Domestic Violence Elements

Sacramento and Northern California Domestic Violence Lawyer Benjamin Scarfe

Warning: You will lose your right to possess a firearm if you are convicted of a Domestic Violence offense.

Domestic Violence is charged under Penal Code 243(e) as a misdemeanor or Penal Code 273.5 as a felony. The seriousness of the felony charge can be elevated if the District Attorney alleges great bodily Injury under Penal Code 12022.7(e), which significantly increases the punishment and alleged seriousness of the crime.

Definition and The Elements of Penal Code  243(e)(1):

To Prove Penal Code 243(e)(1), the District Attorney must Prove:

  1.  The Defendant willfully committed a battery upon the alleged Victim and
  2. At the time of the battery, the alleged victim was the defendant’s spouse or fiance, or an individual with whom defendant currently has, or has previously had, a dating relationship.

The “least touching” may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark. Someone commits an act willfully when he or she does it willingly or on purpose.  The slightest touching can be enough to commit a battery if it is done in a rude or angry way.  Making contact with another person is enough to complete a battery.  The touching does not have to cause pain or injury of any kind.  The touching can be done indirectly by causing an object or someone else to touch another person.

When self defense is an issue, the client must have unlawfully committed a battery on the alleged victim and the Prosecution must prove beyond a reasonable doubt that the client did not act in Self Defense. Other common defenses are mistake and accident.

The Definition and Elements of Penal Code 273.5 Felony Domestic Violence

To Prove the elements of Felony Domestic the District ATtorney must prove that the defendant

  1.  Willfully and unlawfully inflicted corporal injury on the alleged victim and
  2. The alleged victim was either a the defendant’s spouse or a person whom the defendant was cohabiting with or a fiance of or someone with whom the defendant has , or previously had, an engagement or dating relationship or the mother or father of the defendant’s child; and
  3. The Corporal Injury resulted in a traumatic condition; and
  4. The defendant did not act in self defense.

Someone commits an act willfully when he or she does it willingly or on purpose. A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.

The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties’ holding themselves out as (spouses/domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship.

A person may cohabit simultaneously with two or more people at different locations, during the same time frame, if he or she maintains substantial ongoing relationships with each person and lives with each person for significant periods. A person is considered to be the (mother/father) of another person’s child if the alleged male parent is presumed under law to be the natural father.

A traumatic condition is the result of an injury if:

  1.  The traumatic condition was the natural and probable consequence of the injury;
  2. The injury was a direct and substantial factor in causing the condition;  AND
  3. The condition would not have happened without the injury. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that resulted in the traumatic condition

Common Defenses to Domestic Violence Charges

Domestic violence charges can cause great emotional distress and strain for the client and the alleged victim. It is often the case that an accuser who made allegations to the police in a fit of anger will come to regret their actions once the alleged victim is no longer angry. However, prosecutors will often proceed on domestic battery cases even when the “victim” says he or she wants the charges dropped. That is why you need to meet with an experienced Sacramento Criminal Defense Attorney if you or a loved one are facing domestic battery charges.  Sacramento Criminal Defense Lawyer Benjamin Scarfe  has over 10 years of defense experience and is highly effective at defending those accused of domestic battery.

Consequences of a conviction for Penal Code 243(e)(1)

If you are convicted of Penal Code 243(e)(1) your exposure in jail is 365 days. Additionally you will be prohibited from possession firearms for 10 years, and you will be required to take a 52 week anger management course. Usually, but not always, jail is imposed as a condition of probation; also, expensive fines and stay away orders can also be conditions of probation.

Consequences of a felony conviction for Penal Code 273.5

If you are convicted of felony Penal Code 2753.5 you can go to state prison if you are denied probation. If the sentencing Judge imposes prison as a sentence, the judge has a base option of two, three, or four years in state prison without imposing additionally enhancements.

A conviction for 273.5 can be a strike under California’s three strikes law if it is proven that the defendant personally inflicted great bodily injury. 

A conviction for 273.5 also prevents the defendant from possessing firearms, voting, jury service, and public office and the defendant is not eligible for county prison on an executed prison sentence.

  • Sacramento Domestic Violence Lawyer Benjamin Scarfe

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Batterer Treatment programs that are mandatory if you are convicted of Penal Code 243(e)(1) or 273.5

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