Justia Criminal Law California Criminal Jury Instructions (CALCRIM) (2023) Assaultive and Battery Crimes CALCRIM No. 840. Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (Pen. Code, § 273.5(a))

CALCRIM No. 840. Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (Pen. Code, § 273.5(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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(iii) Spouse, etc.

840.Inflicting Injury on Spouse, Cohabitant, or Fellow Parent

Resulting in Traumatic Condition (Pen. Code, § 273.5(a))

The defendant is charged [in Count ] with inflicting an injury on

[his/her] ([former] spouse/[former] cohabitant/the (mother/father) of (his/

her) child/someone with whom (he/she) had, or previously had, an

engagement or dating relationship that resulted in a traumatic condition

[in violation of Penal Code section 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 (his/her) ([former] spouse/[former] cohabitant/the

(mother/father) of (his/her) child)/someone with whom (he/she)

had, or previously had, an engagement or dating relationship);

[AND]

2. The injury inflicted by the defendant resulted in a traumatic

condition.

[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.

Atraumatic condition is a wound or other bodily injury, whether minor

or serious, caused by the direct application of physical force.

[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 (spouses/domestic partners), (5) the continuity of the relationship,

and (6) the length of the relationship.]

[The term dating relationship means frequent, intimate associations

primarily characterized by the expectation of affection or sexual

involvement [independent of financial considerations].]

[A person may cohabit simultaneously with two or more people at

557

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.]

[A person is considered to be the (mother/father) of another person’s

child if the alleged male parent is presumed under law to be the natural

father. <insert name of presumed father> is presumed under

law to be the natural father of <insert name of child>.]

[A traumatic condition is the result of an injury if:

1. The traumatic condition was the natural and probable

consequence of the injury;

2. The injury was a direct and substantial factor in causing the

condition;

AND

3. The condition would not have happened without the injury.

Anatural and probable consequence is one that a reasonable person

would know is likely to happen if nothing unusual intervenes. In

deciding whether a consequence is natural and probable, consider all of

the circumstances established by the evidence.

Asubstantial factor is more than a trivial or remote factor. However, it

does not need to be the only factor that resulted in the traumatic

condition.]

New January 2006; Revised June 2007, August 2012, August 2014, February 2015,

February 2016, March 2018, October 2021

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.)

If causation is at issue, the court has a sua sponte duty to instruct on proximate

cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591 [35 Cal.Rptr.

401]; People v. Cervantes (2001) 26 Cal.4th 860, 865-874 [111 Cal.Rptr.2d 148, 29

P.3d 225].) Give the bracketed paragraph that begins, “A traumatic condition is the

result of an injury if . . . .”

Give CALCRIM No. 3404, Accident, on request if there is sufficient evidence that

an alleged victim’s injuries were caused by an accident. (People v. Anderson (2011)

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51 Cal.4th 989, 998, fn. 3 [125 Cal.Rptr.3d 408, 252 P.3d 968].).

Give the bracketed language “[and unlawfully]” in element 1 if there is evidence

that the defendant acted in self-defense.

Give the third bracketed sentence that begins “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 “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].)

If the defendant is charged with an enhancement for a prior conviction for a similar

offense within seven years and has not stipulated to the prior conviction, give

CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial. If the court has

granted a bifurcated trial, see CALCRIM No. 3101, Prior Conviction: Bifurcated

Trial.

If there is evidence that the traumatic condition resulted from strangulation or

suffocation, consider instructing according to the special definition provided in Pen.

Code, § 273.5(d).

The amendment to Penal Code section 273.5(b) adding “someone with whom the

offender has, or previously had, an engagement or dating relationship as defined in

Penal Code section 243(f)(10)” to the list of potential victims became effective on

January 1, 2014.

AUTHORITY

• Elements. Pen. Code, § 273.5(a).

• Traumatic Condition Defined. Pen. Code, § 273.5(d); People v. Gutierrez (1985)

171 Cal.App.3d 944, 952 [217 Cal.Rptr. 616].

• Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44

Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• 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].

• Direct Application of Force. People v. Jackson (2000) 77 Cal.App.4th 574, 580

[91 Cal.Rptr.2d 805].

• Duty to Define Traumatic Condition. People v. Burns (1948) 88 Cal.App.2d 867,

873-874 [200 P.2d 134].

• Strangulation and Suffocation. Pen. Code, § 273.5(d).

• General Intent Crime. See People v. Thurston (1999) 71 Cal.App.4th 1050, 1055

[84 Cal.Rptr.2d 221]; People v. Campbell (1999) 76 Cal.App.4th 305, 307-309

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[90 Cal.Rptr.2d 315]; contra People v. Rodriguez (1992) 5 Cal.App.4th 1398,

1402 [7 Cal.Rptr.2d 495] [dictum].

• Simultaneous Cohabitation. People v. Moore (1996) 44 Cal.App.4th 1323, 1335

[52 Cal.Rptr.2d 256].

• Dating Relationship Defined. Pen. Code, § 243(f)(10).

LESSER INCLUDED OFFENSES

• Attempted Infliction of Corporal Punishment on Spouse. Pen. Code, §§ 664,

273.5(a); People v. Kinsey (1995) 40 Cal.App.4th 1621, 1627, 1628 [47

Cal.Rptr.2d 769] [attempt requires intent to cause traumatic condition, but does

not require a resulting “traumatic condition”].

• Misdemeanor Battery. Pen. Code, §§ 242, 243(a); see People v. Gutierrez (1985)

171 Cal.App.3d 944, 952 [217 Cal.Rptr. 616].

• Battery Against Spouse, Cohabitant, or Fellow Parent. Pen. Code, § 243(e)(1);

see People v. Jackson (2000) 77 Cal.App.4th 574, 580 [91 Cal.Rptr.2d 805].

• Simple Assault. Pen. Code, §§ 240, 241(a); People v. Van Os (1950) 96

Cal.App.2d 204, 206 [214 P.2d 554].

RELATED ISSUES

Continuous Course of Conduct

Penal Code section 273.5 is aimed at a continuous course of conduct. The

prosecutor is not required to choose a particular act and the jury is not required to

unanimously agree on the same act or acts before a guilty verdict can be returned.

(People v. Thompson (1984) 160 Cal.App.3d 220, 224-225 [206 Cal.Rptr. 516].)

Multiple Acts of Abuse

A defendant can be charged with multiple violations of Penal Code section 273.5

when each battery satisfies the elements of section 273.5. (People v. Healy (1993)

14 Cal.App.4th 1137, 1140 [18 Cal.Rptr.2d 274].)

Prospective Parents of Unborn Children

Penal Code section 273.5(a) does not apply to a man who inflicts an injury upon a

woman who is pregnant with his unborn child. “A pregnant woman is not a

‘mother’ and a fetus is not a ‘child’ as those terms are used in that section.” (People

v. Ward (1998) 62 Cal.App.4th 122, 126, 129 [72 Cal.Rptr.2d 531].)

Termination of Parental Rights

Penal Code section 273.5 “applies to a man who batters the mother of his child

even after parental rights to that child have been terminated.” (People v. Mora

(1996) 51 Cal.App.4th 1349, 1356 [59 Cal.Rptr.2d 801].)

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the

Person, §§ 64-67.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes

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Against the Person, § 142.13[3] (Matthew Bender).

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Page last reviewed May 2023