Why Is a Conviction for Penal Code 242 Better Than 273.5?

In many domestic violence cases, there may be no injuries, it may the first offense ever against defendant and the victim recants her (or his) story.  The prosecutor may not dismiss the case, but may offer a plea bargain involving a dismissal of the more serious domestic violence charge under Penal Code § 273.5 if defendant will enter a plea of no contest or guilty to simple batter, Penal Code § 242.
 
To many defendants, they have no idea why this is good.  This article will seek to answer this question in six ways so that a defendant can make an informed, intelligent decision on whether to agree to such a resolution.

At the most fundamental level, simple battery under 242 is distinguishable from domestic violence under 273.5.  Simple battery involves an offensive touching, or nonconsensual contact.  One does not even have to cause the other person pain or an injury.  It is most commonly thought of as using force or violence against someone else, but not a specific person, but force or violence is not required. 

Domestic violence under 273.5, in contrast, involves causing an injury to the body of a spouse or boyfriend/girlfriend, someone that one is supposed to show respect and who might be vulnerable and weaker than, for example, a man.  There is a stigma of being possibly labeled a “wife beater,” for example.

The penalty for violating 242 is a maximum of six months in jail and / or a $2,000 fine, plus penalties and assessments.  A violation of Penal Code § 242 is always a misdemeanor. 

The penalty for violating 273.5, in contrast is up to a year in county jail and a fine of up to $6,000, plus penalties and assessments.  A conviction for violating 273.5 requires a minimum payment of $500 to a battered women’s shelter, or up to a $5,000 payment in the court’s discretion.  A person who violates 273.5 also must attend a minimum of 52 sessions of a batterer’s program, usually at the rate of one per week.

A violation of 273.5 can be a felony or a misdemeanor.  If a felony, it can carry with it up to four years in state prison.  Some people only think of 273.5 as a felony.

Third, for someone who is a gun enthusiast and wants to keep his or her firearms, a plea to 242 avoids the ten-year California ban (and lifetime federal ban) on owning, purchasing or possessing a firearm, ammunition or loading clips.  This alone is often seen a big benefit of such a plea.

Fourth, for those who are not gun enthusiasts, a conviction of misdemeanor 273.5 can be used to impeach someone in a future case because 273.5 is a wobbler, and thus is a conviction that could be a felony.  A conviction for a “straight misdemeanor,” like 242, is not admissible in a future prosecution except for impeachment purposes.

Fifth, a conviction for 273.5, even as a misdemeanor, is a “priorable” offense.  This means if one is prosecuted for 273.5 again within the next seven years of the offense date, defendant faces certain minimum sentence enhancements such as a minimum fifteen day stay in county jail.  If the defendant has two prior convictions for violating 273.5 in the previous seven years, there is a minimum 60 days in county jail.

With a prior 242 conviction, there is no minimum sentence.  A violation of Penal Code § 242 is not a “priorable” offense.

Sixth, and perhaps most important if one is not a U.S. citizen or one has a professional license such as to work as a doctor, dentist, lawyer, CPA, insurance agent, real estate broker, etc., a conviction for 273.5 is considered by an immigration court and licensing board as far more serious than a conviction for 242.

For these six reasons, we always recommend that a client accept a plea to 242 in place of a plea to 273.5.


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