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Domestic Violence: What Facts Establish Cohabitation?
As the reader of this article may already know, a violation of Penal Code § 273.5 (“domestic violence”) applies to the infliction of injury upon not only one’s spouse, but also to injuring a cohabitant or former cohabitant.
The Gist of this Article: Cohabitation is defined by our criminal courts as two people living together in a “substantial” relationship involving permanence and some amorous or romantic relationship.
Penal Code § 273.5(b)(2). In this regard, it is important to note, as the statute seems to imply otherwise, that cohabitation is not a required element of the crime if the defendant and the victim are married. People v. Gutierrez (1985) 171 Cal. App. 3d 944, 947, 217 Cal. Rptr. 616 (victim and defendant were married, but separated three weeks before the incident).
Penal Code § 273.5, however, does not define cohabitant. Judges, however, in construing the statute, have interpreted the term broadly to refer to those living together in a “substantial” relationship that involves permanence and sexual or amorous intimacy. People v. Taylor (2004) 118 Cal. App. 4th 11, 18-19, 12 Cal. Rptr. 3d 693; see also People v. Holifield (1988) 205 Cal. App. 3d 993, 997-1000, 252 Cal. Rptr. 729 (decided when 273.5 was limited to cohabitants of the opposite sex, analogizing 273.5 to Penal Code § 13700(b), defining “cohabitant” as “two unrelated adult persons living together for a substantial period of time resulting in some permanency of relationship,” and setting forth factors that may determine if persons are cohabitating).
It is significant to understand that courts construing “cohabitant” under 273.5 have refused to impose a requirement that a quasi-marital relationship exist, but they have noted 273.5 requires something more than a platonic, rooming-house arrangement. People v. Moore (1996) 44 Cal. App. 4th 1323, 1333, 52 Cal. Rptr. 2d 256; People v. Holifield, supra, 205 Cal. App. 3d at 999.
Torrance CourthouseThe requirement of permanence for cohabitants under 273.5 does not mandate exclusivity in the relationship. A defendant may cohabitate with two or more people at different locations during the same time if he or she maintains substantial ongoing relationships with each and lives with each for significant periods of time. People v. Taylor, supra, 118 Cal. App. 4th at 19; People v. Moore, supra, 44 Cal. App. 4th at 1334-1335. In other words, a person who physically abuses a cohabitant cannot immunize himself or herself from criminal liability under 273.5 by living elsewhere on a part-time basis with one or more other persons while continuing to reside with the victim and maintaining a substantial relationship with him or her. People v. Moore, supra, 44 Cal. App. 4th at 1335.
Put another way, the fact that a couple’s living arrangements may be unstable or transitory does not erase statutory protection under 273.5. For example, the fact that a couple was living in a car at the time of the offense of that they sometimes lived separately with other relatives during the period preceding the incidents charged under 273.5 did not preclude a finding that they were cohabitants at the time of the charged offenses. People v. Taylor, supra, 118 Cal. App. 4th at 19; see also People v. Belton (2008) 168 Cal. App. 4th 432, 437-438, 85 Cal. Rptr. 2d 582 (evidence that defendant and the victim who lived together for two months, first in a room rental, then in friend’s homes, in motels, and in a car constitutes substantial evidence of cohabitation for purposes of Penal Code § 273.5).
A sexual relationship between the victim and defendant is also not a necessary prerequisite to a finding of cohabitation under § 273.5. People v. Ballard (1988) 203 Cal. App. 3d 311, 249 Cal. Rptr. 806. In Ballard, the trial court judge properly refused to instruct the jury that a sexual relationship was required for cohabitation. Id., at 319.
In People v. Holifield, supra, defendant and the victim did not share income or expenses or hold themselves out as husband and wife. The had occasional sexual relations and did not share other activities. Defendant slept in the same bed as the victim when he stayed with her. However, the jury found that they lived together “for a substantial period of time, resulting in some permanency of the relationship” as required by the jury instruction given by the court. Id., 205 Cal. App. 3d at 1001 – 1002.
We present this article for the reader to understand “cohabitation” is broadly construed under Penal Code § 273.5, so it wise to understand the facts of the cases that did and did not find cohabitation when evaluating what one’s specific situation is on this issue.
For more information about domestic violence in general, please click on the following articles:
