Sunday, July 14, 2019

Case o' The Week: When Push Comes to Shove, No Taylor Love - Perez, CPC Section 243(d), and Crimes of Violence

  Conduct that could send your client to a California prison for decades, on a felony strike

 Meh - just an “improbable hypothetical” in the Ninth.
 United States v. Perez, 2019 WL 3022334 (9th Cir. July 11, 2019), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Paez and visiting Judge Siler. 
   Hard-fought appeal by ND Cal AFPDs Jerome Matthews and Elizabeth McKenna.

Facts: In 2017, Perez was convicted in a bench trial of being a felon in possession of a firearm. Id. at *1.
   Perez had previously been convicted of Cal. Penal Code § 243(d), battery resulting in serious bodily injury. Id. at *1. Over defense objection, the district court held that Cal. Penal Code § 243(d) was a crime of violence.    

Issue(s): “Aaron Perez’s appeal of his sentence for being a felon
in possession of a firearm and ammunition raises the question whether a prior state conviction for battery resulting in serious bodily injury, in violation of section 243(d) of the California Penal Code, qualifies as a ‘crime of violence’ as defined in § 4B1.2(a)(1) of the United States Sentencing Guidelines.” Id. at *1.  

Held: “We conclude that it does.” Id.
  “Like [California Penal Code] section 243(c)(2), section 243(d) requires proof of an element that § 242 does not . . . namely that ‘serious bodily injury is inflicted’ on the person of another, Cal. Penal Code § 243(d). Because ‘serious bodily injury’ is defined as ‘a serious impairment of physical condition,’ Cal. Penal Code § 243(f)(4), we must likewise conclude that a person cannot be convicted under § 243(d) ‘unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict’ a severe physical injury. . . . As a result, section 243(d) ‘fits squarely within the term [crime of violence] by requiring the deliberate use of force that injures another.” Id. at *5 (internal citations and quotations omitted).

Of Note: Unfortunately for Mr. Perez, the Ninth had addressed a previous Cali battery statute that also required proof of significant injury. While battery in California can be accomplished by an unwanted touch, that slight intentional act plus the actual injury requirement pushed this statute over the COV line for Jude Ikuta.
  What is frustrating about this decision is that California appellate courts have described fact patterns that would be viable under this statute, that involve “eggshell defendants” -- a slight non-violent nudge of an elderly victim who falls and breaks a hip would suffice for a Section 243(d) conviction, but would not be a categorical match for the federal Taylor analysis.
  Judge Ikuta is unpersuaded by the California appellate courts and their “technical analysis” of California state law issues. “[I]mprobable hypotheticals,” she opines. Id. at *5.  [It is fun to imagine a County PD arguing Perez’s federal analysis to attack a § 243(d) conviction in a California court].
   Distressingly, the panel doesn’t discuss California cases where offensive touching did result in § 243(d) prosecutions. See, e.g., People v. Myers, (1998) 61 Cal.App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant “shoved” a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured); People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officer’s leg causing a cut and bruising) (in Section 243(c) conviction).
   Perez illustrates a growing problem with the Taylor categorical analysis: the “realistic probability, not a theoretical possibility” analysis is a mushy test that is very much in the eye of the appellate beholder.

How to Use: California defense folks, ever plead a client down to a Section 243(d) charge on facts that are not a clean match for the federal categorical analysis? Judge Murguia wants to know. 
  Well, maybe not literally, but in an insightful recent concurrence Judge Murguia calls for plea deals as evidence of the Taylor “realistic probability” analysis. See blog entry here
  Tough to find these examples, conceded, but an interesting avenue to explore.   
For Further Reading: Last week the Honorable Judge Daniel Bress was confirmed as the latest appointment to the Ninth Circuit. See article on Judge Bress here
  With his confirmation, the Ninth now has more jurists nominated by President Trump than any other circuit. See article here. 
  Three more Ninth vacancies remain to be filled by January 1, 2020. See Ninth Circuit vacancy report here 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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