Corporal Injury

Willful Infliction of Corporal Injury

(Penal Code Section 273.5)

Section 273.5 of the California Penal Code says that any person:
  1. Who commits a battery
  2. Against their spouse (or former spouse), cohabitant (or former cohabitant), or parent of their child
  3. That results in an injury
is guilty of Willful Infliction of a Corporal Injury. (Sometimes referred to by domestic violence lawyers as spousal abuse, domestic assault, or domestic abuse.) Willful infliction of corporal injury is a “wobbler” which means it can be charged as a misdemeanor or as a felony. The Orange County District Attorney has complete discretion whether to charge a wobbler as a misdemeanor of felony. Typically, they will consider the defendant’s criminal history as well as the extent of the injury. If the DA does file a wobbler as a felony, your domestic violence attorney can ask the judge to reduce it to a misdemeanor under Penal Code section 17(b).

Penalties For Willful Infliction Of A Corporal Injury


If the domestic assault is charged as a misdemeanor, it is punishable by up to one year in the Orange County Jail and a fine of up to $6,000.00. Moreover, the law (Penal Code §1203.097) requires the following probation terms:
  • Minimum probation length of three years
  • Protective Order to protect the victim from violent contact. The terms may also include a “stay away” provision requiring you to stay a certain distance from the victim and/or a “residence exclusion” provision prohibiting you from going near a residence—even if you own it or are on the lease. This protective order can last up to ten years.
  • You must be “booked” within one week of conviction if you haven’t already been booked
  • A batterer’s treatment program a minimum of one year in length with a minimum two-hour session per week and only three excused absences. (modification can be obtained through the court)
  • Some term of community service (how long a term is up to the judge)
  • After completion of the batterer’s treatment program the court MUST order you to participate in additional counseling sessions throughout your probation period (unless it is not in the interest of justice)

If the court finds that you are NOT benefitting from the batterer’s treatment program the court can revoke your probation and sentence you to jail.

In lieu of a fine the court has authority to order you to pay up to $5,000.00 to a battered woman’s shelter and/or to pay the victim’s counseling expenses and make other restitution.


A felony conviction for domestic violence under Penal Code 273.5 is punishable by either formal probation AND up to one year in the Orange County Jail or by two, three or four years in the state prison. If probation is granted, then the probation terms above are mandatory and you will be placed on formal probation.

If the domestic violence results in “great bodily injury” to the victim, then the offense becomes a “serious and violent felony” and thus becomes a “strike” offense under California’s three strikes law. Someone with a strike on their record faces DOUBLE punishment for future convictions.

Prior Convictions: If you are convicted of Willful Infliction of Corporal Injury and you have a prior conviction within the past seven years for domestic violence or for a serious assault (with a deadly weapon or with force likely to cause great bodily injury) then you must serve a minimum of 15 days in the Orange County jail and your maximum possible punishment increases to five years in prison and a $10,000.00 fine. If you have two such priors then you must serve a minimum of 60 days in jail.

Jury Instruction For Willful Infliction Of A Corporal Injury

The Jury Instruction for willful infliction of corporal injury is Calcrim 840. It reads:

840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (Penal Code §273.5(a))

To prove that the defendant is guilty of this crime, the People must prove that:
1) The defendant willfully and unlawfully inflicted a physical injury on the victim; and
2)The injury inflicted by the defendant resulted in a traumatic condition.
Someone commits an act “willfully” when he or she does it willingly or on purpose.
A “traumatic condition” is a wound or other bodily injury, whether minor or serious, caused by the application of direct force.
The term “cohabitant” 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 cohabitating include, but are not limited to, (1) sexual relations between the parties while sharing the residence; (2) sharing of income or expenses; (3) joint use or ownership of property; (4) the parties’ holding themselves out as husband and wife or as domestic partners; (5) the continuity of the relationship; (6) the length of the relationship.

Defenses To Willful Infliction Of A Corporal Injury

There are many possible defenses to willful infliction of a corporal injury for your Orange County domestic violence lawyer to use depending on the circumstances of each case.  They include:

Self Defense

You have the right to use force to protect yourself from the assaultive conduct of another. So if the alleged victim was the first to use force, even if that force didn’t hurt you, then you are lawfully entitled to use reasonable force to stop the other person. For example:

Dave was having a heated conversation with his wife Victoria. Victoria became angry and grabbed Dave when Dave began to walk away. Victoria didn’t injure Dave or leave any wound. Victoria has assaulted Dave and Dave now has the right to use force to stop the assault. Dave now uses force on Victoria and she sustains a visible injury. Victoria rushes to the phone and calls the police. In this scenario it is likely that Dave will be arrested because he has no visible injury while Victoria does. More importantly, Victoria was the first to call 911.

Defense of Others

A person has a similar legal right to use reasonable force to protect others from an assault.


In order to convict someone of willful infliction of a corporal injury the DA must prove that the defendant intended to apply force to the victim. For example:

Dave and Victoria have an argument. Dave decides to leave. As he does so, he takes his bag of golf clubs and puts the bag over his shoulder. As he turns to leave, Victoria crowds next to him to get a last word in. As she does so, the golf clubs that Dave just slung over his shoulder strike Victoria, leaving a bruise.

In this example the application of force was accidental. Since Dave did not intend to apply force to Victoria he cannot be found guilty of willful infliction of a corporal injury.

Defense of Property

A person has the legal right to use reasonable force to protect and preserve their property. If, in the scenario above, Victoria is using a golf club to smash Dave’s trophies, Dave may use reasonable force to stop her. If Victoria is injured while Dave is using reasonable force to protect his property, Dave cannot be found guilty of violating Penal Code Section 273.5.

Prior Injury

The prosecutor must show that the defendant caused a particular injury through the application of force. If the injury was already there, such as an old bruise, then this charge cannot be sustained. However, the DA could still charge you with domestic battery(Penal Code Section 243(e)(1)), which does not require any injury.

Lesser Offenses

During the pretrial stage of your case, your criminal defense lawyer should look for any possible weakness in the prosecution’s case. If your domestic violence attorney is successful, then the DA may agree to let you plead to a lesser offense in order to avoid trial. Possible lesser offenses include trespass (Penal Code Section 602); Disturbing the Peace (Penal Code Section 415); and Vandalism (Penal Code Section (Penal Code Section 594). These offenses are misdemeanors and, more importantly, do not contain the stigma of domestic violence. Also, these offenses do not carry the mandatory probation terms for a domestic violence crime.

Free Telephonic Consultation With An Orange County Domestic Violence Lawyer

For more information about domestic violence offenses and possible defenses, call The Law Office of EJ Stopyro at (949) 559-5500 today. You can speak directly to an experienced Orange County domestic violence lawyer with outstanding case results. The consultation is free and confidential.