619-880-5474 / 858-688-7830


AWARD WINNING SAN DIEGO CRIMINAL ATTORNEY

San Diego Corporal Injury On Spouse Or Cohabitant Attorney

In California Rules, the Penal Code under section 273.5 defined a crime of corporate injury as willfully inflicts of corporate injury that leaves traumatic condition to the victim. Usually this type of crime is known as domestic violence, domestic abuse or spousal abuse. This crime can only be committed against someone in which the defendant has a intimate relationship, including spouse, former spouse, a person with whom the defendant is cohabiting, a fiancé or fiancée, a person who is the parent of the victim child or a person with whom the defendant have a "dating relationship"or have previously dated. Thus, the statute protects the person that is engage in a serious relations from domestic violence. Moreover, traumatic condition could include visible injury, minor injury or even just red mark

Further, it is important to distinguish, corporal injury offense from domestic battery, defined on Penal Code 243 (e)(1). The main requirement of domestic battery is the conduct of touching the victim's intimate part, on the contrary, the main requirement of corporal injury is to commit a physical injury against an intimate partner leaving him/her a traumatic condition.

Examples:

  • A man who punches his wife in the face.
  • A woman who throw a tennis racquet at her boyfriend enough to leave bruises.
  • A man who was jealous of his ex-wife new boyfriend, arrives at her house and spank her.
  • A woman punches and kicks her roommate, leaving him with a broken arm.

In order for someone being convicted of corporal injury qualified under the section 273.5, the prosecution must prove the following facts and elements of the crime into court:

  • The defendant willfully caused physical injury on the victim.
  • The physical injury caused a traumatic condition.
  • The victim was the defendant's intimate partner or former partner.

Let's explain in details those elements of corporal injury for better comprehension. These conditions are essential for someone being convicted of this offense, if the prosecution does not prove these elements, a person should not be convicted of assault. San Diego Criminal Attorney will work to prove the innocence of its clients.

Willfully

The first element that prosecution needs to prove to initiate the corporal injury charges is that there was a willful action of the defendant, meaning, there was an intention to do something on purpose, even if there was no intent to hurt someone, gain advantage or break the law.
The evidence necessary to proof, is that the person, the defendant, willfully committed a conduct that by its nature will probably directly result in injury to another person. The prosecution does not need to prove a specific intent to inflict a specific harm. However, it must show that the defendant intentionally engaged in an act that would produce detrimental consequences.
Moreover, it requires an intentional act and knowledge of facts sufficient to lead a reasonable person to realize that the act by its nature will probably and directly result in the application of physical force against another. 1 
Additionally, the term of act wilfully is when the defendant does the touching willingly or purposely, however it does not mean that the individual intent to act an unlawful conduct or hurt someone else.
Example:
Lauren and Francis are getting married and they have been living together, however, Francis is obsessed and jealous about Lauren. Someday, Francis saw Lauren talking with a man while she was taking her dog out. When she came back home, Francis asked Lauren about the man and Lauren did not answer. Francis was furious grabbed Lauren's hand and twisted, leaving her with a broken wrist.
In this scenario, Francis could be charged of corporal injury, even if he did not intent to cause her injury, but he acted willfully when he twisted her wrist.

Traumatic condition

In California, traumatic condition is determined as a wound or other serious bodily injury, or minor injury, caused by the direct uses of physical force of the defendant. The courts considered traumatic conditions even if a minor injury occurred, as a cut, blow or other impact, typically is when the skin is cut or broken, bruise, broken bone, sprain and internal bleeding.
In order for someone being convicted of corporal injury, the traumatic condition must be the result of the injury committed by the defendant if the traumatic was the consequence of the injury, the injury was direct and substantial cause of the traumatic condition and the traumatic condition would not have happened without the injury.

Example:
Anna threw a baseball bat at her husband, because she was mad that he did not cook her dinner. He ends up with an internal bleeding on his stomach. In this case, Anna could be guilty of corporal injury, since the internal bleeding was a result of anna's actions.
Example:
Ted is living with his girlfriend for the past 2 years. One day, he is mad at her because he discovered that she was cheating on him. Ted got out of rageous, threw his shoe at her but when she was trying to avoid the shoe, she felt on the floor and hurt her knee.
In this case, Ted should not be convicted of corporal injury, since the traumatic condition of his girlfriend was in result of her falls into the floor and not because he threw a shoe at her.

Against an intimate partner

In order to constitute the crime of corporal injury, the physical injury must be done against an intimate partner. This crime can only be committed against someone in which the defendant has a intimate relationship, including spouse, former spouse, a person with whom the defendant is cohabiting, a fiancé or fiancée, a person who is the parent of the victim child or a person with whom the defendant have a "dating relationship"or have previously dated. Thus, the statute protects the person that is engaged in a serious relations against domestic violence.
The Courts already have established what is the definition of "dating relationship", in which consists "of frequent, intimate association mainly characterized by the expectation of affectional or sexual involvement, independent of financial consideration." Furthermore, the dating relationship does not acquire an exclusive interest that the relationship would endure for ever, as long as the defendant considered the relationship between him/her or the victim. Also, the dating element does not require an increasingly exclusive interest or it does not preclude a new dating relationship. People v. Rucker (2005) 126 C.A.4th 1107, 25 C.R.3d 62.

Penalties

The offense of corporal injury can be charged as either misdemeanor or a felony, depending on the circumstances of the case and the defendant's criminal background. This is called wobbler in California, the prosecution has an option to charge the defendant with either misdemeanor or felony. Further, if prosecutors charge our client a wobbler as a felony, we can reduce the penalty to a misdemeanor sentencing.

A misdemeanor is punishable by a fine not exceeding six thousand dollars ($6,000) or by imprisonment in the county jail not exceeding one year, or misdemeanor probation, or the fine, imprisonment and probation.
However, if someone was charged as a felony, the penalties could be aggravated depending on the facts of the case, a felony is punishable by a fine not exceeding six thousand dollars ($6,000) or by imprisonment in county jail not from two (2) years to four (4) years, and a felony probation, or both fine, imprisonment and the probation.

In addition, the conviction could be aggravated in a fine up to ten thousand dollar ($10,000) and a imprisonment for up to five (5) years, for the following situations:

  • If the defendant have prior conviction for any domestic violence offenses within 7 years.
  • If the victim had suffered great bodily injury from the action of the defendant.

Restraining order

Furthermore, beside the felony or misdemeanor punishment, the defendant could face a restraining order to prevent he/she from making any contact with the victim, up to ten year, depending the facts of the case.
Immigration consequences

Corporal injury offense could be a felony crime in California, and the punishment could be severe. In addition of the imprisonment or the fine, if the person who committed the corporal injury against his/her intimate partner is not a us citizen, she/he could face some immigration consequences, as deportation. Corporal injury is a crime that is called deportable crime under federal immigration law, if you are authorized to stay in the country and you face a domestic violence conviction, you may face deportation proceedings. Thus, if you were charged with domestic battery, you should contact an attorney promptly and San Diego Criminal Attorney could help you to build a strong defense for your case.

Cruel or Inhuman Punishment

Even though “cruel or inhuman”is a key part of the legal definition of child abuse, interestingly enough, it is not defined in Penal Code 273d PC.

If you look in a standard dictionary, “Cruel”is defined as, disposed to inflict pain in a vindictive-mean or nasty manner.  “Inhuman”is defined as, lacking mercy, pity, kindness or tenderness.

Some examples that could be considered physical punishment to a child as cruel or inhuman include, but are by no means limited to:

  • Punching, hitting, slapping, or kicking a child
  • Shaking a child
  • Pushing a child
  • Choking a child
  • Burning a child
  • Throwing an object at a child

If you “spank”a child for disciplinary reasons, it is NOT considered child abuse; even if an object such as an old-fashioned paddle or “switch”is used instead of your hand.  However, this is only true if the spanking was not unreasonable under the circumstances and the spanking was necessary.

Traumatic Condition

Traumatic condition is defined as a wound or other bodily injury caused by physical force; whether it be a minor or serious injury.

Oftentimes, we associate “trauma”with severe or painful experience; California’s child abuse law uses “traumatic”in different context.  For the purpose of this law, something as minor as a scratch or bruise qualifies as a traumatic condition.

Considering the above guidelines, there are a number of hard-to-define terms in the legal definition of California’s child abuse statute.  Even with the above guidelines, the jury must assess the circumstances of the situation to determine whether the act was constituted as abuse.

1.1 Prior Acts of Child Abuse or Domestic Violence May Be Used Against You

Evidence of Other Acts of Child Abuse

California law has long held that the court must omit evidence in connection to prior criminal offenses or misconduct from your current criminal case.

This rule is in effect so the jury does not convict you unfairly based on unrelated prior offenses.  This evidence is believed to be overly “prejudicial”and is not permitted.

Under Penal Code 273d PC California’s child abuse law has an exception to this rule.  In a child abuse prosecution, prior acts of corporal injury or punishment to a child are admissible against you.  Not just that, but it is not even necessary that these acts result in prior convictions.

This means that, the judge may permit the prosecutor to present prior allegations of child abuse that you engaged in, even if these allegations we acquitted or dismissed. The prior accusations do not have to involve the same circumstances, same alleged victim, or have similarities to the current pending case; other than the fact you were suspected of child abuse.

Luckily, the judge will conduct a hearing to consider if the prosecutor is allowed this type of evidence.

  1. Whether the presented evidence will unduly prejudice the jury
  2. Whether there is any valid evidence for the earlier allegations
  3. The amount of elapsed time between current pending charges and prior allegations

If you are accused or arrested for a second time for child abuse, it is very important to hire an aggressive California child abuse defense attorney who will represent you at this hearing.  Your defense attorney should know effective arguments to persuade the court that the “prior alleged acts”is constitutionally unfair and must be excluded from the current pending case.

The prosecutor is also not permitted to present evidence of prior child abuse allegations if the prior act of child abuse occurred ten (10) years before the current pending case; unless the judge determines that it is in the best interest of justice to permit the evidence.

In certain cases, the prosecutor may be allowed to present evidence of previous criminal acts of California domestic violence in a trial for Penal Code 273d PC child abuse.  The prosecutor is able to present previous domestic violence allegations or convictions if the following is true:

  • The current allegation is that you have committed child abuse against:
  • Your child
  • Any child who lives with you on a regular basis
  • Any child who has lived with you on a regular basis
  • You were convicted or accused of domestic violence which includes violence against a person you were dating, parent of your child, live-in girlfriend or boyfriend or a spouse etc., for acts that have taken place within the past five (5) years.  AND
  • The judge will hold a hearing to admit the evidence and will determine if it is appropriate.

So much for innocent until proven guilty…Melody The California Evidence Code allows any acts of domestic violence as tending to show your “propensity”towards violence in general. 

Example: Melody is being prosecuted under Penal Code 272d PC for allegedly hitting her boyfriend’s son, who lives with her and her boyfriend.  Melody was arrested (but not charged) for throwing an iron at her ex-husband 4 years ago. Six years ago, Melody was convicted of California domestic battery for punching him.

The prosecutor has asked for a hearing to see if the conviction and arrest of the prior offenses are able to be permitted in Melody’s current child abuse case.  The judge believes there is corroborating evidence for the prior arrest and conviction and they will not unduly prejudice the jury.

The prosecutor is now able to tell the jury about Melody’s prior conviction which will help prove that she has “propensity for violence.”

Even if the evidence of previous acts of child abuse or domestic violence does get admitted to court, it is important to know that the jury is informed that the previous acts of violence or abuse is not adequate to prove that you are guilty in the current proceedings.  The previous evidence is simply additional information to consider when deliberating on the case.

Penalties for Penal Code 273d PC Child Abuse

Under Penal Code 273d PC child abuse is considered a “wobbler”in California law.  Depending on the circumstances of the alleged offense and your criminal history the prosecutor may choose to charge it as a felony or misdemeanor.

Legal Definition of a “Wobbler”in California Law

“Wobbler”is frequently used with regard to penalties, punishment and sentencing associated with California crimes.

California law defines”wobbler”as offense prosecutors can elect to file as a felony or a misdemeanor depending on your criminal history and the specific facts of the case.

Why Classification as a Wobbler is Important

When you are convicted of a felony there are certain rights and privileges that are revoked.  As long as your offense remains a misdemeanor, you will be able to preserve some of these rights (the right to own or possess firearms under Penal Code 29800 PC California’s felon with a firearm law).

In the unfortunate event, you are charged with a felony wobbler, you can later petition to have your felony conviction reduced to a misdemeanor.  There is no relief for “straight felonies.”  Those felonies are not classified as wobblers.

If you have been charged with a wobbler, our team of experienced California criminal defense attorneys know the best effective arguments for persuading judges and prosecutors to minimize the potential penalties by charging you with a misdemeanor instead of a felony.

Legal Definition of a “Felony”in California Law

Unlawful acts are placed into three different categories by California law, felonies, misdemeanors, and infractions.  Felonies are considered the most serious. 

In some cases, a felony conviction can be punished by death.  A felony is an offense with a maximum sentence (whether in state prison or in county jail) of more then one (1) year.

In California if you get convicted of a felony you may be ordered to pay fines up to $10,000 in addition to or instead of imprisonment.

People convicted of felonies may be alternatively sentenced to California formal (felony) probation.  If felony probation is granted, you will serve —at most, one (1) year in county jail.

California felony convictions come with serious collateral consequences.  These include, among others, disclosure of the conviction if asked on a job application and for 10 years you may not own a gun in California.

In our law firm we have former prosecutors and cops.  We have seen it in first hand what affect a felony conviction has on someone’s life.

Straight Felonies

This is a felony that can only be charged and sentenced as a felony.  A straight felony cannot be reduced to a misdemeanor.

Punishment for Felony Offenses:

Felonies are usually punished by imprisonment.  Your imprisonment will be classified as a low term, middle term or high term.

Most of the time you will receive a middle term imprisonment unless there are factors in mitigation or aggravation of the California felony crime.

You can be sentenced to a high term imprisonment if there are aggravated factors such as “the crime involved extreme violence”or you “used a weapon.”

The judge might decide the low term is more appropriate if there are mitigating factors such as your participation in the crime was minimal.

Many criminal statues set forth all three possible terms.  They also state whether the imprisonment be served in county jail or California State prison.

Collateral Consequences of a California Felony Conviction

There are numerous collateral consequences that a California felony conviction carries. 

These are some of the important ones:

  1. If asked you must disclose your felony conviction on job applications
  2. You may not possess or own a gun sometimes for 10 years and other times for life
  3. If the felony was a sex crime, you will be required to register as a California sex offender under Megan’s Law
  4. Under California’s “three strike law” your offense may count as a strike

Expunging a California Felony

It may be possible to get your California felony expunged, as long as you were not sentenced to California State prison, convicted of certain sex offenses or any violent crimes.

Your civil rights don’t end once you have been convicted of a felony in California.  We have skilled attorneys that know several ways to help you be relieved of the stigma and restrictions that come with a California felony conviction.

What is a Misdemeanor in California Law?

By definition, a misdemeanor is, a less serious offense than a felony.  In California there are three (3) types of crimes depending on the severity:

  1. Felony is the most serious and is punishable by imprisonment for a number of years in California State prison.
  2. Misdemeanors are punishable only by local county jail time for no longer one (1) year.
  3. Infractions are referred to as moving violations, parking tickets, and traffic tickets.

Legal Defense

A corporate injury is a wobbler in California Law, meaning that a person could face a felony or a misdemeanor conviction, if a person is convicted with this type of crime, the conviction is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is a domestic violence offense registered, it is likely that the employer won't hire someone with a misdemeanor or felony background. If you have been charged with this offense, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems.

To contest the charges of corporal injury, San Diego Criminal Attorney would be able to use the following legal defenses:

  • The conduct was in self-defense or third party defense

The self-defense theory could be applied in corporal injury charges, the defendant could have a defense if the defendant reasonably believe that there was an imminent danger of suffering body injury or being touched unlawfully, there is a reasonable believe that an immediate use of force was necessary to avoid the dangers, and the uses of force was reasonable necessary to defend against the danger. The attorneys could use self-defense doctrine to avoid the conviction.

  • There was no willful conduct.

Sometimes the actions of the defendant were accidental or misunderstanding by the victim. Under this type of defense, it is essential that the defense attorney and the prosecution get the entire facts of the accident. If you have been charged with this offense make sure you contact an attorney immediately. San Diego Criminal Attorney can help you build a strong defense, if you did not act willfully.

  • Wrongfully accused:

Under the rules of Californa Law, it is too easy for a victim falsely accuse another of committing this crime, sometimes the cause of action is out of anger, revenge or jealousy. However, San Diego Criminal Attorney know how to protect its clients from wrongfully accusations. If this is your case, contact an attorney promptly.

NAJpremier1002016

2015 Premier 100 Seal AATA small