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Fortner v. Superior Court (The People)

California Court of Appeals, Sixth District

June 18, 2013

MICHAEL FORTNER, Petitioner,
v.
THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent THE PEOPLE, Real Party in Interest.

Certified for publication 7/17/13

Monterey County Superior Court, Honorable Adrienne M. Grover, Trial Judge, Super. Ct. No. SS112116.

Attorney for Petitioner: James S. Egar, Donald Earl Landis, Jr. Monterey County Assistant Public Defender

Attorney for Real Party in Interest: Dean D. Flippo, Elaine Susan McCleaf, Monterey County Deputy District Attorney

Mihara, J.

The issue in this case is whether the Monterey County Superior Court has territorial jurisdiction over criminal charges against petitioner Michael Fortner arising from alleged acts of domestic violence and mayhem that occurred in Hawaii. These counts are charged in an information that also charges Fortner with acts of domestic violence against the same victim in California more than a year later. The superior court overruled Fortner’s demurrer and denied his motion to dismiss. It found that it did have jurisdiction over the Hawaii offenses. Fortner seeks writ relief from the superior court’s denial of his motion to dismiss. We conclude that the superior court’s order is not supported by substantial evidence, and we grant relief.

I. Evidence at Preliminary Examination

Doe and Fortner lived together in 2010. They argued in early 2010 after Doe learned that Fortner had utilized prostitutes in the past. There was no physical violence at that time. While they were on vacation in Hawaii in April 2010, Fortner called Doe “an ugly fat cow.” She asked him “if he thought that the hooker was better than me.” Fortner responded in the affirmative. He grabbed Doe’s phone and threw it off the hotel room’s balcony. She tried to grab his phone and do the same, and they got into “a scuffle.” They pushed each other, and Doe ran into a table. She grabbed a cup and threw it at him. The cup broke on the floor. Fortner proceeded to punch Doe in the face with a closed fist. She lost consciousness.

Doe initially told hotel staff in Hawaii, who inquired about the injury to her face, that “my boyfriend did this.” The hotel contacted the police. Doe subsequently told hotel staff and the police in Hawaii that she had fallen and injured herself. They returned from Hawaii a couple of days later, and Doe sought medical attention in Monterey for an injury to her left eye caused by the punch. Her eye was painful and sensitive to light, and she could not see out of it even after surgery on it to repair the damage. Her eye, which had suffered a partially detached retina, was permanently damaged. She was essentially blind in that eye. Doe falsely told the eye doctor that she had injured her eye falling off a horse in Hawaii.

Doe married Fortner in the fall of 2010. On November 4, 2011, Fortner committed criminal acts against her in the City of Marina in Monterey County. Fortner’s November 2011 acts were spurred by his pique at the fact that she was late coming home from work. After a verbal argument, Fortner threw her down on the couch, put his hands around her throat, and squeezed until Doe lost consciousness. When she regained consciousness, she got up. They continued to argue, and Fortner made threats against Doe’s adult sons. Doe ended up on the floor. Fortner again put his hands around her throat, and she again lost consciousness. She regained consciousness when he slapped her. He told her “to get out, ” and she agreed to do so. Fortner asked Doe “ ‘Do you want me to tie you up?’ ” Doe “giggled, ” and “that incident ended.” Doe did not contact the police until a couple of days later because she “thought it was going to be okay” and she “was going to be able to just let that incident go.” She eventually called the police because she was concerned about her sons. After Fortner’s arrest, he violated a protective order by repeatedly contacting Doe.

II. Procedural Background

Fortner was charged by amended complaint with numerous charges arising from the November 2011 incident, violations of the protective order, and two counts arising from the April 2010 incident in Hawaii. The April 2010 counts alleged that Fortner had committed mayhem (Pen. Code, § 203)[1] and inflicted corporal injury on a cohabitant (§ 273.5, subd. (a)), and it further alleged that he had personally inflicted great bodily injury (§ 12022.7, subd. (e)) in the commission of the latter offense.

Fortner was held to answer on all counts. He filed a demurrer challenging the Hawaii counts on the ground that the court lacked jurisdiction over those offenses. The court overruled the demurrer. It reasoned that it had jurisdiction over the Hawaii offenses because Doe’s injury had an impact on her in California.

After an information was filed charging all of these counts, Fortner moved to dismiss the Hawaii counts on the ground that the court lacked jurisdiction over them. The court denied the motion. Fortner filed a petition in this court seeking writ review of that ruling. We issued an order to show cause, and the ...


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