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James v. State

California Court of Appeals, Fifth District

September 24, 2013

SCOTT R. JAMES, Plaintiff and Respondent,
STATE OF CALIFORNIA et al., Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Tulare County, No. VCU241117 Lloyd L. Hicks, Judge.

Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Peter A. Krause, Kimberly J. Granger and Benjamin M. Glickman, Deputy Attorneys General, for Defendants and Appellants.

Dooley, Herr, Pedersen & Berglund Bailey, Leonard C. Herr and Ron Statler for Plaintiff and Respondent.



Title 18 United States Code section 922(g)(9)[1] prohibits the possession of firearms by those convicted of “a misdemeanor crime of domestic violence.” Section 921(a)(33)(A)(ii) defines “misdemeanor crime of domestic violence, ” in pertinent part, as an offense that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.…” Penal Code section 242 defines battery as “any willful and unlawful use of force or violence upon the person of another.” We conclude that a Penal Code section 242 misdemeanor conviction has, as an element, the use of physical force for purposes of the prohibition dictated by section 922(g)(9). Accordingly we reverse the trial court’s contrary finding.


The federal Gun Control Act of 1968 (§ 921 et seq; (the Act)) has long prohibited possession of a firearm by any person convicted of a felony. (United States v. Hayes (2009) 555 U.S. 415, 418.) In 1996, Congress amended the Act to extend the prohibition to include any person “who has been convicted in any court of a misdemeanor crime of domestic violence.” (§ 922(g)(9); United States v. Hayes, supra, at p. 418.) As pertinent here, the Act defines “misdemeanor crime of domestic violence” (MCDV) as an offense that (1) is a misdemeanor under state law, (2) “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, ” and (3) is committed by the victim’s current or former spouse. (§ 921(a)(33)(A).)

In October 1996, Scott R. James was arrested and charged with inflicting corporal injury on his (then) wife in violation of Penal Code section 273.5. Approximately two months later, James pled nolo contendere to battery, a misdemeanor violation of Penal Code section 242, and was placed on two years’ probation.[2] In 2008, James applied to be a reserve deputy sheriff. A background check was performed and James learned the State of California considered his 1996 conviction to be an MCDV. In 2011, James attempted to purchase a firearm, but his application was denied on the same ground: he had been convicted of an MCDV.

James filed a petition for writ of mandamus in superior court seeking an order directing defendants, State of California, Office of the Attorney General of the State of California, and Kamala Harris, in her official capacity as Attorney General of the State of California (collectively, the State), to review the records of his conviction and determine whether any facts admitted in his plea included a domestic relationship with the victim, and, if not, to order the State to recognize James as a person not convicted of an MCDV. By the time of the hearing on the petition, however, the sole issue before the trial court was whether a conviction for violation of Penal Code section 242 was a valid categorical predicate offense for an MCDV.

Relying principally on U.S. v. Belless (9th Cir. 2003) 338 F.3d 1063 (Belless) and CALCRIM No. 960 (Simple Battery), the trial court concluded it was not, saying the federal statute (§ 921(a)(33)(A)(ii)) requires “‘the violent use of force against the body of another’” — physical force that “‘is not de minim[i]s’” — while the state battery statute (Pen. Code, § 242) can be violated by “‘the slightest touching.’” (Underscoring omitted.) The trial court found the State “failed to follow the mandate of the law by improperly construing a §242 P.C. conviction as categorically constituting a predicate offense under federal law for the purpose of finding a[n] MCDV.” The trial court issued a writ of mandate and prohibition directing the State “to follow California law regarding the elements of Penal Code section 242 in evaluating Section 242 as a predicate offense, and not to act based on the conclusion that Section 242 is a categorical predicate offense under a Federal law finding of misdemeanor crime of domestic violence (MCDV).”

The State appealed, asserting the trial court erred.


James filed his petition in the superior court pursuant to Code of Civil Procedure section 1085. A writ of mandate lies under that statute “to compel the performance of a legal duty imposed on a government official. [Citation.]” (Environmental Protection Information Center, Inc. v. Maxxam Corp. (1992) 4 Cal.App.4th 1373, 1380.) A writ may be issued against a public body. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.) “To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present and beneficial right to performance of that duty. [Citation.] A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.” (Ibid.)

The standard of review is settled. “In reviewing a judgment granting a writ of mandate, we apply the substantial evidence standard of review to the court’s factual findings, but independently review its findings on legal issues. [Citation.]” (City of San Diego v. San Diego City Employees’ Retirement System (2010) 186 Cal.App.4th 69, 78.) “Where, as here, the facts are undisputed and the issue involves statutory interpretation, we exercise our independent judgment and review the matter de novo. [Citation.]” (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129.)

The issue in this case is whether battery, as proscribed by Penal Code section 242, “has, as an element, the use or attempted use of physical force, ” so as to render it an MCDV within the meaning of section 921(a)(33)(A)(ii).[3] In making this determination, we employ the categorical approach established in Taylor v. United States (1990) 495 U.S. 575, 602. Under that approach, “when a statute dictates that the predicate offense have enumerated elements, [the] court must ‘look only to the predicate offense rather than to the defendant’s underlying acts to determine whether the required elements are present.’ [Citation.]” (U.S. v. Howell (8th Cir. 2008) 531 F.3d 621, 622.) In other words, “courts determine the elements to which a defendant pleaded guilty by analyzing the statutory definition of the offense, not the defendant’s underlying conduct. [Citations.]” (U.S. v. Bonilla-Mungia (5th Cir. 2005) 422 F.3d 316, 320.)[4]

Penal Code section 242 defines a battery as “any willful and unlawful use of force or violence upon the person of another.” “[W]hen applied to the intent with which an act is done or omitted, [‘willful’] implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (Id., § 7, subd. 1.)

“‘“It has long been established, both in tort and criminal law, that ‘the least touching’ may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.” [Citation.] [¶] “The ‘violent injury’ here mentioned is not synonymous with ‘bodily harm, ’ but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act.” [Citation.]’ [Citation.]” (People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4, quoting People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12.) Thus, “[a]ny harmful or offensive touching constitutes an unlawful use of force or violence” for purposes of Penal Code section 242. (People v. Martinez (1970) 3 Cal.App.3d 886, 889; accord, People v. Pinholster (1992) 1 Cal.4th 865, 961, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) “Even a slight touching may constitute a battery, ‘if it is done in a rude or angry way.’ [Citation.]” (People v. Hernandez (2011) 200 Cal.App.4th 1000, 1006, quoting CALCRIM No. 960.)

The State contends that, because Penal Code section 242 “specifically identifies ‘violence’ as an element of” battery under California law, said crime “necessarily includes the level of force required for an MCDV.” Although the definition of “use of physical force” in the federal statute is a question of federal law, federal courts are bound by the California Supreme Court’s “interpretation of state law, including its determination of the elements of” Penal Code section 242. (Johnson v. United States (2010) 559 U.S. 133, 138 (Johnson).) Thus, a determination of the categorical reach of a state crime takes into consideration not only the state statute’s language, but also the interpretation of that language in state judicial opinions. (See, e.g., Johnson, supra, at p. 138; James v. United States (2007) 550 U.S. 192, 202-203; Ortega-Mendez v. Gonzales (9th Cir. 2006) 450 F.3d 1010, 1016.) Accordingly, we cannot ignore the long-settled judicial interpretation of the elements of Penal Code section 242 in favor of reliance on the single statutory word “violence, ” as the State would have us do.[5]

The question, then, is whether any harmful or offensive touching, constituting as it does an element of battery under Penal Code section 242, is sufficient to constitute the “use of physical force” required under section 921(a)(33)(A)(ii) to render James’s prior battery conviction an MCDV. The Act does not contain a definition of “physical force.” Accordingly, we must determine whether Congress employed that term in such a manner as to require a particular quantum of force.

“A court’s fundamental role in construing a statute is to ascertain the Legislature’s intent, in order to effectuate the statute’s purpose. [Citation.] Courts look first to the language of the statute, according the words their usual, ordinary meaning. [Citations.] The language is construed in the context of the statute as a whole and the overall statutory scheme, and courts give significance to every word, phrase, sentence and part of an act in pursuing the legislative purpose. [Citation.] If the language is clear and unambiguous, courts follow the plain meaning of the statute. [Citation.] [¶] The ‘plain meaning’ rule, however, does not prohibit courts from determining whether the literal meaning of a statute comports with the statute’s purpose as reflected by its express language. [Citation.] Courts should not give language of a statute its literal meaning if doing so would result in absurd consequences unintended by the Legislature. [Citation.] In that case, the intent of the law prevails over the letter, and the letter, if possible, will be read so as to conform to the spirit of ...

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