Offense
Battery with serious bodily injury
Aggravated Felony (AF)
To avoid AF as COV get 364 days or less on each count. See § N.4 Sentence.
But see Advice.
If you must plead, try to plead specifically to an offensive touching.
Crime Involving Moral Turpitude (CIMT)
Assume it will be held a CIMT due to the (arguably incorrect) holding in Perez that the minimum conduct involves use of violent force.
But it should not be so held, and imm advocates can contest.1 Section 243(d) should not be held a CIMT because, although it is a battery resulting in serious injury, it can be committed by a touching that was neither intended nor likely to cause such an injury. However, the Ninth Circuit held (arguably incorrectly) that the minimum conduct involves actual violence and therefore it is a COV. See discussion of US v. Perez, 932 F.3d 782 (9th Cir. 2019) at next endnote. Because of Perez, ICE may assert that this is a CIMT. Immigration advocates should fight this, but criminal defenders may need to seek another offense, e.g., 136.1(b)(1) of 459/460(a) if a strike is needed. See also Practice Advisory on U.S. v. Perez and § 243(d) and www.ilrc.org/crimes.
CALCRIM 925 provides that § 243(d) requires a touching only in a “harmful or offensive manner…. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.” The statute’s purpose is to punish based on the injury caused, not the level of force; it punishes even non-violent force that for some reason results in injury. For this reason, it was held not to be a CIMT for state purposes. People v. Mansfield, 200 Cal. App. 3d 82, 88 (Cal. App. 5th Dist. 1988) (not a CIMT because “the least adjudicated elements of battery resulting in serious bodily injury do not necessarily involve force likely to cause serious injury” (emphasis in original)). See also People v. Hopkins, 78 Cal. App. 3d 316, 320-321 (Cal. App. 2d Dist. 1978) and discussion in above endnote.
The BIA recognized that § 243(d) is not a CIMT. See Matter of Muceros, A42 998 610 (BIA 2000) Indexed Decision. (BIA “Indexed” decisions are not precedent decisions but are intended to provide guidance to government. Formerly, Indexed decisions were available to the public on the BIA website). Muceros held that because the minimum conduct to commit Pen C § 243(d) is touching without intent, it is not a CIMT. Muceros was cited in Uppal v. Holder, 605 F.3d 712, 718-719, 718-719 (9th Cir. 2010), holding that a Canadian statute that did not require intent to harm similarly is not a CIMT.
Try to plead specifically to an offensive touching causing injury. If it is critical to avoid a CIMT, plead to a different offense.
Other Removal Grounds
Assume this is a COV and thus a deportable DV offense if V is protected under state DV laws. See Advice.
Pleas to avoid DV are 32, 136.1(b), 236/237, 243(e), 591, or 594. Or, plead to 243(d) against a non-protected V (neighbor, ex-wife’s new boyfriend, etc.) with a sentence imposed of less than a year. See discussion at PC 245.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
Advice and Comments
Although extensive California case law establishes that 243(d) can be committed with an offensive touching, the Ninth Cir held that this is not true and that 243(d) is a COV because it requires force sufficient to directly cause injury. US v Perez, 932 F.3d 782 (9th Cir. 2019). Petition for rehearing and reconsideration was denied.
Seek alternate plea where needed; consider misd or felony PC 32, 136.1(b)(1), 236/237, 243(a) or (e), 459/ 460(a) or (b), 591, 594, or even 207 or 243.4. For PC 32 and 136.1(b)(1), do not plead to over 364 days to avoid a potential AF finding.
Imm advocates should contest the Perez holding and preserve the issue on appeal, to bring it again before the Ninth Circuit. Critical evidence was not submitted in the original Perez case. Contact the ILRC for assistance. For arguments that Perez is wrongly decided; see endnote.2 In U.S. v. Perez, 932 F.3d 782 (9th Cir. 2019) the court found that Pen C § 243(d) is categorically a COV, because the defendant did not demonstrate a “realistic probability” that 243(d) would be used to prosecute an offensive touching that caused injury, as opposed to use of violent force that caused injury. A petition for reconsideration and for rehearing en banc in Perez was denied.
This is a flawed decision that advocates will fight, but it is the law now. For further discussion, including preliminary suggestions for bases for appeal in immigration proceedings, see ILRC, Practice Advisory: Fighting U.S. v. Perez-Ninth Circuit holds PC 243(d) is a COV (Aug. 6, 2019) at www.ilrc.org/crimes. Defense counsel should obtain a plea other than § 243(d). Immigration advocates should contest the decision and preserve the issue on appeal, and contact ILRC if they would like assistance.
In sum, the definition of COV at 18 USC § 16(a) requires that the threat or use of force—meaning violent force—must be an element of the offense. See, e.g., Johnson v. U.S., 559 U.S. 133 (2010); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006); Matter of Guzman-Polanco, 26 I&N Dec. 806, 807 (BIA 2016) where the BIA stated that under Johnson, “a statute that covers any application of physical force, however slight, that may cause physical injury” cannot be held a crime of violence.)
In Perez the panel disregarded analysis in multiple California precedent decisions finding that the minimum conduct for § 243(d) is minimal, non-violent force that nevertheless ends up causing an injury. See, e.g., People v. Hopkins, 78 Cal. App. 3d 316, 320-321 (Cal. App. 2d Dist. 1978), where the court relied on the plain meaning of the statute and found that the legislature created Pen C § 243(d) to have this minimum conduct, in order to fill a gap in the law; People v. Marshall (1987) 196 Cal. App. 3d 1253, 1260, where the court refused to limit section 243(d) to use of violent force, and found that it reaches even an innocuous touching that ends up causing injury; and People v. Mansfield (1988) 200 Cal.App.3d 82, 88-89, which held that § 243(d) is not a crime involving moral turpitude under state law, based upon the fact that it can be committed by an offensive touching. “The average person walking down the street would not believe that someone who [merely] pushes another is a culprit guilty of moral laxity or ‘general readiness to do evil,’ even if the push was willful and results in serious injury.” People v. Mansfield (1988) 200 Cal.App.3d 82, 88-89. See also CALCRIM 925.
The court disregarded these California decisions on the grounds that they did not themselves involve an instance of use of minimal force. It apparently was unaware of other cases where § 243(d) has been used to prosecute conduct involving minimal force that causes injury. See, e.g., People v. Myers, (1998) 61 Cal. App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant “shoved” a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured). See also People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officer’s leg causing a cut and bruising; guilty of Pen C 243(c)(2)).
The Perez team did not submit these critical cases to the court for the original decision, and the court denied petitions for rehearing. However, advocates can submit these cases in new decisions and courts must take notice of them.
The Perez panel also cited Stokeling v. United States, 139 S.Ct. 544 (2019), although Stokeling specifically provides that its standard does not apply to a battery by an offensive touching. See discussion of Stokeling in the practice advisory on Perez cited above, and see also ILRC, Practice Advisory: Stokeling v. United States: Supreme Court Defines Crime of Violence (January 2019) at www.ilrc.org/crimes.
Defenders and advocates who are evaluating the effect of past 243(d) convictions should expect it to be held a COV but keep in mind that this could change.