In this illegal reentry case, a Ninth Circuit panel held that battery on a peace officer that causes injury in violation of California Penal Code (CPC) section 242/243(c)(2) is categorically a crime of violence under the sentencing equivalent of the definition at 18 U.S.C. 16(a) (effectively tripling the prison exposure). It found CPC 243(c)(2) requires as an element the willful use of force against the person of another sufficient to cause injury. It notes a California Court of Appeal decision that equates willful with intentional and thus concludes that a battery willfully inflicted that causes injury is a crime of violence.
Seems reasonable at first glance, except the court glosses over a lot in a way one wouldn’t expect for a published decision. First, the willfulness that the court makes a big deal about is located in the definitional statute at 242. That willfulness is just the general intent to effect a simple battery. A simple battery can include any form of unlawful touching–even a push that causes no injury. And the Ninth Circuit has previously held that a simple battery with that type of intent is not a crime of violence. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (simple battery against a domestic victim is not a crime of violence for purposes of the domestic violence ground of deportability).
It is the resulting injury that triggers the enhanced sentence at 243(c)(2), and the injury need not be intentional. Thus, pushing a peace officer would be punishable under CPC 243(b) (misdemeanor) if it causes no injury, while the same push with the same level of force would be punishable under CPC 243(c)(2) (felony or misdemeanor) if it causes the cop to trip over something and he needs an ice pack (we are not talking great bodily injury, or GBI, here). Either way, it does not matter what the defendant intended because there is no element of specific intent to cause injury, just the general intent to complete the contact.
This is why the court’s reliance on United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) is way off base. Laurico-Yeno concerned CPC 273.5, which penalizes a person who “willfully inflicts upon [a protected domestic victim] corporal injury resulting in a traumatic condition.” There, unlike CPC 242/243(c)(2), the injury is willfully inflicted.
It gets worse, though. The California Court of Appeals opinion that the panel cites for support actually undermines its position. The discussion of willfulness in People v. Lewis, 15 Cal. Rptr. 3d 891, 901 (CA 4 2004) first notes, “Usually the word “willfully” defines a general intent crime unless the statutory language requires an intent to do some further act or achieve some future consequence.” Therefore, “When the structure of a section requires a willful act followed by some particular result, then it is reasonable to read the willful, i.e., intentional, element as referring only to the initial act and not to the ultimate result. In such sections the word “willfully” does not require the defendant intend the ultimate result, only that he or she intended the initial act.” That is precisely why a simple battery that results in injury (that need not be intended) does not comport with the Supreme Court’s holding in Leocal that a crime of violence must actually be violent.
Let’s hope there is a request for en banc rehearing to reconcile this case with Ortega-Mendez and with the spirit of the Supreme Court’s recent decisions.