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California Quick Reference Chart and Notes February 2010 2. Avoid a Plea to a “Crime of Violence” If counsel can arrange a plea to an offense that is not a “crime of violence,” the offense is not a “crime of domestic violence” regardless of who the victim is. It is safe to accept domestic violence counseling, anger-management, stay-away orders, etc. as a condition of probation. Criminal defense counsel should note that the definition of crime of violence here is much broader than the violent felony definition for a strike under California law. Under 18 USC § 16, a crime of violence includes: (a) “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or (b) “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” A conviction for a crime of violence becomes an aggravated felony if a sentence of a year or more is imposed. 8 USC § 1101(a)(43)(G). There is no requirement of domestic relationship for the aggravated felony. Conviction of soliciting, attempting, or aiding a crime of violence is itself a domestic violence offense. Conviction of accessory after the fact to a domestic violence offense is not a crime of violence; however, counsel must secure a sentence of 364 days or less or accessory will be charged as an aggravated felony. See Parts A, G of § N.14, “Safer Pleas.” Below is an analysis of some common offenses as crimes of violence. See the California quick Reference Chart for analyses of other offenses. See Defending Immigrants in the Ninth Circuit, § 9.13, for more extensive discussion of cases and the definition of a crimes of violence. a. California misdemeanors as “crimes of violence” It is harder for a misdemeanor conviction to qualify as a crime of violence than for a felony conviction. Under 18 USC § 16(a), a misdemeanor must have as an element of the offense the “use, attempted use, or threatened use of physical force” against the victim. ‣ Some offense that may relate to traumatic domestic situations can be accomplished entirely without violence. Examples include: • Trespass, theft, disturbing the peace, and other offenses with no relationship to violence • Misdemeanor P.C. § 36 (false imprisonment), in the opinion of the authors • Misdemeanor P.C. § 136.1(b) (nonviolent persuasion not to file a police report), in the opinion of the authors • The Ninth Circuit found that misdemeanor sexual battery under PC § 243.4, which is sexual touching without the victim’s consent while the victim is restrained, is divisible as Immigrant Legal Resource Center N-89
California Quick Reference Chart and Notes February 2010 a crime of violence under the 18 USC § 16(a) standard, because the restraint of the victim can be accomplished without force. 130 ‣ A statute that can be violated by de minimus touching (“mere offensive touching”) is not a crime of violence under 18 USC § 16, unless there is evidence in the record of conviction that actual violence was involved. Neither battery nor battery against a spouse under Calif. PC § 243(a), 243(e) are crimes of violence, unless the record of conviction shows that force amounting to actual violence was used. 131 Counsel should assume that P.C. § 273.5 will be held a crime of domestic violence. ‣ A crime of violence requires an intent to commit active violence, and a misdemeanor that involves negligence or recklessness is not a “crime of violence,” e.g. negligent infliction of injury, driving under the influence with injury. 132 In all of these cases, counsel should be sure that the reviewable record of conviction does not establish that the defendant intentionally used actual violent force in committing the offense and where possible, beneficial facts/statements that the incident only involved a mere offensive touching or should be included. ‣ A threat to commit actual violence is a crime of violence, even as a misdemeanor. The threat of use of force may be considered a crime of violence under 18 USC § 16, even if no force is used. The Ninth Circuit held that the offense of making a criminal or terrorist threat under Calif. PC § 422 is a crime of violence.” 133 Counsel must assume that misdemeanor P.C. §§ 273.5(a) and 245(a) are crimes of violence. b. California felonies as “crimes of violence” A felony conviction can be a crime of violence under either of two tests. First, like a misdemeanor, it will be held a crime of violence under 18 USC § 16(a) if it has as an element the use, or threatened or attempted use, of force. 130 United States v. Lopez-Montanez, 421 F.3d 926, 928 (9th Cir. 2005) (conviction under Cal PC § 243.4(a) is not a crime of violence under USSG § 2L1.2(b)(1)(A) because it does not have use of force as an element). Section 2L1.2(b)(1) includes the same standard as 18 USC 16(a). 131 Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9 th Cir. 2006) (misdemeanor battery in violation of Calif. PC § 242 is not a crime of violence or a domestic violence offense); Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (misdemeanor battery and spousal battery under Calif. PC §§ 242, 243(e) is not a crime of violence, domestic violence offense or crime involving moral turpitude. See also cases holding that § 243(e) is not a crime involving moral turpitude, Singh v. Ashcroft, 386 F.3d 1228 (9 th Cir. 2004). Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9 th Cir. 2006). The California jury instruction defining “force and violence” for this purpose, CALJIC 16.141 (2005) defines “force” and “violence” as synonymous and states that it can include force that causes no pain and hurts only feelings; the slightest touching, if done in an insolent, rude or angry manner, is sufficient. See similar definition at 1-800 CALCRIM 960. 132 Leocal v. Ashcroft, 543 U.S. 1 (2004) (negligence, felony DUI); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006)(en banc) (under Leocal, recklessness that injury may occur is insufficient intent to constitute a crime of violence; that requires being reckless that the crime will result in a violent encounter). 133 Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9 th Cir. 2003) held that all of the behavior covered under California PC § 422 is a crime of violence. N-90 Immigrant Legal Resource Center
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