I HAVE SPOKEN IN FRONT OF 100'S OF LAWYERS IN WHICH I TAUGHT THEM SOME OF MY TRIAL SECRETS

Meagan A. Silva

Attorney at Law

Professional Law Corporation 

205 E. State Street 

Redlands, CA 92373

Patrick J. Silva 


Patrick J. Silva 

Attorney at Law

DOMESTIC BATTERY
Penal Code 243 (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, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship,


WHAT IS THE POSSIBLE PUNISHMENT


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.


HOW CAN THE GOVERNMENT PROVE THE CHARGES?


Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Pen. Code, § 243(e)(1)) The defendant is charged [in Count ] with battery against [his/ her] ([former] spouse/cohabitant/fiancé[e]/a person with whom the defendant currently has, or previously had, a (dating/ [or] engagement) relationship/the (mother/father) of (his/her) child) [in violation of Penal Code section 243(e)(1)]. To prove that the defendant is guilty of this crime, the People must prove that:


1. The defendant willfully [and unlawfully] touched in a harmful or offensive manner; [AND]


2. is (the/a) (defendant’s [former] spouse/defendant’s cohabitant/defendant’s fiancé[e]/person with whom the defendant currently has, or previously had, a (dating/ [or] engagement) relationship/(mother/ father) of the defendant’s child)(;/.) [AND


3. The defendant did not act (in self-defense/ [or] in defense of someone else).] 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.


The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough.


The touching does not have to cause pain or injury of any kind. [The touching can be done indirectly by causing an object [or someone else] to touch the other person.]


[The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to,


(1) sexual relations between the parties while sharing the same residence,

(2) sharing of income or expenses,

(3) joint use or ownership of property,

(4) the parties’ holding themselves out as (husband and wife/domestic partners),

(5) the continuity of the relationship, and

(6) the length of the relationship.]


[A person may cohabit simultaneously with two or more people at different locations, during the same time frame, if he or she maintains substantial ongoing relationships with each person and lives with each person for significant periods.]


[The term dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.]


[A person is considered to be the (mother/father) of another person’s child if the alleged male parent is presumed under the law to be the natural father. is presumed under law to be the natural father of .] 


BENCH NOTES


Instructional Duty The court has a sua sponte duty to give an instruction defining the elements of the crime. If there is sufficient evidence of self-defense or defense of another, the court has a sua sponte duty to instruct on the defense. Give bracketed element 3 and any appropriate defense instructions. (See CALCRIM Nos. 3470–3477.) Give the bracketed language “[and unlawfully]” in element 1 if there is evidence that the defendant acted in self-defense. Give the bracketed paragraph on indirect touching if that is an issue. Give the third bracketed sentence that begins with “A person may cohabit simultaneously with two or more people” on request if there is evidence that the defendant cohabited with two or more people. (See People v. Moore (1996) 44 Cal.App.4th 1323, 1335 [52 Cal.Rptr.2d 256].) Give on request the bracketed paragraph that begins with “A person is considered to be the (mother/father)” if an alleged parental relationship is based on the statutory presumption that the male parent is the natural father. (See Pen. Code, § 273.5(d); see also People v. Vega (1995) 33 Cal.App.4th 706, 711 [39 Cal.Rptr.2d 479] [parentage can be established without resort to any presumption].)


AUTHORITY • Elements. Pen. Code, § 243(e)(1). • Willfully Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]. • Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 CALCRIM No. 841 ASSAULTIVE AND BATTERY CRIMES 554 0044 [ST: 511] [ED: 100000] [REL: 11] Composed: Fri Feb 26 16:14:29 EST 2016 XPP 8.4C.1 SP #3 SC_01283 nllp 1284 [PW=516pt PD=720pt TW=380pt TD=580pt] VER: [SC_01283-Master:05 Feb 16 02:10][MX-SECNDARY: 22 Feb 16 08:33][TT-: 23 Sep 11 07:01 loc=usa unit=01284-ch0800] 0 This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, www.lexisnexis.com/bookstore, for public and internal court use Cal.Rptr.2d 518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr. 172, 479 P.2d 372]]. • Cohabitant Defined. People v. Holifield (1988) 205 Cal.App.3d 993, 1000 [252 Cal.Rptr. 729]; People v. Ballard (1988) 203 Cal.App.3d 311, 318–319 [249 Cal.Rptr. 806]. • Dating Relationship Defined. Pen. Code, § 243(f)(10). • Simultaneous Cohabitation. People v. Moore (1996) 44 Cal.App.4th 1323, 1335 [52 Cal.Rptr.2d 256]. Secondary Sources 1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the Person, § 19. 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.12[2] (Matthew Bender).


WHAT ARE THE LESSER INCLUDED OFFENSES •


Assault. Pen. Code, § 240. • Simple Battery. Pen. Code, §§ 242, 243(a). RELATED ISSUES See the Related Issues section of CALCRIM No. 960, Simple Battery.