Infliction of Corporal Injury on Spouse FAQs CA Penal Code 273.5

At Wallin & Klarich, we receive questions on a regular basis in regard to California Penal Code Section 273.5 (PC 273.5) – Infliction of Corporal Injury on a Spouse, Cohabitant or Domestic Partner. Here are the answers to some of the ones we most often receive.

What is the difference between battery of a spouse and infliction of corporal injury on spouse?

While any sort of offensive touching can be considered battery, corporal injury results in a traumatic condition, which is an internal or external injury caused by physical force.

What happens if my spouse or significant other doesn't want to testify in court?

In many cases, after you have been arrested your spouse or significant other may want to drop the charges. They do not want you to go to jail and lose your job – they want to continue to live with you.

What happens then?

Once criminal charges have been filed by the prosecutor, only the prosecutor can dismiss the charges of infliction of corporal injury on spouse. Your spouse does not have the power to dismiss the charges. And unless there is a trial, the judge doesn't have the power to dismiss the charges either.

But if your spouse refuses to testify, that makes it very hard for the prosecutor to obtain a conviction in a corporal injury on spouse case.

If my spouse doesn't want to testify, can the police force her to testify?

If your spouse was not legally served with a subpoena to come to court, then she can refuse to come to court. Your spouse has to be personally served with a lawful subpoena.

However, a subpoena can be valid if:

1. It is sent via e-mail and the District Attorney's office speaks to the person on the phone
2. That person admits he or she received the subpoena.
3. That person provides identifying information to the District Attorney during the phone call, such as a social security number or their driver's license.

Can I be convicted if my spouse doesn't testify in court against me?

This will depend on what "other evidence" the District Attorney has in order to present at the trial. If your spouse gave a statement to the police, that is considered "hearsay." That means the District Attorney will not be able to call the police officer to testify as to what your spouse told the officer about the alleged corporal injury.

If your spouse made a 911 call, that 911 tape would be admissible as evidence. The judge or jury would be allowed to hear that tape even if your spouse did not testify at the trial against you.

In reality, if your spouse does not wish to testify she needs to make that known to your experienced criminal defense lawyer. Your spouse can provide a statement to your lawyer as to what happened during the incident and how what is in the police report may differ from what really happened.

Your spouse can tell your lawyer her "feelings" about what she wants to happen in the case. Your lawyer can then use this information in his attempt to have the criminal charges dismissed against you.

Can I still be charged with infliction of corporal injury on spouse if I was defending myself when I injured my spouse?

If you were trying to protect yourself or someone else, then you will be able to claim self-defense. In order to be able to employ this defense, however, you will have to show the force you used was not excessive.

"Excessive force" is defined as "using force to cause a traumatic condition or inflict a corporal injury on a spouse or cohabitant." A "traumatic condition" is an internal or external injury caused by physical force.

If you did use excessive force, and as a result you caused a traumatic condition, then you may be facing a charge of corporal injury to a spouse.

I was drunk when I injured my spouse. Can this be used as a defense?

Just because you were drunk, that is no excuse for causing a corporal injury to your spouse. As a result, you cannot use this as a defense. If you did not intend to cause a traumatic condition, that may be taken into consideration by the court.

We Will Be There When You Call

At Wallin & Klarich, we have we have offices in Orange County, Los Angeles, Riverside, San Bernardino, Victorville, San Diego, West Covina and Ventura. No matter where you live in Southern California, we have an office location near you. In order to have the best chance possible of prevailing in your case, it is important that you call Wallin & Klarich as soon as possible at (877) 4-NO-JAIL or (877) 466-5245  so we can make sure your side of the story is effectively represented. We will be there when you call.