Inflicting Bodily Injury on a Spouse or Intimate Other (Penal Code § 273.5(a))

When we hear “domestic violence,” we most often assume the offense involved infliction of an injury on a spouse. While this is certainly not the only offense that is covered under the domestic violence umbrella, it is the most common. The offense of inflicting an injury on a spouse is made unlawful under Penal Code section 273.5(a). This code section covers not only a spouse, but also a co-habitant or someone with whom the defendant is engaged to or is dating, or someone with whom the defendant has a child. The requisite relationship requirement can be current or former.

To prevail on conviction of this crime the prosecution must prove the following:

• The injury was willfully (on purpose) and unlawfully inflicted. If the injury is one that was the result of self-defense, a crime did not occur.

• The injury resulted in a traumatic condition. The word “traumatic” connotes a very serious injury but that is not how the law defines it. All that is required is that the injury resulted in some visible injury—it could be as minor as a small scratch or bruise. A traumatic injury can also be strangulation or suffocation, which may not result in any visible injury.

• The injury must be a direct, natural and probable cause of the act of the defendant. For example, if a victim is running away from an alleged abuser and trips and falls, sustaining an injury, that injury could not have been anticipated by a reasonable person and may not be considered a natural and probable consequence. But this can get ambiguous; the law requires a consideration of the circumstances as demonstrated by the evidence. The prosecution will often file a Penal Code section 273.5 charge in such scenarios, but a skilled domestic violence defense attorney can successfully defeat those charges when the evidence suggests the injury could not have been reasonably anticipated by the defendant.

If there are separate acts of violence, the prosecution can charge more than one violation of Penal Code 273.5. For example, if the allegations are that the abuser inflicted an injury in the morning and then another later that day, that could be charged as two separate offenses.

When an attempt is made to inflict injury on a person as defined under this statute but no injury occurs, the offense can be charged as an attempted infliction of bodily injury. This is considered a “lesser included offense” under Penal Code 273.5. All that is required for prosecution of this crime is to establish that the defendant had the specific intent to harm the other person. For example, if a boyfriend swings a bat at his girlfriend during an argument but the bat does not hit her, the prosecution can charge the attempted crime.

If an accused act of domestic violence was in self-defense, an accident, unforeseen (under a reasonable person standard), or fabricated by the accuser, an experienced defense attorney can often successfully defend the charge. Sometimes these cases fall on “he said, she said” evidence. As an experienced Orange County domestic violence defense attorney with 25 years of practice defending these types of charges, William Weinberg, can sort out the evidence beyond the accusations. Mr. Weinberg investigates beyond the prosecution’s evidence. This may require securing witnesses, developing a historical narrative, or the discovery of extrinsic evidence that supports the defense. If there is a story “behind the headlines,” Attorney Weinberg will find it. This often provides a winning defense strategy.

Penal Code section 273.5(a) is a “wobbler” offense, meaning it can be charged as a felony or a misdemeanor. A misdemeanor conviction is punishable by incarceration in county jail of not more than a year and/or a fine of up to six thousand dollars. A felony conviction may be punished by two, three, or four years imprisonment in the state prison. The outcome is often dependent upon the seriousness of the injury and the strength of the evidence. In Orange County, the prosecutor often charges this crime as a felony. Even when the evidence is stacked against the defendant, William Weinberg may be able to successfully negotiate with the D.A. or argue before the court for a reduction of the charge to a misdemeanor.

Mr. Weinberg is available to answer your questions. You can contact him at his Irvine office at (949) 474-8008 or by emailing him at bill@williamweinberg.com.