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California Penal Code 243(e)(1) – Battery against cohabitant, fellow parent, spouse

(e) (1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.

Potential Sentence: A violation of this section is a misdemeanor.  This crime is punishable by county jail time for up to one year and/or a maximum fine of $2,000. As noted in the statute, probation is also possible with the stipulation the defendant attend a counseling program.

To obtain a guilty verdict, the prosecution must prove to the jury that the defendant is guilty beyond a reasonable doubt on the following elements:

(1)An illegal and willful act of physical contact by the defendant which resulted in offensive or harmful contact to another, AND

(2)The victim is a former fiance(e), spouse, mother or father of defendant's child or cohabitant of the defendant, AND

(3)The defendant did not act in self-defense or defense of others.

Explanation of the Law:

(1)   First Element: Willfully means an act done on purpose. However you don't need to have the intent to break the law, to inflict pain on someone or obtain any sort of benefit out of the act. Willfully is defined in the Penal Code at  § 7, subd. 1; and in case law through People v. Lara (1996) 44 Cal.App.4th 102

  1. Light touching can still be considered battery if it is carried out in an offensive manner or if it arises out of anger or a desire to be rude. “It follows that an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery.” People v. Myers (1998) 61 Cal.App.4th 328.
  1. Touching can occur as direct body to body contact, or it can occur with the defendant using an object to make harmful or offensive contact. Additionally, the illegal touching can occur if the defendant uses someone else to carry out the physical contact.

(2)   Second Element: “cohabitants” are two people who are not related but are living together for an extended period of time. The following factors are used to determine if the term “cohabitant” is appropriate:

  1. Living together and having sexual relations
  2. Sharing income and the responsibility for household expenses
  3. Property use or ownership by both parties.
  4. A couple gives the impression that they are in a husband-wife relationship or domestic partners.
  5. Length of the relationship
  6. Constancy of the relationship.
  7. A person can be a cohabitant in two or more different households if he or she has spend significant time living with a person at each residence with whom he or she has a continuous relationship. People v. Moore (1996) 44 Cal.App.4th 1323
  8. “Dating relationship” means a consistent relationship with intimacy, including sexual relations, that is not solely dependent on financial support. The term dating relationship is specifically defined in Pen. Code, § 243(f)(10).

— Penal Code 243(f)(10):  “Dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations.

  1. A person is the mother or father of another's child if the male in the relationship is presumed to be the father pursuant to law.

Lesser Included Offenses

(1)   Simple Battery under California Penal Codes Sections 242 and 243(a).
(2)   Assault under California Penal Code Section 240.


(1)   Self Defense: a defendant can assert self-defense to fight a Penal Code 243(e)(1) charge if:

      1. he or she acted under a reasonable belief that they were in danger of death or serious injury and the threat was immediate.
      2. A belief existed that immediate action (physical force) was needed to avoid danger, AND
      3. the amount of force used to resist the danger was appropriate.

(2)   Defense of Others:  a defendant can claim that he or she acted in a forceful manner to prevent an immediate, unlawful act of force against a third party. As with self defense, there must bea reasonable belief that such force is necessary to combat an immediate danger. Also, the amount of force used by the defendant to stop such a threat must be in proportion to the force used in the initial act of violence or offensive touching. i.e., if the defendant sees someone being punched by another person, the defendant cannot defend the victim by shooting the aggressor.

(3)   No “willful” conduct: If the prosecution cannot prove that the the first element, that the defendant acted “willfully” in making offensive or harmful physical contact with the victim, then the defendant cannot be found guilty. Thus if the physical contact is the result of an unintended contact, the defendant may be able to assert this fact as a defense.

(4)   The act did not occur: in some cases, a person can be implicated in a domestic violence case for something they simply did not do. There are times when a couple can argue to the point that in the “heat of passion” one may accuse the other of things they did not do in an attempt to gain control of the argument or relationship. The prosecution has the burden of showing that the alleged act occurred, and that it happened in the matter complained of by the victim. If something did not happen at all, it is unlikely the prosecution has sufficient evidence to prove the case “beyond a reasonable” doubt. However, you still may be charged with the offense and will need the help of a criminal defense attorney to prove your innocence.


People v. Myers (1998) 61 Cal.App.4th 328

People v. Moore (1996) 44 Cal.App.4th 1323

Penal Code 273.5

San Diego Batters Treatment Program

San Diego Domestic Violence Lawyer

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