:

  • Penal Code § 273.5(a)   – Inflicting Corporal Injury on Spouse, Cohabitant, or Co-Parent
  • Penal Code § 243(e)(1)  – Simple Battery Against Spouse, Cohabitant, or Co-Parent
  • Penal Code § 422  –  Criminal Threats
  • Penal Code § 646.9  –  Stalking

The above list represents the most common charges for domestic violence. However, the state can also charge a number of other criminal violations depending on the circumstances, such as:

  • Penal Code § 240  –  Assault
  • Penal Code § 245(a)  – Assault with Deadly Weapon, Firearm, or Force Likely to Produce Great Bodily Injury
  • Penal Code §§ 242, 243  –  Battery
  • Penal Code §§ 278, 278.5  –  Child Abduction
  • Penal Code § 166  –  Contempt of Court
  • Penal Code § 647  –  Disturbing the Peace
  • Penal Code § 136.1  – Intimidating a Victim or Witness
  • Penal Code § 262  –  Rape of Spouse
  • Penal Code § 602  –  Trepass
  • Penal Code § 273.6  – Violation of a Domestic Violence Protection Order



I. Elements of the Offense

Penal Code § 273.5 (a) and (b) set forth the elements of the crime of inflicting corporal injury on a spouse, cohabitant, or co-parent. The state must prove beyond a reasonable doubt that:

(1) Defendant willfully inflicted a physical injury on his or her spouse, former spouse, cohabitant, former cohabitant, co-parent, fiancé, fiancée, or a person with whom the defendant has, or previously had, a dating or engagement relationship, and

(2) The injury inflicted results in a traumatic condition.

Penal Code § 273.5(a) is a general intent crime, not a specific intent crime. “Willfully” refers only to the defendant’s willingness to commit the act. Therefore, it doesn’t require an intent to violate the law or to injure another person.

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; “strangulation” and “suffocation” include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck. (Penal Code § 273.5(d)). It’s the requirement of an injury resulting in a traumatic condition that differentiates Penal Code § 273.5(a) from lesser offenses, such as Penal Code § 243.5(e)(1) (see below).

II. Potential Consequences of Conviction

Penal Code § 273.5(a) is a “wobbler,” which means the prosecution can charge it as either a misdemeanor or felony. Obviously the consequences for a misdemeanor or felony conviction differ greatly.This is why it can be so vital to involve a San Diego domestic violence attorney in the case early on. If the prosecutor has charged Penal Code § 273.5(a) as a felony, depending on the facts of the case an attorney may be able to negotiate with the prosecution and have the felony charge amended to a misdemeanor.

Some people charged with domestic violence  –  or any criminal offense, for that matter  –  often like to wait and see what happens as the case progresses before retaining a defense attorney. This is usually a mistake because rarely does a criminal defendant’s legal position improve by waiting and doing nothing.

A person found guilty of corporal injury under Penal Code § 273.5(a)(charged as a felony) is punishable by imprisonment in state prison for two, three, or four years, or by a fine of up to $6,000, or by both a fine and imprisonment. If the offense is charged as a misdemeanor, a person can be sentenced up to one year in county jail or by a fine up to $6,000, or both.

If the court grants probation to a person convicted under Penal Code § 273.5(a), the terms of probation must be consistent with the provisions of Penal Code §§ 1203.097, which, among other things, that if a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following:

Upon conviction of Penal Code § 273.5(a), the court will consider issuing an order restraining the defendant from any contact with the victim – which can remain valid up to 10 years. Additionally, the protective order may be issued whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation. The court will consider a number of factors when determining the length of a protective order, such as:

  • The seriousness of the facts before the court;
  • The likelihood of future violations; and
  • The safety of the victim and his or her immediate family.



I. Elements of the Offense

Penal Code § 243(e)(1) is a lesser included offense of Penal Code § 273.5(a). A person will typically be charged under Penal Code § 243(e)(1) if the touching or contact with the victim didn’t result in physical injury.

Penal Code § 243(e)(1) prohibits the commission of a battery against a spouse, former spouse, cohabitant, co-parent, fiance, fiancee, or a person with whom the defendant has, or previously had, a dating or engagement relationship. “Dating relationship” is defined as frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement, independent of financial considerations. (Penal Code § 243(f)(10)).

To prove that the defendant is guilty of this crime at trial, the People must prove that:

1. The defendant willfully (and unlawfully) touched the victim in a harmful or offensive manner;

2. The victim is the defendant’s (former) spouse/defendant’s (former) cohabitant/defendant’s fiance(e)/person with whom the defendant currently has, or previously had, a dating/engagement relationship/or mother/father of the defendant’s child; and

3. The defendant didn’t act in self-defense or in defense of someone else.

II. Potential Consequences of Conviction

This offense is a misdemeanor and is punishable by a fine of up to $2000, or up to a year in county jail, or both. Repeat offenders will imprisoned for at least 48 hours, unless good cause is shown. (Penal Code § 243(e)(3)).

If probation is granted or sentence is suspended, the court will order that the defendant participate in a batterer’s treatment program as defined in Penal Code § 1203.097. The duration of which will last for at least 52 weeks. Penal Code § 1203.097(a)(6) requires the batterer’s program to provide periodic progress reports to the court at least every three months. These reports will include information on attendance, payment history, and overall program compliance. (Penal Code § 1203.097(c)(1)(O)(ii)). While the programs are required to report every three months, the judge can order that the reports be made more frequently than that.

The statute doesn’t state that these reports must be calendared. However, many judges do calendar them and require the defendant be present in order to impart how important his/her continued compliance is and to remind him/her that the court is monitoring his/her progress.

There are instances where a batterer’s program recommends further counseling beyond the 1-year minimum. If this happens, the court must require defendant to participate in additional sessions throughout the probationary period, unless the court finds that it’s not in the interests of justice to do so. The court must state its reasons on the record in open court. When deciding whether to order a defendant to participate in additional counseling sessions, the court will consider whether the defendant:

  • Has cooperated and participated in the batterer’s program;
  • Has been violence-free for a minimum of six months;
  • Demonstrates an understanding of and practices positive conflict resolution skills;
  • Demonstrates an understanding that use of coercion or violent behavior to maintain dominance is unacceptable in an intimate relationship
  • Blames, degrades, or has committed acts that dehumanize the victim or put the victim’s safety at risk (e.g., molesting, stalking, attacking);
  • Has made threats of harm to anyone;
  • Has complied with applicable requirements to obtain drug or alcohol counseling, or both; and
  • Demonstrates acceptance of responsibility for the abusive behavior perpetrated against the victim.

If you have had domestic violence charges brought against you, you owe it to yourself to find a lawyer that’s capable of disrupting the prosecution before it can build a case against you. With the experience and knowledge you need to obtain a successful result, criminal defense attorney Paul A. Hefley Jr. is prepared to provide expert representation for your day in court.