Corporal Injury on Spouse or Cohabitant California Penal Code 273.5

What You Need to Know About Corporal Injury on Spouse or Cohabitant under PC 273.5

California Penal Code Section 273.5 – Corporal Injury on a Spouse, Cohabitant or Co-parent – spells out the punishment, sentence and penalties if you are convicted of violent behavior that results in a traumatic condition (an internal or external injury caused by physical force). These penalties can include a county jail sentence of up to four years and a fine of as much as $6,000. If you are facing this charge, you need the help of the California criminal attorneys at Wallin & Klarich.

Are you facing charges due to corporal injury on spouse? The Wallin & Klarich criminal defense attorneys in Orange County provide an overview of the charge of corporal injury on spouse pursuant to California Penal Code 273.5 PC. Please call us today at 888-749-0034 for immediate assistance on your case.

A charge of corporal injury on spouse pursuant to California Penal Code 273.5 can have very serious consequences. Wallin & Klarich will be there when you call.

If you have been charged with corporal in jury on spouse or domestic partner, it is important that you call an attorney as soon as you can. We usually find in these kinds of cases that either the infliction of the injury was unintentional or there was a type of “mutual combat” situation, where both parties were fighting with one another.

Best Defenses for Your Corporal Injury Charge

We may be able to successfully argue self-defense on your behalf. If you have been charged with an offense under California Penal Code 273.5, our attorneys will aggressively work to reduce your charge to a lesser offense, such as simple assault, attempted infliction of corporal punishment, or misdemeanor battery.

There is also the possibility that one of our California corporal injury on spouse or cohabitant defense lawyers will be able to resolve your case by having the charges dismissed. This, however, will depend on the facts involved in your case, and whether or not you have been previously charged with a crime such as corporal spousal abuse.

How Prosecution for a Corporal Injury Charge Works

The prosecution has to prove several elements in order to prove the corporal injury on spouse charge against you. Among these are that you inflicted that injury and did so willfully, and that you caused a traumatic condition as a result. It is critical that you know the type of case being built against you, and that you have an experienced attorney to build the strongest case possible.

Sentencing and Punishment for a Corporal Injury Conviction

There are several different kinds of punishment that are possible for a corporal injury on spouse conviction. These range from a year in county jail and/or a fine of up to $6,000 for a misdemeanor, and up to four years in state prison and/or a $6,000 fine for a felony. That state prison sentence can be extended to five years if you have previously been convicted for battery, sexual battery or other types of aggravated assault.

Court Decisions Relating to Corporal Injury on Spouse Law (PC 273.5) will Impact how Your Case is Handled

For many years, the California Supreme Court and the California Courts of Appeals have issued legal rulings that explain all aspects of how the law is to be applied in corporal injury on spouse cases. If you or a loved one is accused of corporal injury on a spouse or cohabitant, it is important that you become familiar with these court decisions, and we have listed them below for your review.

  1. Validity of PC 273.5
  2. Construction and Application of PC 273.5
  3. PC 273.5’s Construction with Other Laws (i.e. possible enhancements)
  4. Legislative Intent of PC 273.5
  5. Purpose of PC 273.5
  6. Nature of Infliction of Corporal Injure on Spouse or Cohabitant under PC 273.5
  7. Elements of PC 273.5
  8. Elements of Cohabitation under PC 273.5
  9. Elements of Corporal Injury under PC 273.5
  10. Elements of Traumatic Condition under PC 273.5
  11. Elements of Intent to Cause a Traumatic Condition under PC 273.5
  12. Continuous Course of Conduct per PC 273.5
  13. Multiple Offenses or Multiple Counts of Corporal Injury upon a Cohabitant
  14. PC 273.5 is a Wobbler Offense
  15. Definition of “Parent” under PC 273.5
  16. Former Spouse or Cohabitant under PC 273.5
  17. Determining Restitution under PC 273.5
  18. Consequences for Aliens and Immigrants Convicted of PC 273.5
  19. Resisting Arrest and Self-Defense under PC 273.5
  20. Terms of Bail per PC 273.5
  21. Bail Forfeiture under PC 273.5
  22. On-bail Enhancements per PC 2735.5
  23. Habeas Corpus Petitions per PC 273.5
  24. What Evidence is Legally Admissible at Trial When a Person is Accused of PC 273.5
  25. How Much Evidence is Enough to Convict a Person for PC 273.5
  26. Testimony of Defense Witnesses and Victim’s Testimony in PC 273.5 Cases
  27. What Jury Instructions Must be Given to Jury in a PC 273.5 Case?
  28. Accident Instructions
  29. What Sentence and Punishment is Legally Appropriate in a PC 273.5 case?
  30. What are the Legal Probation Terms that a Court can Impose when Someone is Convicted of PC 273.5?

 

We Will Be There When You Call

At Wallin & Klarich, we have we have offices in Orange County, Los Angeles, Riverside, San Bernardino, Victorville, San Diego, West Covina and Ventura. No matter where you live in Southern California, we have an office location near you. In order to have the best chance possible of prevailing in your case, it is important that you call Wallin & Klarich as soon as possible at 1(877) 4-NO-JAIL (466-5245) so we can make sure your side of the story is effectively represented. We will get through this together.


 

California Case Law Regarding Penal Code 273.5.

1. Validity of PC 273.5

Spousal abuse statute did not violate equal protection guarantees, even though it applied to a person who assaulted person of opposite sex but not to person who assaulted person of same sex;  rational basis existed for classification in that legislature could have concluded that men and women in opposite-sex relationships face a particular risk of domestic violence, and legislature’s mere omission of dealing with violence in same-sex relationships did not render statute so irrational or invidiously discriminatory as to warrant judicial interference.  People v. Silva (App. 5 Dist. 1994) 33 Cal.Rptr.2d 181, 27 Cal.App.4th 1160, review denied.

Equal protection challenge to spousal abuse statute was subject to rational basis test;  challenge was based on alleged sentencing disparity, and statute would not be subject to strict scrutiny merely because it was criminal statute which could possibly result in incarceration.  People v. Silva (App. 5 Dist. 1994) 33 Cal.Rptr.2d 181, 27 Cal.App.4th 1160, review denied.

This section was not void for vagueness on grounds it did not comprehensively define what constitutes “cohabiting.”  People v. Holifield (App. 1 Dist. 1988) 252 Cal.Rptr. 729, 205 Cal.App.3d 993, review denied.

“Cohabiting,” as used in this section was not unconstitutionally vague, particularly as applied to defendant, who had “lived together in one bed” with victim for two years.  People v. Ballard (App. 1 Dist. 1988) 249 Cal.Rptr. 806, 203 Cal.App.3d 311.

Statute governing offense of willful and unlawful infliction of corporal injury upon a spouse resulting in a traumatic condition [West's Ann.Cal.Penal Code § 273.5] did not deny defendant convicted under the statute equal protection of the laws, despite defendant’s assertion that the statute favored divorced spouses and separated partners of meretricious relationships by excluding them from its operation.  People v. Gutierrez (App. 2 Dist. 1985) 217 Cal.Rptr. 616, 171 Cal.App.3d 944, review denied.

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2. Construction and Application of PC 273.5

Amended spousal battering statute, which prohibits defendant from battering one who is the parent of his or her child, does not require child’s presence during the battering, nor does it require that there be continuing relationship between mother and father of child.  People v. Mora (App. 1 Dist. 1996) 59 Cal.Rptr.2d 801, 51 Cal.App.4th 1349, review denied.

Penal statute stating that any person who willfully inflicts corporal injury upon spouse or person with whom he or she is cohabiting or mother or father of his or her child is guilty of a felony expands its predecessor section, a wife beating statute, to protect the large numbers of couples who live in intimate and significant relationships, but without marriage.  People v. Vega (App. 5 Dist. 1995) 39 Cal.Rptr.2d 479, 33 Cal.App.4th 706.

Defendant who inflicts only minor injury violates statute prohibiting spousal abuse.  People v. Silva (App. 5 Dist. 1994) 33 Cal.Rptr.2d 181, 27 Cal.App.4th 1160, review denied.

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3. PC 273.5’s Construction with Other Laws (i.e. possible enhancements)

Enhancement allegations may not be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses, and thus defendant, charged with inflicting corporal injury on spouse with enhancement allegation of personally inflicting great bodily injury in circumstances involving domestic violence, assault with force likely to cause great bodily injury, and battery with serious bodily injury, could be convicted of all three offenses; absent enhancement allegation, assault and battery offenses were not lesser included offenses of inflicting corporal injury on spouse.  People v. Sloan (2007) 64 Cal.Rptr.3d 137, 42 Cal.4th 110, 164 P.3d 568, rehearing denied, on remand 2008 WL 542679, unpublished, review denied, certiorari dismissed 128 S.Ct. 1702, 552 U.S. 1277, 170 L.Ed.2d 391.

Sentence enhancement finding that defendant, who struck pregnant girlfriend resulting in grossly premature birth of child, terminated girlfriend’s pregnancy was supported by evidence; plain language of statute and point of enhancement, i.e., to punish defendant for injuring woman in particular manner with particular result, indicated that statutory term “terminates” was not limited to abortion or miscarriage.  People v. Taylor (App. 3 Dist. 2004) 14 Cal.Rptr.3d 550, 119 Cal.App.4th 628, rehearing denied, review denied, habeas corpus denied 2008 WL 4532531, affirmed 400 Fed.Appx. 221, 2010 WL 4117066.

Five-year period for “washout” of defendant’s prior offenses covered the period immediately before defendant’s current conviction for possession of methamphetamine, and thus defendant’s conviction of willful infliction of corporal injury on a spouse, seven months before drug conviction, barred imposition of probationary drug treatment.  People v. Superior Court (Henkel) (App. 1 Dist. 2002) 119 Cal.Rptr.2d 465, 98 Cal.App.4th 78.

Statute prohibiting spousal abuse requires lesser showing of harm than felony battery or felony assault statutes so officers can intervene more expeditiously in domestic disputes.  People v. Silva (App. 5 Dist. 1994) 33 Cal.Rptr.2d 181, 27 Cal.App.4th 1160, review denied.

Alien, a native and citizen of Mexico, was statutorily ineligible for cancellation of removal, where he was convicted of a crime of domestic violence under California law.  Orea-Barbosa v. Holder, C.A.92010, 402 Fed.Appx. 296, 2010 WL 4324422, Unreported.

Alien’s conviction under California statute regarding corporal punishment of certain relations resulting in traumatic condition did not constitute crime of moral turpitude for purposes of determining whether alien was removable; only evidence in record was state court’s electronic docket, which did not indicate any details about conviction beyond disposition or state relationship between alien and victim.  Garnica-Ramirez v. Holder, C.A.92010, 377 Fed.Appx. 687, 2010 WL 1735028, Unreported.

Alien’s conviction of corporal injury to spouse or cohabitant constituted “crime of moral turpitude,” and, as such, it terminated his continuous residence before he established seven years of continuous residency, as required to be eligible for cancellation of removal.  Rubio Alcaraz v. Gonzales, C.A.92005, 123 Fed.Appx. 330, 2005 WL 428829, Unreported.

Board of Immigration Appeals’ (BIA) characterization of alien’s prior crime, to which he pled guilty prior to enactment of Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as a crime of moral turpitude, which terminated his continuance residence under IIRIRA and made him ineligible for cancellation of removal, was not impermissibly retroactive under the Constitution; alien may have expected his guilty plea to prior crime to have no immigration consequences, however, he continued to incur domestic violence convictions, and when he pled guilty to subsequent crime for which he was being removed, IIRIRA had long been in effect.  Rubio Alcaraz v. Gonzales, C.A.92005, 123 Fed.Appx. 330, 2005 WL 428829, Unreported.

Alien’s conviction for willful infliction of corporal injury on his spouse, in violation of California law, for which he was imprisoned for one year, constituted an “aggravated felony,” for purposes of statute depriving Court of Appeals of jurisdiction to consider petition for review from an alien found removable on account of a conviction for an aggravated felony.  Castaneda v. Ashcroft, C.A.92005, 118 Fed.Appx. 319, 2005 WL 79075, Unreported.

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4. Legislative Intent of PC 273.5

Also listed as Purpose

Overriding purpose of amended spousal battering statute is to deter domestic violence.  People v. Mora (App. 1 Dist. 1996) 59 Cal.Rptr.2d 801, 51 Cal.App.4th 1349, review denied.

Purpose of penal statute stating that any person who willfully inflicts corporal injury upon spouse or person with whom he or she is cohabiting or mother or father of his or her child is guilty of a felony is to protect persons of the opposite sex in a special relationship for which society demands and victim may reasonably expect stability and safety and in which victim, for these reasons among others, may be especially vulnerable.  People v. Vega (App. 5 Dist. 1995) 39 Cal.Rptr.2d 479, 33 Cal.App.4th 706.

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5. Purpose of PC 273.5

See Legislative intent

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6. Nature of Infliction of Corporal Injure on Spouse or Cohabitant under PC 273.5

Under California law, willful infliction, for purposes of crime of willful infliction of corporal injury on spouse or cohabitant, requires a direct application of force on the victim by the defendant.  U.S. v. Laurico-Yeno, C.A.9 (Cal.)2010, 590 F.3d 818, certiorari denied 131 S.Ct. 216, 178 L.Ed.2d 130.

Mexican alien’s California conviction for abuse of cohabitant was not categorically a crime involving moral turpitude (CIMT), as would make him ineligible for cancellation of removal under the Immigration and Nationality Act (INA); under the California statute some perpetrator-victim relationships were more akin to strangers or acquaintances since California law allowed someone to be a cohabitant even if he cohabited with several partners at once or did not have key to residence, and the statute covered acts between former cohabitants.  Morales-Garcia v. Holder, C.A.92009, 567 F.3d 1058.

Fact that applicant’s conviction for willful infliction of corporal injury upon cohabitant and the mother of his child was for a misdemeanor and not a felony did not matter for purposes of determining whether the offense was one of moral turpitude under prior version of real estate licensing statute, which authorized denial of license to applicant convicted of a crime involving moral turpitude.  Donley v. Davi (App. 3 Dist. 2009) 103 Cal.Rptr.3d 1, 180 Cal.App.4th 447.

Decision of United States Court of Appeals for the Ninth Circuit was not binding or controlling on California appellate court with respect to whether state offense was one involving moral turpitude within meaning of prior version of real estate licensing statute.  Donley v. Davi (App. 3 Dist. 2009) 103 Cal.Rptr.3d 1, 180 Cal.App.4th 447.

Infliction of corporal punishment resulting in a traumatic condition on the mother of one’s children is a “battery offense,” i.e., a use of force resulting in injury.  People v. Thurston (App. 4 Dist. 1999) 84 Cal.Rptr.2d 221, 71 Cal.App.4th 1050.

Defendant’s prior California conviction for inflicting corporal injury on a spouse or co-habitant qualified as a crime of violence, warranting application of 16-level enhancement on such basis at his sentencing for illegal entry after deportation.  U.S. v. Toscano-Villasenor, C.A.9 (Cal.)2011, 415 Fed.Appx. 773, 2011 WL 609837, Unreported.

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7. Elements of PC 273.5

Elements – In general

Trial court acted within its discretion in continuing trial for misdemeanor charges of willful infliction of corporal injury, battery of spouse or cohabitant, and using or being under influence of controlled substance for ten days at request of prosecutor who had another trial, since continuance statute by its terms permitted continuance of that length in domestic violence cases; even if prosecutor was available to begin trial before expiration of continuance, absence of witness police officer also presented valid reason for continuance for ten days.  Mendez v. Superior Court (App. 4 Dist. 2008) 76 Cal.Rptr.3d 538, 162 Cal.App.4th 827, rehearing denied, review denied.

Trial court acted within its discretion in granting People’s motion for continuance of defendant’s trial for misdemeanor charges of willful infliction of corporal injury,  battery of spouse or cohabitant,  and using or being under influence of controlled substance despite People’s noncompliance with notice and pleading requirements for requesting continuance, where trial court specifically found good cause existed to continue hearing based on unavailability of witness police officer; trial court impliedly found that the People lacked sufficient time to comply with written notice and pleading requirements due to another trial and late notice of officer’s unavailability.  Mendez v. Superior Court (App. 4 Dist. 2008) 76 Cal.Rptr.3d 538, 162 Cal.App.4th 827, rehearing denied, review denied.

Traumatic condition was not required for crime of attempted injury upon cohabitant.  People v. Kinsey (App. 2 Dist. 1995) 47 Cal.Rptr.2d 769, 40 Cal.App.4th 1621, rehearing denied, review denied.

Officer had probable cause to arrest defendant on charge of infliction of corporal injury upon spouse where officer found victim crying uncontrollably, observed redness about her face and nose, and victim said defendant, her husband, had hit her and that her neck and nose were sore.  People v. Wilkins (App. 3 Dist. 1993) 17 Cal.Rptr.2d 743, 14 Cal.App.4th 761, rehearing denied, review denied.

Finding of sexual relationship between defendant and victim was not required to sustain conviction of felony infliction of corporal injury on cohabitant.  People v. Ballard (App. 1 Dist. 1988) 249 Cal.Rptr. 806, 203 Cal.App.3d 311.

Cohabitation was not necessary element of offense of willful and unlawful infliction of corporal injury upon wife resulting in traumatic condition [West's Ann.Cal.Penal Code § 273.5], despite defendant’s contention that otherwise the statute, which also protects unmarried cohabitors, discriminates against married but separated couples.  People v. Gutierrez (App. 2 Dist. 1985) 217 Cal.Rptr. 616, 171 Cal.App.3d 944, review denied.
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8. Elements of Cohabitation under PC 273.5

Also listed as Elements – Cohabitation

Substantial evidence supported conclusion of real estate commissioner, in issuing restricted salesperson license, that conduct underlying applicant’s conviction for willful infliction of corporal injury upon cohabitant/mother of his child amounted to moral turpitude, where applicant ran upstairs to continue an earlier, violent argument with girlfriend, pushed her to floor, struck her on shoulder, slapped her, and threw box of college books at her, all in immediate presence of their four-year-old child.  Donley v. Davi (App. 3 Dist. 2009) 103 Cal.Rptr.3d 1, 180 Cal.App.4th 447.

Behavior underlying applicant’s conviction for willful infliction of corporal injury resulting in traumatic condition upon cohabitant/mother of his child posed threat of causing substantial injury, and therefore was substantially related to qualifications, functions, and duties of a real estate salesperson licensee; applicant engaged in a physical struggle with girlfriend at top of stairs, pushing her to the ground, striking her, slapping her, and throwing a box of books at her, all in the immediate presence of their young son who tried to intervene, and applicant testified that he picked son up and moved him out of the way “before he got knocked down the stairs.”  Donley v. Davi (App. 3 Dist. 2009) 103 Cal.Rptr.3d 1, 180 Cal.App.4th 447.

Defendant’s conviction upon no contest plea to assault by means of force likely to produce great bodily injury was properly treated as a domestic violence conviction, thus requiring a 52-week batterer’s counseling program as a condition of defendant’s probation, where the victim was defendant’s former girlfriend, a protective order had been issued designating the case as a domestic violence case, a charge of willful infliction of corporal injury on former cohabitant was dismissed pursuant to plea agreement, and the plea agreement stated that the court could consider the dismissed charges in determining the appropriate sentence.  People v. Cates (App. 1 Dist. 2009) 87 Cal.Rptr.3d 919, 170 Cal.App.4th 545.

A permanent address is not necessary to establish cohabitation for purposes of the statute criminalizing corporal injury on a cohabitant, as cohabitation can be found even in unstable and transitory living conditions.  People v. Belton (App. 3 Dist. 2008) 85 Cal.Rptr.3d 582, 168 Cal.App.4th 432, review denied.

“Cohabitant,” as used in the statute criminalizing corporal injury on a cohabitant, requires something more than a platonic, rooming-house arrangement; it refers to an unrelated couple living together in a substantial relationship, one manifested, minimally, by permanence and sexual or amorous intimacy.  People v. Belton (App. 3 Dist. 2008) 85 Cal.Rptr.3d 582, 168 Cal.App.4th 432, review denied.

For purposes of establishing whether corporal injury victim is “cohabitant” of defendant, as required to support conviction of willful infliction of corporal injury on a cohabitant, a defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods.  People v. Taylor (App. 4 Dist. 2004) 12 Cal.Rptr.3d 693, 118 Cal.App.4th 11.

For purposes of establishing cohabitation element of offense of willful infliction of corporal injury on a cohabitant, the term “cohabitant” has been interpreted broadly to refer to those who live together in a substantial relationship, one manifested, minimally, by permanence and sexual or amorous intimacy.  People v. Taylor (App. 4 Dist. 2004) 12 Cal.Rptr.3d 693, 118 Cal.App.4th 11.

Evidence that corporal injury victim had been dating defendant for five months, she and defendant were “living together” in defendant’s car at time of offense, and that she was 10 weeks pregnant with defendant’s child, established that victim was cohabitant of defendant, as required for conviction of willful infliction of corporal injury on a cohabitant, even though defendant and victim sometimes lived separately with other relatives.  People v. Taylor (App. 4 Dist. 2004) 12 Cal.Rptr.3d 693, 118 Cal.App.4th 11.

For purposes of statutory prohibition against inflicting corporal injury on cohabitant, defendant may cohabit simultaneously with two or more people at different locations, during same time frame, if defendant maintains substantial ongoing relationships with each and lives with each for significant periods;  defendant who physically abuses cohabitant cannot immunize himself from criminal liability merely by living part of time elsewhere with one or more other persons while continuing to reside the rest of the time with first partner and maintaining substantial relationship with that person.  People v. Moore (App. 1 Dist. 1996) 52 Cal.Rptr.2d 256, 44 Cal.App.4th 1323, modified on denial of rehearing.

Jury instruction defining “cohabiting” as persons of the opposite sex living together for a substantial period of time, resulting in some permanency of relationship was proper in prosecution for inflicting corporal injury on a cohabitant.  People v. Holifield (App. 1 Dist. 1988) 252 Cal.Rptr. 729, 205 Cal.App.3d 993, review denied.

“Cohabiting” within meaning of this section means unrelated man and woman living together in a substantial relationship–one manifested, minimally, by permanence and sexual or amorous intimacy.  People v. Holifield (App. 1 Dist. 1988) 252 Cal.Rptr. 729, 205 Cal.App.3d 993, review denied.

Evidence was sufficient to establish that defendant and victim were “cohabiting” for purposes of this section;  defendant lived with victim in her hotel room half or more of the three months preceding assault and had no other regular place to stay, slept and had occasional sex with victim and brought his belongings with him each time he returned, although defendant and victim did not share rent, bank account or cost of furnishings.  People v. Holifield (App. 1 Dist. 1988) 252 Cal.Rptr. 729, 205 Cal.App.3d 993, review denied.

Elements – Cohabitation

See Cohabitation, elements

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9. Elements of Corporal Injury under PC 273.5

Also listed as Elements – Corporal injury

Defendant charged with inflicting corporal injury on a spouse failed to establish that trial court erred in failing to sua sponte instruct jury on lesser-included offense of spousal battery; although defendant recounted testimony and asserted that lesser offense was supported by substantial evidence, defendant made no attempt to explain the elements of the crimes and failed to discuss how the evidence raised a question as to whether all of the elements of the greater crime were present.  People v. Hamlin (App. 3 Dist. 2009) 89 Cal.Rptr.3d 402, 170 Cal.App.4th 1412, modified on denial of rehearing, review denied, habeas corpus denied 2012 WL 6571055.

Spousal battery is a lesser-included offense of inflicting corporal injury on a spouse.  People v. Hamlin (App. 3 Dist. 2009) 89 Cal.Rptr.3d 402, 170 Cal.App.4th 1412, modified on denial of rehearing, review denied, habeas corpus denied 2012 WL 6571055.

Defendant “willfully inflicts” corporal injury upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, in violation of statute, when a direct application of force by defendant upon victim causes injury.  People v. Jackson (App. 2 Dist. 2000) 91 Cal.Rptr.2d 805, 77 Cal.App.4th 574, review denied.

Defendant did not “willfully inflict” corporal injury on his girlfriend, as required to support conviction for willfully inflicting injury upon a cohabitant, where injuries sustained by girlfriend as result of confrontation with defendant occurred when she tripped over curb while attempting to escape, and not from any direct application of force by defendant.  People v. Jackson (App. 2 Dist. 2000) 91 Cal.Rptr.2d 805, 77 Cal.App.4th 574, review denied.

Court of Appeal, which had determined that evidence was insufficient to support defendant’s conviction for willfully inflicting corporal injury on a cohabitant, because injuries sustained by his girlfriend while attempting to escape did not result from direct physical contact by defendant, would modify judgment to conviction for lesser, necessarily included offense of battery against a cohabitant.  People v. Jackson (App. 2 Dist. 2000) 91 Cal.Rptr.2d 805, 77 Cal.App.4th 574, review denied.

Emotional upset of defendant’s wife after incident during which defendant slapped wife in face and head was insufficient to elevate defendant’s crime from simple battery to infliction of corporal injury on spouse.  People v. Abrego (App. 4 Dist. 1993) 25 Cal.Rptr.2d 736, 21 Cal.App.4th 133, review denied.

Evidence was insufficient to support finding that defendant’s wife suffered corporal injury resulting in traumatic condition so as to support conviction for infliction of corporal injury on spouse;  although defendant slapped wife in face and head, there was no evidence of even minor injury.  People v. Abrego (App. 4 Dist. 1993) 25 Cal.Rptr.2d 736, 21 Cal.App.4th 133, review denied.

Evidence that defendant’s wife had a red mark on her arm was sufficient to support finding that defendant had inflicted a corporal injury resulting in a traumatic condition, as required for defendant’s conviction for spousal battery under California law.  Ambrose v. Handis, C.A.9 (Cal.)2001, 11 Fed.Appx. 963, 2001 WL 669400, Unreported.

Elements – Corporal injury

See Corporal injury, elements

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10. Elements of Traumatic Condition under PC 273.5

Also listed as Traumatic condition, elements

Bruising is a “traumatic condition,” for purposes of California statute prohibiting domestic violence by willfully inflicting corporal injury resulting in a traumatic condition on someone with whom defendant was cohabitating.  U.S. v. Hall, C.A.9 (Cal.)2005, 419 F.3d 980, certiorari denied 126 S.Ct. 838, 546 U.S. 1080, 163 L.Ed.2d 714.

Evidence was sufficient to support conviction for corporal injury resulting in a traumatic condition upon on a cohabitant, where victim testified that defendant struck her with a rod, and that it resulted in bruising.  People v. Beasley (App. 2 Dist. 2003) 130 Cal.Rptr.2d 717, 105 Cal.App.4th 1078, modified on denial of rehearing.

Evidence was insufficient to support convictions for corporal injury resulting in a traumatic condition upon on a cohabitant for two separate incidents; although victim testified that defendant struck her with a rod, she was unsure if earlier incident resulted in any injury, and did not describe any injury that resulted from later incident.  People v. Beasley (App. 2 Dist. 2003) 130 Cal.Rptr.2d 717, 105 Cal.App.4th 1078, modified on denial of rehearing.

Evidence that defendant shoved victim, yelled, screamed, and cursed at her, tried for hour to “get at her,” and kept reaching toward her, was sufficient to establish that he intended to cause her “external or internal injury,” as required to establish intent to cause traumatic injury element of offense of attempted injury upon cohabitant.  People v. Kinsey (App. 2 Dist. 1995) 47 Cal.Rptr.2d 769, 40 Cal.App.4th 1621, rehearing denied, review denied.

Statute on infliction of corporal injury upon spouse is violated when defendant inflicts even “minor” injury;  unlike other felonies which require serious or great bodily injury, legislature has clothed persons of opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before offense is committed.  People v. Wilkins (App. 3 Dist. 1993) 17 Cal.Rptr.2d 743, 14 Cal.App.4th 761, rehearing denied, review denied.

“Traumatic condition,” within meaning of offense of willful and unlawful infliction of corporal injury upon spouse resulting in traumatic condition, is condition of the body such as wound or external or internal injury, whether of minor or serious nature, caused by physical force.  People v. Gutierrez (App. 2 Dist. 1985) 217 Cal.Rptr. 616, 171 Cal.App.3d 944, review denied.

Traumatic condition, elements

See Elements – Traumatic condition

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11. Elements of Intent to Cause a Traumatic Condition under PC 273.5

Willful infliction of corporal injury resulting in traumatic condition upon spouse, cohabitant, or the parent of one’s child is a general intent crime.  Donley v. Davi (App. 3 Dist. 2009) 103 Cal.Rptr.3d 1, 180 Cal.App.4th 447.

Defendant may be found guilty of inflicting corporal injury on spouse causing a traumatic condition if he willfully used force against his spouse, even if he did not specifically intend to cause the traumatic injury.  People v. Campbell (App. 4 Dist. 1999) 90 Cal.Rptr.2d 315, 76 Cal.App.4th 305, review denied.

Infliction of corporal punishment resulting in a traumatic condition on the mother of one’s children is a general intent crime and therefore requires the mens rea only of intending to do the assaultive act.  People v. Thurston (App. 4 Dist. 1999) 84 Cal.Rptr.2d 221, 71 Cal.App.4th 1050.

Police officers had probable cause to believe that woman violated California statute prohibiting willful infliction of corporal injury on a cohabitant, justifying her arrest, even if she lacked any intent to injure; both arrestee and her fiance admitted to police that woman punctured her fiance’s ear when attempting to restrain him by grabbing his arm, and officers could see the puncture wound and the blood on the fiance’s shirt.  Estrada v. County of Los Angeles, C.A.9 (Cal.)2004, 91 Fed.Appx. 28, 2004 WL 346059, Unreported.

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12. Continuous Course of Conduct per PC 273.5

Neither election of act relied upon to prove crime charged nor instruction on jury unanimity were required in prosecution for spousal abuse, since this section contemplates a continuous course of conduct of a series of acts over a period of time.  People v. Thompson (App. 1 Dist. 1984) 206 Cal.Rptr. 516, 160 Cal.App.3d 220.

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13. Multiple Offenses or Multiple Counts of Corporal Injury upon a Cohabitant

Defendant could be convicted of three counts of corporal injury upon a cohabitant based upon multiple injuries inflicted during a single course of conduct; each crime was complete upon the willful and direct application of physical force upon the victim resulting in a wound or injury, and, therefore, since multiple applications of physical force resulted in separate injuries, defendant completed multiple violations.  People v. Johnson (App. 6 Dist. 2007) 59 Cal.Rptr.3d 405, 150 Cal.App.4th 1467, modified on denial of rehearing, review denied, habeas corpus denied 2011 WL 4036958.

Defendant who inflicted multiple batteries against cohabitant over time could be charged with multiple violations of cohabitant abuse statute.  People v. Healy (App. 2 Dist. 1993) 18 Cal.Rptr.2d 274, 14 Cal.App.4th 1137, review denied, denial of habeas corpus affirmed 11 Fed.Appx. 886, 2001 WL 357530.

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14. PC 273.5 is a Wobbler Offense

District court committed a significant procedural error, warranting remand in proceeding to determine the grade of a defendant’s supervised release violation under the Sentencing Guidelines, by failing to exercise its discretion to determine whether defendant’s uncharged offense under a California “wobbler” statute was punishable by more or less than one year, and instead applying a presumption that the uncharged offense was a felony and therefore a Grade A violation.  U.S. v. Denton, C.A.9 (Cal.)2010, 611 F.3d 646.

When a district court finds that a defendant has committed a “wobbler” offense, which can be punished either as a felony or as a misdemeanor, but the offense is uncharged, no presumption applies as to whether the offense is punishable as a felony, more than one year’s imprisonment, or a misdemeanor, less than one year’s imprisonment, for purposes of determining the grade of the defendant’s supervised release violation under the Sentencing Guidelines; because no presumption applies, the district court must exercise its discretion to decide whether the offense was punishable by more than one year’s imprisonment.  U.S. v. Denton, C.A.9 (Cal.)2010, 611 F.3d 646.

Three-year felony statute of limitations, rather than one year misdemeanor statute of limitations, applied to charged “wobbler” offenses of inflicting corporal injury on a spouse, dissuading a witness, and causing injury to a phone line, even though offenses were originally charged as misdemeanors.  People v. Sillas, 2002, 123 Cal.Rptr.2d 340, 100 Cal.App.4th Supp. 1.

Defendant waived claim on direct appeal that California charge for inflicting corporal injury on spouse or dependent was “wobbler” offense that should have been classified as misdemeanor offense, such that alleged error in administrative and expedited removal proceedings following his conviction for same were invalid due to his status as legal permanent resident, and therefore, that he was not subject to prosecution for attempted illegal reentry after deportation was invalid, where he did not raise claim at trial.  U.S. v. Quintanilla-Gonzalez, C.A.9 (Cal.)2011, 450 Fed.Appx. 612, 2011 WL 4342656, Unreported, certiorari denied 132 S.Ct. 1156, 181 L.Ed.2d 1027.

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15. Definition of “Parent” under PC 273.5

Statute making it felony to inflict corporal injury on mother or father of attacker’s child cannot apply to battery of woman pregnant with attacker’s child; statutory definition of “mother” excludes pregnant women, and statute lacks any qualifying language extending scope of term “child” to include unborn children.  People v. Ward (App. 4 Dist. 1998) 72 Cal.Rptr.2d 531, 62 Cal.App.4th 122.

Amended spousal battering statute, which prohibits defendant from battering one who is the parent of his or her child, applied to protect woman with whom defendant had previously been involved in intimate relationship resulting in birth of child, though defendant’s and woman’s parental rights in child had been terminated prior to alleged battery; interpreting statute to require continuing parent-child relationship would not accord with its underlying purpose to deter domestic violence.  People v. Mora (App. 1 Dist. 1996) 59 Cal.Rptr.2d 801, 51 Cal.App.4th 1349, review denied.

Amended spousal battering statute, which prohibits defendant from battering one who is the parent of his or her child, does not require continuing parent-child relationship for its prohibition to apply.  People v. Mora (App. 1 Dist. 1996) 59 Cal.Rptr.2d 801, 51 Cal.App.4th 1349, review denied.

Amended spousal battering statute, which prohibits defendant from battering one who is the parent of his or her child, requires nothing more than historical fact of paternity to justify punishing defendant for battering the mother of his child.  People v. Mora (App. 1 Dist. 1996) 59 Cal.Rptr.2d 801, 51 Cal.App.4th 1349, review denied.

Penal statute providing that any person who willfully inflicts corporal injury resulting in traumatic condition upon mother or father of his or her child is guilty of a felony and that person shall be considered father or mother of child if the alleged male parent is presumed the natural father under the Family Code does not require that parentage be established by resort to Family Code presumptions and therefore, any substantial evidence that establishes victim is mother or father of defendant’s child is sufficient to sustain the conviction.  People v. Vega (App. 5 Dist. 1995) 39 Cal.Rptr.2d 479, 33 Cal.App.4th 706.

Under the ordinary meaning of the language used, willful infliction of corporal injury statutory subsection stating that any person who willfully inflicts on any person who is mother or father of his or her child corporal injury is guilty of a felony applies to biological father who batters mother of his child and another statutory subsection stating that person shall be considered father or mother of child if the alleged male parent is presumed the natural father under Family Code expands reach of the willful infliction of corporal injury statute to a presumed father, that is, man who has entered into family relationship with mother and child regardless of whether he is biological father;  no purpose is served under the statute by requiring prosecution to establish in every case that defendant is the presumed natural father under the Family Code.  People v. Vega (App. 5 Dist. 1995) 39 Cal.Rptr.2d 479, 33 Cal.App.4th 706.
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16. Former Spouse or Cohabitant under PC 273.5

The spousal abuse statute does not require a continuing domestic relationship between the perpetrator and the victim, because while the statute applies where the victim is a “spouse” or “cohabitant” of the perpetrator, it also applies where the victim is a “former spouse” or “former cohabitant,” i.e., where there is no longer a domestic relationship between the parties.  People v. Hamlin (App. 3 Dist. 2009) 89 Cal.Rptr.3d 402, 170 Cal.App.4th 1412, modified on denial of rehearing, review denied, habeas corpus denied 2012 WL 6571055.

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17. Determining Restitution under PC 273.5

Defendant who was convicted of infliction of corporal punishment on his wife did not have state or federal constitutional right, at a hearing to determine amount of restitution, to call as a witness and cross-examine the psychotherapist who provided counseling to victim.  People v. Cain (App. 4 Dist. 2000) 97 Cal.Rptr.2d 836, 82 Cal.App.4th 81, as modified, review denied.

The scope of a criminal defendant’s due process rights at a hearing to determine the amount of restitution is very limited; a defendant’s due process rights are protected when the probation report gives notice of the amount of restitution claimed, and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing.  People v. Cain (App. 4 Dist. 2000) 97 Cal.Rptr.2d 836, 82 Cal.App.4th 81, as modified, review denied.

Trial court’s refusal to allow defendant, at a hearing to determine amount of restitution, to confront and cross-examine the psychotherapist who provided counseling to victim did not result in violation of his due process rights, as defendant had full and fair opportunity to present affirmative evidence that counseling received by victim was not directly related to defendant’s crime of infliction of corporal punishment on a spouse.  People v. Cain (App. 4 Dist. 2000) 97 Cal.Rptr.2d 836, 82 Cal.App.4th 81, as modified, review denied.

The trial court violates the defendant’s due process right at a hearing to determine the amount of restitution if the hearing procedures are fundamentally unfair.  People v. Cain (App. 4 Dist. 2000) 97 Cal.Rptr.2d 836, 82 Cal.App.4th 81, as modified, review denied.

At a hearing to determine amount of restitution to be paid by defendant who was convicted of infliction of corporal punishment on his wife, trial court’s consideration of hearsay information contained in probation officer’s memoranda and State Board of Control’s statement of claims paid on victim’s behalf did not render the hearing fundamentally unfair in violation of due process, as such documents were inherently reliable.  People v. Cain (App. 4 Dist. 2000) 97 Cal.Rptr.2d 836, 82 Cal.App.4th 81, as modified, review denied.

There was sufficient evidence that counseling received by victim, defendant’s wife, was directly related to defendant’s crime of infliction of corporal punishment on a spouse to support order requiring defendant to pay restitution to reimburse the State Board of Control for payment of counseling fees on behalf of victim; victim’s psychotherapist made statement that counseling was “100 percent related to the crime,” and Board had paid the claims pursuant to administrative criteria requiring counseling to be needed “as a direct result” of defendant’s crime.  People v. Cain (App. 4 Dist. 2000) 97 Cal.Rptr.2d 836, 82 Cal.App.4th 81, as modified, review denied.

The terms and conditions set by the trial court for victim restitution will not be overturned unless the trial court abused its discretion.  People v. Cain (App. 4 Dist. 2000) 97 Cal.Rptr.2d 836, 82 Cal.App.4th 81, as modified, review denied.

Where there is a factual and rational basis for the amount of restitution set, no abuse of discretion will be found by the reviewing court.  People v. Cain (App. 4 Dist. 2000) 97 Cal.Rptr.2d 836, 82 Cal.App.4th 81, as modified, review denied.

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18. Consequences for Aliens and Immigrants Convicted of PC 273.5

Defendant’s California conviction for domestic abuse was “crime of violence,” and thus qualified as aggravated felony permitting defendant to be placed in expedited removal proceedings following his conviction for attempted illegal reentry after prior deportation.  U.S. v. Garcia-Navarro, C.A.9 (Cal.)2012, 468 Fed.Appx. 722, 2012 WL 507845, Unreported, certiorari denied 133 S.Ct. 487, 184 L.Ed.2d 306.

Determination by the Board of Immigration Appeals (BIA) that alien was statutorily ineligible for cancellation of removal based on his conviction of state crime in nature of crime of domestic violence had to be set aside, and case had to be remanded for clarification of the BIA’s decision, where the BIA cited to provision of the California Penal Code other than that under which alien was convicted and did not make clear whether it reached its decision using a “categorical” or “modified categorical” analysis.  Jaime Ramirez v. Holder, C.A.92012, 466 Fed.Appx. 599, 2012 WL 112255, Unreported.

Substantial evidence supported determination by immigration judge that California state law offense of which alien was convicted, involving marital rape, was a “particularly serious crime” rendering alien ineligible for asylum or withholding of removal, notwithstanding minimal sentence that he received; sentence imposed was not dominant factor in determining whether conviction was for “particularly serious crime,” and immigration judge properly performed an individualized inquiry into circumstances surrounding alien’s offense, which involved willful infliction of corporal injury on spouse.  Sosa v. Holder, C.A.92011, 457 Fed.Appx. 691, 2011 WL 5289779, Unreported.

Mexican alien’s conviction under California statute criminalizing willful infliction of corporal injury upon spouse or cohabitant was crime of violence, warranting removal under Immigration and Nationality Act (INA), since alien could not be convicted under statute without willfully using direct physical force of such violence as to cause traumatic condition to victim.  Hernandez-Andrade v. Holder, C.A.92011, 420 Fed.Appx. 721, 2011 WL 834164, Unreported.

Defendant’s prior conviction for inflicting corporal injury on spouse under California law was crime of violence for purposes of 16-level “crime of violence” adjustment under Sentencing Guidelines in prosecution for illegal reentry after deportation, since offense required intentional use of physical force against the person of another.  U.S. v. Olvera-Campos, C.A.9 (Cal.)2010, 396 Fed.Appx. 406, 2010 WL 3735836, Unreported, certiorari denied 131 S.Ct. 2095, 179 L.Ed.2d 896.

Defendant’s prior California conviction for inflicting corporal injury on a spouse qualified as a “crime of violence,” thereby subjecting defendant, upon guilty plea to illegal reentry after deportation, to 16-level crime of violence adjustment.  U.S. v. Murillo-Cuellar, C.A.9 (Cal.)2010, 396 Fed.Appx. 405, 2010 WL 3735831, Unreported.

Board of Immigration Appeals (BIA), in finding alien, a native and citizen of Mexico, ineligible for cancellation of removal, properly determined that his petty theft and domestic violence convictions constituted crimes of moral turpitude, as both crimes contained requisite mens rea for moral turpitude offense.   Aragon Trinidad v. Holder, C.A.92010, 367 Fed.Appx. 749, 2010 WL 582683, Unreported.

Alien husband’s conviction for abuse of spouse, in violation of California law, did not constitute “aggravated felony,” within meaning of statute barring eligibility for cancellation of removal based on lack of good moral character due to aggravated felony conviction including crime of violence for which term of imprisonment was at least one year, where alien was sentenced to only 19 days in custody.  Galvez-Martinez v. Holder, C.A.92009, 356 Fed.Appx. 47, 2009 WL 4827044, Unreported.

Alien husband’s conviction for abuse of spouse, in violation of California law, did not constitute “crime involving moral turpitude,” within meaning of statute barring eligibility for cancellation of removal based on lack of good moral character, since alien’s conviction was misdemeanor that fell within petty offense exception to crime of moral turpitude.  Galvez-Martinez v. Holder, C.A.92009, 356 Fed.Appx. 47, 2009 WL 4827044, Unreported.

Alien seeking cancellation of removal was not “convicted under” Immigration and Nationality Act (INA) provision, prohibiting cancellation of removal based on alien’s conviction of crime, where alien’s state law conviction preceded Act’s effective date.  Moran-Covarrubias v. Holder, C.A.92009, 334 Fed.Appx. 70, 2009 WL 1455778, Unreported.

Summary disposition was warranted on review of the pretermission of alien’s application for cancellation of removal, where he did not dispute that he had been convicted of California offense of willful infliction of corporal injury on a spouse or cohabitant or that such conviction constituted a crime of domestic violence.  Perez-Cortez v. Mukasey, C.A.92008, 288 Fed.Appx. 331, 2008 WL 2853445, Unreported.

Summary disposition was warranted on review of alien’s claim for cancellation of removal, where he failed to dispute that he had been convicted of California offense of willful infliction of corporal injury on a spouse or cohabitant, or that such conviction constituted a crime of domestic violence.  Medina v. Mukasey, C.A.92008, 288 Fed.Appx. 329, 2008 WL 2853395, Unreported.

Alien’s conviction for California offense of willful infliction of corporeal injury to a spouse supported order for his removal as an aggravated felon, even though the offense of conviction was charged as a misdemeanor and alien, who was sentenced to 365 days in jail, was not sentenced to more than a year.  Maya-Cruz v. Keisler, C.A.92007, 252 Fed.Appx. 136, 2007 WL 3088267, Unreported.

Seriousness of alien’s offenses of conviction and concern for safety of alien’s citizen wife and children constituted legitimate concerns justifying exercise of discretion by Board of Immigration Appeals (BIA) to deny alien’s application for cancellation of removal; alien’s convictions of child abuse and corporal injury to a spouse carried penalties as high as six years’ imprisonment, alien’s terms of probation included enrollment in and completion of approved batterer’s treatment program and abstention from alcohol, and alien demonstrated lack of rehabilitation and violated terms of his probation.  Dominic MBA v. Gonzales, C.A.92007, 231 Fed.Appx. 726, 2007 WL 1423751, Unreported.

Alien’s non-felony convictions of child abuse and corporal injury to his spouse could serve as basis for removal, as removal statute did not require a felony conviction.  Dominic MBA v. Gonzales, C.A.92007, 231 Fed.Appx. 726, 2007 WL 1423751, Unreported.

Mexican petitioner’s two unrelated California convictions for corporal injury of a spouse, which occurred four years apart, were not part of a single scheme of misconduct for purposes of removal provisions of the Immigration and Nationality Act (INA).  Ornelas v. Gonzales, C.A.92007, 231 Fed.Appx. 570, 2007 WL 1280695, Unreported.

Even if Mexican petitioner’s sentence for domestic violence offense may have been enhanced by the recidivist provision of statute, his conviction for corporal injury of a spouse was a substantive offense of moral turpitude for removal purposes.  Ornelas v. Gonzales, C.A.92007, 231 Fed.Appx. 570, 2007 WL 1280695, Unreported.

Defendant’s prior state conviction for corporal injury to a spouse constituted a crime of violence supporting imposition of enhanced sentence for instant conviction for unlawful reentry of a removed alien; under applicable state law, defendant could not have been convicted for state offense unless the injury resulted from a direct application of force on the victim by the defendant.  U.S. v. Zepeda-Martinez, C.A.9 (Cal.)2006, 213 Fed.Appx. 530, 2006 WL 3716020, Unreported.

Alien’s prior state court conviction of domestic violence qualified as “crime of domestic violence,” rendering him statutorily ineligible for cancellation of removal.  Ortega-Almanza v. Gonzales, C.A.92006, 209 Fed.Appx. 707, 2006 WL 3498276, Unreported.

Alien’s prior state court domestic violence conviction rendered him statutorily ineligible for cancellation of removal, despite fact that alien was never admitted to the United States.  Ochoa-Galan v. Gonzales, C.A.92006, 192 Fed.Appx. 679, 2006 WL 2084035, Unreported.

Court of Appeals lacked jurisdiction to review issue of whether alien’s California conviction for spousal rape constituted an aggravated felony for removal purposes, where alien’s unchallenged California conviction for corporal injury to a spouse provided sufficient ground for his removal as an aggravated felon.  Perez-Valdivia v. Gonzales, C.A.92006, 178 Fed.Appx. 636, 2006 WL 1082619, Unreported.

Immigration and Naturalization Service’s (INS) failure to consider cancellation of removal in 1998 was not prejudicial, and therefore did not violate alien’s procedural due process rights; even if alien had been afforded an opportunity to apply for cancellation of removal in 1998, he would not be eligible for such relief due to his 1999 conviction for spousal abuse, which was a crime of moral turpitude.  Ortega-Rodriguez v. Ashcroft, C.A.92003, 62 Fed.Appx. 156, 2003 WL 1878839, Unreported.

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19. Resisting Arrest and Self-Defense under PC 273.5

Under California law, self-defense is not a viable defense to a charge of willfully resisting arrest unless the arresting officer used excessive force.  Ambrose v. Handis, C.A.9 (Cal.)2001, 11 Fed.Appx. 963, 2001 WL 669400, Unreported.

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20. Terms of Bail per PC 273.5

County could not be liable in arrestee’s § 1983 Eighth Amendment action alleging that bail of $1 million, enhanced from $50,000 listed in county’s felony bail schedule, was excessive; there was no showing that county had custom or policy of violating state statutes concerning how bail enhancements could be obtained, given that statutes did not preclude county’s challenged practice of using probable cause declaration in support of enhancement request, and given absence of statutory limit on county’s seeking enhancement.  Galen v. County of Los Angeles, C.D.Cal.2004, 322 F.Supp.2d 1045, affirmed in part, reversed in part and remanded 468 F.3d 563, amended and superseded 477 F.3d 652.

Bail of $1 million for domestic violence arrestee, enhanced from $50,000 listed in county’s felony bail schedule, was not excessive and thus did not violate Eighth Amendment; alleged victim had both older and more recent injuries including seven-inch laceration and allegedly feared for her safety, arrestee was local attorney who obtained bail within hours by paying $50,000 to post bond, and option of denying bail was unavailable under state law.  Galen v. County of Los Angeles, C.D.Cal.2004, 322 F.Supp.2d 1045, affirmed in part, reversed in part and remanded 468 F.3d 563, amended and superseded 477 F.3d 652.

Application of statute prohibiting consideration of motion to release on one’s own recognizance (OR) without two court days’ written notice to prosecutor, to persons arrested for misdemeanor violations of cohabitant battery statute, does not violate equal protection on ground that persons arrested for other misdemeanors and certain felonies have a statutory right to OR release consideration, as there is a rational basis for treating cohabitant batterers differently; since domestic violence victims are particularly vulnerable, it was reasonable for legislature to require prosecutor notice for bail reduction/OR motion.  Dant v. Superior Court (App. 1 Dist. 1998) 71 Cal.Rptr.2d 546, 61 Cal.App.4th 380.

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21. Bail Forfeiture under PC 273.5

The making of additional criminal charges and a Three Strikes allegation against the defendant without notice to the bail surety was not a defense to bail forfeiture, since surety’s risk did not contractually increase, even though trial court did not increase the bail above the original amount of $50,000, and even though the added charges of failing to register as a sex offender and failing to file a change of address were unrelated to the willful infliction of corporal injury charge on which defendant originally was ordered to appear, where no complaint had been filed when surety issued the bond, and the bond guaranteed defendant’s appearance on charges that would be made in the future complaint.  County of Los Angeles v. American Contractors Indem. Co. (App. 2 Dist. 2011) 129 Cal.Rptr.3d 563, 198 Cal.App.4th 175.

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22. On-bail Enhancements per PC 2735.5

Defendant who had been arrested for spousal battery and released on bail was subject to on-bail enhancements, which increase sentence for crimes committed while released on bail for felony, for subsequent offenses committed against wife, even though at time of defendant’s release it was not yet determined whether spousal battery was felony or misdemeanor.  People v. Smith (App. 4 Dist. 2006) 48 Cal.Rptr.3d 378, 142 Cal.App.4th 923, rehearing denied, review denied, habeas corpus denied 2010 WL 331895.

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23. Habeas Corpus Petitions per PC 273.5

Violation of petitioner’s rights under Confrontation Clause, by preventing him, in his trial on charge of willful infliction of corporal injury to his spouse, from cross-examining his wife as to whether she was afraid to deviate from her initial incriminating statement because of threats allegedly made against her by prosecutor, had substantial and injurious effect on petitioner’s verdict, and thus petitioner was entitled to federal habeas relief, since case was not overwhelming and violation had not been alleviated by permitting him to challenge his wife’s credibility as witness in other respects.  Ortiz v. Yates, C.A.9 (Cal.)2012, 2012 WL 6052251.

State court’s Apprendi error in raising maximum term of punishment based on its finding that domestic violence victim was particularly vulnerable because she was attacked from behind was not harmless, warranting habeas relief; jury could have found otherwise.  Butler v. Curry, C.A.9 (Cal.)2008, 528 F.3d 624, certiorari denied 129 S.Ct. 767, 555 U.S. 1089, 172 L.Ed.2d 763, on remand 2009 WL 1106740.

District court should not have entertained portion of alien’s habeas corpus petition based on removal; alien’s challenge to removal itself sought to attack effect of his underlying felony conviction under California’s domestic violence law, but when Board of Immigration Appeals (BIA) affirmed immigration judge’s (IJ) order of removal, alien could have appealed that decision to Court of Appeals, but he failed to do so.  Morelli v. Ashcroft, C.A.92004, 100 Fed.Appx. 620, 2004 WL 785300, Unreported.

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24. What Evidence is Legally Admissible at Trial When a Person is Accused of PC 273.5

Nonhearsay evidence introduced at hearing, in supervised release revocation proceeding, was sufficient to sustain allegation that defendant violated California statute prohibiting domestic violence, and therefore any error in admission of hearsay testimony was harmless; one witness testified to seeing defendant hit victim, defendant admitted to an officer that he did so, there were photographs of victim’s bruises, and medical records of victim’s hospital visit and notes of defendant’s parole officer were admissible under hearsay exceptions.  U.S. v. Hall, C.A.9 (Cal.)2005, 419 F.3d 980, certiorari denied 126 S.Ct. 838, 546 U.S. 1080, 163 L.Ed.2d 714.

Defendant’s due process confrontation rights were not violated, in supervised release revocation proceeding, by admission of hearsay testimony that defendant struck victim, as would constitute a violation of California statute prohibiting domestic violence; hearsay evidence was insignificant to the ultimate finding, and government had good cause for not producing victim in that it was not able to locate her despite substantial efforts.  U.S. v. Hall, C.A.9 (Cal.)2005, 419 F.3d 980, certiorari denied 126 S.Ct. 838, 546 U.S. 1080, 163 L.Ed.2d 714.

Substantial evidence supported finding in real estate licensing proceeding that applicant did not have an adequate change in attitude and was only partially rehabilitated from conviction for willful infliction of corporal injury upon cohabitant/mother of his child; applicant’s testimony before ALJ emphasized girlfriend’s role in underlying altercation, portrayed applicant less as a person mad at girlfriend and more as a person concerned for their son, and agreed with letter of recommendation from now-former girlfriend that neither of them was to blame for the incident.  Donley v. Davi (App. 3 Dist. 2009) 103 Cal.Rptr.3d 1, 180 Cal.App.4th 447.

Applicant’s statements to sheriff’s deputy, included in deputy’s report as a supplemental narrative, were admissible under the hearsay exception for admissions in real estate licensing proceeding in which real estate commissioner concluded that conviction for willful infliction of corporal injury resulting in traumatic condition upon cohabitant/mother of applicant’s child was a crime of moral turpitude.  Donley v. Davi (App. 3 Dist. 2009) 103 Cal.Rptr.3d 1, 180 Cal.App.4th 447.

Trial court acted within its discretion at trial for domestic battery with corporal injury and assault in finding probative value of testimony of son of defendant’s former girlfriend about defendant’s prior, uncharged incident of domestic violence against former girlfriend outweighed prejudicial effect, even though son was nine years old at time he witnessed incident; son was 19-year-old man at time he testified, his testimony was

quite brief, and evidence of prior assault was relevant and probative to show defendant’s violent rages.  People v. Morton (App. 4 Dist. 2008) 70 Cal.Rptr.3d 827, 159 Cal.App.4th 239, review denied.

Probative value of evidence that defendant had engaged in prior, uncharged incident of domestic violence involving his former girlfriend was not outweighed by its prejudicial effect at trial for assault and domestic battery with corporal injury, even though prior incident was nine years earlier; substantial similarities between incidents showed defendant was prone to violent rages and would engage in punching and kicking when in rage, nothing showed that former girlfriend had any relationship with victim, former girlfriend reported incident to police at around time it happened, and testimony about prior incident was no more inflammatory than that about charged incident.  People v. Morton (App. 4 Dist. 2008) 70 Cal.Rptr.3d 827, 159 Cal.App.4th 239, review denied.

Hearsay statement of prior victim was not testimonial, and therefore it could be properly admitted into evidence in prosecution for three counts of corporal injury upon a cohabitant; circumstances objectively indicated that investigating officer had interrupted an ongoing emergency and obtained information from prior victim in order to assess the situation, inasmuch as officer heard her screaming as he stood at the door, the man who answered the door had blood on his hands, and prior victim had a bloody and broken nose.  People v. Johnson (App. 6 Dist. 2007) 59 Cal.Rptr.3d 405, 150 Cal.App.4th 1467, modified on denial of rehearing, review denied, habeas corpus denied 2011 WL 4036958.

Admission into evidence of reports from battered women’s advocacy group regarding victim’s telephone call to hotline and her intake interview, which contained inadmissible multiple hearsay, did not prejudice defendant in prosecution for spousal battery, where jury did not see reports, prosecutor only briefly referenced this evidence during closing argument, content of reports was largely cumulative to admissible evidence, evidence of defendant’s guilt, including his admissions, was overwhelming, defendant’s claim that he inflicted the injuries in self-defense was not credible, and jury had already demonstrated credible limit of lenity when it acquitted defendant of other charges.  People v. Ayers (App. 5 Dist. 2005) 23 Cal.Rptr.3d 242, 125 Cal.App.4th 988, review denied.

Evidence of reports from battered women’s advocacy group regarding victim’s telephone call to hotline and her intake interview, which contained multiple hearsay, did not come within business records exception to hearsay rule in spousal battery prosecution; although reports themselves were properly authenticated as business records, victim’s statements were second level of hearsay which did not come within exception.  People v. Ayers (App. 5 Dist. 2005) 23 Cal.Rptr.3d 242, 125 Cal.App.4th 988, review denied.

Admission of evidence of defendant’s prior domestic violence in a prosecution including charges of spousal battery and attempted spousal rape did not violate defendant’s due process rights; defendant had pretrial notice of prosecution’s intent to offer the evidence and trial court retained discretion to exclude the prior acts evidence.  People v. Johnson (App. 3 Dist. 2000) 91 Cal.Rptr.2d 596, 77 Cal.App.4th 410, review denied.

In prosecution of defendant for willfully inflicting upon person who was mother of his child corporal injury resulting in traumatic condition, victim’s testimony that defendant was the father of her children and that she received Aid to Families with Dependent Children (AFDC) when defendant was absent from the home constituted substantial evidence that defendant was the father of her children within meaning of the statutory offense of willful infliction of corporal injury and thus, prosecution did not need to rely on the statutory presumptions of the Family Code to establish elements of the offense.  People v. Vega (App. 5 Dist. 1995) 39 Cal.Rptr.2d 479, 33 Cal.App.4th 706.

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25. How Much Evidence is Enough to Convict a Person for PC 273.5

Also listed as Sufficiency of evidence

Because Supreme Court of California denied without reasoned decision petitioner’s claim that evidence was insufficient to allow trial court to find true allegation that he had been convicted of domestic violence with an allegation that he used dangerous or deadly weapon, federal habeas court was required to independently review record to determine if that denial was unreasonable application of federal law.  Rogers v. Wong, E.D.Cal.2009, 637 F.Supp.2d 807.

Statements by applicant’s girlfriend to sheriff’s deputy concerning incident giving rise to applicant’s conviction for willful infliction of corporal injury upon cohabitant/mother of his child were “hearsay” in context of real estate licensing proceeding.  Donley v. Davi (App. 3 Dist. 2009) 103 Cal.Rptr.3d 1, 180 Cal.App.4th 447.

Trial court’s finding by a preponderance of the evidence that defendant willfully inflicted injury upon his child’s mother, in concluding that defendant violated the “break no laws” provision of the Vargas waiver in his plea agreement, subjecting him to a greater sentence, was supported by substantial evidence, including the victim’s testimony that defendant had been drinking, that they got into an argument, and that defendant hit her a couple of times on the face and ribs resulting in a black eye and injured ribs, as well as testimony of a police officer and victim’s aunt that victim had a black eye and bruises on her arms after the incident.  People v. Rabanales (App. 4 Dist. 2008) 85 Cal.Rptr.3d 607, 168 Cal.App.4th 494, review denied, habeas corpus dismissed 2011 WL 1599619.

Evidence was sufficient to show that defendant and victim had been cohabitants, as required for conviction for corporal injury to a former cohabitant, even though defendant argued that his two-month relationship with victim was neither permanent nor long enough to qualify as cohabitation; victim testified that she and defendant lived together at a house and that, after they were expelled from house, they continued to live together in friends’ houses, motels, or a car, victim and defendant shared their meals and shopped together on occasion, victim paid their living expenses, and victim and defendant had sexual relations during their time together.  People v. Belton (App. 3 Dist. 2008) 85 Cal.Rptr.3d 582, 168 Cal.App.4th 432, review denied.

Substantial evidence supported defendant’s convictions for three counts of corporal injury upon a cohabitant during a single course of conduct; evidence based on victim’s testimony demonstrated that defendant beat victim about her face and head, he held her by her throat up against the wall, he beat her on her back and legs, and he stabbed her in her upper arm, causing her to suffer two black eyes, a split lip, bruises to her neck and other locations, and a puncture wound to her upper arm.  People v. Johnson (App. 6 Dist. 2007) 59 Cal.Rptr.3d 405, 150 Cal.App.4th 1467, modified on denial of rehearing, review denied, habeas corpus denied 2011 WL 4036958.Assault And Battery Key Number 91.8

Sufficiency of evidence

See Evidence, sufficiency of
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26. Testimony of Defense Witnesses and Victim’s Testimony in PC 273.5 Cases

Testimony of defense witnesses and victim’s testimony that at a preliminary hearing she had testified that her injuries were caused accidentally when she was struck by a door as defendant entered a bathroom constituted substantial evidence that her injuries were caused by an accident, and that defendant lacked the requisite intent to be guilty of willful infliction of corporal injury on a cohabitant or simple battery, and thus, because defense counsel relied on the defense of accident in his argument to the jury, trial court should have initially instructed the jury sua sponte regarding that defense.  People v. Gonzales (App. 2 Dist. 1999) 88 Cal.Rptr.2d 111, 74 Cal.App.4th 382, as modified.
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27. What Jury Instructions Must be Given to Jury in a PC 273.5 Case?

Instructions – In general

Any error was harmless to defendant in trial court’s failure to instruct jury that it was required to agree unanimously whether the blow that caused a bump to appear quickly on victim’s forehead or other blows that allegedly caused other bumps to appear more slowly formed the basis for defendant’s conviction of inflicting corporal injury on a cohabitant, since it was clear beyond a reasonable doubt that the jury unanimously found defendant guilty based on the bump that appeared quickly, where the bump was shown not only by a photograph, but also by the testimony of a police officer and of victim herself; other alleged bumps were uncorroborated.  People v. Lueth (App. 4 Dist. 2012) 141 Cal.Rptr.3d 595, 206 Cal.App.4th 189, review denied.

Defendant was not prejudiced by trial court’s erroneous jury instruction on battery, which referred to a nonexistent category of persons to which battery statute purportedly applied, as a lesser included offense of corporal injury to a former cohabitant; instruction made it easier for jury to find defendant guilty of lesser included offense rather than principal offense, and even with that benefit, jury found defendant guilty of principal offense.  People v. Belton (App. 3 Dist. 2008) 85 Cal.Rptr.3d 582, 168 Cal.App.4th 432, review denied.

Any error in trial court’s refusal to add term “unlawful” in addition to “willful” in standard jury instruction on spousal battery, where defendant claimed self-defense, was harmless beyond a reasonable doubt, given context of other jury instructions on People’s burden of proof and self-defense, defense counsel’s argument to jury that prosecutor had burden of proving beyond a reasonable doubt that “what happened was not self-defense,” and overwhelming proof of defendant’s guilt.  People v. Ayers (App. 5 Dist. 2005) 23 Cal.Rptr.3d 242, 125 Cal.App.4th 988, review denied.

Given context of other jury instructions on People’s burden of proof and self-defense, trial court’s refusal to add term “unlawful” in addition to “willful” in standard jury instruction on spousal battery did not mislead jury into believing that self-defense instructions did not apply or confuse the jurors about the People’s burden of proof.  People v. Ayers (App. 5 Dist. 2005) 23 Cal.Rptr.3d 242, 125 Cal.App.4th 988, review denied.

By advising deliberating jury to reread cohabitation instruction in prosecution for corporal injury on cohabitant, trial court fulfilled statutory duty to clear up confusion over instructions.  People v. Moore (App. 1 Dist. 1996) 52 Cal.Rptr.2d 256, 44 Cal.App.4th 1323, modified on denial of rehearing.

Trial court did not mislead jury by instructing it that offense of attempted injury upon cohabitant required specific intent to inflict bodily injury resulting in traumatic condition upon cohabitant;  reasonable juror would have understood trial court’s instruction to mean intent to cause traumatic injury was necessary element of crime.  People v. Kinsey (App. 2 Dist. 1995) 47 Cal.Rptr.2d 769, 40 Cal.App.4th 1621, rehearing denied, review denied.
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28. Accident Instructions

Also listed as Instructions – Accident

Trial court’s response to jury’s inquiry, seeking a clarification of instructions, was erroneous in failing to instruct regarding the defense of accident did not offer the jury any assistance; while it was apparent that the jurors were experiencing difficulty with the court’s instructions concerning the willful intent required to convict defendant in light of evidence that the victim was injured in an accident, the court did not offer assistance, but reread several instructions already given, told the jury to use its common sense, and concluded by stating:  ”That is as far as I can go.”  People v. Gonzales (App. 2 Dist. 1999) 88 Cal.Rptr.2d 111, 74 Cal.App.4th 382, as modified.

Erroneous failure to instruct jury regarding the defense of accident and the nature of the burden of proof on that issue was not harmless in prosecution for willful infliction of corporal injury on a cohabitant, in light of jury’s request that a witness’ testimony be read back, the jury’s assertion that it was confused regarding how an accident would affect whether defendant’s conduct was willful, and the jury’s indication that it was deadlocked regarding whether defendant acted willfully.  People v. Gonzales (App. 2 Dist. 1999) 88 Cal.Rptr.2d 111, 74 Cal.App.4th 382, as modified.

Instructions – Accident

See Accident, instructions

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29. What Sentence and Punishment is Legally Appropriate in a PC 273.5 case?

Trial court’s Sixth Amendment error in imposing upper term sentences for four counts of assault by means of force likely to produce great bodily injury or with deadly weapon, one count of corporal injury to cohabitant, and one count of criminal threats without jury trial on aggravating factors was harmless, since it was beyond a reasonable doubt that jury would have found defendant’s crimes involved the aggravating factor of great violence and bodily harm disclosing a high degree of cruelty, viciousness, or callousness, where defendant engaged in prolonged vicious attack on victim, repeatedly hitting and kicking her over three days, and victim’s injuries were significant, including broken arms, leg, and rib, and many bruises.  People v. Martinez (App. 3 Dist. 2008) 83 Cal.Rptr.3d 738, 166 Cal.App.4th 1598, as modified, review denied.

In imposing upper “aggravated” term on domestic battery count, sentencing court avoided prohibition on use of fact of any enhancement upon which sentence was imposed by relying specifically on existence of priors other than those which were alleged and relied upon as enhancements.  People v. Morton (App. 4 Dist. 2008) 70 Cal.Rptr.3d 827, 159 Cal.App.4th 239, review denied.

Prisoner who had pled guilty to corporal injury to a cohabitant and admitted to a sentencing enhancement allegation of infliction of great bodily injury (GBI) was properly subject to statutory 15 percent limitation on worktime credits despite fact that trial court had stricken punishment for GBI enhancement; since only punishment, but not fact of enhancement, was stricken by trial court, prisoner was “violent offender” within meaning of statute mandating worktime credits limitation.  In re Pacheco (App. 2 Dist. 2007) 66 Cal.Rptr.3d 799, 155 Cal.App.4th 1439, modified on denial of rehearing, review denied.

Trial court was not required to stay defendant’s sentence for infliction of corporal punishment on a spouse, even though defendant was also convicted of attempted first degree murder; even though defendant wanted to kill victim, defendant’s act of dragging victim around her place of employment, first by the hair and then with a belt tied around her neck, exhibited that he wanted to humiliate and torture her before killing her.  People v. Ibarra (App. 4 Dist. 2007) 61 Cal.Rptr.3d 22, 151 Cal.App.4th 1145, review denied.

Defendant, a sheriff’s deputy who had been convicted of misdemeanor battery, lacked standing to assert that statute providing relief from 10-year firearm prohibition violated equal protection clause, in that person who battered domestic partner would be entitled to such relief if convicted of greater offense of spousal battery, but not if convicted of lesser offense of simple misdemeanor battery, since defendant’s victim was not a domestic partner, but rather a stranger.  People v. Conley (App. 4 Dist. 2004) 10 Cal.Rptr.3d 477, 116 Cal.App.4th 566.

Statute, which precluded defendant, a sheriff’s deputy who had been convicted of misdemeanor battery, from seeking relief from statutory 10-year firearm prohibition, yet allowed persons convicted of spousal battery, violating domestic violence restraining order, or stalking to seek such relief, was rationally related to legitimate public purpose of according special consideration to peace officers whose convictions arose from troubled domestic relationships, and thus legislative classification did not violate equal protection clause.  People v. Conley (App. 4 Dist. 2004) 10 Cal.Rptr.3d 477, 116 Cal.App.4th 566.

Defendant, a sheriff’s deputy who had been convicted of misdemeanor battery, was not within narrow class of persons entitled by statute to seek relief from 10-year firearm prohibition, although battery was lesser included offense of spousal battery, and person convicted of spousal battery was entitled under statute to seek such relief.  People v. Conley (App. 4 Dist. 2004) 10 Cal.Rptr.3d 477, 116 Cal.App.4th 566.

Serious bodily injury is not an element of inflicting corporal injury on a cohabitant, and thus imposition of a sentence enhancement for infliction of great bodily injury (GBI) on a defendant convicted of that offense is not improper; language in statute describing cohabitant’s traumatic condition “whether of a minor or serious nature” encompasses any variety of injury, rather than imposing alternate modes of committing the offense.  People v. Chaffer (App. 3 Dist. 2003) 4 Cal.Rptr.3d 441, 111 Cal.App.4th 1037, rehearing denied, review denied, habeas corpus dismissed 2007 WL 2339067, appeal granted 2007 WL 2792461, question certified 542 F.3d 662, opinion after certified question declined 2009 WL 2983045, redesignated as opinion 592 F.3d 1046.

Trial court properly exercised its sentencing discretion and did not participate in illegal plea bargain when it reduced defendant’s no contest plea to offense of willful infliction of corporal injury to misdemeanor, sentenced defendant to serve 365 days in county jail after waiver of credit for time already served in custody, and granted probation where record showed that trial court gave indicated sentence and defendant entered into an open plea.  People v. Vessell (App. 2 Dist. 1995) 42 Cal.Rptr.2d 241, 36 Cal.App.4th 285, review denied.

Defendant’s California conviction for domestic abuse was “crime of violence,” thus warranting sixteen-level sentencing enhancement following defendant’s conviction for attempted illegal reentry after prior deportation.  U.S. v. Garcia-Navarro, C.A.9 (Cal.)2012, 468 Fed.Appx. 722, 2012 WL 507845, Unreported, certiorari denied 2012 WL 3842275.

Under California law, great bodily injury was not an element of the crime of inflicting corporal injury on a cohabitant, and thus, sentence enhancement for infliction of great bodily injury in a domestic violence setting was not redundant of an injury element of the crime.  Kelly v. Lamarque, N.D.Cal.2003, 2003 WL 21209666, Unreported.

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30. What are the Legal Probation Terms that a Court can Impose when Someone is Convicted of PC 273.5?

Probation condition imposed on defendant that prohibited him from initiating contact with his wife, the victim of defendant’s domestic violence, was reasonable; probation condition was directly related to defendant’s criminal offense and reasonably related to future criminality, and condition was reasonably related to goals of enhancing rehabilitative and deterrence objectives and protecting victim.  People v. Jungers (App. 4 Dist. 2005) 25 Cal.Rptr.3d 873, 127 Cal.App.4th 698, review denied.

Probation condition imposed on defendant that prohibited him from initiating contact with his wife, the victim of defendant’s domestic violence, did not violate defendant’s constitutional rights to free association and marital privacy; state had a compelling interest in protecting victims of domestic violence, and order was narrowly tailored, inasmuch as it prohibited defendant from initiating contact with his wife, but did not require that he refrain from visits, conversations, and communications that were initiated by her.  People v. Jungers (App. 4 Dist. 2005) 25 Cal.Rptr.3d 873, 127 Cal.App.4th 698, review denied.

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*California Case Law Regarding PC 273.5 (2013). WestLaw Next. Retrieved from http://next.westlaw.com on March 6, 2013.

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