Amended in Senate February 22, 2016

Senate Bill No. 870

Introduced by Senator Roth

January 12, 2016

An act to amend Section 273.5 of the Penal Code, relating to domestic violence.

LEGISLATIVE COUNSEL’S DIGEST

SB 870, as amended, Roth. Domestic violence.

Existing law makes it a crime, punishable by a fine, by imprisonment, or by both a fine and imprisonment, for a person to willfully inflict corporal begin delete injury end delete begin insert injury, including, but not limited to, by strangulation or suffocation, end insert resulting in a traumatic condition upon a person with whom the defendant has been in a specified domestic relationship.

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This bill would make technical, nonsubstantive changes to these provisions.

end delete begin insert

This bill would make it a crime, punishable by a fine, by imprisonment, or by both a fine and imprisonment, for a person to willfully inflict corporal injury resulting in a traumatic condition by strangulation or suffocation upon a person with whom the defendant has been in a specified domestic relationship. By increasing the duties of local prosecutors, the bill would impose a state-mandated local program.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 273.5 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

273.5.  

(a)  begin insert (1) end insert begin insert   end insert Any person who willfully inflicts corporal
injury resulting in a traumatic condition upon a victim described
in subdivision (b) is guilty of a felony, and upon conviction thereof
shall be punished by imprisonment in the state prison for two,
three, or four years, or in a county jail for not more than one year,
or by a fine of up to six thousand dollars ($6,000), or by both that
fine and imprisonment.

begin insert

(2) Any person who willfully inflicts corporal injury resulting
in a traumatic condition upon a victim described in subdivision
(b), where the corporal injury resulting in a traumatic condition
is caused in whole or in part by strangulation or suffocation, is
guilty of a felony, and upon conviction thereof shall be punished
by imprisonment in the state prison for two, three, or four years,
or in a county jail for not more than one year, or by a fine of up
to six thousand dollars ($6,000), or by both that fine and
imprisonment. For purposes of this paragraph, “strangulation”
and “suffocation” include impeding the normal breathing or
circulation of the blood of a person by applying pressure on the
throat or neck.

end insert

(b) Subdivision (a) shall apply if the victim is or was one or
more of the following:

(1) The offender’s spouse or former spouse.

(2) The offender’s cohabitant or former cohabitant.

(3) The offender’s fiancé or fiancée, or someone with whom
the offender has, or previously had, an engagement or dating
relationship, as defined in paragraph (10) of subdivision (f) of
Section 243.

(4) The mother or father of the offender’s child.

(c) Holding oneself out to be the husband or wife of the person
with whom one is cohabiting is not necessary to constitute
cohabitation as the term is used in this section.

(d) As used in this section, “traumatic condition” means a
condition of the body, such as a wound, or external or internal
injury, begin delete including, but not limited to, injury as a result of
strangulation or suffocation, end delete whether of a minor or serious nature,
caused by a physical force. begin delete For purposes of this section,
“strangulation” and “suffocation” include impeding the normal
breathing or circulation of the blood of a person by applying
pressure on the throat or neck. end delete

(e) For the purpose of this section, a person shall be considered
the father or mother of another person’s child if the alleged male
parent is presumed the natural father under Sections 7611 and 7612
of the Family Code.

(f) (1) Any person convicted of violating this section for acts
occurring within seven years of a previous conviction under
subdivision (a), or subdivision (d) of Section 243, or Section 243.4,
244, 244.5, or 245, shall be punished by imprisonment in a county
jail for not more than one year, or by imprisonment in the state
prison for two, four, or five years, or by both imprisonment and a
fine of up to ten thousand dollars ($10,000).

(2) Any person convicted of a violation of this section for acts
occurring within seven years of a previous conviction under
subdivision (e) of Section 243 shall be punished by imprisonment
in the state prison for two, three, or four years, or in a county jail
for not more than one year, or by a fine of up to ten thousand
dollars ($10,000), or by both that imprisonment and fine.

(g) If probation is granted to any person convicted under
subdivision (a), the court shall impose probation consistent with
the provisions of Section 1203.097.

(h) If probation is granted, or the execution or imposition of a
sentence is suspended, for any defendant convicted under
subdivision (a) who has been convicted of any prior offense
specified in subdivision (f), the court shall impose one of the
following conditions of probation:

(1) If the defendant has suffered one prior conviction within the
previous seven years for a violation of any offense specified in
subdivision (f), it shall be a condition of probation, in addition to
the provisions contained in Section 1203.097, that he or she be
imprisoned in a county jail for not less than 15 days.

(2) If the defendant has suffered two or more prior convictions
within the previous seven years for a violation of any offense
specified in subdivision (f), it shall be a condition of probation, in
addition to the provisions contained in Section 1203.097, that he
or she be imprisoned in a county jail for not less than 60 days.

(3) The court, upon a showing of good cause, may find that the
mandatory imprisonment required by this subdivision shall not be
imposed and shall state on the record its reasons for finding good
cause.

(i) If probation is granted upon conviction of a violation of
subdivision (a), the conditions of probation may include, consistent
with the terms of probation imposed pursuant to Section 1203.097,
in lieu of a fine, one or both of the following requirements:

(1) That the defendant make payments to a battered women’s
shelter, up to a maximum of five thousand dollars ($5,000),
pursuant to Section 1203.097.

(2) (A) That the defendant reimburse the victim for reasonable
costs of counseling and other reasonable expenses that the court
finds are the direct result of the defendant’s offense.

(B) For any order to pay a fine, make payments to a battered
women’s shelter, or pay restitution as a condition of probation
under this subdivision, the court shall make a determination of the
defendant’s ability to pay. An order to make payments to a battered
women’s shelter shall not be made if it would impair the ability
of the defendant to pay direct restitution to the victim or
court-ordered child support. If the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be
used to discharge the liability of the offending spouse for restitution
to the injured spouse, required by Section 1203.04, as operative
on or before August 2, 1995, or Section 1202.4, or to a shelter for
costs with regard to the injured spouse and dependents, required
by this section, until all separate property of the offending spouse
is exhausted.

(j) Upon conviction under subdivision (a), the sentencing court
shall also consider issuing an order restraining the defendant from
any contact with the victim, which may be valid for up to 10 years,
as determined by the court. It is the intent of the Legislature that
the length of any restraining order be based upon the seriousness
of the facts before the court, the probability of future violations,
and the safety of the victim and his or her immediate family. This
protective order may be issued by the court whether the defendant
is sentenced to state prison or county jail, or if imposition of
sentence is suspended and the defendant is placed on probation.

(k) If a peace officer makes an arrest for a violation of this
section, the peace officer is not required to inform the victim of
his or her right to make a citizen’s arrest pursuant to subdivision
(b) of Section 836.

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

Section 273.5 of the Penal Code is amended to
read:

273.5.  

(a) Every person who willfully inflicts corporal injury
that results in a traumatic condition upon a victim described in
subdivision (b) is guilty of a felony, and upon conviction thereof
shall be punished by imprisonment in the state prison for two,
three, or four years, or in a county jail for not more than one year,
or by a fine of up to six thousand dollars ($6,000), or by both that
fine and imprisonment.

(b) Subdivision (a) applies if the victim is or was one or more
of the following:

(1) The offender’s spouse or former spouse.

(2) The offender’s cohabitant or former cohabitant.

(3) The offender’s fiancé or fiancée, or someone with whom
the offender has, or previously had, an engagement or dating
relationship, as defined in paragraph (10) of subdivision (f) of
Section 243.

(4) The mother or father of the offender’s child.

(c) Holding oneself out to be the husband or wife of the person
with whom one is cohabiting is not necessary to constitute
cohabitation as that term is used in this section.

(d) As used in this section, “traumatic condition” means a
condition of the body, such as a wound, or external or internal
injury, including, but not limited to, injury as a result of
strangulation or suffocation, whether of a minor or serious nature,
caused by a physical force. For purposes of this section,
“strangulation” and “suffocation” include impeding the normal
breathing or circulation of the blood of a person by applying
pressure on the throat or neck.

(e) For the purpose of this section, a person shall be considered
the father or mother of another person’s child if the alleged male
parent is presumed the natural father under Sections 7611 and 7612
of the Family Code.

(f) (1) Every person convicted of violating this section for acts
occurring within seven years of a previous conviction under
subdivision (a), or subdivision (d) of Section 243, or Section 243.4,
244, 244.5, or 245, shall be punished by imprisonment in a county
jail for not more than one year, or by imprisonment in the state
prison for two, four, or five years, or by both imprisonment and a
fine of up to ten thousand dollars ($10,000).

(2) Every person convicted of a violation of this section for acts
occurring within seven years of a previous conviction under
subdivision (e) of Section 243 shall be punished by imprisonment
in the state prison for two, three, or four years, or in a county jail
for not more than one year, or by a fine of up to ten thousand
dollars ($10,000), or by both that imprisonment and fine.

(g) If probation is granted to a person convicted under
subdivision (a), the court shall impose probation consistent with
the provisions of Section 1203.097.

(h) If probation is granted, or the execution or imposition of a
sentence is suspended, for a defendant convicted under subdivision
(a) who has been convicted of a prior offense specified in
subdivision (f), the court shall impose one of the following
conditions of probation:

(1) If the defendant has suffered one prior conviction within the
previous seven years for a violation of an offense specified in
subdivision (f), it shall be a condition of probation, in addition to
the provisions contained in Section 1203.097, that he or she be
imprisoned in a county jail for not less than 15 days.

(2) If the defendant has suffered two or more prior convictions
within the previous seven years for a violation of an offense
specified in subdivision (f), it shall be a condition of probation, in
addition to the provisions contained in Section 1203.097, that he
or she be imprisoned in a county jail for not less than 60 days.

(3) The court, upon a showing of good cause, may find that the
mandatory imprisonment required by this subdivision shall not be
imposed and shall state on the record its reasons for finding good
cause.

(i) If probation is granted upon conviction of a violation of
subdivision (a), the conditions of probation may include, consistent
with the terms of probation imposed pursuant to Section 1203.097,
in lieu of a fine, one or both of the following requirements:

(1) That the defendant make payments to a battered women’s
shelter, up to a maximum of five thousand dollars ($5,000),
pursuant to Section 1203.097.

(2) (A) That the defendant reimburse the victim for reasonable
costs of counseling and other reasonable expenses that the court
finds are the direct result of the defendant’s offense.

(B) For an order to pay a fine, make payments to a battered
women’s shelter, or pay restitution as a condition of probation
under this subdivision, the court shall make a determination of the
defendant’s ability to pay. An order to make payments to a battered
women’s shelter shall not be made if it would impair the ability
of the defendant to pay direct restitution to the victim or
court-ordered child support. If the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be
used to discharge the liability of the offending spouse for restitution
to the injured spouse, required by Section 1203.04, as operative
on or before August 2, 1995, or Section 1202.4, or to a shelter for
costs with regard to the injured spouse and dependents, required
by this section, until all separate property of the offending spouse
is exhausted.

(j) Upon conviction under subdivision (a), the sentencing court
shall also consider issuing an order restraining the defendant from
any contact with the victim, which may be valid for up to 10 years,
as determined by the court. It is the intent of the Legislature that
the length of any restraining order be based upon the seriousness
of the facts before the court, the probability of future violations,
and the safety of the victim and his or her immediate family. This
protective order may be issued by the court whether the defendant
is sentenced to state prison or county jail, or if imposition of
sentence is suspended and the defendant is placed on probation.

(k) If a peace officer makes an arrest for a violation of this
section, the peace officer is not required to inform the victim of
his or her right to make a citizen’s arrest pursuant to subdivision
(b) of Section 836.

end delete