Monday, June 19, 2006

Case o’ The Week: Berzon not Shocked by Battery Charge, Ortega-Mendez

In a growing line of good Berzon authority, the Ninth holds that California simple battery is not a “crime of violence” under 18 USC § 16. Ortega-Mendez v. Gonzalez, __ F.3d. __, No. 03-74711, 06 Cal. Daily Opinion Serv. at 6623 (9th Cir. June 15, 2006), opinion available here.

Players: Yet another great Berzon decision.

Facts: In ‘98, Ortega-Mendez was convicted of battery under Cal. Penal Code § 242. 06 Cal. Daily Op. Serv. at 6627. Later, an Immigration Judge (“IJ”) held this conviction was a “crime of domestic violence” that made him ineligible for cancellation of removal. Id.

Issue(s): Ortega-Mendez “argues that his 1998 battery conviction was not a “crime of violence” within the meaning of 18 U.S.C. § 16 and therefore was not a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).” Id. at 6629. “The relevant question is therefore whether Ortega- Mendez’s 1998 battery offense was ‘an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,’ within the meaning of § 16(a).” Id. at 6634.

Held: We hold that battery under California Penal Code section 242 is not categorically a “crime of violence” within the meaning of 18 U.S.C. § 16.” Id. at 6627.

Of Note: This is an intellectually honest opinion on an issue that – “at first blush” may seem to have been foreclosed. Id. at 6634. Drilling through the statutory cross-references, Judge Berzon identifies the key issue as whether California simple battery is a “crime of violence” under 18 USC § 16. Section 16 requires actual violence for non-felony convictions– and in California, simple battery doesn’t require actual violence. Notably, Berzon turns to California authority on the issue: “Looking at how California courts have interpreted the phrase ‘use of force or violence’ in section 242 [the simple battery statute], it becomes evident that the phrase is a term of art, requiring neither a force capable of hurting or causing injury nor violence in the usual sense of the term.” Id. at 6635 (emphasis added). For example, under California law throwing a cup of urine in a person’s face is simple battery. Id. at 6636. That crime is not, however, “violent.” Id. at 6636. (Although it certainly is unpleasant).

How to Use: Ortega-Mendez is useful for its analytical framework on an important issue: what is a “crime of violence” under 18 USC § 16? As noted above, Berzon didn’t hesitate to look to how broadly California state courts had interpreted a state crime. She also turned to a California jury instruction for guidance. Id. at 6636 & n.8. This issue obviously will come up most often in Section 1326 (illegal reentry) cases, where the validity of a prior deportation is at issue. It is also an interesting case for careful plea-bargaining. For example, a simple battery plea in California now has increased value, because it doesn’t carry the same immigration consequences as other battery offenses. For an alien defendant with immigration complications, better a simple battery with more jail time than a time-served domestic battery.

For Further Reading:
What is a “crime of violence?” Depends. That federal term of art has one meaning under 18 USC § 16, a definitional statute that is often cross-referenced in other statutes (such as in Immigration laws). It has another meaning in the Bail Reform Act, where it is defined at 18 USC § 3156(a)(4). There’s a third meaning in the sentencing guidelines, at USSG § 4B1.2. The definitions are similar, but not identical, so be leery of the government’s reliance on authority defining the term from contexts other than the one in your case. For example, under Section 16 an offense involving physical force against the property of another can be a crime of violence. See 18 USC § 16. Not so under the guidelines, where a crime of violence is limited to the use of physical force against the person of another. USSG § 4B1.2.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



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