Domestic Violence - Battery on Spouse, Cohabitant, or Other Intimate
This offense is part of the class of offenses termed domestic violence. While it does involve violence is does not involve a physical injury, and for that reason remains a misdemeanor.
A battery is the willful and unlawful use of force or violence against another. The offense is committed if the battery is on any of the following: a spouse; a cohabitant; a parent of the child of the perpetrator; a former spouse; a fiancé; a person that the perpetrator is now, or has been engage with in a dating relationship or was engaged to marry.
The offense is a misdemeanor with a maximum fine of $2,000 and up to a 1 year jail sentence, or both.1 A peace officer making an arrest for a violation of this offense need not informed the victim of their right to make a citizen’s arrest which normally apply to misdemeanors.2
To cohabitate covers several circumstances. It does not require that the parties be in a non-legally sanctioned marriage, or that they represent to others the trappings of marital life, nor even that they have a sexual relationship. In fact a person may cohabitate with two or more people at different locations if they live with each for significant periods of time and maintain relationships with each on a consistent basis.
To be the father of a person's child requires only that a person is presumed to be the biological father and does not required proof the person is the actual biological parent. The termination of parental rights does not change the historical fact that a person is a parent for purposes of this offense. Pregnancy does not establish parenthood within the meaning of this statute, nor does it establish the fetus as a child.
A dating relationship is defined as one which includes frequent intimate contact, with “the expectation of affection or sexual involvement, independent of financial considerations.”3 The length of time of the relationship is not necessarily a controlling factor, nor must it be exclusive or sexual.
If a person is convicted of this offense and receives probation, a term of that probation is the mandatory requirement that they attend for at least a year an anger management program, or a batterer's treatment program, if neither is available then a comparable counseling program.4
A person with a prior conviction for this offense will receive a mandatory minimum jail sentence of 48 hours. In some cases, where there is a showing of good cause, a court may choose to not impose this jail requirements.5 Other conditions of probation that may be imposed are,
- A requirement to pay up to $5000 to battered women's shelter; and/or
- A requirement that payment be made to the victim to cover counseling or other reasonable costs arising from the commission of the offense.
In each case the court must consider the ability of the defendant to make such payments. Where community property laws apply, the separate property of the defendant must be utilized first before community property can be used to cover these expenses.6
1 Section 243(e)(1) of the California Penal Code
2 Sections 836(b)(4), 243(e)(5) of the California Penal Code
3 Section 243(f)(10) of the California Penal Code
4 Section 243(e)(1) of the California Penal Code
5 Section 243(e) of the California Penal Code
6 Section 243(e)(2) of the California Penal Code