Return to CALJIC Part 9-12 – Contents
F 9.35 n1 Spouse Or Cohabitant Beating: Family Code Presumptions Do Not Apply.
In People v. Vega (95) 33 CA4th 706, 709 [39 CR2d 479], the court held that the Family Code presumptions do not apply to the question of whether the victim was the mother of the defendant’s child within the meaning of PC 273.5.
F 9.35 n2 Spouse Or Cohabitant Beating: Attempt Does Not Require Intent To Inflict “Traumatic Condition.”
In an attempted violation of PC 273.5, the requisite intent is to inflict bodily injury resulting in a traumatic condition. It is not necessary that there be an intent to cause a traumatic condition. (People v. Kinsey (95) 40 CA4th 1621, 1628-29 [47 CR2d 769].)
F 9.35 n3 Spouse Or Cohabitant Beating: Biological Father Liable For Battering Mother Even If Parental Rights Were Terminated.
Per PC 273.5, a biological father may lawfully be convicted of battering the mother of his child even though parental rights to that child were terminated before the battering occurred. (People v. Mora (96) 51 CA4th 1349 [59 CR2d 801].)
F 9.35 n4 Spouse Or Cohabitant Beating With Priors (PC 273.55).
Additional issues related to this offense may be found under FORECITE F 9.35.1, et seq.
F 9.35 n5 Assault On Mother Of Defendant’s Child Not Applicable To Unborn Child (PC 273.5).
PC 273.5 does not apply to prospective parents of unborn children. (People v. Ward (98) 62 CA4th 122 [72 CR2d 531].) The 1988 amendments to PC 273.5 protect those “persons whose past intimate relations resulted in the birth of a child.” (People v. Mora (96) 51 CA4th 1349, 1355 [59 CR2d 801].) A pregnant woman is not a “mother” and a fetus is not a “child” as those terms are used in that section. (Ward, 62 CA4th at 129.)
F 9.35 n6 Spouse Or Cohabitant Beating: Misdemeanor Cohabitant Battery As Lesser Included.
The necessary elements of felony cohabitant beating (PC 273.5) are the willful commission of bodily injury upon another person with whom the defendant is cohabiting and/or any person who is the parent of his or her child; such bodily injury must result in a traumatic condition. Misdemeanor cohabitant battery (PC 243(e)(1)) proscribes battery committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, a non-cohabiting former spouse, fiancee, or a person with whom the defendant currently has or has previously had a dating relationship. Accordingly, the felony version of the statute cannot be committed without committing the misdemeanor. Hence, the misdemeanor cohabitant beating is a lesser included offense of the felony. (See People v. Babich (93) 14 CA4th 801, 807 [18 CR2d 60]; see also People v. Lohbauer (81) 29 C3d 364, 369 [173 CR 453].) [An unpublished opinion and additional briefing on this issue is available to FORECITE subscribers. Ask for Opinion Bank # O-238.]
F 9.35 n7 Spouse Or Cohabitant Beating: General Intent Crime (PC 273.5).
PC 273.5(a) is a general intent crime. (People v. Thurston (99) 71 CA4th 1050, 1056 [84 CR2d 221].)
F 9.35 n8 Spouse Or Cohabitant Beating: Specific Intent Instruction Required When PC 273.5 Is Charged.
Briefing on this issue is available to FORECITE subscribers. Search for B-952.
Spouse Or Cohabitant Beating: Definition Of Cohabitation
*Replace the last bracketed ¶ of CJ 9.35 (1989 Rev) with the following:
Cohabitation is defined as follows:
It is a living together under the same roof of unrelated adult persons of the opposite sex for a substantial period of time, resulting in some permanency of relationship.
Factors you may consider in determining whether or not persons are cohabitating include, but are not limited to:
1. Sexual relations between the parties while sharing the same living quarters.
2. Sharing of income or expenses.
3. Joint use or ownership of property.
4. Whether the parties hold themselves out as husband and wife.
5. The continuity of the relationship.
6. The length of the relationship.
Points and Authorities
In People v. Holifield (88) 205 CA3d 993, 1001 [252 CR 729], the Court of Appeal held that the trial court correctly instructed the jury utilizing the definition of cohabitation set forth above.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Emotional Harm Insufficient To Constitute Traumatic Condition: PC 273.5(a) states that “Any person who willfully inflicts upon his or her spouse, … corporal injury resulting in a traumatic condition, is guilty of a felony ….” PC 273.5(c) defines a traumatic condition as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” In People v. Abrego (93) 21 CA4th 133, 138 [25 CR2d 736], the court held that even though the victim had been struck in the head and face and experienced soreness and tenderness in those areas, such evidence did not constitute an injury resulting in a traumatic condition. Additionally, the court held that the victim’s emotional suffering after the incident was not sufficient to elevate the crime from simple battery to a violation of PC 273.5 because the statute requires a “corporal injury” rather than solely emotional harm.
Simultaneous Cohabiting: As long as the evidence establishes that the defendant is cohabiting with the victim at the time of the incident in question, it is immaterial that he may be cohabitating with others as well. Therefore, for purposes of criminal liability under PC 273.5, a defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for a significant period. (People v. Moore (96) 44 CA4th 1323, 1335 [52 CR2d 256].)
Former Spouse/Former Cohabitant Beating
*Modify CJ 9.35, ¶ 2 and Element One as follows [added language is capitalized]:
Every person who willfully inflicts upon [[his] [her] spouse] [FORMER SPOUSE] [a person with whom [he] [she] [is] [WAS] cohabitating] [any person who is the [mother] [or] [father] of [his] [her] child] corporal injury resulting in a traumatic condition is guilty of a violation of section 273.5 of the Penal Code, a crime.
1. A person willfully inflicted bodily injury upon [[his] [her] spouse [FORMER SPOUSE] [another person with who [he] [she] was cohabitating] [any person who was the [mother] [or] [father] of [his] [her] child] and
Points and Authorities
Effective January 1, 2000, PC 273.5 was amended to include former spouses and former cohabitants. (Stats. 1999, SB 218, ch. 662.)
Spouse Or Cohabitant Beating:
Infliction Of Pain Alone Insufficient To Convict
*Add to CJ 9.35:
The pain, if any, felt by the victim during the incident does not constitute a traumatic condition.
Points and Authorities
PC 273.5(a) prohibits inflicting “corporal injury resulting in a traumatic condition” upon on a cohabitant. PC 273.5(c) defines “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” Accordingly, any pain inflicted during the incident is insufficient to support a conviction under PC 273.5 because such pain alone does not constitute a traumatic condition. (People v. Beasley (2003) 105 CA4th 1078 [130 CR2d 717]; see also People v. Abrego (93) 21 CA4th 133, 138 [25 CR2d 736].)
Spouse Or Cohabitant Beating: Must Be Willful And Unlawful
*Add to CJ 9.35, 2nd paragraph, as follows [added language is capitalized; deleted language is between << >>]:
Every person who willfully [AND UNLAWFULLY] inflicts upon a person who is [[his] [her] [former] spouse] [a [former] cohabitant] [, or] [the [mother] [or] [father] of [his] [her] child], corporal injury resulting in a traumatic condition is guilty of a violation of § 273.5 subdivision (a) of the Penal Code, a crime.
Points and Authorities
Because the prosecution must prove beyond a reasonable doubt that the defendant did not act in self defense (see People v. Sanchez (47) 30 C2d 560) and FORECITE F 5.15a), CJ 9.35 and CJ 9.35.01 should require the jury to find that the defendant acted unlawfully. (But see People v. Ayers (2005) 125 CA4th 988, 996-97 [sensible jurors would have understood that the self-defense instructions applied equally to all of the charges that were based upon defendant’s use of physical force].)