PC 243(b), (c)

PC 243(b), (c)

Offense

Battery on a peace officer, fireman etc.

Aggravated Felony (AF)

To avoid AF as COV get 364 days or less on each count of 243(c). See Advice and see § N.4 Sentence.
243(b) should not be a COV.

Crime Involving Moral Turpitude (CIMT)

b) does not involve injury, not a CIMT.
(c) should not be held a CIMT,1A CIMT occurs if there is intent to cause great bodily harm. Section 243(c) is a general intent crime that can be caused by a harmful or offensive touching and does not require intent to harm, cause injury, or break the law. See CALCRIM 945. California battery with injury offenses focus on the resulting injury, even if the defendant caused it negligently. See, e.g., People v. Hayes, 142 Cal. App. 4th 175, 180 (Cal. App. 2d Dist. 2006) (defendant who kicked over large ashtray which hit officer is guilty of § 243(c)(2) even if he believed it would not hit the officer). For that reason, similar offenses such as Pen C § 243(d) have been held not to involve moral turpitude. But note that in U.S. v. Perez (9th Cir. July 1, 2019) the court (wrongly) held that the minimum conduct to commit 243(d) is violent force, and therefore the offense is a COV. See further discussion at Pen C § 243(d). but might wrongly be charged; See Advice.

Other Removal Grounds

No other removal ground. Not DV because these victims not protected under DV laws.

Advice and Comments

Ninth Cir held that 243(c), battery causing injury, meets a federal sentencing standard that is identical to 18 USC 16(a) (a decision that appears to be in error).2Considering a federal sentencing provision that is identical to 8 USC § 16(a), the Ninth Circuit held that that because Pen C § 243(c)(2), battery with injury on a police officer, involves a battery that results in an injury requiring medical attention, it must require force sufficient to be a crime of violence. U.S. v. Colon-Arreola, 753 F.3d 841, 845 (9th Cir. 2014). However, the court did not acknowledge or discuss the fact that the minimum conduct to commit the offense is a mere harmful or offensive touching that causes injury, even if injury was neither likely nor intended to occur. CALCRIM 945. Colon-Arreola relied on U.S. v. Laurico-Yeno, 590 F.3d 818 (9th Cir. Cal. 2010), which held that § 273.5 is a COV because it requires the direct application of force sufficient to cause injury. Id. at 845. However, Laurico-Yeno specifically noted that Pen C § 273.5 “does not penalize minimal, non-violent touchings.” Id. at 822. Colon-Arreola did not consider People v. Hayes, 142 Cal. App. 4th 175, 180 (Cal. App. 2d Dist. 2006), discussed in endnote above, or the California cases that establish that § 243(d) (which appears to have the same force requirement as § 243(c)(2)) does penalize mere offensive touching. See § 243(d). However, in U.S. v Perez, 932 F.3d 782 (9th Cir. 2019), the Ninth Circuit relied on Colon-Arreola to make the same mistake with Pen C 243(d). See endnotes to § 243(d) and see Practice Advisory on U.S. v. Perez and § 243(d) and www.ilrc.org/crimes.

2020-05-19T17:45:28+00:00Updated January 29th, 2020|