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Domestic Battery

Domestic battery is a misdemeanor crime under section 243(e)(1) in California Penal Code. The crime of domestic battery is an aggravated battery committed "against spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship." As explained on the article about battery, in which battery is defined as any willful and unlawful touching that is harmful or offensive, even if the victim is not injured, the defendant could be charged of battery. Further, domestic battery offense can occurs so long as the touching against the partner is unlawful and there was a use of force to commit the crime.

Here are some examples of behavior that could lead to criminal liability under PC 243(e)(1):

  • A woman pushes her boyfriend during a fight.
  • A man, feeling frustrated with his ex-wife, grabs her shirt and rips it.
  • A lesbian teenager is angry with her girlfriend for cheating on her; she pulls her girlfriend's hair and scratches her face.

In order for a defendant to be charged of domestic battery, the prosecution must prove the following elements to the jury:

  1.  The defendant willfully touched another person.
  2. That touching was harmful or offensive.
  3. The person you touched was your intimate partner or former intimate partner.

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


The first element that prosecution needs to prove to initiate the battery charges is that there was a willful action of the defendant. A person is acting in a willful way, when the intention is to do something on purpose, when there is 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, in a battery case, 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.
Since battery is a general intent crime, 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.
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.

Nadia was having lunch in a restaurant, when Cris, who was sitting next to Nadia's table, started to cry in the middle of the restaurant. Nadia wanted to comfort her, and gave her a hug.

1 CALCRIM 915 – Simple Assault (Pen. Code, § 240). (“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

2 People v. Williams (2001) 26 C.4th 779, 787, 111 C.R.2d 114, 29 P.3d 197, infra, § 44

In this scenario, probably the prosecution is not going to be charge with Battery, since the unwelcome hug to Cris was not harmful or offensive touching.

Harmful or offensive touching

It is important to clarify that domestic battery is only when the defendant act in an offensive or harmful manner, meaning that the contact must be done in a violent, rude, disrespectful or angry way. As stated above, the requirement of battery is the manner of the touch is done, the victim does not need to get injury or harm for someone to be charge or convict of battery. However, if the victim suffered harm, pain, injury or bruise, is likely that the case could get stronger.

Example 1:
Michelle and Joe have been married for 10 years, one day, they were arguing at home. Michelle was angry with Joe and she pushed him.

In this case, Michelle could not hurt Joe, since he is a jiu-jitsu fighter and Michelle is 54 feet tall. However, the unlawful touch is enough to qualify as a domestic battery under California Penal Code.
Example 2: Kevin was arguing with his wife, Joelle at a nightclub. He suddenly threw a bottle of water out of her hand.
In this case, Kevin could be guilty of domestic battery, since the bottle of water touched Joelle's body.

Against an intimate partner

In order to constitute the crime of domestic battery the crime, the unlawful touching, 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 engage in a serious relations from 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.
Furthermore, under California Rules is possible for a defendant to cohabit with more than one person at the same time to consider domestic battery.


A simple battery is a misdemeanor, punishable by a fine not exceeding two thousand dollars ($2,000) or by imprisonment in the county jail not exceeding one year, or misdemeanor probation, or the fine, imprisonment and probation. (Cal. Penal Code § 243)

Immigration consequences

Domestic battery is a misdemeanor in California, and the punishment is not severe comparing with some other crimes. However, if the person who committed the domestic battery offense is not a us citizen, she/he could face some immigration consequences, as deportation. Domestic battery 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 battery 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.

3 P.C 243 (f) (10).


Legal Defenses

A battery is a misdemeanor crime in California Law, if a person is convicted with this type of crime, the crime 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 battery offense register, it is likely that the employer won't hire someone with a misdemeanor background. If you have been charged with assault, 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 domestic battery, 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 battery charges, if the client 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. Further, self- defense is different than mutual combat.

For example:
If John was furious and mad with David, since he hit on John's girlfriend. John told David to wait for him outside of the bar. John and David started a combat fight.

In this case, mutual combat is not a defense for battery, here both individuals wanted to enter in a fight and hurt the other.

Example: Sheri is very upset with her son Mark and begins hitting him fiercely. Her husband Dan grabs Sheri and holds her down to restrain her.
If Sheri accuses Dan of domestic battery, Dan can argue that he is innocent because he acted in defense of Mark.

  • 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 battery make sure you contact an attorney immediately. San Diego Criminal Attorney can help you build a strong defense, if you did not act willfully.

Example: Matt, who is gay, and his boyfriend Raul are arguing in the apartment they share. Matt grabs a piece of china and throws it at the wall in anger. A china shard ricochets off the wall and hits Raoul, gashing his arm.
If he is charged with domestic battery, Matt can argue that he should be acquitted because he did not willfully touch Raul with the piece of china.

  • 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.

4 CALCRIM 3470 - Right to Self-Defense or Defense of Another (Non-Homicide [with respect to acts involving California assault]). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")


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