Cohabitating for Purposes of a Domestic Violence Case

Robert C. Phillips
DDA (Ret.)
October, 2021

Battery Upon an Unrelated Roommate: The Issue of “Cohabitating:”  I’ve been asked whether it qualifies as a “domestic violence” incident when two unrelated, not romantically nor intimately involved roommates get into an argument with one committing a battery on the other.  My answer is “no,” . . . or at least, I don’t think so.  Looking at the limited case law, the relevant statutes, and the various (albeit similar) statutory definitions of “domestic violence,” here’s what I found.  The potentially chargeable crimes are as follows:  Penal Code § 243(e)(1), which provides an enhanced misdemeanor punishment (i.e., up to one year in jail and a $2,000 fine) when the battery is committed against a victim who, among other listed “intimate” relationships, is “cohabiting” with the suspect.  The term “cohabiting” is not defined.  Penal Code § 273.5 elevates a battery to a felony offense (up to four years in prison and a $6,000 fine) when the battery causes “corporal injury resulting in a traumatic condition” to a person with whom the suspect is cohabitating.  “Cohabiting,” although listed as one of the alternate (but necessary) elements, is again not defined.  The “domestic violence statute,” however, (i.e., Pen. Code § 13700(b)), which uses a similar description for those who are eligible for domestic violence victim protections, specifically defines “cohabiting” as when the victim and suspect are “two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.”  (Italics added)  In determining that this means, section 13700(b) notes the following: “Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship.”  In my mind, this all hints strongly that there must be some sort of romantic or intimate relationship between the two.  Where roommates are not intimately involved in some manner, the only factors that arguably apply are the sharing of expenses and the joint use of property. This does not appear to me to be enough, by themselves, to qualify as what the Legislature intended to be cohabitation.  What little case law there is in this area seems to support this conclusion.  For instance: In discussing the scope of P.C. § 13700, California’s First District Court of Appeal noted that: “This provision of the legislation known as ‘Law Enforcement Response to Domestic Violence’ is of particular interest because it promotes the same goal as the provision under consideration—the protection of persons from violence committed by their domestic partners or others with whom they have a significant relationship.”  (Italics added) (People v. Ballard (1988) 203 Cal. App. 3rd 311, 318.)  In Ballard, in upholding defendant’s conviction for a felony violation of P.C. § 273.5, the Court noted that it is obvious what “to cohabit” means; i.e., “the living together of a man and woman ostensibly as husband and wife.”  (Id., at pp. 317-318.)  Defendant and the victim, being described as “boyfriend-girlfriend” and sleeping “together in one bed,” were held to be cohabitants. (pg. 315.)  The Family Code, which does define “cohabitant,” also supports this conclusion, noting in section 6209 that: “‘Cohabitant’ (or ‘(f)ormer cohabitant’) means a person who regularly resides (or ‘resided’) in the household.”  (See also Subd. (b) of  Fam. Code § 6211, defining “domestic violence” to include when the parties are “(a) cohabitant or former cohabitant, as defined in Section 6209,” and P.C. § 836(d), which allows an officer to make a misdemeanor arrest for “an assault or battery upon a current or former spouse, fiancé, fiancée, a current or former cohabitant as defined in Section 6209 of the Family Code,” even though the offense occurred outside the officer’s presence.)  Using a little common sense, “Resid(ing) in the household” seems to infer something more than just renting a room down the hallway; “household” commonly referring to the family unit.  In fact, this Family Code section has been interpreted in the case law to require more than just merely living in the same house.  (See O'Kane v. Irvine (1996), 47 Cal.App.4th 207; where “(t)here was no romantic or friendly relationship between” the parties [pg. 209], thus no “cohabitation.”)  All this leads to the inescapable conclusion that simple roommates, without any romantic, intimate, or at least familial relationship involved, are not “cohabitating.”  I was also asked (just to confuse the issue even more) whether a parent-child relationship applies, such as when a daughter batters her mother.  To this question, I believe the answer has to be “yes.”  Family Code § 6211, defining what is required to constitute “domestic violence,” (in addition to when the victim is the child of the perpetrator; subd. (e)), specifically includes (at subd. (f)) when the parties involved include “(a)ny other person related by consanguinity or affinity within the second degree.” Consanguinity to the second degree ranges all the way to grandparents and grandchildren.  (See also People v. Dallas (2008), 165 Cal.App.4th 940, where it was held that defendant’s baby regularly resided in defendant’s household, and was therefore a “cohabitant” within the meaning of Fam. Code § 6209.)  The only way we will be able to determine whether I’m right or wrong on the above issues, however, is to test these conclusions in a directly-on-point published case.  That, of course, requires you to make the appropriate arrests and for a prosecutor to charge the appropriate offenses. . . . . . .   I’m waiting