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James v. State

California Court of Appeals, Fifth District

August 26, 2014

SCOTT R. JAMES, Plaintiff and Respondent,
v.
THE 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.

Page 131

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Page 132

[Copyrighted Material Omitted]

Page 133

COUNSEL

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.

Page 134

OPINION

DETJEN, J.

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.

BACKGROUND AND PROCEDURAL HISTORY

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 [172 L.Ed.2d 816, 129 S.Ct. 1079].) 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); see 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).)[2]

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. 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 the superior court seeking an order directing defendants, State of ...


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