Simple Battery: Against Spouse, Cohabitant, or Fellow Parent

Domestic battery – at least misdemeanor domestic battery – is probably the most common DV charge that Ninaz Saffari has handled – both while working at the P.D.’s Office and in private practice.

Under California Penal Code section 243(e)(1), you can be charged with a misdemeanor if you are alleged to have battered one of the following types of individual:

  1. a spouse or former spouse;

  2. a current or former person with whom you are cohabitating;

  3. the parent of your child;

  4. your current or former fianceé; or

  5. your current or former boyfriend or girlfriend or lover (“a dating relationship”).

See: https://codes.findlaw.com/ca/penal-code/pen-sect-243.html.

Keep in mind that you don’t have to actually injure the victim, only cause an offensive contact (including indirect contact), pursuant to Pen. Code § 243(e)(1). Similarly, a sexual battery DV charge/conviction does not require you to actually touch the victim’s skin (see below).

Finally, felony domestic battery is typically charged under California Penal Code section 273.5 (“Corporal Injury On A Spouse”), but the terms are often interchangeable. As such, we’ve included below several examples of felony domestic battery charges.

Domestic Battery Defenses

Misdemeanor Domestic Battery

If charged with simple assault on a current or former domestic partner, you can assert the following defenses (assuming, of course, you have exculpatory evidence to do so):

  1. the purported victim does not fall within the definitions of a domestic violence victim (and, therefore, you should, at worst, be charged with simple assault);

  2. the incident did not result from an act that would likely result in harm to another person;

  3. the incident was the result of an accident (i.e., you were not acting intentionally);

  4. when you acted as you did, you didn’t believe your actions would likely result in harm;

  5. at the time of the incident, you lacked the ability to actually harm the purported victim;

  6. the purported victim granted you consent to commit the alleged offensive contact; and/or 

  7. you reasonably acted in self-defense or defense of another person;

  8. the victim did not actually suffer harm (not as a defense but proffered as a mitigating circumstance).

See California Criminal Jury Instructions (“CALCRIM”) no. 841 (“Simple Battery: Against Spouse, Cohabitant, or FellowParent”) at: https://www.justia.com/criminal/docs/calcrim/800/841/. See also CALCRIM 915 (“Simple Assault”) at: https://www.justia.com/criminal/docs/calcrim/800/915/. See also California Penal Code section 240 (simple assault) at: https://codes.findlaw.com/ca/penal-code/pen-sect-240.html.

Domestic Violence Sexual Battery (Misdemeanor and Felony)

If you are charged with sexual battery on a former or current domestic partner – either as a misdemeanor under Pen. Code § 243.4(e)(1), or as a felony under Penal Code section 242 (see: https://codes.findlaw.com/ca/penal-code/pen-sect-242.html) or Penal Code section 243.4(a)&(d) (see: https://codes.findlaw.com/ca/penal-code/pen-sect-243-4.html), then the following are all viable defenses:

  1. you did not actually touch the purported victim’s sexual organ(s)/area(s)
    (“intimate parts”) (misdemeanor or felony sexual battery);

  2. you had his or her actual consent to touch that/those part(s) (misdemeanor or felony); 

  3. you reasonably believed you had his or her actual consent (requires only “substantial evidence” to establish this defense) (misdemeanor or felony);

  4. the intimate touching had nothing to do with sexual pleasure or abuse (misdemeanor or felony);

  5. you did not restrain – either through deeds, statements or under color of authority – the purported victim during the incident (felony sexual battery); 

  6. you did not actually touch his or her skin (felony);

  7. your bare skin did not actually touch his or her sexual organ(s)/area(s) (felony); and/or

  8. you had lawful authority and were engaged in a lawful act (felony);

See CALCRIM no. 938 (“Sexual Battery: Misdemeanor”) at: https://www.justia.com/criminal/docs/calcrim/800/938/. See also CALCRIM no. 935 (“Sexual Battery: Felony”) at: https://www.justia.com/criminal/docs/calcrim/800/935/.

Domestic Battery Convictions and Sentences

Misdemeanor Domestic Battery

If you are convicted of misdemeanor domestic battery, you will by punished as follows:

  1. a county jail term up to one year; or

  2. a $2,000 fine; or

  3. both jail and a fine; and/or

  4. probation; and

  5. victim restitution (including for victim’s counseling).

If you receive probation or if your jail sentence is suspended, you will have to complete one year’s classes in a batterer’s treatment program, pursuant to California Penal Code section 1203.097. See: https://codes.findlaw.com/ca/penal-code/pen-sect-1203-097.html. (For a list of court-approved batterers’ intervention programs in LA County, see:

http://file.lacounty.gov/SDSInter/probation/1018942_2017DValpha_online_list.pdf.)

Instead of a fine, the court may require you to make a donation of up to $5,000 to a battered women’s shelter. Please note, however, that any fine, donation, or restitution will depend on your ability to pay, as determined by your sentencing judge.

Felony Domestic Battery (Corporal Injury On a Spouse)

This crime, which is codified in California Penal Code section 273.5(a), involves the intentional infliction of a serious injury on an individual protected by the various domestic violence statutes. A conviction on this charge – which is always a felony – will result in the following punishment:

  1. up to twelve months in the county jail; or

  2. a fine up to six thousand dollars; or

  3. jail and a fine; or

  4. twenty-four, thirty-six or forty-eight months in a penal institution; or

  5. prison and a maximum $6,000 fine.

See: https://codes.findlaw.com/ca/penal-code/pen-sect-273-5.html.

Sexual Battery (Misdemeanor and Felony)

Like many domestic violence crimes, sexual battery is a “wobbler” offense, meaning that the Los Angeles County District Attorney’s Office can decide whether to charge it as a misdemeanor or felony. (Alternatively, the DA’s Office can simply refer the case for possible prosecution to the City Attorney’s Office, which only prosecutes misdemeanors.) Therefore, if you are convicted under Pen. Code § 243.4(a), (b), (c) or (d), you will face the following sentencing terms:

  1. up to one year in county jail (misdemeanors and the occasional felony); and/or

  2. a maximum fine of two thousand dollars (misdemeanors only); or

  3. twenty-four, thirty-six or forty-eight months in the state penitentiary (felonies only); and

  4. a maximum fine of ten thousand dollars (again, felonies).

You may also be required to register as a sex offender for a certain period. See: https://oag.ca.gov/sex-offender-reg.

Celebrities Accused of Simple Domestic Battery (Misdemeanors)

Conviction of actor Charlie Seen

During the first week of August 2010, actor Charlie Sheen, who at that time had just finished a stellar seven-year run as the highest paid star in the history of television on CBS’ Two and a Half Men, took a no-contest misdemeanor plea for domestic battery. The conviction stemmed from a vacation Sheen had taken the previous winter (over the holidays) with his soon-to-be-ex-wife, actress Brooke Mueller. During the incident, she called 9-1-1 and told the operator that Sheen had threatened her with a blade.

As a result, Sheen was arrested and charged with multiple crimes, including assault with a deadly weapon (a felony). Fortunately for Sheen, however, his plea resulted in all the other charges against him being dropped. He was ultimately sentenced to a one-month residential psychiatric rehabilitation center, six weeks of domestic violence counseling, and one month of probation – an outstanding result, considering he could have potentially faced years in prison on the ADW charge alone. According to the DA’s Office, Sheen was given leniency because it was his first DV conviction. See: https://www.eonline.com/news/809893/inside-charlie-sheen-brooke-mueller-s-troubled-history-of-drugs-meltdowns-custody-drama.

Conviction of actor Mel Gibson

In May 2010, actor and director Mel Gibson (the 2000 film The Patriot) allegedly got into a physical altercation with his domestic partner, Oksana Grigorieva, at a beachfront home they shared in Malibu. According to the sheriff’s department, Gibson had assaulted her and caused visible injuries to her face, resulting in him being arrested for felony domestic battery.

Fortunately for Gibson, ten months later (on or about March 15, 2011), he was able to plead to a significantly reduced charge of misdemeanor domestic battery – apparently in partial consideration for his agreement with the DA’s Office not to pursue a felony extortion charge against Grigorieva. (Gibson had been claiming that she was using the criminal case against him in a ploy to obtain money from him.)

Nevertheless, Gibson’s no-contest plea could have exposed him to civil liability and potentially hundreds of thousands of dollars (if not more) in damages had she pursued a personal injury lawsuit against him. (In other words, by pleading no contest, Gibson essentially admitted to assaulting her in criminal court. Therefore, that plea could have been used against him in the civil case to immediately prove he did so. Thus, the only remaining issue would have been a determination of damages.) See: https://www.latimes.com/local/la-xpm-2011-mar-12-la-me-mel-gibson-20110312-story.html.

Conviction of San Diego high school wrestling champion Ryan Cosio

On or about June 15, 2019, according to the San Diego County District Attorney, local resident (Temecula) and senior high school all-CIF wrestling star Ryan Cosio (age 18 at the time so legally an adult) allegedly attacked his female romantic partner using a wrestling move, which caused her injuries sufficient to have him arrested and charged with felony DV battery, as well as felony false imprisonment (for allegedly restraining her with force).

In consideration for his guilty plea to the “wobbler” DV battery, which was reduced to misdemeanor corporal injury on a spouse, the prosecutor also dropped the second felony count. In late December 2019, Cosio was ordered to complete approximately four months in a work-release plan in conjunction with and under the supervision of the San Diego County Sheriff’s Department; three weeks of community service; a ten-year-long stay-away order; and a five-hundred-dollar fine. See: https://www.mercurynews.com/2019/12/07/temecula-valley-high-wrestling-champion-pleads-guilty-to-injuring-girlfriend/.

Arrest of actress Vanessa Cloke (AMC’s The Walking Dead)

On or about December 21, 2019, Newport Beach police were called to the home of Cloke (who appeared on several seasons of basic cable’s most successful television ever) to supervise her ex-boyfriend’s move-out of the home they shared together. As the man was removing his personal belongings, Cloke allegedly lost control and attacked him – in full view of the police. Cloke was immediately arrested and charged with misdemeanor domestic battery. (It was the ex who had allegedly called police beforehand because he feared what might happen.) See: https://www.tmz.com/2019/12/24/walking-dead-actress-vanessa-cloke-arrested-assault-boyfriend-moves-out/.

Arrest of actor Orlando Brown (Disney Channel’s That’s So Raven)

On or about January 17, 2019, Brown was arrested by Los Angeles police after he allegedly struck his then-girlfriend in the face while they sat in his car – directly behind the police station in Torrance. According to the DA’s Office, at that point his girlfriend exited the vehicle while Brown attempted to flea in the car. As a result, he was charged with misdemeanor domestic battery, obstruction of justice (for attempting to flee the scene), as well as felony possession with intent to sell -- crystal methamphetamine, which police alleged they found after pulling him over and searched his car. See: https://ew.com/article/2016/02/18/orlando-brown-arrested-domestic-battery/.

Celebrities Accused of Felony Domestic Battery

Incident involving actors Johnny Depp and Amber Heard

On or about May 21, 2016, uniformed Los Angeles police officers arrived at a downtown residential building on a domestic violence complaint made by Heard against her then-husband Depp. When police arrived at their penthouse condo, Heard claimed that Depp had hurled a cell phone at her, striking her in the right eye. However, police stated they found no visible injuries on her face and, therefore, declined to arrest him.

Several days later, Heard uploaded photos that supposedly depicted injuries to her right cheek on her social media accounts, claiming those had been caused by Depp. LAPD still did not arrest Depp; however, he certainly would have been handcuffed and charged with felony domestic battery had those injuries been apparent when they arrived. (In 2020, during a libel trial in London pursued by Depp against a British tabloid who referred to him as a “wife beater”, a witness testified that Heard had faked those injuries.) See: https://www.cosmopolitan.com/uk/entertainment/news/a43767/amber-heard-assault-new-photo-people-cover/.

Conviction of R&B singer Chris Brown

At midnight on February 7-8, 2009 (a night that has to go down as Brown’s worst celebrity moment), Brown and his then-girlfriend Rihanna had just left record producer Clive Owen’s annual Grammy’s-eve party at his estate in Hancock Park. Ironically, but not surpirsingly, the singers had been nominated for a cumulative of four awards between them but because of the events that night, they would fail to attend the actual awards ceremony the following evening.

According to the DA’s Office, the two got into a heated argument because, while driving, Brown had received an intimate text message from another woman, This allegedly led to Brown pulling over his rented Italian sports car and pummeling Rihanna with such force that her face showed severe bruising. Brown also allegedly tried to yank her out of the car; pushed her face into the car window; bit her; strangled her to the point where she almost lost consciousness; and threatened to kill her if she reported the beating to police. Rihanna nevertheless called LAPD who arrested Brown on suspicion of felony domestic battery and felony making of a criminal threat. If convicted of all charges, he would have faced almost eight years in prison.

However, because this was apparently his first DV-related arrest, five months later, he accepted a guilty plea for felony assault likely to result in serious injury. He was extremely fortunate at his sentencing hearing – the judge merely ordered him to complete one hundred and eighty days of volunteer work and sixty months of formal probation; attend twelve months of weekly DV therapy; and honor the terms of a stay-away order with a duration of sixty months. See: https://www.cnn.com/2009/CRIME/08/25/chris.brown.sentencing/.

Arrest of Bravo TV’s Real Housewives of Orange County’s Gina Kirschenheiter’s ex-husband

On or about June 21, 2019, Matthew Kirschenheiter, formerly married to Gina, was arrested by Newport Beach Police Department officers on two felony counts – domestic battery and false imprisonment through use of, or threat of, force – after he allegedly attacked her outside her Orange County residence, forced her back into her house, struck her repeatedly, and ripped off her clothing. As a result, he was facing almost eight years in state prison if convicted of both charges. In addition, the arrest convinced a family law judge to grant Gina sole custody of their children; ordered him to seek therapy; and issued a stay-away order against him. See: https://www.usmagazine.com/celebrity-news/news/rhocs-matt-kirschenheiter-pleads-not-guilty-after-arrest/.

Arrest of actor Chris Tavarez (Disney Channel’s K.C. Undercover)

On or about November 15, 2019, LAPD officers arrested Tavarez in Hollywood on suspicion of felony corporal injury to a spouse or cohabitant with a prior domestic violence conviction after he allegedly beat his then-girlfriend unconscious, leaving her visibly injured. Less than two years earlier, he had reportedly pled no contest to two DV charges, received a half-year-jail sentence, and was still on formal probation at the time of this recent incident.

Tavarez was actually apprehended several days after that evening as he had allegedly driven away from the scene of the incident. And he was arrested despite the fact that the purported victim would neither file a criminal complaint with the police nor accept help from the EMTs that were called to the scene. He now faced at least two years in prison, not including time for the probation violation. See: https://www.tmz.com/2019/11/14/disney-star-chris-tavarez-arrested-felony-domestic-violence/.

The Los Angeles Criminal Defense Lawyer Law Firm (LADALF)

For more than fifteen years (since 2005), managing attorney Ninaz Saffari has achieved outstanding results on behalf of hundreds of clients charged with every conceivable type of domestic violence battery charge – ranging from simple misdemeanors to serious felonies involving severe injuries with potential life sentences. She also excels at working with other professionals to provide a powerful, comprehensive defense.

For example, many DV trials will include testimony from purported expert witnesses hired by the prosecutor to discuss issues such as battered women’s syndrome. As a result, Ninaz always prefers to have her own expert – one with unimpeachable credentials and impeccable credibility – provide counter-testimony so the jury is not unduly swayed. (Indeed, testimony from the prosecutor’s purported expert is so common, CALCRIM has its own jury instructions on the subject: CALCRIM no. 850 (“Testimony on Intimate Partner Battering and Its Effects: Credibility of Complaining Witness”). See: https://www.justia.com/criminal/docs/calcrim/800/850/.