Yes. California’s two core domestic violence crimes, domestic battery and corporal injury, apply only if the other person fits a relationship listed in the statute. If the relationship does not fit, the same conduct can still be charged as a different crime, such as simple battery, and a broader Family Code relationship list can still bring domestic violence probation terms.

The two relationship lists are similar, but not identical

Penal Code section 243(e)(1), the domestic battery charge, applies to a spouse, a person the defendant is cohabiting with, the parent of the defendant’s child, a former spouse, a fiance or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship. The relationship raises the stakes: a battery against someone on that list is punishable by up to one year in county jail, while a simple battery under section 243(a) carries up to six months.

Penal Code section 273.5, corporal injury resulting in a traumatic condition, applies if the victim is or was a spouse or former spouse, a cohabitant or former cohabitant, a fiance or a current or former dating or engagement partner, or the mother or father of the offender’s child (273.5(b)).

The wording differs on one point. Section 273.5 names a former cohabitant, while 243(e)(1) refers to a person with whom the defendant is cohabiting. A former live-in partner still fits 243(e)(1) if the two of you had a dating or engagement relationship, because that category covers past relationships. The current model jury instruction for 243(e)(1), CALCRIM No. 841, also offers an optional former ahead of the whole list of relationships, cohabitant included, so do not treat the wording gap as settling the question.

A roommate is not automatically a cohabitant

The jury instructions for both charges, CALCRIM Nos. 840 and 841, define cohabitants as two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. The factors a jury may consider include, but are not limited to, sexual relations while sharing the same residence, sharing income or expenses, joint use or ownership of property, holding themselves out as spouses or domestic partners, and the continuity and length of the relationship. Penal Code section 13700(b) uses a nearly identical test for police response to domestic violence. No single factor is required, and for the corporal injury charge, section 273.5(c) says holding yourselves out as spouses is not necessary.

That means a new roommate who splits rent and nothing else is not automatically a cohabitant for this purpose. Whether the label fits depends on the whole picture of the living arrangement, not the lease alone. The instructions also recognize that a person can cohabit with two or more people at different locations during the same period, if the person maintains a substantial ongoing relationship with each and lives with each for significant periods.

Dating does not require living together

A dating relationship qualifies under both statutes with no shared home at all. Penal Code section 243(f)(10) defines it as “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations.” That covers a partner who stays over regularly but has never moved in. The definition sets no minimum length of time and does not mention exclusivity, but the associations must be frequent and intimate.

Sharing a child is its own category

Being the parent of the other person’s child qualifies under both statutes on its own, whether or not the two people ever lived together or dated. A co-parent relationship by itself satisfies the relationship element of either charge; the prosecution still has to prove the rest of the offense.

A restraining order uses a broader list

If a civil domestic violence restraining order is also part of the picture, its relationship list overlaps with the criminal lists but is not the same. The dating definition in Family Code section 6210 is essentially the same as the criminal one. The cohabitant definition does not: Family Code section 6209 defines a cohabitant simply as “a person who regularly resides in the household,” with no permanency factors to weigh. Family Code section 6211 also reaches any other person related by blood or marriage within the second degree, such as a sibling or a parent-in-law, a category the criminal battery statutes do not use.

So a brand-new roommate who regularly lives in the household could be a cohabitant for a restraining order without meeting the stricter criminal test, and a dispute with a sibling or in-law can fall under the Family Code list even though it is outside both 243(e)(1) and 273.5. The criminal charge and the civil order can have different answers on the same facts.

Why the Family Code list matters in a criminal case too

Not fitting the criminal relationship lists does not end the analysis. If a court grants probation for any crime whose victim is a person described in Family Code section 6211, Penal Code section 1203.097 requires domestic violence probation terms, including at least 36 months of probation, a criminal protective order, and a batterer’s program of at least one year. Because section 6211 uses the Family Code’s household-based cohabitant definition, those terms can by their wording reach a conviction such as simple battery or vandalism against a roommate, sibling, or in-law who would not fit either criminal list.

What to check in your own case

  • Which specific relationship the report or the charging document actually alleges, and which statute it is charged under.
  • Whether the facts described support cohabitant status under the multi-factor test, or only a shared address.
  • Whether a current or past dating or engagement relationship is alleged instead, since that needs no shared home.
  • Whether the case also involves, or could involve, a civil restraining order using the separate Family Code definitions.
  • Whether the other person’s relationship to you is one Family Code section 6211 reaches, even if the charge itself is not 243(e)(1) or 273.5.

The relationship is a fact the prosecution has to prove, and it can be contested when the report gets it wrong. The Law Offices of David S. Chesley can review how your relationship is described in the report and the charges. Call (800) 755-5174.