Is Corporal Injury to a Spouse a Felony in California? Penal Code 273.5 Explained
Is Corporal Injury to a Spouse a Felony in California?
The short answer: it can be. Corporal injury to a spouse, cohabitant, or partner under Penal Code section 273.5 is a wobbler, which means the prosecutor can file it as a felony punishable by state prison or as a misdemeanor punishable by up to one year in county jail. Which way it is filed depends on the injury, any prior history, and the practices of the local district attorney. A felony filing is common when the police report describes visible injury, strangulation, or a prior domestic violence arrest, and a misdemeanor filing is common for a first incident with minor injury. Even a misdemeanor conviction carries mandatory probation terms, a batterer's program, a firearm ban, and lasting consequences for custody and immigration.
Why this charge is different from other assaults. Section 273.5 is the most serious of the everyday domestic violence charges filed in Riverside, San Bernardino, Los Angeles, and Orange County courts. Unlike simple domestic battery under Penal Code section 243, subdivision (e)(1), which requires only an offensive touching, section 273.5 requires an actual physical injury. That requirement is where most of the defense work happens. This guide from Daniel Gramling, Esq. of Gramling Law Group walks through each element, the defenses that actually get results, and the penalties and collateral consequences you need to understand before you make any decision in the case.
What the Prosecutor Must Prove Under Penal Code 273.5
The elements come from the statute and CALCRIM 840. To convict you of corporal injury under Penal Code section 273.5, the prosecutor must prove beyond a reasonable doubt that (1) you willfully inflicted a physical injury on another person, (2) the injury resulted in a traumatic condition, and (3) the person injured was your spouse or former spouse, your cohabitant or former cohabitant, your fiance or fiancee, someone with whom you have or had a dating or engagement relationship, or the mother or father of your child. If the prosecution cannot prove every one of those elements, the jury must acquit on this count, although it may still convict on a lesser charge such as battery.
Element one: a willful infliction of injury. Willful means the act was done on purpose; it does not require an intent to injure, to break the law, or to hurt anyone in particular. Pushing someone who then falls and cuts her hand qualifies if the push was deliberate. An accidental contact during a struggle over a phone, a reflexive movement, or an injury the other person caused to herself does not satisfy this element. The prosecutor also must show a direct application of force by you, so an injury the person suffered by tripping while walking away from an argument, with no contact, is not a corporal injury.
Element two: a traumatic condition. The statute defines a traumatic condition as a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. Courts have held that even a minor injury such as a bruise, a scratch, or redness that swells qualifies. In People v. Gutierrez (1985) 171 Cal.App.3d 944, the court rejected the argument that the injury must be severe and upheld a conviction based on bruising. The statute also specifically includes injury caused by strangulation or suffocation, which is why a report that mentions hands on the neck almost always produces a felony filing even without visible marks. What the statute does not cover is an assault that leaves no injury at all; that case belongs under section 243, subdivision (e)(1), or Penal Code section 240.
Element three: a qualifying relationship. The relationship categories are broad, but they are not unlimited. A current or former spouse, a current or former cohabitant, a fiance, a dating partner, and a co-parent all qualify. A roommate who is not an intimate partner, a sibling, or a parent does not, and an assault on one of those people is charged under a different statute. Cohabitation is the category that generates the most litigation. In People v. Holifield (1988) 205 Cal.App.3d 993, the court described cohabitation as two unrelated people living together for a substantial period in a relationship with some permanence, and listed factors such as sexual relations while sharing the same residence, shared income or expenses, joint use of property, and how the parties held themselves out to others. A short, on and off stay at someone's apartment can fall on either side of that line.
How prosecutors prove the elements in practice. Domestic violence cases are built from the 911 call, the responding officers' body camera footage, photographs of injuries taken at the scene and again days later when bruising has developed, medical records, the statements of the alleged victim and any children or neighbors, and increasingly from text messages and social media. Our guide on how prosecutors build criminal cases explains how those pieces are assembled, and our article on whether police can use your text messages explains how those messages come into evidence.
What Happens When the Alleged Victim Does Not Want to Press Charges?
The case does not automatically go away. In California, the prosecutor, not the alleged victim, decides whether to file and whether to dismiss. Riverside and San Bernardino County prosecutors regularly proceed in cases where the alleged victim has recanted, refuses to cooperate, or asks that the case be dropped. Under Evidence Code section 1109, the prosecution can also introduce evidence of other acts of domestic violence to show a propensity, which is a significant exception to the usual rule against character evidence.
Hearsay and confrontation rules limit what the prosecutor can do without the witness. Under Crawford v. Washington (2004) 541 U.S. 36, a testimonial statement to police cannot be used against you unless the witness testifies and is subject to cross examination. Under Davis v. Washington (2006) 547 U.S. 813, however, statements made to a 911 dispatcher during an ongoing emergency are generally not testimonial and can come in through the recording. A spontaneous statement to a neighbor or an officer in the first frantic moments can also be admitted under Evidence Code section 1240. Under Giles v. California (2008) 554 U.S. 353, a defendant who intentionally causes a witness to be unavailable forfeits the right to confront that witness, which is one reason contacting the alleged victim about her testimony is so dangerous.
Do not contact the protected person to fix this. After a domestic violence arrest there is usually an emergency protective order, and at arraignment the court issues a criminal protective order on form CR-160 under Penal Code section 136.2. Any contact that violates the order is a new crime under Penal Code section 273.6, and a request that the person change her story can be charged as dissuading a witness. We explain the order and its exceptions in What Happens If You Violate a Restraining Order in California?. If the protected person wants to modify the order, that request goes through your attorney and the court, not through you.
Defenses to a Penal Code 273.5 Charge
Self-defense or defense of another. You are not guilty if you used reasonable force because you actually and reasonably believed you or someone else was in imminent danger of being touched unlawfully or harmed, and you used no more force than was necessary. Mutual fights are common in these cases, and the person who called 911 first is often treated as the victim even when the injuries on both sides tell a different story. Photographs of your own injuries, taken immediately, are the single most valuable piece of defense evidence in a mutual combat case, and officers do not always take them.
The injury was accidental. Because the prosecution must prove a willful infliction of force, a defense that the contact was accidental, that the injury occurred while you were trying to leave or to restrain a person who was attacking you, or that the person fell without being touched goes directly to element one. Body camera footage of the alleged victim's first account, before it was shaped by follow up questioning, often supports this defense.
No traumatic condition. When the only evidence of injury is the alleged victim's word, with no photographs, no medical visit, and no observation by the officer, the defense can argue that the prosecution has not proven a bodily injury. That argument does not defeat a lesser battery charge, but it can be the difference between a felony with prison exposure and a misdemeanor.
False or exaggerated accusation. Corporal injury allegations arise in the middle of custody disputes, breakups, and immigration cases, where an accusation carries leverage. The defense investigates motive, prior inconsistent statements, timing relative to a family court filing, and whether the alleged injury is consistent with the described act. Our guide on what makes a criminal case weak describes how those credibility problems play out, and our article on restraining orders filed against you covers the parallel family court fight.
The relationship does not qualify. When the parties are casual acquaintances, a landlord and tenant, or a brief roommate arrangement, the defense can challenge the cohabitation or dating element. A win on this element reduces the case to simple battery under Penal Code section 242, which carries lighter penalties and none of the domestic violence probation terms.
Suppression and procedural defenses. An unlawful entry into the home, a coerced statement, or a failure to give Miranda warnings during custodial questioning can knock out key evidence through a motion under Penal Code section 1538.5 or a motion to exclude the statement. See our guides on the 1538.5 motion and on what not to say to police. In a felony case, the preliminary hearing is also the first chance to test whether the injury evidence supports a felony at all.
Penalties for Corporal Injury Under Penal Code 273.5
Misdemeanor filing. A misdemeanor conviction under Penal Code section 273.5 is punishable by up to one year in county jail and a fine. In the Inland Empire, a first offense misdemeanor with minor injury commonly resolves with probation, a short jail term or work release, the batterer's program, and a protective order, but every courthouse and judge is different.
Felony filing. A felony conviction is punishable by two, three, or four years in state prison, or by up to one year in county jail with felony probation. The statute increases the prison range for a person with a prior conviction for corporal injury or certain other assault offenses within the previous seven years, and a great bodily injury finding under Penal Code section 12022.7 adds a consecutive prison term and turns the conviction into a strike under Penal Code section 1192.7. Without a great bodily injury finding, a section 273.5 conviction is not itself a strike.
Mandatory probation terms in every domestic violence case. If probation is granted, Penal Code section 1203.097 requires a minimum three year probation term, a criminal protective order, completion of a 52 week batterer's intervention program, a payment to a domestic violence fund, restitution, and community service or other conditions the court imposes. These terms apply whether the case is a felony or a misdemeanor, and they apply to a plea to the lesser section 243, subdivision (e)(1), as well. Misdemeanor diversion under Penal Code section 1001.95 is not available for this offense, although mental health diversion under Penal Code section 1001.36 may be in an appropriate case.
Reducing the charge later. A felony section 273.5 conviction that resulted in probation can later be reduced to a misdemeanor under Penal Code section 17, subdivision (b), and a conviction can be dismissed under Penal Code section 1203.4 after probation ends, using form CR-180. Neither remedy restores firearm rights or erases the conviction for immigration purposes. See How to Reduce a Felony to a Misdemeanor in California and How to Expunge a Criminal Record in California.
Collateral Consequences of a 273.5 Conviction
Firearms. A felony conviction results in a lifetime firearm ban under Penal Code section 29800. A misdemeanor conviction under section 273.5 carries a ten year state ban under Penal Code section 29805, and federal law imposes its own prohibition on anyone convicted of a misdemeanor crime of domestic violence, which can be permanent. Firearms must also be surrendered while the criminal protective order is in effect.
Immigration. A conviction for corporal injury on a spouse or partner is treated under federal immigration law as a crime of domestic violence, which is a ground of deportability, and it is generally treated as a crime involving moral turpitude. A one year sentence can make it an aggravated felony. Under Penal Code section 1016.3, defense counsel must advise a noncitizen client about these consequences and try to negotiate an immigration safe disposition, and under Padilla v. Kentucky (2010) 559 U.S. 356 a failure to do so is ineffective assistance. For a noncitizen, the choice between a plea to section 273.5 and a plea to a non domestic violence offense such as Penal Code section 415 can be the whole case.
Child custody. Family Code section 3044 creates a presumption that a parent who committed domestic violence against the other parent within the past five years should not receive joint or sole custody. A conviction triggers that presumption directly, and even a dismissed criminal case can be relitigated in family court under a lower standard of proof. We explain the interaction in How Does a Domestic Violence Arrest Affect Child Custody? and on our child custody page.
Employment and licensing. A domestic violence conviction appears on background checks and can affect nurses, teachers, security guards, peace officers, and anyone who holds a professional license or works with vulnerable populations. A dismissal under section 1203.4 helps with most private employers but must still be disclosed on many licensing applications.
Where These Cases Are Heard in Southern California
Inland Empire. Riverside County corporal injury cases from Riverside, Moreno Valley, Corona, Perris, and Jurupa Valley are generally heard at the Riverside Hall of Justice, with Temecula, Murrieta, and Hemet cases at the Southwest Justice Center in Murrieta and Coachella Valley cases at the Larson Justice Center in Indio. San Bernardino County cases go to the San Bernardino Justice Center for San Bernardino, Redlands, Highland, and Colton, to the Rancho Cucamonga courthouse for the West Valley including Ontario, Upland, and Chino, to Fontana for many Fontana and Rialto matters, and to Victorville for the High Desert. Confirm the assignment on the court's website. Our Riverside criminal defense page, San Bernardino criminal defense page, Rancho Cucamonga criminal defense page, and Fontana criminal defense page describe how we handle cases in each building. Our earlier guides cover arraignment in Riverside County, bail in San Bernardino County, and domestic violence charges at the Southwest Justice Center.
Los Angeles and Orange County. Los Angeles County cases are heard at the Clara Shortridge Foltz Criminal Justice Center downtown and at branch courthouses including Van Nuys, Pomona, Long Beach, Torrance, Compton, and Pasadena. Orange County domestic violence cases are concentrated at the Central Justice Center in Santa Ana, which we describe in Domestic Violence Charges in Orange County. See our Los Angeles criminal defense page and Santa Ana criminal defense page.
Frequently Asked Questions
Is Penal Code 273.5 always a felony?
No. Corporal injury is a wobbler. Prosecutors file it as a felony or a misdemeanor based on the severity of the injury, whether strangulation is alleged, prior domestic violence history, and local office policy, and a felony can later be reduced to a misdemeanor under Penal Code section 17, subdivision (b), at the preliminary hearing, at sentencing, or after probation.
What is the difference between Penal Code 273.5 and 243(e)(1)?
Injury. Both require a qualifying intimate relationship, but Penal Code section 273.5 requires a traumatic condition, meaning an actual bodily injury, while Penal Code section 243, subdivision (e)(1), requires only a harmful or offensive touching. Section 243(e)(1) is always a misdemeanor, and a plea to it is a common resolution when the injury evidence is thin.
Can the case be dropped if my spouse does not want to testify?
Not automatically. The prosecutor controls the case and may proceed using the 911 recording, body camera footage, photographs, and spontaneous statements, subject to the limits in Crawford v. Washington (2004) 541 U.S. 36. A reluctant witness weakens the case and often improves the offer, but only a lawyer should communicate with the prosecutor about it; you should never contact the protected person about her testimony.
Does a 273.5 conviction count as a strike?
Not by itself. A corporal injury conviction becomes a serious felony and a strike only when the jury finds that you personally inflicted great bodily injury under Penal Code section 12022.7 or the offense otherwise falls within Penal Code section 1192.7, subdivision (c).
Will I lose my gun rights after a 273.5 conviction?
Yes. A felony conviction brings a lifetime ban under Penal Code section 29800, a misdemeanor conviction brings a ten year state ban under Penal Code section 29805, and federal law separately prohibits firearm possession after a misdemeanor crime of domestic violence. A dismissal under Penal Code section 1203.4 does not restore those rights.
Is diversion available for corporal injury?
Misdemeanor diversion is not. Penal Code section 1001.95 excludes domestic violence offenses. Mental health diversion under Penal Code section 1001.36 remains possible where a qualifying diagnosis contributed to the offense, and military diversion under Penal Code section 1001.80 may apply to veterans with service related conditions.
Talk to a Domestic Violence Defense Lawyer
Gramling Law Group defends corporal injury and domestic battery cases at the Riverside Hall of Justice, the Southwest Justice Center, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Central Justice Center in Santa Ana, and the Los Angeles County courthouses, serving the Inland Empire, Los Angeles County, Orange County, and Southern California. Because we also handle restraining orders and custody in family court, we can manage the criminal case and the family court fallout together. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for domestic violence cases. Call (909) 654-4575 or contact us through this website for a consultation.
Disclaimer. This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
We defend domestic violence cases at the Riverside Hall of Justice, the San Bernardino Justice Center, and courthouses across Southern California. See our Riverside criminal defense page, our San Bernardino criminal defense page, our Fontana criminal defense page, our Inland Empire criminal defense overview, and our domestic violence restraining order page.
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